General / 25 October 2015

Get used to employment law changing.  Following consultation and over 13,000 submissions, proposed amendments to the Employment Relations Act 2000 (Act) aim to strike a balance by being fair to staff, unions and employers.  The following proposed changes are some likely to impact our employment relationships most.

Breaking Point
We all need breaks.  But the currently rigid regime (two paid ten minute breaks and one unpaid half hour break every eight hours) seems to struggle to work well in workplaces.  We frequently find parties ditch the legislated minimum in favour of what works practically – often longer breaks that better suit the employer’s working day.  Proposed changes favour mutual agreement.  Failing agreement an employer may specify reasonable breaks and timing taking into account operations, resources and the interests of employees.  Missed a break?  Compensate by cutting out early or perhaps a payment.

Getting Information
Currently, all information relevant to a proposed decision that may adversely affect an employee’s ongoing employment must be provided unless “good reason” exists not to. In Chancellor of Massey University v Wrigley [2010] NZEmpC 37 the Employment Court highlighted the difficulty of reconciling an employee’s right to know why they were selected for redundancy (rather than their colleague), and the right of another employee to keep comparisons confidential.

Proposed changes clarify that despite information being relevant and employer is not required to provide access if:
• Parties providing the information enjoyed a mutual understanding of secrecy; and
• Providing information would disclose another’s affairs to an unwarranted extent, breach a statutory requirement to maintain confidentiality (think privacy and official information), or another good reason exists not to (like avoiding unreasonable prejudice to the employer’s commercial position).

Most employees are still likely to want to know.  Employers conscious of ensuring a full and frank selection process will welcome change that could be argued to reduce the level of information an employee is entitled to during a restructuring.  It could limit rights regarding information in disciplinary and other employment processes too.

Proposed changes remove the requirement to conclude a collective.  Whilst parties would still need to bargain in good faith, they would no longer be required to continue bargaining when facing a deadlock and the Authority declares bargaining has ended.  An employer can’t simply oppose or object in principle to being party to a collective though – that would be unreasonable.
Also impacting unions is the proposed repeal of the 30 day rule that currently requires all new employees, irrespective of union membership, to be covered by the collective during the first 30 days of their employment, if their work falls within the coverage clause.  Repealing this rule would enable employers to offer and agree individual terms and conditions with new employees who are not union members.

Authority Timeframes
Delays in receiving determinations can cause concern. In keeping with the Authority’s role as an investigative body that delivers determinations without regard to technicalities, and the common view of it as a speedy, informal and practical forum for resolving employment relationship problems, proposed changes set rigid timeframes.  Members must upon concluding a hearing provide (subject to exceptional circumstances), an oral determination, followed by a written determination a month later.  Alternatively a Member may give an oral indication of its preliminary findings, or reserve its determination if an oral indication is impracticable, followed by a written determination three months later (again subject to exceptional circumstances).  Swifter justice?

Being Prepared
Proposed changes, if implemented in their current form, would impact how employers, employees and unions deal with each other.  Stay tuned to Parliament as the Bill progresses – likely by April if past practice is anything to go by.

Lucia Vincent is a Senior Solicitor based in the Dunedin office of Copeland Ashcroft Law:

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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