Employment Law Changes 2019

Posted by on 9 February 2019

Employment Law Changes 2019

Set out below is an overview of the employment law changes for 2019

Domestic Violence Protection 

As of 1 April 2019, employers will be required to pay up to 10 days per year of paid domestic violence leave. Employees will be able to take this leave as needed in order to deal with the effects of domestic violence – similar to the existing sick and bereavement leave provisions.

After six months of continuous employment an employee may take domestic violence leave if the employee is a person affected by domestic violence. This is regardless of how long ago the domestic violence occurred, and even if it occurred before the person became an employee.

They will also be able to request a short-term variation to their working arrangements (up to two months or shorter) to which the employer must respond to urgently and within 10 working days. The variation can include changes to hours of work, location and duties of work. This is similar, and in addition to, the existing rights employees have to make a flexible working request.

The law also explicitly prohibits an employee being treated adversely in their employment on the grounds that they are, or are suspected to be, a person affected by domestic violence.

Employees will be able to raise a dispute if they believe that their employer unreasonably refused a request made under the new provisions, and must do so within six months.

Domestic violence can be physical, sexual or psychological abuse against a person which includes a pattern of behaviour, for example, to isolate one from family members or friends. It may be coercive or controlling or it may cause the person cumulative harm.

A person affected by domestic violence means a person against whom any other person is inflicting, or has inflicted, domestic violence or is a child who resides with the employee whom any other person is inflicting, or has inflicted, domestic violence.

The Employment Relations Amendment Act 2018

The Act changes employment law with the aim to improve fairness in the workplace. Many of the changes are familiar to businesses, as they roll the law back to how it was as recently as 2015.

The Act restores protections for employees, especially vulnerable employees, and strengthens the role of collective bargaining in the workplace. 

The key changes include:

  • reinstating prescribed meal and rest breaks
  • strengthening collective bargaining and union rights
  • restoring protections for vulnerable workers, such as those in the cleaning and catering industries, regardless of the size of their employer
  • limiting 90-day trials to business with fewer than 20 employees.

Most changes take effect at two stages: 'the day after Royal assent (Wednesday 12 December 2018), and on Monday 6 May 2019.

Strengthening collective bargaining and union rights

Changes in effect from 12 December 2018 

  • Union representatives can now enter workplaces without consent, provided the employees are covered under, or bargaining towards, a collective agreement. They can still only enter a workplace for certain purposes, must be respectful of normal operating hours, and follow health, safety and security procedures.
  • Union representatives still need to seek consent before entering workplaces where no collective agreement or bargaining exists, and for workplaces that are also residences (such as farmhouses). Union representatives can also enter a workplace to assist a non-union employee with matters relating to health and safety if that employee has requested their assistance.
  • Pay deductions can no longer be made for partial strikes, such as wearing t-shirts instead of uniforms as part of low-level industrial action. Employers can respond to a partial strike action the same way as any other strike, which could include suspending employees without pay or a lockout.
  • Businesses must now enter into bargaining for multi-employer collective agreements, if asked to join by a union. They will not have to settle a multi-employer collective agreement if their reason for not wanting to settle is based on reasonable grounds.
  • Employees will have extended protections against discrimination on the basis of their union membership status, including either being a union member or intending to be a union member. From now, an employer’s behaviour can be seen as discriminatory if it occurs within 18 months of employees undertaking union activities. This is an extension of 6 months. It does not apply retrospectively.
  • Earlier initiation timeframes have been restored for unions in collective bargaining, enabling a union to initiate bargaining 20 days ahead of an employer.
  • New categories of employees may apply to receive the protections afforded to ‘vulnerable employees’ through an application process set out in the Act.

Changes in effect from 6th May 2019

  • The duty to conclude bargaining will be restored for single-employer collective bargaining,unless there are genuine reasons based on reasonable grounds not to. This ensures that parties genuinely attempt to reach an agreement. 
  • The 30-day rule will be restored. This means that for the first 30 days, new employees must be employed under terms consistent with the collective agreement.  The employer and employee may agree more favourable terms than the collective.
  • Pay rates will need to be included in collective agreements, along with an indication of how the rate of wages or salary payable may increase over the agreement’s term.
  • Employers will need to provide new employees with an approved active choice form’ within the  first ten days of employment and return forms to the applicable union, unless the employee objects. The form gives employees time to talk to their union representatives before considering and making a choice about whether to join a union or remain on the individual employment agreement.
  • Employers will need to allow for reasonable paid time for union delegates to undertake their union activities, such as representing employees in collective bargaining. Employees will need to agree with their employer to do so or, at a minimum, notify them in advance. An employer will be able to deny the request if it will unreasonably disrupt the business or the performance of the employee’s duties.
  • Employees will need to pass on information about the role and function of unions to prospective employees. Unions must bear the costs if they want printed materials to be passed on.

