Posted on: Mar 15, 2019

15 March 2019: A significant number of changes have recently been introduced into the legislation governing employment relationships.  Some of these changes have already taken effect, whilst there are further changes coming in April, May and June this year.

It is important that employers understand the changes and put in place the right mechanisms, documents and practices to comply with the new legislation.

We have summarised the changes below.  Some of the changes are relevant to all workplaces and some may not affect your business.

For guidance on what the changes mean for your specific business, please contact us at info@three60consult.co.nz; or by phone 09 273 8590.

General changes:

Effective 12 December 2018

  1. Reinstatement must be considered as the primary remedy for unjustified dismissal.
  2. Amendments to protections for vulnerable workers.

Upcoming changes:

  1. Domestic violence – Victim Protection.
  2. 90 day trial periods limited to employers with less than 20 employees.
  3. Rest and meal breaks to be more prescriptive.
1.   Reinstatement must be considered the primary remedy

Effective Date: 12 December 2018

If an employee has requested reinstatement to be a remedy when pursuing a personal grievance for unjustified dismissal, the Employment Relations Authority must consider this as a primary remedy.  This means that where reasonable and practicable, the Authority will consider reinstating an employee back into their role with the employer as the first course of action if the employee is found be have been unjustifiably dismissed.

This change will only apply to proceedings brought before the Authority or Court on or after 12 December 2018.

2.   Amendments to protections for vulnerable workers

Effective Date: 12 December 2018

This provision allows the Minister to recommend that the Governor-General add to, delete or amend the categories of employees in Schedule 1A of the Employment Relations Act 2000 who are provided greater protection during business restructures.  Categories can only be added if the Minister is satisfied that the employees in the category:

  • Are employed in a sector in which restructuring of a business occurs frequently; and
  • Have terms and conditions of employment that tend to be undermined by the restructuring; and
  • Have little bargaining power.

Categories can only be deleted if the above points no longer apply.

An additional change to this area means that there are no longer exempt employers.  Previously, an employer was exempt from Part 6A if they employed less than 20 people.  Now an employee whose work is to be performed by another person due to the restructuring (including the sale of the business), have the right to transfer their employment to the other person/organisation on the same terms and conditions.

3.   Domestic violence – Victim Protection

Effective Date: 1 April 2019

This new piece of legislation amends the Employment Relations Act 2000, Holidays Act 2003 and the Human Rights Act 1993.

If an employee is affected by domestic violence, they (or their representative), may make a written request to temporarily change their working arrangements for a period up to two months, for the purposes of dealing with the effects of domestic violence.

After six months of current continuous employment an employee is entitled to up to 10 days paid domestic violence leave per annum.  The purpose of this leave is to allow the employee to deal with the effects of domestic violence.

An employer may require proof of domestic violence prior to paying domestic violence leave or making changes to their working arrangements.

What this means for employers:

Employers should consider updating their existing ‘flexible working arrangements’ policies.

Employers will also need to prepare to carry an extra 10 days’ leave per employee each year.  This leave is not cumulative and is not payable on termination.

There are specific processes for when an employee makes a written request for flexible working, when and how proof of domestic violence is requested, establishing who is entitled to the leave and how long an employer may take to consider a request.  There are also certain grounds on which a request for flexible working can be denied by the employer.

For more information on what the requirements and obligations are please contact us.  We are also able to provide you with a clause for your employment agreements and/or a policy outlining the support that is available and the process to be followed.  We recommend sending a letter to existing employees notifying them of this new entitlement.

4.   90 day trial periods limited to employers with less than 20 employees

Effective Date: 6 May 2019

Since April 2011, 90-day trials periods have been utilised by many employers regardless of the number of people they employ.

The use of a trial period will soon be restricted to ‘small-to-medium sized employers.’  This is defined as an employer who employs less than 20 employees at the beginning of the day on which the employment agreement was entered into.

What this means for employers:

If you have less than 20 employees you can continue to use the trial period if you meet all your existing obligations around the implantation of a 90 day trial period.

If you have 20 or more employees you will need to remove the trial period from new employment agreements.  If a trial period is entered into before 6 May 2019 it will continue to apply.

