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latest news in employment law

Employment Relations Amendment Bill

Published 06 Feb 2018

The anticipated changes to employment law have now been presented as a Bill to the House. The new Government claiming this will "restore fairness and balance into New Zealand workplaces". With the discussion that took place following the election it is no surprise to see the main thrust of the proposed change is to strengthen the position and bargaining power of unions, reduce flexibility in agreements with regard to rest breaks and pay scales, limit the operation of the 90-day trial period and require reinstatement as the primary remedy in personal grievance matters.

Some of the changes originally proposed on the campaign trail have been removed or modified.  A good example is the planned removal of the 90-day trial period. The current proposal is to allow employers with fewer than 20 employees to continue to use the trial with the expectation that good faith processes will be followed. The Employment Court ruled that good faith processes had to be followed, including discussion of issues with new employees, providing help and assistance to improve and giving proper notice when termination within the trial period was considered. The Court certainly reduced the employer’s ability to ‘fire at will’ within the trial period and the proposed change will reinforce that view.  Larger employers will have to review their recruitment, selection and onboarding strategy and processes to make sure they don’t get caught employing staff that cannot or will not perform to expectations.

The Bill contains a number of provisions to strengthen the role of unions in the workplace and there is little, if anything, specified that wasn’t anticipated as part of Labour’s very traditional commitment to and support of the union movement. Improved rights of access, paid time for delegates to do union business, employers being required to promote the role of the union and a reintroduction of the 30-day rule making any collective agreement applicable to new employees. The more significant change is the requirement to conclude a collective agreement and that employers must continue to bargain even if the talks are stalemated on one or more matters. For further advice on the likely impact of these changes for unionised workplaces please call us.

The change for rest breaks incorporates the changes contained in an earlier Bill.  The arrangement for breaks is quite prescriptive unless the employer and employee agree otherwise. In essence there is a requirement to provide a paid 10-minute rest break, roughly every 4 hours of work and an unpaid meal break within the first 6 hours. Rest breaks can be timed to happen within these periods but if not specified then they are to be taken at the midpoint of the period i.e.

                Between 2 hours and 4 hours – 10 minute break

                Between 4 hours and 6 hours – 30 minute meal break

                Between 6 hours and 8 hours – 10 minute break

Breaks continue after 8 hours work time as needed, following a similar pattern.

The Bill has to go through several stages before we will know the final requirements of the amendment. We will keep you informed and our Toolbox tools will be updated once the changes are confirmed.