EMPLOYMENT LAW

SEPTEMBER 2018

CHANGES ON THE HORIZON - EMPLOYMENT RELATIONS AMENDMENT BILL

Businesses may be aware that change is in the air as the coalition Government’s Employment Relations Amendment Bill (“ERAB”) makes its way through Parliament. The Education and Workforce Select Committee have recently completed their analysis of the Bill and have recommended it be passed into law, with a few tweaks made. Here are ten key points you should be aware of.

1.  TRIAL PERIODS

The proposed trial period changes remain intact meaning, once passed into law, employers will only be able to use a trial period provision if they have fewer than 20 employees (contractors are not included) at the beginning of the day that the relevant employment agreement is entered in to.

2.  REST AND MEAL BREAKS

The Committee have clarified how an employer is to financially compensate an employee if they work in an industry where it is not practicable for them to take prescribed rest and meal breaks (i.e. in a national security role). Employers will be required to provide compensation equivalent to the amount the employee would have earned during a rest or meal break.

3. VULNERABLE WORKERS

The Committee recommends giving the Minister the ability to change the types of categories of employees who are given protection in the event of restructuring. Currently certain workers like cleaners, food caterers and laundry workers are given special rights to transfer their employment in various business transfer scenarios. This category could be widened if the Minister was satisfied that the category of employees have little bargaining power and work in a sector where restructuring occurs frequently.

4.

WHAT! YOU'RE BACK AGAIN?

If the Employment Relations Authority finds an employee has been unjustifiably dismissed, they will now be obliged to reinstate the employee back to their position, if the employee wants reinstatement and it is reasonable and practicable to do so. Currently the Authority only needs to consider reinstatement as a possible remedy, and it rarely occurs. Employers should ensure they take legal advice before commencing any process that may result in a dismissal.

5. UNION ACCESS

The union access provisions have not been changed by the Committee. Union representatives will no longer need to get explicit consent from an employer to enter to workplace and discuss union business. Businesses will only be able to deny a union representative access in exceptional circumstances and will be liable to pay a penalty if they unreasonably refuse to allow a union delegate on site. Union delegates will still need to follow your security and health and safety policies.

6. UNION INFORMATION

The ERAB allows unions to ask employers to provide new employees with information about their activities. The Committee have clarified that an employer can only refuse to provide this information in a limited set of circumstances, including if the information is confidential about their business or may deceive the employee. The exemption relating to potentially defamatory information has been removed. The union must pay for any costs associated with this.

7. UNION WORK AT WORK!

That’s right, not only may certain employees be able to perform union duties at work, but you will be obliged to pay them for that time. The Committee has clarified that this must be paid at the employee’s ordinary pay rate. Productivity will not grind to a halt though, as the rule only applies to union delegates (not members at large) and they must tell you when they intend to perform union work and how long it will take. An employer can refuse if they reasonably believe that their business will be disrupted or the employee’s performance of their duties will suffer.

8. EVERYONE GETS A BARGAIN?

The requirement to conclude collective bargaining has remained in place after the Committee process, meaning employers will be required to conclude bargaining with a union over a collective agreement unless there are genuine and reasonable reasons not to. If a genuine deadlock occurs about one part of the collective (for example pay rates), employers are still obliged to continue negotiating the other aspects, and cannot “cry halt” entirely.

9. TIMEFRAME FOR CHANGE

The Bill now proceeds to its Second and Third Readings. Ordinarily we would expect the Bill to pass into law in essentially its current form, however New Zealand First has signalled this past week that they still consider the Bill to be a work in progress. Depending on the outcome of that process and the speed of Parliament, the ERAB is likely to become law early next year.

10. FURTHER CHANGES AHEAD?

The Committee makes mention of the National Party’s opposition to the ERAB, saying that a future National-led Government would repeal the new provisions to restore “co-operative, good faith based industrial relations”. So depending on what happens in the 2020 election, employers might be in for more change.

A copy of the Select Committee’s report can be found here.

Please contact us if you have any questions about the Bill or its implications for your business.

Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice.  It is important that you seek legal advice that is specific to your circumstances.

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