Employment Relations Amendment Bill - Aug 2018

13 August 2018

Most of the proposed changes simply roll back changes made by the National Government in 2015.

Some of the changes apply from the day after the date of Royal Assent and so will be in force before the end of the year (the first six items in the list below). The others do not come into force until 4 months after the date of Royal Assent and so will not apply until early 2019.

Our view is that while these changes can be seen as a retrograde step from an employer perspective,  we all managed well enough under these rules before 2015 and no doubt we can do so again.  The same can’t be said of Fair Pay Agreements.

In any case it remains to be seen what we’re left with when the Bill is enacted.

To refresh your memory the main changes proposed are:

  • Unions will have a right of access to an employer’s premises, subject to existing health and safety and security policies and procedures (little different from the current obligation to not unreasonably withhold consent).
  • Unions may initiate bargaining 20 days before an employer (this is of no consequence as was well established prior to 2015).
  • The ability for an employer to opt out of MECA bargaining will be removed (but no employer will make an agreement contrary to their interests).
  • The ability to seek a declaration from the ERA that bargaining has concluded will be removed (in any event this was virtually impossible to achieve under the 2015 changes.  If you think bargaining has ended, stop meeting, talking and emailing about it).
  • Employers will lose the right to make pay deductions for partial strikes (This is a downside but the fact is the current provision has rarely been used).
  • Reinstatement will be the primary remedy for personal grievances (This was the situation prior to 2011, but reinstatement was rarely ordered as there is no point if the relationship has been destroyed).
  • Unions will be able to require employers to pass on to new employees information about the role and function of unions.
  • Delegates will be entitled to “reasonable paid time” to represent employees (by and large this happens now).
  • Bargaining must result in a collective agreement being concluded (including in the case of a MECA), unless there is a genuine reason, based on reasonable grounds, not to do so (regardless, no employer will make an agreement contrary to their interests).
  • Collective agreements must specify the applicable rates of pay (most collective agreements already do this).
  • New employees must be employed under the terms and conditions of any applicable collective agreement for the first 30 days of their employment (after 30 days you will still be able to offer different/better terms).
  • Employers must share new employee information with the union unless the employee objects (employees who prefer not to join the union, who tend to be the vast majority, will probably object).
  • Trial periods will be limited to employers with fewer than 20 employees.
  • Changes will be made to enhance employee rights to continuity of employment in sale and transfer situations (this will impose a greater burden on contracting businesses with fewer than 20 employees).
  • Meal and rest breaks will be prescribed, both in terms of timing and duration.  Only in essential services will it be possible to have an exemption but in such cases "compensatory measures" must be agreed (the Bill brings back the rules that applied prior to 2015.  Hopefully the Select Committee will make changes in this area because this approach didn't work then and it wont work now.  Back then unions recognised the prescriptive approach didn't work and cooperated with employers to provide more practical arrangements).