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FYI
Employment Law
08 Oct 2010
Legislation Update
The Transport and Industrial Relations Select Committee has recently recommended that two new bills be passed into law.
The Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill relaxes the provisions on rest and meal breaks for employees, while the Employment Relations (Workers' Secret Ballot for Strikes) Amendment Bill requires unions to hold a secret ballot of their members before undertaking any strike action.
Rest and Meal Breaks
In October last year the Employment Relations (Rest Breaks and Meal Breaks) Amendment Bill was introduced to Parliament. Almost a year later that Bill has resurfaced, having passed through a Select Committee process.
The Bill proposes significant changes to the existing rest and meal breaks régime. The Bill removes the legislated minimums prescribed for rest breaks and meal breaks and replaces them with a requirement for employers to either provide meal breaks and paid rest breaks, or take compensatory measures. These changes aim to ease the current requirements regarding the timing, number and duration of breaks, in order to make the criteria for a break more flexible.
The key features of the Bill include:
- employees are still entitled to rest and meal breaks;
- the entitlement can be subject to certain restrictions, but only if the restrictions are reasonable and necessary given the nature of the employee's work;
- there are no default timings for rest and meal breaks - these must be agreed between the employee and employer;
- where there is no agreement the employer can specify the times and durations of the breaks, but these must be reasonable;
- an employer is not required to provide rest and meal breaks where the employer and employee agree that the employee will be provided with compensatory measures (defined in the Bill as including measures such as a later start time, earlier finish time, or time off in lieu).
The Select Committee has recommended the Bill be passed into law, with the Committee's main amendments being:
- that the entitlement to rest and meal breaks can be subject to certain restrictions if they are reasonable and necessary given the nature of the employee's work or if they are reasonable and agreed to by the employer and employee; and
- where compensatory measures are provided instead of rest or meal breaks, they must be "reasonable".
The Bill will now be referred back to the House for its second reading but no date has been set for when we can expect to see it in force. (We note that the Explanatory Note to the original Bill said that the Bill was intended to receive the Royal Assent no later than 30 December 2009 - so that timeframe has certainly passed!)
When it does come in, the legislation will be very helpful for employers who have difficulty, due to the nature of their work, with the regimented breaks currently prescribed by the Employment Relations Act.
Secret Ballots
Last week the Select Committee also recommended that the Employment Relations (Workers' Secret Ballot for Strikes) Amendment Bill be passed. This Bill would amend the Employment Relations Act to require unions to hold a secret ballot before taking strike action. Secret ballots should be a means for individual union members to have their say, without pressure, on whether they want to go ahead with proposed strike action.
The Select Committee has amended the Bill to clarify that:
- the question to be voted on in a secret ballot is whether the members of the union are in favour of the strike; and
- unions will have an obligation to inform their members of the outcome of the secret ballot as soon as reasonably practicable after the vote has taken place.
It will be interesting to see if the introduction of secret ballots has any effect in reducing the number of strikes.
Employment Relations Amendment Bill (No 2) 2010
As you may know, the Transport and Industrial Relations Select Committee is currently considering further proposed amendments to the Employment Relations Act (for example in relation to the 90 day trial period, Authority process and union access to the workplace).
Simpson Grierson had the opportunity to make submissions in person to the Select Committee on 29 September 2010. The Select Committee's report is due out on 5 November 2010.
Authors
Charlotte Bates
Senior Associate - Employment
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Carl Blake
Senior Associate - Dispute Resolution
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Katherine Burson
Senior Associate - Employment
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The Transport and Industrial Relations Select Committee has recently recommended that two new bills amending the Employment Relations Act be passed into law, and it is currently considering further proposed amendments.
