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HR Good Practice: Catching the Wind – Turning Policy into Practice

Maynard Scott – National Employment Relations Advisor

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A deliberately “onerous responsibility”

… boards must resemble those other state sector employers upon whom there are like requirements [to be good employers] … while possessing the rights and powers of employers in the private sector … school boards are constrained and empowered by other criteria not imposed upon other employers…

- NZ Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1992] 3 ERNZ 243

The Board was required to act in good faith when exercising the discretion afforded to it by cl 2.5 [of the SSSCA … The point is underscored by cl 2.1.1, which, … makes express reference to the statutory good employer obligations imposed by the [Public Service Act 2020]…

- Glenfield College Board of Trustees v Anderson [2024] ERNZ 1071

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Fundamentals of HR Best Practice in Schools

Compliance with legal requirements
Fostering of a positive culture between the employer and employees
Collaborative development

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Precedence

Legislation

Collective Agreements

Board

bylaw,

policy

procedure

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Employment Relations Act 2000, s 4

The parties to an employment relationship must deal with each other in good faith and must not do anything to, or that is likely to, mislead or deceive each other.

The duty of good faith:

is wider in scope than the implied mutual obligations of trust and confidence

requires active and constructive employment relationships that are responsive and communicative

when making an “adverse decision”, requires employees be given access to information and an opportunity to comment on the information before a decision.

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Employment Relations Act 2000, s 103A

The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time...

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Employment Relations Act 2000

A union is entitled to represent its members in relation to any matter involving their collective interests as employees.

- Section 18(1)

A collective agreement that is in force binds and is enforceable by … the union and the employer that are the parties to the agreement; and … employees —

(i) who are employed by an employer that is a party to the agreement; and

(ii) who are or become members of a union that is a party to the agreement; and

(iii) whose work comes within the coverage clause in the agreement.

- Section 56(1)

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Education and Training Act 2020, s 597(2)

Good employer means an employer who operates an employment policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring —

(a) good and safe working conditions; and

(b) an equal employment opportunities programme; and

(c) the impartial selection of suitably qualified persons for appointment; and

(d) recognition of —

(i) the aims and aspirations of Māori; and

(ii) the employment requirements of Māori; and

(iii) the need for greater involvement of Māori in the education service; and

(e) opportunities for the enhancement of the abilities of individual employees; and

(f) recognition of the aims and aspirations and employment requirements, and the cultural differences, of ethnic or minority groups; and

(g) recognition of the employment requirements of women; and

(h) recognition of the employment requirements of persons with disabilities.

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Education and Training Act 2020, s 127

A board’s paramount objective in governing a school is to ensure that every student at the school is able to attain their highest possible standard in educational achievement.

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Education and Training Act 2020, s 597(2)

Good employer means an employer who operates an employment policy containing provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions requiring —

(a) good and safe working conditions; and

(b) an equal employment opportunities programme; and

(c) the impartial selection of suitably qualified persons for appointment; and

(d) recognition of —

(i) the aims and aspirations of Māori; and

(ii) the employment requirements of Māori; and

(iii) the need for greater involvement of Māori in the education service; and

(e) opportunities for the enhancement of the abilities of individual employees; and

(f) recognition of the aims and aspirations and employment requirements, and the cultural differences, of ethnic or minority groups; and

(g) recognition of the employment requirements of women; and

(h) recognition of the employment requirements of persons with disabilities.

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Procedural Fairness and Natural Justice

Notice of the specific allegation and its likely consequences.
Disclosure of any relevant facts or information that may influence the decision.
A real opportunity for explanation; and an unbiased consideration of such explanation.
A fair inquiry into the alleged misconduct/a fair trial of the employee’s capacity.
Decision making without bias and in good faith.

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Culture

Workplace cultures are better when employees view themselves as partners and can see themselves in decision-making and approaches.
Policy implementation/change is far more successful and sustained when there is employee buy-in.
Industrial issues are more easily resolved in workplaces with positive cultures.
Positive workplace cultures lead to proactivity rather than reactivity.

The object of this Act is to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship by … acknowledging and addressing the inherent inequality of power in employment relationships

- Employment Relations Act 2020, s 3(a)(ii)

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Collaborative Development

Involves the people who would be affected or impacted, or those with subject matter expertise.
Is more than a notification.
Occurs before decisions are made, with sufficient time for affected/impacted people to engage.
Where applicable, considers alternatives.
May not get agreement, but aim to at least get consensus.

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Policy to Practice

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Legislation

Collective Agreements

Employer’s Goals

“Policy”

Practice

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Successfully Operationalising Policy

Organic (or semi-dictated)

E.g., professional development, appointments, unit allocation

What does the policy/CA provision/legislation require?
How do we involve/consult stakeholders?
How do we practically achieve compliance?
How do we monitor the implementation?

Dictated

E.g., disestablishment of Kāhui Ako

What is the change?
Who does it impact?
How do we involve them?
How do we practically achieve compliance?
How do we monitor the implementation?

