Employment Relations Act changes

The Employment Relations Amendment Act 2014 came into force on 6 March 2015, bringing a raft of changes aimed at increasing flexibility for both employers and employees. While the new provisions are not a complete overhaul of the existing Act, employers and employees alike should be aware of the wide range of amendments and how they might impact their employment relationships. We summarise below the main changes that may affect you and your business.

Disclosure of Information during Restructuring and Disciplinary Processes

When proposing to restructure or undertake a disciplinary process, employers are required to give affected employees access to all relevant information. The Employment Court’s decision in Vice Chancellor of Massey University v Wrigley in 2011 introduced an extremely wide interpretation of what is relevant information in the context of a restructure. This included anything that might affect an employee’s continuing employment even where it may be confidential information relating to other employees.

The Amendment Act waters down the impact of the Wrigley case on employers. The good faith provisions of the Act have been amended so that employers will be entitled to withhold confidential information, including information about other identifiable individuals, where there is a good reason to withhold it. Importantly though, employers going through redundancy, restructuring or disciplinary processes will still be expected to share a great deal of information with employees, including financial information, evaluative or opinion material, and communications regarding the decision.

Employee Entitlements to Rest and Meal Breaks

Before 6 March 2015, the law provided schedular rest and meal breaks for all employees, based on the hours they worked. This schedular approach no longer applies. Employers are simply required to provide employees with a ‘reasonable opportunity’ for ‘rest, refreshment and attention to personal matters’.

Employers and employees now have much greater flexibility to agree on how, if and when breaks are taken. Where an employer cannot reasonably provide breaks due to the nature of the work, or where an employer and employee agree that no breaks will be taken, employers can compensate the employee for their break entitlement. Compensation might include allowing employees to accrue break time to take in one go, or letting them finish their shifts earlier in lieu of a break during the shift.

Flexible Working Arrangements

Previously employees with the care of dependants could request changes to their work arrangements to enable them to better care for their dependants. The right to request flexible work arrangements (including changes to hours, days and places of work) is now extended to all employees, with no exceptions or limitations. Although they are not required to accept a request for a flexible working arrangement, employers are required to formally respond to requests within one month.

Collective Bargaining

The Act makes some important changes to the rules around collective bargaining that give employer parties more flexibility during the bargaining process. Changes include:

• Repealing the duty for parties bargaining in good faith to conclude a collective agreement
• Allowing the Employment Relations Authority to make a determination that bargaining has concluded if a standstill or deadlock is reached
• Removing the Unions’ 20-day head-start on initiating bargaining, meaning both employers and unions will be able to initiate bargaining 60 days prior to the expiry of an existing collective agreement
• Allowing employers to opt out of bargaining for a Multi-Employer Collective Agreement within 10 days of the start of bargaining, giving them greater choice in the type of collective agreement they bargain for, and
• Repealing the existing rule that all new employees are employed on the terms and conditions in the collective agreement for their first 30 days of employment, giving employers and employees flexibility to negotiate the terms and conditions of employment from the outset. 

Other changes that came into force on 6 March that may be of interest are:

• Strikes and lockouts must be notified by advance written notice • Employers are entitled to make deductions in pay for employees involved in partial strike action 
• Changes have been made to Part 6A of the existing Act, relating to continuity of employment for vulnerable workers, and
• The Employment Relations Authority is now required to provide an oral determination or indication at the end of an investigation meeting where possible, but is not required to issue a written determination until three months later.

Disclaimer: All the information published in the Employment Bulletin is true and accurate to the best of the author’s knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or Simpson Western for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of the individual authors, and do not necessarily reflect the view of this firm. Articles in the Employment Bulletin may be reproduced with prior approval from the editor and credit given to the source.