The Employment Relations Amendment Act 2018 introduced a number of employment law changes
that aim to improve fairness in the workplace and deliver decent work conditions and fair wages.
These changes reflect the Government’s 100 day commitments in workplace relations.
The Act restores protections for employees, especially vulnerable employees, and strengthens
the role of collective bargaining in the workplace. Many of the changes are familiar to businesses,
as they roll the law back to how it was as recently as 2015.
The Act passed into law on 11 December 2018. Most changes take effect at two stages: 12 December
2018, and on 6 May 2019.
Changes in effect now
Union representatives can now enter
workplaces without consent, provided the
employees are covered under, or bargaining towards,
a collective agreement. They can still only enter a
workplace for certain purposes, must be respectful
of normal operating hours, and follow health, safety
and security procedures. Union representatives still
need to seek consent before entering workplaces
where no collective agreement or bargaining exists,
and for workplaces that are also residences
(such as farmhouses). Union representatives can also
enter a workplace to assist a non-union employee
with matters relating to health and safety if that
employee has requested their assistance
Pay deductions can no longer be made
for partial strikes, such as wearing t-shirts instead
of uniforms as part of low-level industrial action.
Employers can respond to a partial strike action the
same way as any other strike, which could include
suspending employees without pay or a lockout.
Businesses must now enter into bargaining
for multi-employer collective agreements, if asked
to join by a union. (See changes coming into effect on
6 May 2019 below in relation to the duty to conclude).
Employees will have extended protections
against discrimination on the basis of their union
membership status, including either being a
union member or intending to be a union member.
From now, an employer’s behaviour can be seen
as discriminatory if it occurs within 18 months of
employees undertaking union activities. This is
an extension of 6 months. It does not apply
If requested by the employee,
reinstatement will be the first course of action
considered by the Employment Relations
Authority, for employees that have been found
to be unfairly dismissed. Reinstatement means
the employee gets their previous job back.
The Employment Relations Authority will still
assess whether reinstatement is practicable
and reasonable for both parties.
Earlier initiation timeframes have been
restored for unions in collective bargaining,
enabling a union to initiate bargaining 20 days
ahead of an employer.
New categories of employees may apply
to receive the protections afforded to ‘vulnerable
employees’ through an application process set out
in the Act.
Changes in effect on 6 May 2019
The right to prescribed rest and meal breaks
will be restored, the number and duration of which
depends on the hours worked. For example, an eighthour
work day must include two 10-minute rest breaks
and one 30-minute meal break, while a four-hour work
day must include one 10-minute rest break. Rest breaks
benefit workplaces by helping employees work safely
and productively. Employers must pay for minimum rest
breaks but don’t have to pay for minimum meal breaks.
Employers and employees will agree when to take their
breaks. If they cannot agree, the law will require the
breaks to be in the middle of the work period, so long as
it’s reasonable and practicable to do so. Some limited
exemptions may apply for employers in specified
essential services or engaged for the protection of New
Zealand’s national security.
90-day trial periods will be restricted to
businesses with fewer than 20 employees. This
change means the majority of employees will have
protections against unjustified dismissal from
when they start a job. Businesses with 20 or more
employees can continue to use probationary periods
to assess an employee’s skills against the role’s
responsibilities. A probationary period lays out a fair
process for managing performance issues and ending
employment if the issues aren’t resolved.
Employees in specified ‘vulnerable
industries’ will be able to transfer on their current
terms and conditions in their employment
agreement if their work is restructured, regardless
of the size of their employer. Changes also include
a longer notice period for employees to elect to
transfer to the new employer, this notice period
is a minimum of 10 working days.
The duty to conclude bargaining will
be restored, this means parties must conclude
collective bargaining, unless there are genuine
reasons based on reasonable grounds not to.
This ensures that parties genuinely attempt
to reach an agreement.
Parties will not have to settle a multi-employer
collective agreement if their reason for not wanting to
settle is based on reasonable grounds. For example, if
there are significant differences between two
employers – such as one operating in Auckland where
prices and wages are higher, and the other in Invercargill
– it could be reasonable for an employer to negotiate a
single-employer collective agreement instead.
The 30-day rule will be restored. This means
that for the first 30 days, new employees must be
employed under terms consistent with the collective
agreement. The employer and employee may agree
more favourable terms than the collective.
Pay rates will need to be included in
collective agreements, along with an indication
of how the rate of wages or salary payable may
increase over the agreement’s term.
Employers will need to provide new
employees with a form approved by the Chief
Executive of MBIE within the first ten days of
employment and return the form to the applicable
union, unless the employee objects. The form gives
employees time to talk to their union representatives
before considering and indicating whether they
intend to join a union or remain on the individual
Employers will need to allow for reasonable
paid time for union delegates to undertake their
union activities, such as representing employees in
collective bargaining. Employees will need to agree
with their employer to do so or, at a minimum, notify
them in advance. An employer will be able to deny the
request if it will unreasonably disrupt the business or
the performance of the employee’s duties.
Employers will need to pass on information
about the role and function of unions to
prospective employees. Unions must bear the costs
if they want printed materials to be passed on.
For more information contact Employment
ȩȩ Visit: www.employment.govt.nz
ȩȩ Phone: 0800 20 90 20 toll free.