Some significant changes are to be made to the Employment Relations Act 2000 (“the Act”) which will come into effect on 6 March 2015. The changes target six key areas of the Act with the aim of promoting the concepts of flexibility and choice, the balance of fairness between employers and employees, and a reduction in regulation and compliance costs. A brief overview of each of the six areas of change is detailed below. Flexible Work - The key changes under flexible work arrangements are said to better reflect today’s modern lifestyles, with the aim of enabling employees to find the right work-life balance. The changes include extending the right to ask for flexible work arrangements to all employees (as opposed to just caregivers); allowing employees to request flexible work arrangements from the first day of their employment (rather than waiting six months), allowing employees to make a number of requests in any year, and reducing the timeframe in which the employer must respond to one month (from three months). Rest and Meal Breaks – Key changes under rest and meal breaks are to make them more flexible. Employees will still be entitled to rest and meal breaks. The key is that such breaks must be “reasonable” and parties should negotiate in good faith when breaks should be taken and the duration of them. However, in the event that no agreement can be reached, employers will have the ability to decide when breaks are to be taken. Further, when breaks cannot reasonably be provided by employers (for example, due to business needs), employees will have the right to be compensated for the lack of a break. Continuity of Employment – Part 6A – The changes aim to give more certainty and clarity to employers under Part 6A of the Act (which relates to transferring employees to a new employer after a merger/acquisition), while keeping key benefits for affected employees. Key changes include exempting SMEs (businesses with less than 20 employees) from compliance with Part 6A; governing the transfer of information from the original employer to the incoming employer, and protecting incoming employers from unjustified increases in employee costs and terms of employment. Good Faith – The changes clarify the information that employees are entitled to receive in situations where their employment may be adversely effected by a decision of the employer (e.g. restructuring/redundancy and disciplinary situations). In such situations, employers must give the potentially affected employee relevant confidential information about that particular employee. An employer does not have to give the affected employee information about any other employee, if doing so would involve an unnecessary disclosure in respect to that other employee. However, employees in disciplinary situations should still know the identity of their accuser unless there is good reason to keep this information confidential. Collective Bargaining – The changes to collective bargaining aim to increase choice and flexibility, and improve fairness and balance between parties. The key changes include allowing employers to opt out of multi-employer bargaining, removing the 30-day rule requiring new non-union employees to be on the same terms and conditions of employment as any relevant collective agreement, requiring written notice in advance of any proposed strikes or lockouts, allowing employers to proportionately reduce pay as a response to partial strikes, and, in situations where agreement cannot be reached, allowing parties to ask the Employment Relations Authority to declare that bargaining has ended. Employment Relations Authority (ERA) – The changes amend the way in which the ERA must give determinations (decisions), requiring that, whenever practical, an oral determination must be provided at the conclusion of a hearing, with a written record of that determination being issued within one month. The ERA can only delay its determinations if there is good reason to do so, e.g. further evidence or submissions are to be provided. Any delayed determination must be delivered within three months after the later of the hearing date or the additional evidence/submissions are provided.
By Chris Patterson