The Employment Relations Amendment Act 2018 was passed into law in December 2018 and brings many important changes to New Zealand employment law. The Act was passed with the intention of restoring workplace fairness and worker rights in New Zealand. Many of the changes are reinstating conditions that existed in law during the last Labor-led government (such as prescribed meal breaks) so they might even sound familiar to you. The new provisions have been staggered to come into effect across three dates: 11 December 2018, 6 May 2019 and 11 June 2019. Most of the changes come into force on 6 May 2019.
The key amendments focus on the:
- Reinstatement of prescribed meal and rest breaks
- Strengthening of collective bargaining and union rights
- Restoration of protections for vulnerable workers
- Limitations for 90-day trial periods
Along with these, there are several other changes that are set to impact New Zealand workplaces. Given the number of changes and the complexities of the law, it is important to be across these changes so that you know what you need to do to comply as they come into effect!
We asked our employment law specialist partners, LangtonHudsonButcher (LHB), to provide us with a summary of everything you need to know about the Employment Relations Amendment Act. The list below outlines the key changes to expect and when they come into force. The provisions highlighted in bold are those that LHB see as most likely to have the biggest impact.
Changes that took immediate effect (11 December 2018):
- Reinstatement is the primary remedy wherever practicable and reasonable.
- A union representative is entitled to enter a workplace to assist any employee on the premises who is not a union member with health and safety matters (if requested by the employee).
- A union representative does not need to obtain consent to enter a workplace where there is a collective agreement in force (or bargaining for a new collective agreement has been initiated) and the coverage clause (or intended coverage clause) covers work done at the workplace.
- A new penalty for refusing to permit a union representative who is entitled to enter a workplace to enter.
- Unions will be able to initiate collective bargaining 20 days before employers.
- The Authority will not be able to determine that bargaining has concluded.
- Employers will not be able to opt-out of multi-employer collective bargaining once initiated.
- Pay deductions for partial strikes is not permitted.
- Minor and technical errors and omissions in strike notices will not affect the validity of the notice.
Changes that take effect on 6 May 2019:
- Trial periods will only be available for a “small-to-medium-sized employer” , which is defined as having fewer than 20 employees. The change applies to written employment agreements agreed to on or after 6 May 2019.
- Vulnerable employees will be entitled to transfer to new employers in a restructuring situation (even where the employer has fewer than 20 employees) and will be given notice of, and specified information about, the right to elect to transfer to the new employer.
- Employees will be entitled to prescribed rest and meal breaks (with a presumption on duration and timing of breaks based on two-hour increments), but an exemption is available for employers in essential services, and for the protection of New Zealand’s national security where compensatory measures are available.
- Union delegates will be entitled to reasonable paid time during working hours to perform union duties. Such time must be paid at the same rate as if the employee was performing their ordinary employment duties.
- The duty of good faith will require parties to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to.
- Opposition to concluding a multi-employer collective agreement is a genuine reason not to conclude a multi-employer collective agreement if based on reasonable grounds.
- Collective agreements will be required to specify wage rates and salaries, minimum rates, or methods for calculating minimum rates, and how the rates may increase during its term. “Wages” is defined to include amounts payable for piece work or by way of commission.
- Unions may require that employers pass on to new employees specified information about union roles and functions.
- An employer can refuse to provide union information to prospective employees if the information is about the employer, would (or is likely to) mislead or deceive the prospective employees, and would significantly undermine bargaining.
- Employers must disclose to unions new employees’ names and whether or not they want to join the union (unless the employee objects).
- New employees who start work or sign an employment agreement on or after 6 May 2019 will be afforded the same terms and conditions as the applicable collective agreement for the first 30 days of their employment.
Changes that take effect on 11 June 2019:
- Unlawful discrimination will include discrimination on the ground of union membership
As always, we are working closely with LangtonHudsonButcher to ensure that the enableHR templates and documents comply with the latest workplace regulations. If you have questions or need advice on any of the legal changes being raised in this article, please contact Langtonhudsonbutcher or contact enableHR for a referral.