Employment Relations Amendment Bill

25 January 2018

Employment Relations Amendment Bill

The above Bill has just been announced and largely gives effect to the new Government’s pre-election manifesto.

The Bill will go through the usual parliamentary process and will be referred for public submissions.  The final date for submissions is unknown at this time.

The Bill is expected to have its first reading in early February.

As expected the Bill deals with matters identified as part of the Government’s ‘first 100 days’ programme.  It does not address the matter of so-called Fair Pay Agreements and we anticipate that further legislation will be introduced, possibly later this year, to provide for what has been described as industry-wide collective agreements covering specific occupations within an industry.  Serious concerns have been raised in relation to what business regards as a failed concept and government has acknowledged the need for consultation with employers and unions before introducing any further amendments.

In summary, the Bill proposes to amend the Employment Relations Act in the following manner –

Rights for Employees

These modifications are largely roll-backs of the previous Government’s changes which the Government asserts weakened employees’ rights at work:

  • Restoration of statutory rest and meal breaks.  These will be subject to a very limited exception for workers in essential services who cannot be replaced (such as air traffic controllers).
  • Restriction of 90-day trial periods to SME employers (less than 20 employees).  This restores the position to how it was when the 90-day trial was first introduced – the wider reform originally touted appears to have been abandoned.
  • Reinstatement will be restored as the primary remedy to unfair dismissal.  This was infrequently used but reflects Government’s view that in some circumstances the best outcome is for the employee to return to work.
  • Further protections for employees in the “vulnerable industries” (Part 6A).  These changes repeal the SME exemption from coverage, provide more time for employees to decide whether to transfer to a new employer, and provide greater safeguards on transfer of inaccurate information.

 

Collective Bargaining and Union Rights

Most of these modifications are roll-backs of the previous Government’s changes:

  • Restoration of the duty to conclude bargaining unless there is a good reason not to.  This is complemented by repeal of the process to have bargaining declared over.
  • Restoration of the earlier initiation timeframes for unions in collective bargaining.
  • Removal of the MECA opt out where employers can refuse to bargain for a multi-employer collective agreement.
  • Restoration of the 30-day rule where for the first 30 days new employees must be employed under terms consistent with the applicable collective agreement.
  • Repeal of partial strike pay deductions where employers could respond in a proportionate way to partial stoppages or other low level industrial action such as ‘work to rule’ situations.
  • Restoration of union access without prior employer consent.  Union access will still be subject to requirements to access at reasonable times, and places having regarding to business continuity, health and safety.

 

New Proposals: 

  • A requirement to include pay rates in collective agreements.  This is based on recent case law. Pay rates may include pay ranges or methods of calculation.
  • A requirement for employers to provide reasonable paid time for union delegates to represent other workers (for example in collective bargaining)
  • A requirement for employers to pass on information about unions in the workplace to prospective employees along with a form for the employee to indicate whether they want to be a member.
  • Greater protections against discrimination for union members including an extension of the 12 month threshold to 18 months relating to discrimination based on union activities and new protections against discrimination on the basis of being a union member.

 

Whilst the Government’s partial rethink on the 90-day trial will be welcomed, particularly by SME’s, the proposed changes around collective bargaining and some of the new proposals will cause great concern and appear to be largely directed to advancing or shoring up the position of unions.  SME’s in the cleaning and food catering sectors will also be particularly concerned by the proposal to remove their exemption under Part 6A.

This Bill is the first step of the Government’s workplace relations programme which includes passing Equal Pay legislation, lifting the Minimum Wage to $20 by 1 April 2021 and providing a  framework for so-called Fair Pay Agreements.

We will be providing further detail and briefing members on the proposed changes in coming weeks – details to be announced.

 

To view The Chamber's Media Release - click here.

 

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