Upcoming Changes to Employment Law - 2018
The new Government has introduced a number of proposed changes to employment law as part of its first 100 days in office. While the changes are wide-ranging and some are new, many simply reverse changes made by the previous Government. This is a brief summary of the changes, when they come into effect, and the transitional provisions. The proposed changes are still to go through the Parliamentary process before being passed into law.
Employment Relations Amendment Bill 2018
Changes to the following come into force four months after the Amendment Act receives Royal Assent:
- Reasonable paid time for union delegates to represent employees
- Requirement to conclude collective bargaining
- Provision of rates of wages and salary to be included in collective agreements
- Employers’ obligations to new employees who are not union members
- Changes to 90 day trial periods
- Continuity of employment if an employee’s work is affected by restructuring
- Rest and meal break changes
Changes to discrimination in relation union to membership and union involvement come into force six months after the Amendment Act receives Royal Assent.
The rest of the Amendment Act comes into force the day after the Act receives Royal Assent.
Amendments relating to collective bargaining and unions
Union delegates appointed to represent union members will be entitled to reasonable paid time to do so. The delegate must have their employer’s agreement to do this without notice, or else give advance notice to their employer.
The employer may refuse if the activities would cause unreasonable disruption.
Unions will no longer be required to obtain consent to enter a workplace. All other conditions relating to access will remain and an employer will not be able to unreasonably deny union access. Penalties will apply for unreasonably denying access.
Concluding collective bargaining
The duty of good faith will require employers and unions bargaining to conclude a collective agreement unless they have a genuine reason, based on reasonable grounds, not to.
Parties must continue bargaining even though they have come to a standstill or reached a deadlock in bargaining.
This will apply to all bargaining that has not concluded before commencement of this section.
Employers will no longer be able to apply to the Employment Relations Authority for a declaration that bargaining has concluded because of difficulties in concluding bargaining. Any declaration made by the Authority before commencement of the amendment will continue to have effect.
Initiating collective bargaining
Unions will be given the ability to initiate bargaining for a new replacement collective agreement before employers. Whether there is one collective agreement in place, or more than one multi-union or multi-employer collective agreement, the union will be able to initiate bargaining 20 days earlier than the employer. Currently, the period before a collective agreement expires when parties can initiate bargaining is the same for both unions and employers.
Multi-employer collective agreements
Employers will no longer be able to opt out of bargaining for a new multi-employer collective agreement, or bargaining to become a party of an existing multi-employer collective agreement.
Any opt-out notices given before the commencement of this part of the amendment will continue to apply.
Form and content of collective agreement
There will be a requirement for collective agreements to contain the rates of wages or salary payable to employees.
Details of wages or salary payable must be included. It will not be enough for the collective agreement to just refer to a document or process that is not part of the agreement, or provide that the employer has sole discretion to determine the wages or salary payable.
This will apply to any collective concluded on or after commencement of the amendment.
Union information for new employees
A union that is party to a collective agreement will be able to request, at any time, that an employer that is party to the agreement to provide information about the union and its functions to new employees who are not union members. An employer must comply with such requests other than in very limited circumstances.
Employers will have to comply with any such request made on or after the commencement of this amendment. However employers need not comply with the request until after the other new requirements for new employees come into effect.
Amendments to individual employees’ terms and conditions of employment
New employee who is not a member of the union
The ’30 day rule’ will be reintroduced. New individual employees who are not a member of the union that is a party to a collective agreement that covers the work to be done by the employee, will be automatically covered by the terms of the collective agreement that would bind the employee as if they were a union member for the first 30 days of employment.
Parties can agree on any additional terms that are not inconsistent with the collective agreement in place.
This will apply to any new employees who start working, or sign an individual employment agreement, on or after commencement of the amendment.
Employers will need to comply with existing requirements to inform new employees that a collective agreement exists and covers the work, provide information about the union, a copy of the collective agreement, and inform them that they will be covered for the first 30 days by the terms of the collective agreement.
