Employment Relations Amendment Act 2018 The

The Employment Relations Amendment Act 2018 introduced a number of employment law changes

that aim to improve fairness in the workplace and deliver decent work conditions and fair wages.

These changes reflect the Government's 100 day commitments in workplace relations.

The Act restores protections for employees, especially vulnerable employees, and strengthens

the role of collective bargaining 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 passed into law on 11 December 2018. Most changes take effect at two stages: 12 December

2018, and on 6 May 2019.

Changes in effect now

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. (See changes coming into effect on

6 May 2019 below in relation to the duty to conclude).

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.

If requested by the employee,

reinstatement will be the first course of action

considered by the Employment Relations

Authority, for employees that have been 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.

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 on 6 May 2019

The right to prescribed rest and meal breaks

will be restored, the number and duration of which

depends on the hours worked. For example, an eighthour

work day must include two 10-minute rest breaks

and one 30-minute meal break, while a four-hour work

day must include one 10-minute rest break. Rest breaks

benefit workplaces by helping employees work safely

and productively. 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 engaged for the protection of New

Zealand's national security.

90-day trial periods will be restricted to

businesses with fewer 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.

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.

The duty to conclude bargaining will

be restored, this means parties must conclude

collective bargaining, unless there are genuine

reasons based on reasonable grounds not to.

This ensures that parties genuinely attempt

to reach an agreement.

Parties will not have to settle a multi-employer

collective agreement if their reason for not wanting to

settle is based on reasonable grounds. For example, if

there are significant differences between two

employers €“ such as one operating in Auckland where

prices and wages are higher, and the other in Invercargill

€“ it could be reasonable for an employer to negotiate a

single-employer collective agreement instead.

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 a form approved by the Chief

Executive of MBIE within the first ten days of

employment and return the form to the applicable

union, unless the employee objects. The form gives

employees time to talk to their union representatives

before considering and indicating whether they

intend 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.

Employers 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.

For more information contact Employment

New Zealand:

È©È© Visit: www.employment.govt.nz

È©È© Phone: 0800 20 90 20 toll free.