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Proposed Employment Law Changes

March 6, 2018

As an employment lawyer, I have mixed feelings about the proposed changes - some are a step backwards.

Proposed Changes include:

90 day trial periods: small businesses (less than 20 employees) will be relieved that trial periods will still be possible. However, it should be noted that when calculating the number of employees, any employees of associated persons need to be included e.g. of a holding company or subsidiary company. Many employment lawyers won't find the government’s rationale for depriving larger businesses of the use of trial periods to be convincing. In my experience, trial periods haven’t generally been abused by employers (and my understanding is that the government can’t point to any evidence to the contrary). The fact that any business can also utilise a probationary period is of little comfort - having a probationary period is almost pointless, given that termination of employment would have to be fully justified.

Rest breaks and meal breaks: there will be prescribed rights to these breaks, with very few exceptions. For some businesses, including small businesses and businesses where employees are in sole charge, this may create difficulties and in particular, may mean reduced flexibility.

Reinstatement: the right to be reinstated to employment as the primary remedy following unjustified dismissal in such circumstances will be reinstated.

Collective bargaining and unions: most of my clients aren’t engaged in businesses that have union involvement or that are likely to have union involvement, and I’m not usually asked to advise on collective agreements and the like. However, some key changes that are proposed are:

  • reinstate the requirement to employ new employees for the first 30 days on terms consistent with the relevant collective agreement;
  • requiring employers to provide to new employees with union contact details and the opportunity to join a union;
  • reinstating the right for union representatives to access the workplace to conduct union activities (provided there are employees who are members) without the prior consent of the employer;
  • reinstate the right for a union to initiate collective-bargaining and reinstate the requirement that the duty of good faith requires the parties to conclude a collective agreement;
  • remove the ability of employers to opt out of multi-employer collective, once bargaining has been initiated;
  • remove an employer’s ability to deduct pay as a response to partial strikes.

Most if not all of these changes were signalled by the government and its pre-election campaigns. One saving grace is that New Zealand First insisted that the 90 day trial period remained for small employers.

Once a Bill is introduced in relation to these changes, it will remain to be seen whether any modifications to them are made, prior to them becoming law.

This update provides general information only and does not constitute legal advice. If you want legal advice on any of these issues, please feel free to contact me.

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