Surprises in Legislation Changes

The Employment Relations Amendment Bill was introduced to parliament on 26 April. Many of the changes were anticipated, however there were a couple of surprises.

The changes can be summarised into the following areas:

  • Collective bargaining;
  • Flexible working arrangements;
  • Rest and meal breaks;
  • Continuity of employment for vulnerable employees;
  • The provision of information when restructuring; and
  • Employment Relations Authority processes and procedures.

The last two categories are the surprises.

Over the next issues of the newsletter we will detail the likely practical impact of the various changes. Here we provide an outline of the changes.

 

Collective Bargaining

Duty to conclude collective agreement abolished

The Act currently provides that the duty of good faith requires the parties bargaining for a collective agreement to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to.

The Bill provides that the duty of good faith does not require those parties in those circumstances “to enter into a collective agreement” or “to agree on any matter for inclusion in a collective agreement”.

The parties will be able to apply to the ERA for a declaration as to whether bargaining has concluded.

Employer may opt out of collective bargaining involving multiple employers

The Bill provides that where an employer is an intended party to a multi-employer collective agreement and has received a notice initiating bargaining for that agreement, that employer may, not later than 10 days after receiving notice, opt out of bargaining for the agreement. 

Terms and conditions of new employee who is not a member of a union

Currently if a new employee’s work is covered by the coverage clause of an existing collective agreement the employee must be offered the terms and conditions of that collective agreement for the first 30 days of employment. The Bill abolishes that provision.

Partial strike pay deductions

The Bill allows employers to partially reduce the pay of employees who are party to partial strikes. The Bill provides for either a proportionate pay reduction formula, or a fixed deduction of 10%;

All parties will be required to provide advance written notice of a strike or lockout; and

The timeframes for unions and employers to initiate bargaining will be aligned.

Strikes and lockouts

The Bill prohibits strikes and lockouts unless the specified requirements are satisfied. These are that the strike or lockout is lawful under Section 83 or 84 of the Act, that written notice has been given to the relevant employer or employee, and that the strike or lockout does not commence before the time and date specified in the notice as the time and date on which the strike or lockout will begin.

The Bill sets out the circumstances in which the notice requirements do not apply, including in relation to strikes and lockouts in essential services and in relation to certain passenger transport services.

 

Flexible Working Arrangements

Currently flexible working arrangements are only available to those employees who are responsible for the care of another person. The Bill extends to all employees the right to request flexible working arrangements.

 

Rest and Meal Breaks

The Act currently specifies when breaks ought to be taken during a period of work, but despite the best intentions of both parties that is often not possible, particularly in sole charge situations. The proposed change will allow the parties to the employment relationship to negotiate break times in good faith and will give greater flexibility. The Bill also provides that an employee make a request at any time and the employer must deal with the request within one month (currently 3 months).

 

Continuity of Employment for Vulnerable Employees

Vulnerable employees (as defined by the Act) have certain protections for the continuity of their employment. If, as a result of a proposed restructuring, their work is to be performed by another business, the employee has a right to transfer to the other business and to negotiate with that new employer for redundancy or have it set by the Authority. It is proposed that incoming employers with 19 or fewer employees will be exempt from these requirements.

There are also changes to the provisions relating to the information that an employer must provide to (vulnerable) employees affected by restructuring. Also the employer must specify when the employee information must be provided and the time period during which the employee must make an election in relation to transfer to the new employer. The Bill requires the employer

to send an election made by an employee to the new employer as soon as practicable and, in any event, not later than 5 working days after the employee’s employer receives the election.

 

Provision of Information when Restructuring

The Bill proposes a change to the duty of good faith such that an employer in a redundancy situation is not obliged to provide an affected employee with access to confidential information if the information is:

  • about another identifiable individual; or
  • evaluative or opinion material compiled for the purpose of making a decision about the continuity of the employee’s employment; or
  • about the identity of the person who supplied the evaluative or opinion material.

The Employment Relations Authority (ERA)

An unexpected proposal that requires the Authority members to present an oral determination on the last day of each investigation meeting followed by a written determination within 3 months.