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The Role of the Business Manager

Counsel

Communicator

Compliance Officer

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Contemporary Changes

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SSSCA, clause 2.5

The employer may only decrease the hours/weeks of work under [clause 2.5]:

The employee’s current hours/weeks of work have been in place for at least 12 months before the decrease would take effect; and
For an employee appointed after 20 July 2026, their employment documentation states their hours can be varied under this clause.

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SSSCA, clause 2.5

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PPTAH

Additional classroom hours, project work, long-term* relief, non-casual relief

By way of change of FTTE.

From the start of Term 3, part-time primary teachers temporarily increasing hours (but not becoming full time) need to be processed:

Casual day relief

Provided the arrangement is clearly understood to be casual, by coding as DDR (against second job).

* Over three weeks

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SSSCA, clause 2.9.1

No employee will be required to work more than five hours without an uninterrupted break for a meal, such breaks to be not less than 30 minutes and no more than one hour in duration except where otherwise agreed.

Provides flexibility when scheduling when an employee takes their lunch/unpaid meal break. It does not require the employee to work five hours to get that break.

Clause 2.9.1

Clause 2.9.1 must be read in the context of s 69ZE of the ER Act.

Section 69ZE(1) allows the employer and the employee (or the union on their members' behalf) to agree on when the 30-minute lunch break is taken, which is what is being done in this clause. It is not changing when the entitlement to a lunch break is generated, which occurs after four hours of work (as set out in s 69ZD of the ER Act - a CA can only provide a better entitlement than that in legislation). ��The clause avoids the ER Act default in s 69ZE from applying, which states that, in the absence of agreement, the lunch break is to be taken in the middle of the workday (based on when the employee started, not the school day). This approach could be impractical for, say a teacher aide, who may not be able to break for half an hour at the four-hour mark because this often coincides with the student’s lunch break, when that student will still need support.

Therefore, clause 2.9.1 gives schools an hour’s flexibility when scheduling when they take their lunch/unpaid meal break. It does not require the employee to work five hours to get that break.

�Clause 2.9.2

Clause 2.9.2 is not to do with the unpaid 30-minute lunch break. It is actually an example of the CA providing an entitlement better than the ER Act, because it allows any employee who works more than five hours to 20 minutes worth of paid breaks (the Act entitlement to 20 minutes of paid breaks is after the sixth hour).

Along with setting the improved entitlement, the clause also allows an employee to “combine” their two 10-minute breaks across the day into a longer 20-minute break in the morning if they wish (subject to clause 2.9.2(c)).

In essence: an employee working five hours or more a day is entitled to two 10-minute breaks (even though the ER Act says six hours). The employee can, if it won’t compromise the operational needs of the school and the employee can properly take the break, choose to take this as one larger break in the morning.

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SSSCA, clause 2.9.2

Employees working 5 hours or more per day may, on any such day, take either:

(i) one 20 minute break in the morning; or

(ii) one 10 minute break in the morning and one 10 minute break in the afternoon

Provides an entitlement better than the minimum (the Employment Relations Act entitlement to 20 minutes of paid breaks is after the sixth hour).

Clause 2.9.1

Clause 2.9.1 must be read in the context of s 69ZE of the ER Act.

Section 69ZE(1) allows the employer and the employee (or the union on their members' behalf) to agree on when the 30-minute lunch break is taken, which is what is being done in this clause. It is not changing when the entitlement to a lunch break is generated, which occurs after four hours of work (as set out in s 69ZD of the ER Act - a CA can only provide a better entitlement than that in legislation). ��The clause avoids the ER Act default in s 69ZE from applying, which states that, in the absence of agreement, the lunch break is to be taken in the middle of the workday (based on when the employee started, not the school day). This approach could be impractical for, say a teacher aide, who may not be able to break for half an hour at the four-hour mark because this often coincides with the student’s lunch break, when that student will still need support.

Therefore, clause 2.9.1 gives schools an hour’s flexibility when scheduling when they take their lunch/unpaid meal break. It does not require the employee to work five hours to get that break.

�Clause 2.9.2

Clause 2.9.2 is not to do with the unpaid 30-minute lunch break. It is actually an example of the CA providing an entitlement better than the ER Act, because it allows any employee who works more than five hours to 20 minutes worth of paid breaks (the Act entitlement to 20 minutes of paid breaks is after the sixth hour).

Along with setting the improved entitlement, the clause also allows an employee to “combine” their two 10-minute breaks across the day into a longer 20-minute break in the morning if they wish (subject to clause 2.9.2(c)).

In essence: an employee working five hours or more a day is entitled to two 10-minute breaks (even though the ER Act says six hours). The employee can, if it won’t compromise the operational needs of the school and the employee can properly take the break, choose to take this as one larger break in the morning.

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Individual Employment Agreements

That is because the terms and conditions of employment under which Mrs Anderson was employed were as set out in the IEA, incorporating by reference the CEA 2017-2019 … there was nothing in her IEA to incorporate by reference the terms and conditions contained in any subsequent CEA.

- Glenfield College Board of Trustees v Anderson [2024] ERNZ 1071

Always apply the terms and conditions of IEA that the employee has signed.
Ensure that only the most recent IEAs provided by the Ministry of Education are being used in your school.

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Questions