The Government has fulfilled its commitment to update legislation in relation to 90-day trial periods, within its first 100 days. The Employment Relations (Trial Periods) Amendment Bill (Bill) was passed on 21 December 2023, after a fast-tracked process through Parliament.
Following Royal Assent, trial periods will be able to be used by all employers, regardless of the size of their business and the number of employees. This is different to the current scope, which limits the use of trial periods to businesses with fewer than 20 employees. This means that, trial periods will operate as originally intended (for the benefit of all employers, not strictly small businesses) and as originally introduced by National in 2011.
What does this mean for existing employment
relationships?
When the Bill is assented and becomes law, Employers will only be
able to dismiss employees under a 90-day trial period, where the
employment agreement has a valid trial period provision. This means
that all legislative requirements of section 67(A)(2) of the
Employment Relations Act 2000 will need to be met, in order for a
dismissal under a trial period to be valid. If a dismissal is
valid, an employee will not be entitled to bring a personal
grievance or other proceedings against their Employer.
The legislative requirements for a 90-day trial period to be enforceable, include that, the trial provision must be in writing, and for a specified period (not exceeding 90 days) starting at the beginning of the employee's employment. It will remain unchanged that trial periods will only be able to entered into if the employee has not previously been employed by the employer. This means that any existing employment relationship, regardless of the length of employment, will not be affected by this change to legislation. An Employer cannot introduce a trial-period for an existing employee.
The reintroduction of trial periods is a significant change for medium to large size businesses and their employees, and we are expecting more changes in the new year as the Government continues its term. If you have any questions about re-introducing 90-day trial periods into your employment agreements or the validity of any trial period provision, please contact our specialist employment team.
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.