While we haven’t seen the draft legislation yet, if they do what they have indicated, we think the proposed changes will be significant.
Changes to Collective Bargaining
Under the current law, the parties involved in collective bargaining negotiations are required to keep bargaining and conclude a collective agreement unless there is a “genuine reason based on reasonable grounds, not to”. This obligation means employers and unions have to continue to bargain, sometimes for prolonged periods, in order to try to reach an agreement even after they hit impasse.
The Government now plans to repeal this requirement – instead it will be enough to bargain in good faith. However, if that does not lead to an agreement, so be it. This may well shorten what can be a very protracted process in some circumstances.
Another important change being proposed is the revoking of the “30 day rule”. At present, when a new employee is hired to do work that falls within the coverage clause of an existing collective agreement, that employee must be employed on the same terms as the collective for the first 30 days of employment. This requirement is particularly frustrating for those employers who only have a small number of union members covered by a collective agreement, but who must employ all new staff on the same terms as that collective, for at least the first 30 days. Some of those employers will be pleased to see the removal of this requirement.
However, employers will need to approach this new found freedom with caution. If they offer lesser terms than under a collective to new employees they could end up providing recruitment opportunities for the union.
Other planned changes include:
- Employers may opt out of multiemployer collective bargaining; and
- Employers can impose partial pay reductions in cases of partial strike action. Currently if staff strike by way of a go slow or by refusing to do some limited aspects of their job, the employer cannot dock their pay by a corresponding amount. The law will be amended to allow this to occur.
Part 6A provides legal protection to certain categories of workers (cleaners, catering and laundry staff) who are considered “vulnerable” to changes to contracting arrangements. These employees have a statutory right to elect to transfer to a new employer when a business is contracted out, or the contract changes hands or the business is sold.
Cabinet has proposed that Part 6A will be amended by including:
- A requirement for the outgoing employer to forward employees’ information to the incoming employer, including employment agreements, PAYE or wage and time records.
- A process where the incoming and outgoing employers would agree about how to apportion liabilities for accrued service-related entitlements of the employees who will transfer.
- A requirement that employees must decide whether to transfer to the new employer within five working days (or a longer timeframe if that is agreed between the incoming and outgoing employer).
It is proposed that businesses with fewer than 20 employees will be exempt from these provisions if they are the incoming employer.
Other Proposed Amendments of Interest
Changes will be made to the flexible working arrangements provisions to allow all employees (not just those with caring responsibilities) to request flexible working arrangements. The changes will also remove the strict time limits that apply to when an employee can request changes to their working arrangements.
Finally, our August 2012 newsletter dealt with the somewhat surprising findings of the Employment Court in the Wrigley v Massey University case, in which redundant staff appeared to be given rights of access to a very broad range of personal information. The Government has indicated that it will introduce legislation to change the way personal information is disclosed following this case. There are few indications about what those changes might be, but it is probable that the changes will restrict the scope of the information that must be disclosed.