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Employment Relations Amendment Bill 2018

This article was written by Mikayla Hughes.

The Employment Relations Amendment Bill 2018 (“the Bill”) was released on 31 January 2018 and is part of the Labour-led government’s ‘first 100 days plan’. The majority of the changes are roll-backs of amendments made by the previous government. The notable changes include restrictions on trial periods, restoration of specific times for meal and rest breaks, and changes to collective bargaining and union rights.

The Minister for Workplace Relations and Safety, Iain Lees Galloway stated that, the purpose of the Bill is to “restore minimum standards and protections for employees, and to implement a suite of changes to promote and strengthen collective bargaining and union rights in the workplace”.

Trial Periods

The proposed amendments include that an employment agreement may provide for a trial period only if the employer employs fewer than 20 employees at the time the employment agreement is entered into.

Statistics show that 97% of New Zealand enterprises have fewer than 20 employees but only employ 29% of employees. Accordingly, 71% of employees are employed by larger employers who will no longer be able to use trial periods and obtain the “grievance free” protection from those trial periods.

Meal and Rest Breaks

The Bill also restores an employer’s statutory duty to provide and an employee’s statutory right to take rest and meal breaks. An employee’s entitlement to rest and meal breaks would, under the Bill, be as follows:

  • One 10-minute paid rest break if an employee works between 2 hours and 4 hours.
  • One 10-minute paid rest break and one 30-minute meal break if an employee works between 4 hours and 6 hours.
  • Two 10-minute paid rest breaks and one 30-minute meal break if an employee works between 6 hours and 8 hours.
  • If the employee works over 8 hours, the employee will be entitled to further breaks depending on the how long the subsequent period is.  

The employee and employer can agree on the times at which the employee is to take rest and meal breaks. In the absence of an agreement, there is a section which provides the timing at which the rest and meal breaks are to be taken.

There is a very limited exception. An employer is exempt from providing rest and meal breaks as above if the employer is engaged in an essential service and continuity of service or production is critical to public interest or public safety and the employer would incur unreasonable costs in replacing an employee during the statutory rest and meal breaks. An example often quoted is an air traffic controller.

Collective Bargaining and Union Rights

There are a number of proposed changes to collective bargaining and union rights. Some of which can be seen as controversial. These include:

  • Entitlements for an employee appointed as a union delegate to reasonable paid time during normal working hours to undertake union activities.
  • Repeal of the current provision requiring a union representative to obtain consent to enter a workplace.
  • A requirement that parties bargaining for a collective agreement conclude the agreement unless there are genuine and reasonable grounds not to do so.
  • A new provision that requires a union and an employee to continue to bargain about other matters if they reach a standstill or on one issue.

The Bill is currently at the Select Committee stage and if passed as anticipated, it is likely this Bill will come into effect in early 2019. We are available to review any employment agreements to ensure they will be compliant.  

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