Employment Relations Act changes shift balance towards greater employee and union rights

Monday, December 17, 2018

The Government has passed the Employment Relations Amendment Act 2018, which received Royal Assent on 11 December 2018. Parts of the Act came into effect the following day, on 12 December 2018, and further significant changes will come into effect from 6 May 2019.

Changes immediately in force

Union access to workplaces: Union representatives are now able to enter a workplace without the consent of an employer if there is current collective agreement in place or if bargaining for a collective agreement is currently occurring. The Act bars employers from unreasonably denying access to a workplace.

Reinstatement for unfair dismissal: Reinstatement to employment has been restored as the primary remedy to an unfair dismissal. To avoid this, an employer will need to show that reinstatement is unreasonable and impracticable on the facts of the case.

Bargaining: Changes have been made in regards to when an employer can initiate bargaining when a collective agreement is already in force. Employers may not initiate bargaining earlier than 40 days before the collective agreement expires, or when there is more than one applicable agreement, no more than the later of 100 days before the expiration of the last collective agreement or 40 days before the first agreement expires. This represents a 20 day increase in the period that employers must wait.

Deductions: 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.

Changes from 6 May 2019

90-day trial periods: The use of 90-day trial periods will only be available to employers with fewer than 20 staff. This represents a compromise position, departing from Labour’s original proposal to remove the 90-day trial period.

Rest and meal breaks: Currently, employers and employees are encouraged to bargain in good faith for the timing and length of rest and meal breaks. The restoration of prescribed rest and meal breaks is intended to provide certainty to employees. A very limited number of employers in essential services will be exempt from the requirements.

Greater protection for “vulnerable employees”: Under current law, employers with 19 or fewer employees were exempt from providing the protections afforded to specific groups of employees (considered to be at greater risk of losing their job due to restructuring). From 6 May 2019, small employers will no longer be exempt.

‘30 day rule’: The 30 day rule requires new employees (who are not union members) to be employed under terms consistent with the applicable collective agreement. After 30 days, the employer and employee can negotiate changes to the individual employment agreement.

Collective bargaining: Employers will now be able to opt-out of multi-employer bargaining negotiations (MECAs) on reasonable grounds, essentially removing the ‘duty to conclude’ negotiations. This change is a result of concerns that employers (particularly in the regions) might end up in negotiation for years with no ability to opt-out.

Next steps

Employers should take care to check whether their current procedures and policies comply with the increased worker protections and union influence brought in by these amendments to the Act.

If you would like to discuss how any of the changes may affect your business, please contact a member of our employment team.

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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