Employment Relations Amendment Act 2018 changes

17 May 2019

On 6 May 2019 further changes in the area of employment relations came into place, of which a number return the Employment Relations Act to its immediate past.  The changes are:

  • An entitlement to reasonable paid time off for union delegates to represent their members in employment matters.  Delegates must either agree with their employer that they can undertake their representation activities without notifying the employer first or notify the employer when they intend to undertake the activities and for how long.  Representation activities must not unreasonably disrupt either the employer’s business or delegates’ work performance.
  • A requirement, as part of the duty of good faith, to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to.  Opposition or objection in principle to a collective agreement, or to having it contain rates of wages or salary or disagreeing about whether it should contain a bargaining fee clause, are not genuine reasons not to conclude.  By contrast, in the case of a MECA, opposition to concluding, if based on reasonable grounds, is a genuine reason not to conclude.
  • A requirement that collective agreements include the rates of wages or salary payable to the employees they cover.  Rates payable can be expressed either by referring to the work or type of work, or to named employees or types of employees.
  • New employer obligations to new and prospective employees:
    • Where there is a collective agreement, the union can ask the employer to provide prospective employees with information about the union’s role and functions.
    • The union must specify the form in which the employer is to provide the information and give the employer the information in the form specified.
    • A union asking for hard copies to be supplied must provide these to the employer who in turn must notify the union in writing when further hard copies are required.
    • An employer who doesn’t respond to a union’s request within 15 working days is taken to have agreed to provide prospective employees with the specified information.
    • Union requests can be refused only if the information is confidential, or is about the employer, or could mislead or deceive the prospective employee, or would significantly undermine bargaining between the prospective employee and the employer.
    • New employees on individual employment agreements work under the terms and conditions of any relevant collective agreement (with any additional terms to be not inconsistent with the collective) for their first 30 days of employment.
    • Within 10 days of starting their employment new employees must be provided with an MBIE-approved form to let the employer know whether they will be joining a (or the) union and if they don’t intend to join, to object to the employer providing the union with information about them.  The notice must state how long the employee has to complete and return the form (although it must be returned within 30 days of the employee starting work) and that unless the employee objects, the employer will let each union party to the collective know:
      • The employee’s name
      • Whether the employee will or will not be joining the union, or
      • Has or has not completed the form
    • The employer must provide each union party to the collective with the above information within 10 working days of the expiry of the 30-day period allowed for completing the form and can be subject to an Authority-imposed penalty for failing to do so.
    • Employees working under a collective for their first 30 days of employment must be allowed to seek independent advice about any terms and conditions additional to the collective and after the 30-day period, about any variations to the individual agreement, whether their work is or isn’t covered by a collective.
    • A collective is treated as covering the type of work done by employees named in the collective whether it is done by those employees or by any other employees.
    • Employers bargaining with prospective employees about terms and conditions for the first 30 days of employment must tell them about a collective covering their work, that they may join the union and how to contact it.  Prospective employees must also be told they will be bound by the collective if they do join the union and if they don’t, will work under the collective for the first 30 days of their employment as if they were a union member, with any additional terms and conditions to be no less favourable than the collective’s.
    • Employers must give prospective employees a copy of any relevant collective agreement together with the information the union asks them to provide about the union’s role and functions.
  • Employment agreements can contain a 90-day trial period provision only if the employer has fewer than 20 employees.
  • All employees are covered by the Act’s continuity of employment (restructuring) provisions.  Those with 19 or fewer employees are no longer exempt.
  • All employees are entitled to a specified number of rest and meal breaks to be taken at agreed times or, as far as is reasonable and practicable, as set out below if the employer and employee cannot agree (with rest and meal break times over 8 hours of work follow the pattern set for up to 8 hours):
    • Between 2 and 4 hours: 1 10-minute paid rest break in the middle of the work period,
    • Between 4 and 6 hours: 1 10-minute paid rest break one-third of the way through the work period and 1 30-minute meal break two-thirds of the way through the work period,
    • Between 6 and 8 hours: 1 10-minute paid rest break halfway between starting work and the middle of the work period, in the middle of the work period a 30-minute meal break and halfway between the meal break and finishing work, 1 10-minute paid rest break.
    • Between 10 and 12 hours: 1 further 10-minute paid rest break
    • Between 12 and 14 hours: 1 further 10-minute paid rest break and 1 further 30-minute meal break
    • Between 18 and 16 hours: 2 further 10-minute rest breaks and 1 further 30-minute meal break.

 

Legal Team

 

Diana Hudson | Managing Solicitor | 03 456 1804 | 021 816 469 | diana@osea.org.nz

David Browne | Senior Solicitor | 03 456 1812 | 021 225 6938 | david@osea.org.nz

Adam Siwerski | Solicitor | 03 456 1809 | adam@osea.org.nz 

Roger Gudsell | Advocate | 03 455 5165 | roger@osea.org.nz

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