Employment Relations Act Explained

Practical Consequences of Changes

• The changes come into force on 6 March 2015.

• Contracts must be renegotiated for the new rest and meal break rules to take effect.

• Workplace polices may need to be updated to take into account changes to the good faith obligation. The obligation itself has not changed, but there are new requirements to provide information.

• On 1 April 2015 the minimum wage increases to $14.75 per hour.

Flexible working arrangements

• Any employee may now request a flexible working arrangement. Previously, only an employee who ‘has the care of any person’ could.

• An employee can make a request at any time. Previously, 6 months employment was required beforehand.

• An employee may now make an unlimited number of requests per year. Previously, there was a statutory limit.

• Employers must now respond to requests within 1 month, and must respond in writing and include an explanation of any refusal of the request.

Rest and meal breaks

• The Act no longer specifies set breaks for given hours of work. An employer must instead provide breaks that:

  • provide the employee reasonable opportunity for rest, refreshment, and attention to personal matters; and

    1. are appropriate for the duration of the employee’s work period.

• An employer may restrict rest breaks and meal breaks (for example, requiring the employee to perform work duties during the break).

  • However, only if:It is reasonable and necessary with regard to the nature of the work, or;

    1. It is reasonable and agreed to by the employee and employer (this does not have to be in the employment agreement).

• The employee must be in the workplace, performing work duties, aware of work duties, or expecting interruption.

• An employee may now agree not to have breaks.

• An employer may refuse to provide breaks if it cannot reasonably provide them.

• Compensation must be paid where no breaks are to be taken.

• Compensation must be reasonable: for example, by providing equivalent time off at another time, or payment of a similar value as the break.

• An employer cannot contract out of the obligation to provide reasonable compensation. Any attempt to do so will invalidate the agreement not to take breaks.

• Discussions over rest and meal breaks should be made in good faith.

• Existing meal and rest break provisions will continue in effect, unless a change is agreed in an individual or collective agreement.

Continuity of employment – Part 6A of the Employment Relations Act

• The class of ‘associated persons’ has been narrowed, to make it easier for businesses to qualify as a small and medium enterprise.

• Time frames have been set for employees transferring under Part 6A.

• Employers must provide detailed information to the new employer on employees who are transferring under Part 6A.

• There is now a scheme for apportioning service-related entitlements of the transferring employee.

• The old employer cannot change the work affected by the restructuring, or the terms and conditions of the employee’s employment.

• More information can be found at: http://www.dol.govt.nz/er/services/law/legislationreviews/04-continuity.asp

Good Faith

• If an employer is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of an employee’s employment, then relevant information must be provided.

• Confidential information does not need to be provided if it would be an unwarranted disclosure of the affairs of another employee, or if it legally must stay confidential, or if there is good reason to keep the information confidential. Otherwise, the employee is entitled to know confidential information about themselves.

• Obligations under the Official Information Act 1982 and Privacy Act 1993 still apply.

• Employees should know the identity of their accuser or the nature of any allegations made against them unless there is good reason for that information to be kept confidential.

Collective bargaining

• Parties are no longer required by good faith to come to an agreement. Application can be made to the ERA to declare that bargaining has ended.

• Employers may now opt out of multi-employer bargaining from the start.

• Non-union employees no longer gain the benefit of collective agreements for 30 days.

• Proportionate pay reductions may be made as a response to partial strikes.

• Advance written notice must be given for proposed strikes and lockouts in all sectors.

Employment Relations Authority

• At an investigation meeting’s conclusion, the Authority must give an oral determination within 1 month (with a written record of that determination)

• Or the Authority must give an oral indication of its preliminary findings (unless extra evidence is provided) and deliver a written determination within 3 months of the investigation meeting or whenever extra evidence is provided, whichever is later.

• The Authority can only reserve its determination if there are good reasons why it is not practical – a reserved determination must be delivered within 3 months of either the investigation meeting or any extra evidence being provided, whichever is later.

• Sometimes matters may be decided without an investigation meeting. Determination must be given within 3 months.

For further information on how to implement these changes contact Buckettlaw:

Phone: 04 472 8600
reception@buckettlaw.co.nz