New Zealand: Employment Relations Amendment Bill – changes afoot

Last Updated: 13 June 2013

As published in the Auckland District Law Society Law News

The passing of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013, which 'Mondayises' Waitangi Day and ANZAC Day, has already brought change in the area of employment law in 2013, specifically in the area of public holidays. Those changes are good news for those employees who work Monday to Friday, which includes many readers of Law News.

Further development in the area of employment law has been signalled by the introduction of the Employment Relations Amendment Bill. As most people are either employees or employers themselves, the changes have relevance beyond practitioners in the employment jurisdiction.

The important changes can broadly be broken down into the following categories:

  • Collective bargaining;
  • Flexible working arrangements;
  • Rest and meal breaks;
  • Continuity of employment for vulnerable employees;
  • The provision of information in a restructuring situation; and
  • Employment Relations Authority (ERA) processes and procedures.

The latter two categories are the more 'surprising' inclusions in the Bill.

It is not possible to outline the proposed changes in detail in this article, nor to look specifically at what the changes are trying to achieve, why and whether they will in fact do so. At first instance it is important to understand the changes that are on the horizon. Submissions on the Bill can be made to the Transport and Industrial Relations Select Committee.

Collective bargaining

Collective bargaining has attracted attention in the last 18 months, largely through the protracted dispute at the Ports of Auckland. Against that background, it was hardly surprising that a number of changes were proposed in this area. These are numerous and include the following:

  • At present, the law requires the parties to collective bargaining to conclude an agreement. The proposed change removes that requirement. Instead, the parties will be able to apply to the ERA for a declaration as to whether bargaining has concluded, and the Bill includes a process for the Authority to determine whether bargaining has concluded;
  • At present, if a new employee is hired whose work is covered by the coverage clause of the existing collective agreement, that employee must be offered the terms and conditions of the collective agreement for the first 30 days of their employment. The Bill proposes the removal of that requirement. That means employers will be able to offer all new employees whatever terms they deem appropriate;
  • There has been case law about whether an employer must participate in multi-employer collective bargaining if that is initiated. A change is proposed which will mean that an employer is not obliged to do so;
  • A change is proposed to allow employers to partially reduce the pay of employees who are party to partial strikes. When this change was first flagged, the potential difficulty in assessing how an employer can apportion parts of an employee's salary was identified. The Bill has addressed this concern by providing for either a proportionate pay reduction formula, or a fixed deduction of 10%;
  • All parties will be required to provide advance written notice of a strike or lockout; and
  • The timeframes for unions and employers to initiate bargaining will be aligned.

Commentators are considering whether the proposed changes will strengthen the position of employers in regard to collective bargaining. Obviously the intention is that greater clarity will be provided in respect of issues that have required judicial intervention in the past and it is hoped that the changes will help to avoid protracted disputes like the Ports of Auckland dispute.

Flexible working arrangements

Currently New Zealand follows the UK in that the right to request flexible working hours under the Act is only available to those employees who are responsible for the care of another person. Employees will no doubt welcome the proposed amendment, which extends to all employees the right to request flexible working arrangements.

However, in practice this change will just put in place a statutory right to request flexibility (there is still no statutory obligation to provide it). Even under the current legislation, forward-thinking employers are already considering requests for flexible working arrangements from all employees, not just those with caring responsibilities

Rest and meal breaks

Another issue which has required judicial intervention in the past is that of rest and meal breaks. The Act currently specifies when breaks ought to be taken during a period of work, but despite the best intentions of both parties that is often not possible, particularly in sole charge situations. The proposed change will allow the parties to the employment relationship to negotiate break times in good faith and will give greater flexibility, a move that will be welcomed by many.

Continuity of employment

Changes are proposed to part 6A and here we see another differentiation based on the size of the employer (trial periods could initially only be implemented by employers with fewer than 20 employees). It is proposed that incoming employers with 19 or fewer employees will be exempt from the part 6A requirements. As New Zealand has a considerable number of employers in this small to medium sized category, this is a significant change.

Provision of information

In regard to the provision of information, the floodgates were arguably opened by the Employment Court's decision in Vice Chancellor of Massey University v Wrigley [2011] ERNZ 138. The Bill proposes a change to the duty of good faith such that an employer in this situation is not obliged to provide an affected employee with access to confidential information if the information is:

  • about another identifiable individual; or
  • evaluative or opinion material compiled for the purpose of making a decision about the continuity of the employee's employment; or
  • about the identity of the person who supplied the evaluative or opinion material.

The proposed changes will be welcomed by employers, many of whom have struggled with this requirement post-Wrigley.


The Employment Relations Authority is also facing changes with the Bill proposing a requirement that the Authority must either provide an oral determination at the end of an Investigation Meeting, followed by a written determination within 3 months, or provide an oral indication of its findings, subject to the provision of additional evidence, to be followed by a written determination within 3 months.

Given the Authority was set up to offer low level, cost-effective and prompt access to justice for parties to an employment relationship, such changes are consistent with the Authority's mandate.

It is pleasing to see areas requiring past judicial intervention being addressed. Of course, the ultimate test is whether the proposed changes will in fact address the issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Duncan Cotterill
Wynn Williams Lawyers
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Duncan Cotterill
Wynn Williams Lawyers
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions