Australia: Changes Afoot, No Matter The Outcome

Last Updated: 19 September 2008
Article by Sean O’Sullivan

No matter the outcome of the pending election, it seems inevitable that there will be changes in the area of employment and workplace relations.

Here, we provide a snapshot of what can be expected from Labour and National, bearing in mind that in the current climate neither is likely to hold a clear majority, but whoever holds the balance of power will inevitably make changes to the status quo.

Labour's policy

The Employment Relations Act 2000, brought in by the Labour government, reflects Labour's general policy in this area. Labour has been working hard to pass as much legislation as possible to give effect to its policies. Further to those recent changes noted above, the Employment Relations Amendment Bill (No. 3) has just been introduced to the House and deals with the following:

  • In an attempt to provide stronger protection for casual and fixed term employees, the Bill extends the power of Labour Inspectors to determine the status of employment relationships where an employee's status comes into question.
  • In doing so, the Bill requires the following factors be considered in determining the nature of an employment arrangement. These are:
  • Whether the employment agreement purporting to be a fixed term agreement complies with section 66 of the Employment Relations Act 2000.
  • Work patterns of the employee.
  • Whether the employee only works when the work is available.
  • Whether the employer uses a roster system to allocate work.
  • Whether the employer has expectations that an employee will be available for work on request.
  • Other relevant factors.
  • The Employment Relations Authority will retain its ability to make such determinations and Labour Inspectors' decisions will be open to review by the Authority.
  • The Bill also deals with 'triangular employment relationships'. This is where an employee's services are contracted out to a third party who effectively has control over that employee's work. The Bill attempts to strengthen the rights of these employees by doing the following:
  • Allowing employees who are union members to have consistent terms and conditions with those contained in any collective agreement between the same union and the controlling third party when the employee is performing work for that controlling third party.
  • An employee will be able to apply to the Authority or Employment Court to join the controlling third party as a party to a personal grievance action.

Redundancy compensation

  • The government has established a working group to review the introduction of compulsory redundancy compensation. This has only been mooted. No further action has been taken.

National's Employment and Workplace Relations policy

One of the most significant changes National proposes is in relation to the manner in which the dispute resolution process will take place. The proposal is for:

  • Retention of the mediation service, ensuring it is resourced with properly qualified mediators.
  • A requirement that the Employment Relations Authority act judicially in accordance with the principles of natural justice (including the right to be heard and the right to cross-examine).
  • Injunctions and important questions of law to be heard in the first instance in the Employment Court (as opposed to the Employment Court having jurisdiction simply in relation to strikes and lockouts).
  • Right to appeal to the Court of Appeal on matters of fact and law.

The result of these changes would see the Employment Relations Authority operating in a more adversarial manner, like the rest of the civil system, as opposed to the current inquisitorial system. Further, the proposal sees more involvement of the Employment Court and Court of Appeal. The current law in New Zealand provides for trial periods in a limited sense, but National proposes a 90 day trial period for organisations with less than 20 staff. This would mean that:

  • If an employee and employer agree to the provision of a 90 day trial period at the outset of the relationship:
  • Then an employee could not raise a personal grievance for an unjustified dismissal (or action) if dismissal occurs during the trial period. Access to mediation would still be available.
  • The National Party has said that good faith provisions, the Holidays Act and Health and Safety in Employment provisions would still apply, as would the principles of natural justice and Human Rights legislation.

The other proposed changes are as follows:

Unions and collective bargaining

  • Unions will be allowed continued access to workplaces with employer's consent, with restoration of worker's rights to bargain collectively without belonging to a union.

Annual leave

  • Four weeks' entitlement to remain with the ability to request a trade of the fourth week for cash. Presumably employees will be prepared to trade the extra week's paid leave for working that week if they receive payment at a higher rate such as double payment for one week.

Holidays legislation

  • A working group is to be appointed to review the Holidays Act, in particular around the definition of 'relevant daily pay' which has consistently brought complaint from employers because of the difficulty to calculate and reach a clear and unequivocal agreement on the amount to be paid.

National's stance on the KiwiSaver legislation is not completely clear. It is expected that further announcements will be made closer to the election. However, at this stage the National Party has said it will retain the legislation and support the government's contribution of $1,000 and grants to first-home buyers, but it may review the compulsory employer contributions.

Whilst it does not currently form part of the policy, National have alluded to an ACC scheme that is open to competition.

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.

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”

Mondaq Advice Centre (MACs)
Related Video
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.