Reinstatement as primary remedy

Changes in effect from 12 December 2018

  • If requested by the employee, reinstatement will be the first course of action considered by the Employment Relations Authority, for employees that have found to be unfairly dismissed. Reinstatement means the employee gets their previous job back. The Employment Relations Authority will still assess whether reinstatement is practicable and reasonable for both parties.

Restoring rest and meal breaks

In effect on 6 May 2019

  • The right to set rest and meal breaks will be restored, the number and duration of which depends on the hours worked. The presecribed rest and meal breaks are:
  • Work period between 2 hours and 4 hours If an employee’s work period is 2 hours or more but not more than 4 hours, the employee is entitled to one 10-minute paid rest break.
  • Work period between 4 hours and 6 hours If an employee’s work period is more than 4 hours but not more than 6 hours, the employee is entitled to—(a) one 10-minute paid rest break; and (b) one 30-minute meal break.
  • Work period between 6 hours and 8 hours If an employee’s work period is more than 6 hours but not more than 8 hours, the employee is entitled to— (a)two 10-minute paid rest breaks; and (b)one 30-minute meal break.
  • Work period over 8 hours If an employee’s work period is more than 8 hours, the employee is entitled to the rest breaks and meal breaks in accordance with the following: During the work period of 8 hours, the employee is entitled to—(a)two 10-minute paid rest breaks; and (b)one 30-minute meal break. During the work period beyond 8 hours (the subsequent period), the employee is entitled to the following: (a)if the subsequent period is 2 hours or more but not more than 4 hours, to one 10-minute paid rest break: (b)if the subsequent period is more than 4 hours but not more than 6 hours, to— (i)one 10-minute paid rest break; and (ii)one 30-minute meal break: (c)if the subsequent period is more than 6 hours but not more than 8 hours, to—(i)two 10-minute paid rest breaks; and(ii)one 30-minute meal break.
  • Employers must pay for minimum rest breaks but don’t have to pay for minimum meal breaks. Employers and employees will agree when to take their breaks. If they cannot agree, the law will require the breaks to be in the middle of the work period, so long as it’s reasonable and practicable to do so. Some limited exemptions may apply for employers in specified essential services or national security services.

90 day trial period only for businesses with less than 20 employees 

In effect on 6 May 2019

  • 90-day trial periods will be restricted to businesses with less than 20 employees. This change means the majority of employees will have protections against unjustified dismissal from when they start a job. Businesses with 20 or more employees can continue to use probationary periods to assess an employee’s skills against the role’s responsibilities. A probationary period lays out a fair process for managing performance issues and ending employment if the issues aren’t resolved.

Protections for vulnerable workers

In effect on 6 May 2019

  • Employees in specified ‘vulnerable industries’ will be able to transfer on their current terms and conditions in their employment agreement if their work is restructured, regardless of the size of their employer.
  • Changes also include a longer notice period for employees to elect to transfer to the new employer; this notice period is a minimum of 10 working days.

Minimum Wage increase

The minimum wage will increase by $1.20 to $17.70 from 1 April 2019.

This is the largest increase in the adult minimum wage in New Zealand history in dollar terms. This is the biggest leap yet towards the Coalition Government's promise to increase the minimum wage to $20 by 2021.

Impact on current employment agreements

  • Employers should check their employment agreements to make sure that the terms of their agreements do not contradict the new law.
  • Employers are required by law to inform employees of their leave entitlements when they enter into an employment agreement, so employers could either add the domestic violence leave provisions to their employment agreements or add it to their policies (which are made available to employees when they are employed).
  • For employers with 20 or more employee's you will need to remove the 90 day trial period from 6th May 2019, and consider whether or not to use a probabtionary period. If you decided to use a probationary period then you will need to insert an appropriate clause into your employment agreement.
  • It may pay to check the meal and rest break provision and make sure it doesnt contradict the new law change. In the absence of agreement as to when breaks and meal breaks are taken, the default provisions will apply, which means that breaks must be taken in the middle of each work period, to the extent that it is ‘practicable and reasonable to do so’.  In order to avoid this, and in the absence of an existing satisfactory/lawful agreement, employers should now endeavor to agree more practical arrangements with their employees. 
  • Except for the points raised above regarding domestic violence leave and probationary periods, as long as your current employment agreement doesnt contradict the new employment law, there is no requirement to insert new terms and conditions into the written employment agreement in order to reflect the new law. The new law applies regardless of what is stated in the employment agreement, and can not be contracted out of.

Please feel free to contact us if you have any questions.