The Employment Relations Amendment Act 2018 (Amendment Act) (ERA Amendment Act) came into force in on 19 December 2018. The amendments generating media interest came into force on 6 May 2019. In December 2018, the Ministerial Release by the Minister for Workplace Relations and Safety stated that amendments to the ERA were aimed at restoring fairness to New Zealand workplaces and fundamental rights for workers. The Minister identified the key changes, to come into force on 6 May 2019, as including:
In reality very few employers include trial periods in their Individual Employment Agreements (IEA). Terminating an employee’s employment whether it be on day 15 or day 89 of the 90-day trial period, without acting in good faith, simply wouldn’t fly. Even if a 90-day trial period clause was included in the IEA the primary grounds for bringing a personal grievance, including unjustified dismissal and discrimination etc remained available to employees.
The better option when employing a new employee is to include a Probationary Period in the employment agreement. Probationary Periods permitted under the ERA. A probationary period in the employment contract enables an employer to monitor whether a newly appointed employee is able to carry out the requirements of his/her position. Caution is advised when drafting a probationary period clause because to be effective, the clause must be carefully drafted. The clause must include a fair process for managing the performance of a new employee, criteria the employee is to reach within a timeframe and a plan to help the employee achieve what is expected of him/her. Seeking legal input or other specialised advice is recommended before drafting a probationary period clause.
Employees have always been entitled to have a reasonable opportunity to have paid rest breaks and unpaid meal breaks. That has not changed, however, if an agreement is reached that rest and meal breaks will be taken at a certain time then they must be taken at those times. If no agreement is reached, then the ERA (Amendment Act) sets out a timetable prescribing how meal breaks should be taken. Employment New Zealand is available to provide guidance to employers who employ a large workplace (including shift workers) such as large businesses, manufacturers, transport companies etc if meal breaks become an issue: https://www.employment.govt.nz/
The ERA (Amendment Act) states that Union representatives can enter workplaces without consent, if the employees they are meeting are covered by a Collective Agreement and the reason they are entering the workplace is for one of the purposes set out in the ERA Amendment Act. Those purposes are that the Union their business relates to:
The employer’s consent is otherwise required but should not be unreasonably withheld. Normal protocols of good faith always apply in employment law. A union representative should advise the employer when they intend to enter a workplace. On arrival at the workplace the union representative should make a reasonable attempt to locate the employer on arrival.
In recognition of the contribution to productive work relationships, including participating in collective bargaining and dispute resolution union delegate(s) who are employees must now be paid for spending a reasonable amount of time on union-related activities during work hours. Limitations apply! The amount of work time spent on union business must be reasonable and the delegate cannot unreasonably disrupt the business or the employee’s business.
The ERA Amendment has strengthened the rights of employees to belong to a Union. The ERA Amendment Act states that behaviour by an employer can be seen as discriminatory if it occurs within 18 months of employees carrying out union activities, an increase of 6 months.
Obligations have been imposed on employers when a new employee is hired:
Employees in 'vulnerable industries' listed in the ERA Amendment Act (for example cleaning and food catering services) can now transfer to a new employer on the terms and conditions in their current employment agreements if their work is affected by restructuring, regardless of the size of their employer. The previous restriction to employers of 20 or more employees been removed.
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