Employment Law
2019 Employment

On 5 December 2018 the Employment Relations Act Amendment Bill was passed, bringing changes to employment law in New Zealand. While the majority of these changes will come into effect on 6 May 2019, some of the changes are already in force following the Bill being given Royal assent on 12 December 2018. The Domestic Violence Victims’ Protection Act 2018 also comes into effect on 1 April 2019.

What do these changes mean for employers?
90 day trial restrictions
The most significant change coming is the restriction on 90 day trial period clauses, preventing dismissed employees from bringing personal grievance claims. From 6 May 2019, only businesses with fewer than 20 employees will be entitled to include a trial period clause in employment agreements. Probationary periods will still be available for employers with 20 or more employees, however there will be no immunity from claims for unjustified dismissal.
The number of employees will be taken on the day on which the employment agreement is entered into. For businesses who are close to the 20 employee threshold, this will require particular consideration when providing a new employee with an employment agreement.

Reinstatement given priority where possible
If an employee is dismissed and brings a personal grievance claim before the Employment Relations Authority, then if requested by the employee, the first course of action the Authority must consider is reinstatement. This means it is going to be even more important for employers to ensure a proper process is being followed when considering dismissal to avoid a reinstatement remedy. We recommend getting legal advice at an early stage during a disciplinary procedure to ensure that the process and outcome will withstand scrutiny later.

Rest and meal breaks
The 6 May 2019 changes also reinstate provisions relating to prescribed rest and meal breaks. The number and duration of breaks will depend on the hours worked by the employee. The employee and employer must attempt to agree on when breaks are to be taken, and if no agreement can be reached, the breaks will need to be taken as prescribed, including in the middle of the work period.

Changes in relation to unions
Access to workplace
Changes already in effect include right of access by union representatives into workplaces on union business. Union business can include providing information on the union and recruiting new union members.
Employers must not unreasonably withhold consent to the union representative, and are not able to deny access based on there being no union members on site, provided that the work which the employer performs is covered by the relevant union membership’s rule.

New Employees
From 6 May 2019, employers who have a collective agreement in place must ensure that all new non-union employees are employed on terms consistent with the collective agreement for the first 30 days of employment. Employers are also required to provide all new employees with information about any relevant unions, as well as copies of the collective agreement. After the expiration of the 30 day period, the employer is able to negotiate an individual employment agreement with the employee.

Time off for union business
For employees who are union representatives, the changes will require that they be provided with adequate time to perform their union duties during work hours and they must be paid their usual rate for performing this union work.

Deductions
Employers are now no longer entitled to make deductions from an employee’s pay for a partial strike. An employer will be able to respond to partial strike action the same way as a regular strike, and available response options include suspending employees without pay or a lockout.

Domestic violence leave from 1 April 2019
Under the Domestic Violence Victims’ Protection Act 2018 employers are required to give employees who have been affected by domestic violence, up to 10 days domestic violence leave per year if required. This is in addition to any annual leave and sick leave entitlements.
The employer is entitled to request proof that the employee has been affected by domestic violence, to qualify the employee to domestic violence leave. What will constitute proof is not defined.
Under this Act an employee who is affected by domestic violence is also entitled to request a short-term variation to their working arrangements. Short term will be up to two months. An employer who receives such a request will be required to respond in writing within 10 working days.
Employers must also not treat an employee adversely in their employment on the grounds that they are, or that they are suspected to be, a person who is affected by domestic violence. Failure to comply with this will be grounds for an employee to raise a personal grievance.

Implications
The amendments have implications for all employers. If you would like to discuss how the changes will affect your business, please speak with one of our team.

Sophie is a Solicitor in Holland Beckett Law’s litigation team and works closely with the firm’s Partners to advise clients on all aspects of employment, relationship property and civil litigation matters.