In addition, employers must meet these obligations for ‘prospective employees’.
This will apply to an employer bargaining with an individual on or after commencement of the amendment, whether bargaining was initiated before, on, or after commencement.
There will be a requirement for employers to share information about a new employee with the union. However this will be subject to any objection by the employee. Employees will be given a certain timeframe in which to object. The information will include the name of the employee and whether the employee has elected to join the union or not.
Amendments to Strikes and Lockouts
Partial strike pay deductions repealed
Employers will no longer be able to make specified pay deductions in relation to partial strike action.
Any specified pay deductions being made must cease on the commencement of this amendment.
Amendments to personal grievances, disputes, and enforcement
Discrimination on the basis of union membership
It will be unlawful to discriminate against an employee by reason of that employee’s union membership status, in addition to the employee’s involvement in union activities.
The amendment will extend the time period allowing for discrimination claims based on union activities, or union membership status from 12 months to 18 months. This means that the employee must have been involved in union activities, or been a union member within 18 months before the action being complained of.
The use of trial periods in employment agreements will be restricted to employers who employ fewer than 20 employees at the beginning of the day on which the employment agreement is entered into.
Any trial provision in an employment agreement entered into before the commencement of this amendment will continue to apply. The change will only affect those agreements reached on or after the commencement of the amendment.
The exemption in Part 6A of the principal Act for employers with 19 or fewer employees will be removed.
Where an employee has a right to elect to transfer to a new employer, the existing employer must provide notice of that right to elect to transfer as soon as practicable, but no later than 20 days before the restructuring takes effect (increased from 15 working days).
The employer must also advise the time employees have to make the election, which is 10 working days (increased from 5 working days).
There are also new notification requirements on employers in respect of their employees’ personal information.
Rest and Meal Breaks
The former prescriptive minimum entitlements to breaks will be reintroduced. This provides that an employer must provide rest and meal breaks appropriate for the duration of the employee’s work period as prescribed by the amendment.
Parties may agree on the timing of breaks, but in the absence of any agreement the breaks must be provided in the middle of the work period to which they relate.
An employer and employee may agree to any rest and meal breaks to be taken in a different manner if:
- The employer is engaged in an essential service; and
- continuity of service or production is critical to public interest; and
- the employer would incur unreasonable cost in replacing an employee, employed in the essential service during rest breaks and meal breaks with another person who has sufficient skills and experience; and without compromising public safety.
If the employer and employee are unable to reach agreement, the employee must be provided with compensatory measures including, but not limited to alternative time off work and/or financial compensation.
Remedy of reinstatement
Where an employee has suffered a personal grievance and has sought reinstatement as a remedy, the Authority must provide reinstatement as the primary remedy, wherever practicable and reasonable.
This will only apply to proceedings brought before the Authority or Court on or after the commencement of this amendment.
Employment Relations (Triangular Employment) Amendment Bill
The day after the Amendment Act receives Royal Assent.
Application of collective agreement to temp employees
If you have temps from a labour hire agency working on your site, and they are performing work that is covered by a collective agreement, and they are a member of the union party to that collective, then the temp employees will be covered by collective agreement in place.
Joinder of parties to personal grievance
In the event that a temp agency employee raises a personal grievance against the agency (primary employer) and the client business (secondary employer), the employee may apply to the Employment Relations Authority or Court to join the secondary employer as a respondent to the grievance.
For any subsequent determination of the personal grievance, the actions of the secondary employer are deemed to be the actions of the primary employer.
The secondary employer may also be jointly liable with the primary employer for any remedies awarded to the employee.
The Authority or Court must grant leave if the actions of the secondary employer have resulted in or contributed to the grounds of a personal grievance, and if it considers it just to do so.
This article has been developed by the Employers and Manufacturers Association (EMA) and as Licenced Contracors to the EMA we herewith draw these matters to our client's attention.