Roundup of Changes in Employment Law

Numerous employment related Bills have made their way through Parliament, with significant changes on the horizon for employers set to come into force during 2019. The employment landscape is set to shift towards greater employee and union rights.

With this in mind, it is crucial for employers to start preparing for the impacts of the legislative changes on their businesses.

Employment Relations Amendment Bill 2018

Caught amongst the rush as we head into the 2018 holiday season is the passing of the Employment Relations Amendment Bill 2018 (“the Bill”). The Bill has certainly has its fair share of ups and downs since it was first introduced to Parliament in January 2018.  

The Bill received Royal assent on 11 December 2018, with some changes taking immediate effect. Other changes are set to be implemented on 6 May 2019.

Changes that take immediate effect from 11 December 2018:

  • Union representatives will be able to enter workplaces without consent if the employees are covered under or bargaining towards, a collective agreement.
  • No more pay deductions for partial strikes but, an employer can respond to a partial strike the same way as any other strikes, such as suspending employees without pay or a lockout.
  • Businesses will be obliged to enter into bargaining for multi-employer collective agreement (MECA) if asked to join by a union, unless there are reasonable grounds for them not wanting to do so.
  • Protections against discrimination of employees based on the union membership status will be extended to 18 months, of employees undertaking union activities. This was previously 12 months and is not retrospective.
  • A union will be able to initiate bargaining 20 days ahead of the employer.
  • If an employee requests reinstatement in the course of bringing a claim for unfair dismissal, the Employment Relations Authority (ERA) will need to consider reinstatement as the first course of action, if it is reasonable and practicable for both parties.
  • New categories of ‘vulnerable employees’ may apply to receive protections afforded via an application process set out in the Act. Vulnerable employees include those who work in caretaking and cleaning services.
  • Categories of “vulnerable employees”  may be added to, varied or removed in response to changing work conditions by the Minister.
  • The ability of the Employment Relations Authority to make a determination that bargaining is over has been removed. 

 Changes from 6 May 2019:

  • The right to set rest and meal breaks will be restored based on the number and duration of hours worked. An employer and employee will have to agree as to when the breaks should be taken, if there is no agreement (written or oral) then the breaks should be taken in the middle of the work period, as long as it is reasonable and practicable to do so.
  • No more 90-day trial periods for businesses with more than 20 employees. However, employer will be able to continue to use probationary periods to assess an employee’s skills against the role’s responsibilities.   Note: Probationary periods are different to the 90-day trial. Employers will need to carry out fair process during the probationary period in assessing the employee’s skills such as by telling them if there are issues with their work, how they can fix those issues and giving the employee the opportunity to improve.
  • Unless there are genuine reasons based on reasonable grounds not to, the duty to conclude bargaining will be restored for single-employer collective bargaining.
  • For the first 30 days, new employees must be employed under terms consistent with the collective agreement. The employer and employee may agree on more favourable terms than the collective after this period.
  • Pay rates and indication of how pay may increase over the term of collective agreement, will need to be included in collective agreements.
  • Within the first ten days of employment, employers will need to provide new employees with an approved ‘active choice form’ so that the employees can have the time to consider whether they should join the union.
  • Employees who are union delegates will have to agree or at least, notify their employer in advance, if they have to undertake their union activities. These union delegate employees will need to be paid for a reasonable amount of time to exercise their union activities, however, the employer can also deny the request on reasonable grounds.
  • Unions may provide to the employers information about the role and function of unions, to provide to prospective employees. The employer will need to pass on this information unless:
  1. The information is confidential; or
  2. The information:
    1. is about the employer; and
    2. may mislead or deceive the prospective employee ; and
    3. would significantly undermine bargaining between the employer and prospective employee.
  • If restructuring takes place, employees in specified ‘vulnerable industries’ (e.g. cleaning services, food catering service etc.) will be able to transfer to the new employer, on the terms and conditions of their old job, regardless of the size of their employer, by giving a notice period of at least 10 working days.

Domestic Violence – Victims’ Protection Act 2016 

Amendments to the  Domestic Violence – Victims’ Protection Act 2016are set to take effect on 1 April 2019.

The new law aims to enhance legal protections in the workplace for people affected by domestic violence.

From April 2019, employees affected by domestic violence will be entitled to paid ‘domestic violence leave’ of up to 10 days each year. Employees will also be able to request flexible working arrangements for a short-term (up to two months or less) to which the employer will need to respond urgently (within 10 working days)

The law also explicitly prohibits an employee being treated adversely in their employment on the grounds that they are, or are suspected to be, a person affected by domestic violence.

Employees will also be able to raise a dispute if they believe that their employer unreasonably refused a request made under the new provisions, and must do so within six months.

Overall, it is clear that significant changes will be taking place. Whilst a large portion of it is in relation to Union and Collective bargaining rights, these are all changes that every employer should bear in mind. With various other bills still going through Parliament such as the Equal Pay Amendment Bill ,  Employment Relations (Triangular Employment) Amendment Bill and Holidays (Bereavement Leave for Miscarriage) Amendment Bill, the employment landscape is continuing to change.

There is an onus on employers to ensure that they remain compliant with employment law.

Talk to us

If you have any queries in respect of employment law issues, please contact our Employment Law Team. 

Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.

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