News & Thinking
What you need to know – employment and immigration law changes
The Employment Relations Amendment Act gained Royal Assent on 5 December 2018 and amends the Employment Relations Act 2000. The Minister of Immigration also announced proposed substantial changes to the immigration system, on 18 December 2018.
It aims to restore protections for employees, focusing especially on vulnerable employees, and to strengthen collective bargaining and union rights in the workplace. Most changes will take effect at three main stages.
From 13 December 2018
Reinstatement restoration: Reinstatement is restored as the primary remedy in cases of unjustified dismissal, where that remedy is requested by the employee.
Earlier initiation timeframe restored: Meaning a union can initiate bargaining for a collective agreement 20 days ahead of an employer.
Union access to workplaces: Union representatives may now enter workplaces without an employer’s consent in certain circumstances. This is possible where employees are covered by, or bargaining for, a collective agreement or where an employee who is not a union member has requested health and safety assistance.
No more pay deductions for partial strike: Instead of making pay deductions, employers may ‘lock out’, or suspend without pay, employees who partake in partial strike action.
MECA opt-out removal: Parties to a Multi-Employer Collective Agreement must now conclude the collective agreement unless they have a “genuine reason” based on “reasonable grounds” not to.
Extended discrimination protection: An employee’s ability to complain of discrimination on the basis of their union membership status is enhanced. Employees now have 18 months to complain of the behaviour (previously 12 months).
Changes effective on 6 May 2019
90-day trial periods: The use of 90-day trial periods will be restricted to organisations with less than 20 employees. Organisations with 20 or more employees may still use probationary periods.
Rest and meal breaks: An employee’s rights to rest and meal breaks will be restored to be more prescriptive, as they were before the Act was amended in 2015. Employers and employees may agree on the timing of the breaks but cannot contract out of the number of required breaks.
30-day rule: The 30-day rule will be restored, requiring new employees to be employed under terms consistent with a collective agreement for their first 30 days of employment.
Pay rates: Collective agreements must include details of pay rates.
Duty of good faith in bargaining: the duty of good faith requires single-employer collective agreements to be concluded, unless there are genuine reasons based on reasonable grounds not to.
Union information: Employers will be required to pass on union information to prospective employees. Unions must supply the employer with the information in the form they want it to be passed on in. Employers will need to provide new employees with an approved “active choice” form within the first 10 days of employment.
Union delegate paid time: Employers will be required to allow reasonable paid time for union delegates to undertake union activities, unless it unreasonably disrupts the employer’s business.
Changes effective from six months after Royal Assent
Discrimination ground added: An employee’s union membership status will be added as a ground of discrimination.
The Act, along with further details of specific changes, can be referred to on the New Zealand Legislation website at: http://www.legislation.govt.nz/bill/government/2018/0013/latest/LMS8116.html#LMS8164.
For many of our clients it is a return to familiar territory. That said, these are important changes that will impact the employment relationship and it is important that businesses are aware of and update their employment agreements, policies and procedures to reflect the changes.
Proposed immigration changes
Restructure of immigration system: The government is proposing to restructure the immigration system, so as place more of the initial part of the process and the cost on employers.
All employers may need to be accredited: Government is proposing that any employer wanting to support a migrant’s temporary work visa application needs to be accredited. This would apply to employees renewing their visas.
Different types of accreditation: The proposals provide for different levels of accreditation. Standard accreditation would be required employers recruiting five or less migrant employees. Labour hire accreditation, similar to the current scheme, would be compulsory for labour hire employers. Premium accreditation would be needed for employers wanting to provide work-to-residence visas, to their employees, and would also be compulsory for employers wanting to support more than five migrant employees with visas.
Additional employer requirements: The new accreditation regime could include additional requirements for employers. For example, standard accreditation may require an induction process specifically for migrants. Labour hire and premium accreditation may require a transparent pastoral care policy and a workforce development strategy or partnership with an industry body or apprenticeship program.
Proposed changes to the labour market testing regime: The Minister is proposing to introduce regionalised labour market testing. Also, to support an employee with a work-to-residence visa, the employer would need premium accreditation and pay at least $78000 per annum. If an employer offers an annual salary of more than $101,046 then no labour market testing may be required. Finally, the Minister is also proposing industry sector agreements, initially with the aged care and hospitality sectors.
What are the time frames? At the moment, these are just proposals open for consultation. The consultation closes on 18 March 2019. The Minister proposes to report back to Cabinet in June 2019, with agreed changes coming into effect in August 2019. Regional Skill Shortage Lists could be brought into effect in April 2019.
Please contact us if you would like us to assist in preparing submissions in response to the changes.