This module reviewed by senior lawyers from Simpson Grierson was published for use on 25 March 2019.
The Employment Module has been updated to primarily address legislative changes and recent developments in case law.Key changes within the module address the Employment Relations Amendment Act (Amendment Act) and the Domestic Violence Victims’ Protection Act. The Employment Relations Amendment Bill was passed on 5 December 2018. The amendments are being rolled out in two stages, the first of which is already in effect
These changes are reflected, as is appropriate, within both the flow diagrams and supporting notes to the flow diagrams. Users are advised to re-familiarise themselves with the module to ensure internal processes comply with key changes. Should you require further clarification councils are advised to seek legal advice.
Changes to the Employment Relations Act 2000 (Act) as a result of the Amendment Act.
The aim of the changes to the Act is to restore key minimum standards and protections for employees, and to implement a suite of changes to promote and strengthen collective bargaining and union rights in the workplace. The changes are intended to introduce greater fairness in the workplace between employees and employers, in order to promote productive employment relationships.
The Act has principally changed the following aspects.
Since 12 December 2018, changes include:
(a) Collective bargaining and unions
- Union access: Union representatives can enter the workplace without obtaining consent provided employees are covered under, or bargaining towards, a collective agreement. Unions can only enter the workplace for certain purposes and must still follow health and safety and security procedures.
- Partial deductions: An employer can no longer make partial pay deductions for partial strikes.
- Multi-employer collective agreements: Employers must now enter bargaining for multi-employer collective agreements if asked to join by a union. Employers will not have to conclude a multi-employer collective agreement if their reason is genuine and based on reasonable grounds.
- Bargaining initiation: Bargaining initiation timeframes have been restored whereby unions can now initiate bargaining 20 days ahead of the employer.
- Primary remedy: Reinstatement has been restored as the primary remedy. This means that, if requested by the employee, reinstatement will be the first course of action considered by the Employment Relations Authority.
(c) Vulnerable employees:
- Categories: Part 6A of the Act outlines the rights of certain vulnerable employees to transfer to a new employer in transfer of business situations. There are a number of amendments to the wording of this part. Most significantly, the Governor-General will now have ability to amend the Act to add, delete or amend categories of employees
(ie those deemed to be vulnerable employees covered by Part 6A).
- Removal of exemption: Currently, employers with 20 or more employees are exempt from the requirement to transfer employees in vulnerable industries on their current terms and conditions of employment where their work is restructured. The change removes this exemption, so provisions will apply to all businesses, regardless of size.
From 6 May 2019, changes will include:
(a) Rest and Meal Breaks:
- The right to rest and meal breaks will be restored. Employers will need to offer set meal breaks, with specific rules in terms of payment, length and timing.
(b) Trial Periods:
- 90-day trial periods will be restricted to businesses with less than 20 employees.
(c) Collective Bargaining and Unions:
- 30-day rule: The 30-day rule (under which new employees in a position covered by a collective employment agreement (CEA) had to be covered by the CEA for the first 30 days of employment) will be restored. This will mean any new non-union employees must be employed on the same terms and conditions of the collective agreement for the first 30 days of employment.
- Duty to conclude bargaining: The duty to conclude bargaining will be restored. Employers will not be able to opt out of collective bargaining unless there are genuine reasons based on reasonable grounds not to.
- Pay rates: 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.
- New Employees: Employers will need to provide new employees with an approved active choice from within the first 10 days of employment and return forms to the applicable union unless the employee objects.
- Union Delegates paid time: Employers will need to allow for reasonable paid time for union delegates to conduct union business at work.
- Pass on Union Information: Employees will need to pass on information about the role and function of unions to prospective employees.
From 12 June 2019, changes will include:
- An employee's union membership status will be added as a ground of discrimination.
Changes to the Employment Relations Act 2000 (and Holidays Act 2003) as a result of the Domestic Violence Victims’ Protection Act 2018.
From 1 April 2019, changes will include:
(a) Domestic/Family Violence Leave:
- Employers must provide up to 10 days of paid leave to victims of family violence or people caring for affected children.
- [Note that from 1 April 2019 – 30 June 2019 the amendments will refer to ‘Domestic Violence Leave’. This will then change to ‘Family Violence Leave’ from 1 July 2019 when the Family Violence Act 2018 comes into force repealing the Domestic Violence Act 1995.]
(b) Variation to working arrangements:
- Employees may request a short-term (up to two months) variation to their working arrangements to assist them in dealing with the effects of domestic violence. Employers must respond within 10 working days. Employers cannot unreasonably refuse a request made under this provision. The variation can include changes to hours of work, location, and duties of work. This is similar to, and in addition to, the existing rights of employees to make a flexible working request.
(c) Adverse treatment prohibited
- Employers must not treat an employee adversely in their employment on the grounds that they are, or are suspected to be, a person affected by domestic violence.