The Employment Relations Amendment Act 2018 (“the Act”) was passed into law on 6 December 2018 and received Royal Assent on 11 December 2018. The Act prescribes that the changes will come into effect in two parts. The first set of changes came into effect on 12 December 2018. The second set of changes will come into effect on 6 May 2019. Here is what you need to know:
Changes that came into effect on 12 December 2018:
Union Access and Collective Bargaining:
- Union representatives can now enter workplaces without consent where the employees are covered under, or bargaining towards, a collective agreement. This right does not extend to workplaces that are also places of residence.
- Pay deductions can no longer be made for partial strikes.
- Businesses must now enter into bargaining for multi-employer collective agreements if asked to join by a union. They will not have to settle a multi-employer collective agreement if their reason for not wanting to settle is based on reasonable grounds.
- An employee’s ability to complain of discrimination on the basis of their union membership status is enhanced. Employees now have 18 months, an extension of 6 months, to complain of the behaviour.
- Earlier initiation timeframes have been restored for unions in collective bargaining, enabling a union to initiate bargaining 20 days ahead of an employer.
- Reinstatement will be the first course of action considered by the Employment Relations Authority. The employee must be successful in their personal grievance for an unjustified dismissal and have requested reinstatement for this to be the primary remedy.
Changes that will come into effect on 6 May 2019:
Rest and Meal Breaks:
- The right to set rest and meal breaks will be restored, the number and duration of which depends on the hours worked.
- Employers must pay for rest breaks but don’t have to pay for meal breaks. Employers and employees will agree when to take their breaks. If they cannot agree, the law will require the breaks to be in the middle of the work period, so long as it’s reasonable and practicable to do so.
90 Day Trial:
- 90-day trial periods will be restricted to businesses with less than 20 employees. Businesses with 20 or more employees can continue to use probationary periods to assess an employee’s skills.
- Employees in specified ‘vulnerable industries’ will be able to transfer on their current terms and conditions in their employment agreement if their work is restructured.
- The exemption allowing employers with 19 or fewer employees to choose not to take on existing employees if they win a contract has been removed. All businesses that take over a contract that involves “vulnerable” employees will have to employ the people currently doing the work on the same terms and conditions.
- An employer must provide notice to vulnerable employees of the right to transfer no later than 25 days before the restructuring will take effect. The employer must also advise the employee’s that they have 10 days to make the election to transfer.
Union Issues and Collective Bargaining.
- The duty to conclude bargaining will be restored for single-employer collective bargaining, unless there are genuine reasons based on reasonable grounds not to.
- The 30-day rule will be restored. Any new non-union employees must be employed on the same terms and conditions of employment for the first 30 days of employment.
- Pay rates will need to be included in collective agreements, along with an indication of how the rate of wages or salary payable may increase over the agreement’s term.
- Employers will need to provide new employees with an approved active choice form within the first 10 days of employment and return forms to the applicable union, unless the employee objects. The form gives employees time to talk to their union representatives before considering and making a choice about whether to join a union or remain on the individual employment agreement.
- Employers will need to allow for reasonable paid time for union delegates to undertake their union activities.
- Employees will need to pass on information about the role and function of unions to prospective employees. Unions must bear the costs if they want printed materials to be passed on.
If you have any questions or need assistance with any employment issues, please contact: Rachel Nightingale on 09 837 5734