Changes to employment law? What we know

General / 25 March 2018
Changes to employment law? What we know

The Copeland Ashcroft Law Team recently wrote on our predictions to the post-election changes in employment law.  The Employment Relations Amendment Bill (Bill) was introduced to Parliament on 29 January 2018. Although the Members of Parliament are yet to debate and vote on the Bill, we now know more about the immediate changes the coalition Government proposes to make.

The purpose of the Bill is to restore key minimum standards and protections for employees to strike balance in the workplace between employers and employees to ensure productive employment relationships.

Trial Periods
The Bill proposes to limit trial periods to employers with less than 20 employees. This means that if the employer has more than 19 employees on the day they enter into an employment agreement (agreement) with a new employee, then they will not be entitled to include a trial period provision in the agreement.

Larger business who are not able to use trial periods can mitigate their risks with new employees by ensuring sound recruitment processes are in place. These employers will also be able to use probationary periods, however in order to dismiss an employee under a probationary period they will still need to follow a fair process and demonstrate good reasons for the same.  Our latest article on getting trial periods right is available here.

Guaranteed Rest Breaks
The Employment Relations Act 2000 (Act) provides, in summary, for reasonable rest and meal breaks (breaks), to give employees an opportunity for rest, refreshment and to attend to personal matters, taking into account the employee’s work period.  Breaks must be at times and for durations agreed between the parties, or failing agreement, as determined by the employer.

In 2014 the Act was changed to improve flexibility for parties to an employment relationship, where previously the law on breaks was more prescriptive.  The Act also currently provides that an employer can impose reasonable restrictions on an employee’s breaks where necessary, for example, specifying where breaks are to be taken, and if an employee needs to remain aware of or perform some work duties during their breaks.

The Bill seeks to reinstate the Labour Party’s prescriptive minimum standards approach to rest and meal breaks with limited exceptions (set out below).  If enacted into law, employers would need to provide the stipulated breaks at times agreed by the parties, or if no agreement could be reached, then the Bill stipulates mandatory times for when the breaks need to be taken.

If the employer is engaged in an “essential service” which is critical to the public interest and if the employer would incur unreasonable costs to replace an employee during breaks with another person of sufficient skill and experience and without compromising public safety, then the parties may agree that any breaks are to be taken in a different manner (including the number and timing of breaks). If the parties cannot agree, then the employer must compensate the employee (i.e. time of work and/or financial compensation).

Unions, Collective Agreements and Bargaining
The Bill proposes to strengthen collective bargaining and union rights to secure better terms and conditions for union members.

If enacted into law:

Unions will again have access, without employer consent, to workplaces;
Union representatives will be allowed paid time off work to perform union roles;
There will be a duty to conclude a collective agreement unless there is a genuine reason based on reasonable grounds not to;
The duty of good faith will require employers and unions to continue to bargain about other matters where the parties have reached a standstill about a matter;
Unions will again have the right to initiate collective bargaining first;
Employers will be unable to opt out of multi-employer collective agreements;
Requiring pay rates to be set out in collective agreements;
As previously, new employees’ terms and conditions will be those of the applicable Collective Agreement for the first 30 days of employment;
There will be a new requirement to provide details about the union, their role and the option to join to new employees;
The employer will need to pass on information to their employees about the unions role and functions at the union’s request unless the information is defamatory or confidential;
Employers will need to share information about a new employee with the union unless the employee objects;
Extend the grounds for discrimination based on union involvement;
Extend the timeframe by six months for which an employee’s union activities may be considered to contribute to an employer’s discriminatory behaviour; and
The employer will no longer be able to deduct pay as a response to partial strikes.
Other Employee Friendly Changes
Other proposed changes include the restoration of reinstatement as the primary remedy for unjustified dismissal claims and the introduction of stronger protections for “vulnerable employees” such as cleaners and food caterers involved in restructurings (so that small to medium employers are no longer exempt from those protections), as well as privacy related changes requiring employers to notify employees of their right to review and correct personal information.

What Does This Mean For You?
Broadly speaking, the changes will require employers to look at bargaining strategies and collective agreement requirements in detail, and to review and revise individual employment agreements to ensure these comply.

The Copeland Ashcroft Law Team will be discussing the implications of these changes in our February/March 2018 free seminar series, details here:

If you have any queries about how these changes might affect your business, please don’t hesitate to contact the Copeland Ashcroft Law team.

Disclaimer:  We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations.  Please seek guidance from your employment lawyer for any questions specific to your workplace.

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