Employment Relations Amendment Bill delayed once more

After being introduced to Parliament on 29 January 2018, and having its first reading on 1 February, the Employment Relations Amendment Bill 2018 (the Bill) was sent to the Select Committee (SC) with a report due date of 1 August. However, the SC’s report was delayed and not published until 7 September. The Bill had its second reading in Parliament on 27 November, but we can expect further delay in any changes coming into effect as the revised expected date for the Bill to come into force is now 6 May 2019.

90 day trial periods – a compromise

After the SC report emerged, there was some public speculation as to whether New Zealand First was comfortable with the current state of the Bill (and the SC’s recommendations) and whether further push-back might arise, particularly in relation to 90-day trial periods. In its report, the SC essentially endorsed the restriction on the use of trial periods to small- to medium-sized employers. This was an already compromised position from Labour’s proposal during the 2017 election campaign to remove 90 day trial periods completely and replace them with an entirely new regime whereby employers would be required to give reasons for dismissing an employee under a 90 day trial period and a ‘referee’ would hear any disputes and make a binding (non-appealable) decision regarding any such dismissal.

On 27 November, the Workplace Relations and Safety Minister, Hon Iain Lees-Galloway put forward a Supplementary Order Paper (SOP) suggesting further amendments to the Bill.  Despite some public speculation, there is no recommendation in the SOP for the use of 90 day trial periods, as currently proposed by the Bill, to be extended – or further restricted. It seems that Labour and New Zealand First have agreed on the compromised position, at least for now.

Further changes to the Bill – MECAs and unions’ access to workplaces

The SOP instead focuses on other areas, such as union access to workplaces and the multi-employer collective agreement (MECA) opt-out. The SOP proposes to:

  • restrict the originally proposed restoration of a union official’s ability to access employers’ workplaces without consent to circumstances in which there is a relevant, in-force, collective agreement or where bargaining for a relevant collective agreement has been initiated;
  • include an additional purpose for which a union representative can enter a workplace – namely, that the assistance of the union has been requested by a non-union member employee in relation to a health and safety matter;
  • limit the circumstances in which a person is liable for a penalty as a result of refusing a union representative access to a workplace to where the union representative is entitled to enter the workplace; and
  • maintain the obligation to conclude a collective agreement unless there is a genuine reason based on reasonable grounds not to do so – and to remove the current MECA opt-out wording – but also to state explicitly that objection to concluding a MECA is a genuine reason not to conclude a collective agreement if the objection is based on reasonable grounds.

This can be seen as a further softening of the original wording of the Bill and its proposed changes.

The SOP also proposes an additional delay in the progress of the Bill.  Instead of coming into force 4 months after Royal Assent (which was expected to be around March 2019), the Bill is now proposed to come into force on 6 May 2019.

We will keep you updated on any further changes that are announced.

If you have any questions in relation to the progress of the Bill and how these changes are likely to impact on you or your organisation, please contact one of our experts.

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