New Zealand Law Society - Changes to employment law from Monday, 6 May

Changes to employment law from Monday, 6 May

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A number of changes to employment law come into effect on Monday, 6 May 2019.

These have been introduced by the Employment Relations Amendment Act 2018.

Paid time for union delegates (section 6)

Employers must allow for reasonable paid time for union delegates to carry out their union activities, such as representing employees in collective bargaining. Employees will need to agree with their employer to do so or, at a minimum, notify them in advance. An employer will be able to deny the request if it will unreasonably disrupt the business or the performance of the employee’s duties.

Duty of good faith (sections 12 to 14)

Parties must conclude collective bargaining, unless there are genuine reasons based on reasonable grounds not to. This ensures that parties genuinely attempt to reach an agreement.  

Parties will not have to settle a multi-employer collective agreement (MECA) if their reason for not wanting to settle is based on reasonable grounds. For example, if there are significant differences between two employers – such as one operating in an area where costs and wages are higher – it could be reasonable for an employer to negotiate a single-employer collective agreement instead.

Pay rates must be included in collective agreements (section 19)

This must include an indication of how the rate of wages or salary may increase over the agreement’s term.

Obligations for new and prospective employees who are not union members (sections 11 and 20 to 24)

Employers must provide new employees with the prescribed form within the employee’s first ten days of employment and return the form to the applicable union(s), unless the employee objects. The form gives employees time to talk to their union representatives before considering and indicating whether they intend to join a union or remain on the individual employment agreement.

Employers must pass on information about the role and function of unions to prospective employees. Unions must bear the costs if they want printed materials to be passed on.

Trial periods (sections 36 and 37)

90-day trial periods are restricted to businesses with 19 or fewer employees, to restore protections from unjustified dismissal for most employees when they start a new job.

Businesses with 20 or more employees can continue to use probationary periods to assess an employee’s skills against the role’s responsibilities. A probationary period lays out a fair process for managing performance issues and ending employment if the issues aren’t resolved.

Continuity of employment if restructuring (sections 38 to 42)

Employees in the specified vulnerable industries such as cleaning and catering services will be able to transfer their current contract terms and conditions, regardless of the size of their employer. Changes also include a longer notice period for employees to choose to transfer to the new employer.

New categories of employees may apply to receive the protections under the specified ‘vulnerable workers’. Instead of a full legislative process, these categories can be amended through a recommendation by the Minister for Workplace Relations and Safety. An applicant must make a request to amend to the Minister

Rest and meal breaks (sections 43 to 45)

From 6 May the right to set rest and meal breaks will be restored for all employees, including transport drivers. Until then, the Employment Relations Act 2000 required that employees receive reasonable and appropriate rest breaks, without outlining the number, duration or position within the work day. The changes are being made to provide greater clarity of rest and meal break entitlements and to benefit workplaces by helping employees work safely and productively.

The changes mean that employees will be entitled to paid minimum rest breaks (10-minute break) and unpaid minimum meal breaks (30-minute break) throughout their work day. Employers and employees will agree when to take their breaks. If they cannot agree the law sets out when breaks should be taken, so long as it’s reasonable and practical to do so.

Some limited exemptions may apply for some workers in specified essential services or national security services. The changes have an important impact on the transport sector. The New Zealand Transport Agency has released information on the changes.