ERA Legislation Changes Update

The Employment Relations Amendment Bill had its second reading on 19 March, and a number of changes to the Bill have been signalled.

Good Faith
Good faith requirements currently state an employer must disclose information to an employee when that information is relevant to decision the employer may make that could adversely affect the employee. The Bill introduces that there is no requirement to provide access to confidential information about an identifiable third party if that would involve an unwarranted disclosure of the affairs of that third party.

This may go some way to address concerns that have arisen following the Wrigley case regarding disclosure of information in restructure and disciplinary situations.

The Bill however does provide a right to employees to have access to evaluative material about themselves if employment is at risk.

Flexible Working Arrangements
The Bill extends the provision to apply for flexible working arrangements to all employees, at any time, and that the employer must respond to a request within one month in writing, detailing any reasons for refusal.

Collective Bargaining
Concern had been raised over the Bill removing the requirement of parties concluding a collective agreement, with suggestions this could encourage unions and employers to go through the motions of negotiating, then walk away, seeking a declaration from the Employment Relations Authority (ERA) that bargaining is at an end.

As a result a new section has been put forward that the ERA cannot declare bargaining concluded if parties have not complied with the duty of good faith, however, it can issue orders, recommendations or directions about what steps ought or must be taken to rectify the failure.

Vulnerable Employees
It is also recommended the proposed changes limiting the requirement to take on vulnerable employees to employers with greater than 19 employees was extended to include franchisees who contract independently of the franchisor.

Definition of Partial Strike
The definition of what constitutes a partial strike has been clarified.

Timeframes on ERA rulings
The Bill had introduced timeframes for the ERA to make determinations which raised concerns the new rules would lead to the ERA making hasty decisions. As a result several changes have been put forward including allowing for reserved determinations, and amending and clarifying timeframes and content for different types of determinations.

Next Steps
The Bill needs to go through a third reading before it is passed. As these changes were a pre-election promise last time around, and the government has sufficient support from Act and United Future I anticipate the changes will become legislation before the election.