Important Employment Law Changes
Changes bring "flexibility and choice"
As you are no doubt aware The Employment Relations Amendment Act is set to become law.
The Minister of Workplace Relations and Safety, Michael Woodhouse has said that the passing of the Bill will improve New Zealands employment relations framework by creating a fair and more flexible system for both employers and employees. He also reflected that flexible and balanced employment relations legislation is essential for business to grow while ensuring protection for workers.
So what does this mean for employers?
In brief, the changes focus on the following areas:
1. Collective bargaining
The current duty of good faith to conclude a collective agreement unless there is genuine reason not to do so will be removed. It will allow a party to the bargaining to get a declaration from the Employment Relations Authority that the bargaining had concluded. If it is so declared, industrial action or new bargaining can be initiated within 60 days.
2. Mutli-Employer Collective Agreements (MECA)
At present if a workforce votes to be covered under a multi-employer collective agreement (MECA), the employer must join the negotiations. Employers may now opt out of a MECA.
3. Thirty- day protection for new employees
The requirement to offer new employees the same terms and conditions of employees on the relevant collective for the first 30 days (even if they are not members of the Union) is removed
4. Strikes and Lockouts
The changes will end open-ended strikes or lockouts. Any group of employees, not just certain essential industries, will have to give written notice of industrial action which must include a start and finish date, likewise for lock-outs by employers. Employers will also now have the power to deduct 10% of an employee's pay for partial strike action.
5. Rests and meal breaks
The law removes the prescriptive minimum rest break and meal break requirements which came into law in 2008. The changes mean that employers still need to provide "reasonable opportunity" for rest breaks and meal breaks that are appropriate for the duration of the work period, however employers can restrict such breaks if it is deemed reasonable and necessary, having regard to the nature of the work. In such circumstances employers would be required to provide "compensatory measures"
6. Part 6A - transfer of vulnerable employees
At present time certain defined groups of vulnerable workers (like cleaners) have the right to transfer (when their work is to be taken over due to restructuring) to the new entity. Under the new law employer's with less than 20 employee's will be exempt from Part 6A requirements. At present the classes of employees with the 6A protections can be changed by regulation but the new law removes such flexibility and any alteration must be made by Parliament with a change to the act.
7. Flexible working arrangements
The current law allows employees with caring responsibilities to request flexible work arrangements every 12 months and requires the employer to respond within three months. The right to request "flexible work arrangements", is extended to all employee's, not just those with "caring responsibilities". Employee's can make such a request as often as they like and the employer must respond within one month to any such request.
8. Good faith requirment to disclose information
It has become evident that there is conflicting obligations about the disclosure of personal information between the Employment Relations Act and the Privacy Act, in situations where an employer is proposing to make a decision that could have an adverse effect on the continuation of an employee's employment (for example a restructure). The change is intended to align the good-faith requirements more closely with the privacy principles. The changes mean that an employer does not have to provide access to confidential information if the information is;
a) about an identifiable individual other than the affected employee
b) evaluative or opinion material compiled with the purposes of making a decision that may affect an employees continued employment
c) about the identity of the person who supplied the evaluative or opinion material
9. Time frames for Authority determinations
At the conclusion of Employment Authority investigations, the Authority will be required to provide either an oral determination (which must be followed by a written record within 3 months), or an oral indication of the Authority's findings subject to any additional evidence, which must be followed by a written determination within 3 months.
The law will come into force 6 March 2015
If you would like a copy of the Act and a detailed commentary then please feel free to contact me and I will send you a copy.