Most Read Contributor in New Zealand, September 2016
The amendments to the Employment Relations Act and
Holidays Act were passed by Parliament yesterday and now
only need the royal assent to become law, likely to be early next
This Brief Counsel summarises the key additional policy changes
since our earlier publications.
Employers are now required to respond to union access requests
within one working day (previously this was two). However
consent is only presumed to be given if two days pass without a
response from the employer (this has not changed).
Where access is refused, the employer must give written reasons
by the end of the working day after the refusal (again, previously
this was within two days).
The personal grievance provisions have been tweaked. The
original Bill stated that the Authority or Court could not
determine a dismissal to be unjustified solely because the defects
were minor or technical and probably did not result in the employee
being treated unfairly.
In the Bill as passed, the references to "technical"
and "probably" have been removed, so that dismissals will
not be unjustified if the defects were minor and
did not result in the employee being treated
The Bill provides that an intended agreement (of which the
employer is obliged to retain a copy) must not be treated as the
employee's employment agreement if the employee has not signed
the agreement or not agreed to any of the terms and conditions
This is likely to cause real issues as it is not uncommon for
employees not to have signed agreements and for the courts in this
situation to treat an unsigned agreement as setting the terms and
conditions of that employment – a (usually practical)
result which will now be unavailable.
The policy intention was to make it clear that an unsigned
agreement cannot be the employment agreement where the employee has
told the employer that he or she does not agree to it. That
is sensible, but it is not what the amendment actually says.
We had hoped that this issue would be ironed out when the Bill was
considered by the whole House.
The requirement that requests by employees for the payment of
annual leave and requests to transfer a public holiday be
"informed and voluntary" has been removed on the grounds
that this could create much uncertainty.
The definition of discretionary payments under the Holidays Act
has been tidied up. Payments are not discretionary for
Holidays Act purposes if they are required to be paid under the
employment agreement, even though the employer may have a
discretion about how much to pay, or payment is only required where
the employee meets certain conditions. In our view these
changes are sensible and reflect current practice.
Most of the amendments will come in to force on 1 April
2011. The requirement for employers to retain copies of
employment agreements will come in to force on1 July
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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