The Employment Relations Amendment Bill 2013 was passed on 30 October 2014. It will come into effect on 4 March 2015 (being 4 months after being given Royal Assent).
The changes should increase flexibility and choice for employers in a collective bargaining setting and in dealing with industrial action generally. The changes also aim to provide flexibility in determining when rest and meal breaks can be taken that reflect the needs of the employer's business and available resources.
Now is a good time for employers to review employment agreements and policy documents that may be impacted upon by the amendments to the Act.
Key changes being introduced are as follows:
- The Bill removes the "30 day rule", so that employers will no longer be required to offer new employees the same terms and conditions of employment as contained in the collective agreement that would apply if the employee was a member of a union.
- The duty of good faith will no longer require parties to collective bargaining to conclude a collective agreement during bargaining and a collective may remain in place for up to 12 months after expiry if agreement cannot be reached.
- A party to bargaining will be able to apply to the Employment Relations Authority for a determination that bargaining is concluded, provided parties have not breached the duty of good faith.
- Employers may opt out of bargaining for a multi-employer collective agreement.
- All strikes or lockouts will now have to be notified in advance.
- Employers will now be able to make deductions from the wages/salaries of employees who are partially on strike.
Rest and meal breaks
- Employers now have more flexibility with regard to rest and meal breaks.
- Parties can negotiate in good faith to agree on when rest and meal breaks can be taken and a mechanism to compensate an employee where they agree to forgo a rest or meal break.
- In the absence of agreement the employer may specify reasonable times and duration for rest and meal breaks, taking into account the operational environment and resources of the employers business to enable continuity of production.
Flexible working arrangements
- Extends the right for all employees to request flexible working arrangements (not just those with caring responsibility).
- No stand down period – so enables a new employee to make a request for flexibility.
- Employees no longer limited to one request per annum and employers must now respond within one month of the request (previously 3 months).
Good faith – information disclosure
- Clarifies what information employees are entitled to during restructures or other situations where their continued employment is at risk.
- Removes the obligation to provide information that is information:
- About another identifiable individual.
- That is evaluative or opinion material compiled for the purpose of making the decision.
- About the identity of the person who supplied the evaluative or opinion material.
- Subject to a statutory requirement to maintain confidentiality.
- Allows an employer to provide access to redacted versions or summaries of documents in order to maintain confidentiality.
Continuity of employment – vulnerable employees
- Requirement to provide incoming employer (purchaser) or sub-contractor (taking over an existing contract) with detailed information about employees who have elected to transfer employment.
- Introducing a mechanism for apportioning liability for service related entitlements between employers (i.e. employee sick leave, annual leave entitlements etc.) where the parties are unable to agree or where there is a dispute.
- Protection for new employer from any unjustified increase in employment costs or changes to terms of employment prior to restructure – outgoing employer implied warranty.
- Certain exemptions for SME organisations as the incoming employer (i.e. organisation employing less than 20 employees).
- Where an organisation is exempt it will:
- Not be required to employ a vendor's staff or meet their entitlements on transfer.
- Not be required to include an employee protection provision in employment agreements for incoming vulnerable employees.
- When determining eligibility for exemption, employees employed by a parent or subsidiary company will be counted toward the total number of staff employed (Associated Person rule).
- The associated person rule is to avoid large organisations setting up a SME to gain benefits of exemption when selling or contracting out parts of their business that employes vulnerable workers.
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.