Employers will still be able to utilise probationary periods to assess an employee’s skills and performance.  Under a probationary period, you will need to follow a fair process before potentially dismissing an employee.  Unlike a trial period, an employee who is dismissed in accordance with a probationary period clause will still be able to raise a personal grievance or other legal proceedings in relation to the dismissal.

To rely on a probationary period it must be included in the employee’s employment agreement, and this can be for a reasonable period, which may be longer than 90 days.  Please contact us if you would like a probationary period clause in your employment agreements and/or a guide on how to utilise them.

5.   Rest and meal breaks to be more prescriptive

Effective Date: 6 May 2019

We are about to see a return to a prescriptive model of rest and meal breaks.  This restores minimum entitlements that applied before 2015.

The number and duration of rest and meal breaks depend on the length of the work period.

 

Work period between 2 hours and 4 hours – entitlement is one 10-minute paid rest break.

Work period between 4 hours and 6 hours – entitlement is one 10-minute paid rest break and one 30-minute unpaid meal break.

Work period between 6 hours and 8 hours – entitlement is two 10-minute paid rest breaks and one 30-minute unpaid meal break.

Over 8 hours – Entitled to breaks as if the work period has started again; e.g. if they work more than 2 hours but not more than 4 hours on top of the 8 hours already worked, they get a 10-minute paid rest break.

 

A work period is defined as the period beginning with the time the employee starts work (in accordance with their employment agreement) and ending with the time at which they finish work (in accordance with their employment agreement).  It also includes the time where they are on an authorised break.

An employer and employee can agree when the breaks are taken, where they cannot agree the legislation will require the break to be taken in the middle of the work period to which they relate, if reasonable and practicable to do so.

Some employers will be exempt from the requirement to provide rest and meal breaks as above if:

  • The employer is engaged in the protection of NZ’s national security; and
  • The continuity of service is critical to NZ’s national security; and
  • The employer would incur unreasonable costs in replacing the employee during the rest and meal breaks.

Or if:

  • The employer is engaged in an essential service; and
  • Continuity of service or production in the essential service is critical to the public interest, including services affecting public safety; and
  • The employer would incur unreasonable costs in replacing the employee during the rest and meal breaks.

Essential services are set out in Schedule 1 of the Employment Relations Act 2000.

If an employer is exempt, they may agree with the employee that breaks are to be taken in a different manner.  If they are unable to reach an agreement an employee is entitled to compensatory measures; for example, time off work at an alternative time during the work period and/or financial compensation.

What this means for employers:

Rest and Meal Break clauses that do not reflect the new legislation will need to be removed from your employment agreements, or amended, to be compliant.  This includes potentially varying employment agreements that are currently in force.

Employers may need to adjust the way they currently work to allow for rest and meal breaks to be taken at specific times.

Employers with a small number of employees will have difficulty accommodating rest and meal breaks.  Regardless of whether or not a shop or café is being run by one person during a work period, the burden is on the employer to allow the employee to take their rest and meal breaks.

It will also be good practice to record when the rest and meal breaks are taken to show that the employee’s minimum entitlements are being met.

Changes relating to Unions and Collective Bargaining:

Effective 12 December 2018

  1. Unions able to enter workplaces without consent (in some circumstances)
  2. Pay deductions can no longer be made for partial strikes
  3. Minor errors will not invalidate strike notices
  4. Employers no longer able to opt-out of MECAs
  5. Unions can initiate bargaining before employers

Upcoming changes:

  1. Reasonable paid time for union delegates
  2. Obligation to conclude collective bargaining
  3. Pay rates to be included in a collective agreement
  4. Union information must be provided to prospective employees
  5. ’30 day rule’ reintroduced
  6. Discrimination on the basis of union membership
1.   Unions able to enter workplaces without consent

Effective Date: 12 December 2018

Union representatives can now enter workplaces without consent under certain conditions.

At the time the representative enters the workplace there must be a collective agreement in force between the employer and the union and the coverage clause must cover the work done by employees at the workplace. A representative can also enter the workplace where the union and the employer are bargaining towards a collective agreement and where the intended coverage comprises work done by employees at the workplace.  All other conditions relating to access remain unchanged.

2.   Pay deductions can no longer be made for partial strikes

Effective Date: 12 December 2018

Where a partial strike occurs (for example, not undertaking some tasks), employers will no longer be able to make pay deductions.

Employers will be able to respond to a partial strike in the same way they do any other strike.  This could include suspension.

3.   Minor errors will not invalidate strike notices

Effective Date: 12 December 2018

A minor or technical omission or error in any information specified in a strike notice will not affect the validity of a strike notice, this could include forgetting to sign the strike notice.

4.   Employers no longer able to opt-out of MECAs

Effective Date: 12 December 2018

If an employer is requested to join a multi-employer collective agreement (MECA), the employer will not be able to opt-out of bargaining for the MECA.

There is also a duty to conclude bargaining of a MECA except where there are ‘genuine reasons based on reasonable grounds’ for it not to be concluded.  A genuine reason could be where the two employers are based in different locations in New Zealand resulting in a significant difference (e.g. living costs).

5.   Unions can initiate bargaining before employers

Effective Date: 12 December 2018

Unions now have the ability to initiate bargaining 60 days before the date a collective agreement expires.  This is 20 days earlier than when an employer may initiate bargaining.

6.   Reasonable paid time for union delegates

Effective Date: 6 May 2019

When union delegates are undertaking their union duties (such as representing other employees during collective bargaining), they are entitled to reasonable paid time.

The delegate must be paid what they would have received if the delegate was performing their ordinary employment duties during that time.

The delegate must agree with the employer that they may undertake activities without notice or they must notify the employer when the employee intends to undertake the union activities and how long they intend to spend on this.  The legislation does not specify how much notice the delegate must give the employer, only that they must do so before undertaking the activities.

An employer may refuse to allow the delegate to undertake the activities only if the employer is satisfied, on reasonable grounds, that the activities would unreasonably disrupt the employer’s business or the union delegate’s performance of employment duties.

7.   Obligation to conclude collective bargaining

Effective Date: 6 May 2019

The obligation to conclude bargaining will be restored for single employer collective agreements unless there is a genuine reason, based on reasonable grounds, not to.

Genuine reasons do not include:

  • Being opposed or objecting in principle to:
    • bargaining for, or being party to, a collective agreement; or
    • including the rates of wages/salary in the collective agreement
  • Disagreeing about including a bargaining fee clause.
8.   Pay rates to be included in a collective agreement

Effective Date: 6 May 2019

There will be a requirement to include rates of wages or salary payable to the employees in a collective agreement.

9.   Union information must be provided to prospective employees

Effective Date: 6 May 2019

Where there is a collective agreement in place, the union or unions who are a party to the collective agreement are able to request that the employer provides information about the role and function of the union, to prospective employees.

The union will have to specify what the information is and how it should be passed onto the prospective employees.  They must also provide the information to the employer in the specified form (e.g. hard copy).

The employer can only refuse to comply if the information is confidential, or if the information is about the employer and it would (or is likely to) mislead or deceive the prospective employee and would undermine the bargaining between the prospective employee and employer.

The employer must notify the union is writing if they need more hard copies of the information.

10. ’30 day rule’ reintroduced

Effective Date: 6 May 2019

New employees will, for their first 30 days of employment, automatically be covered by the terms of the collective agreement that the employee would have been bound by if they were a union member. The 30-day rule will apply where the work to be done by the employee falls within the coverage of the collective agreement.

11.Discrimination on the basis of union membership

Effective Date: 11 June 2019

An employee will be able to raise a personal grievance for discrimination in employment on the grounds of an employee’s union membership status.  This is in addition to the current prohibited grounds of discrimination including, discriminating on the grounds of involvement in the activities of a union.

The change also sets out that an employee is not discriminated against simply because the employment agreement (or terms and conditions of employment), are different from another employee’s by reason of the employee being a member of a union.

The timeframe relating to discrimination claims will be extended from 12 months to 18 months. This means that an employer’s behavior can be seen as discriminatory if it occurs within 18 months of the employee undertaking union activities, was a member of a union, or intended to join a union.



Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.