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Select Committee rejects employer concerns on ER Bill

September 11, 2018


Partners Phillipa Muir, John Rooney, Samantha Turner, Shan Wilson
Senior Associates Carl Blake, Bronwyn Heenan, Lucy Jenkins, Rebecca Rendle

Employment (inc Employment Relations Amendment Bill) Government reform and public policy

The Education and Workforce Select Committee has reported back on the Government’s proposed amendments to the Employment Relations Act 2000 (Act).

A copy of the Report can be found here. Select Committee's recommendations do not appear to have significantly altered the draft Bill that was first introduced in January this year. In fact, the Select Committee appears to have adopted almost none of the changes proposed by employers and instead has made it an even higher bar for employers to decline to pass on information to unions.

In summary, the Select Committee’s recommendations on the Bill include (click here for a pdf version):

ER Bill Select Committee proposed amendments
Rights for Employees
Right to prescribed rest and meal breaks (subject to exempt roles) Additional roles for employees engaged in New Zealand's national security are to be exempt from prescribed breaks.
Restrict 90-day trial periods to only employers of less than 20 employees No change other than clarified definition of small-to-medium-sized employers as employers with fewer than 20 employees at the beginning of the day on which a relevant employment agreement is entered.
Require employers to notify employees of their right to review and ask for corrections of personal information No change.
Restore reinstate as the primary remedy No change.
Changes for Unions
Reinstate union access to workplaces without employers’ prior consent No change.

Require employer to pass on information provided by union to employees unless defamatory or confidential

The grounds for refusal to pass on information (defamatory or confidential) are replaced. The employer may now refuse if the information is:

  1. about the employer; and
  2. would, or is likely to, mislead or deceive the prospective employee; and
  3. would significantly undermine bargaining between the employer and prospective employee.

The union is to bear the cost of providing the information.

Require employers to provide union information about new employees unless employee elects not to join union and opts out

An employee only needs to notify the employer of their intention not to join a union in order to opt out of the information sharing provisions.

Reinstate 30-day rule where terms of collective agreement apply to new employees The 30-day rule does not prevent negotiation of more favourable terms and conditions.
Reinstate union’s opportunity to initiate collective bargaining first No change.
Reinstate the principle that the duty of good faith requires parties to conclude a collective agreement No change.
Remove the ability for employers to opt out of multi-employer collective once bargaining has been initiated No change.
Require that collective agreements must set pay rates and that rates of pay be agreed during collective bargaining

A collective agreement may contain minimum rates or a method of calculating rates instead of the exact rate of salary or wages.

Extend the grounds for discrimination against union members No change.
Require employers to allow union representatives reasonable time to perform their duties within working hours Time spent on union activities is to be paid at the same rate as ordinary employment duties.
Remove an employer's ability to deduct pay as a response to partial strikes No change.
No provision The Minister for Workplace Relations and Safety (currently the Honourable Iain Lees-Galloway) is to have the ability to amend the categories of work protected from restructuring based on certain criteria including the frequency of restructuring in the sector and the employees’ bargaining power.
No provision

Minor or technical errors in relation to strike notices are not to invalidate strikes.

The National Party has reported its opposition to the Bill through a 'minority view' stating that the proposed changes to the Act "will destabilise the New Zealand industrial relations landscape" and gives notice that a future National-led Government will repeal those changes.

The Bill will now return to Parliament for its second reading and is expected to pass later this year with support of Labour, NZ First and the Greens. Once the Bill is enacted, some changes will come into force the day after Royal Assent, and others four months later (including when employment agreements may provide for trial periods).

We will continue to monitor the Bill's progress and keep you updated; if you would like more information, please contact one of our experts listed above.