Employment Update – Week 2, May

Updated: Jun 24, 2019

Our weekly update on ER issues, changes and important updates:

Rest and meal breaks There has been a return to the prescriptive provisions relating to rest and meal breaks. If an employee works eight hours, e.g., he or she is entitled (as a minimum) to two 10-minute paid rest breaks and one 30-minute meal break. The timing of such breaks can be by agreement, or otherwise the meal break must be taken in the middle of the work period, and the rest breaks halfway between the start of work and the meal break and halfway between the meal break and the end of the work period. Only employers engaged in national security or providing services essential to public safety are exempt from these requirements and they have to provide compensatory measures if they are unable to reach agreement with employees about the taking of breaks.

Trial periods

Trial periods will only be able to be entered into by small-to-medium-sized employers from 6 May 2019. Existing trial period provisions will be unaffected by this change.

Union delegates Union delegates are now entitled to payment by the employer for reasonable time during the normal work period spent representing employees, so long as that does not unreasonably disrupt the employer’s processes or the delegate’s normal work. However, the delegate must either agree with the employer that he or she will periodically work on delegate’s duties or, alternatively, reach agreement before every occasion when such work is done. The delegate must receive payment as if performing usual duties.

Duty of good faith to conclude collective agreement The duty of good faith (again) requires that parties bargaining for a collective agreement conclude it unless there is a genuine reason, based on reasonable grounds, not to. “Genuine reason” does not include opposition or objection in principle to participation in a collective agreement or inclusion of wage or salary rates, or a bargaining fee, in an agreement. Opposition to concluding a multi-employer collective agreement is a genuine reason not to conclude a collective agreement if that opposition is based on reasonable grounds. Good faith requires that, even if a standstill has been reached on a particular point, the parties persevere with bargaining on other matters.

Rates of pay and collective agreements Rates of salary or wages now have to be specified in collective agreements concluded on or after 6 May 2019. This obligation can be met if the agreement specifies: • the rate for certain employees or types of employee • the rate for certain work or types of work • the minimum rates payable for any of the above categories, or • a method or methods for calculating any of the above rates of pay. The agreement also has to show how the rate of pay may increase during the term of the agreement.

Prospective employees There has been a return to the former requirement whereby the terms and conditions of a non-union member entering an individual employment agreement with an employer who is party to a collective agreement covering work to be done by the new employee are, for 30 days, those of the collective agreement plus any individual terms that are no less favourable than those in the collective agreement. If the union requests it, an employer must provide certain information about the role and functions of the union to prospective employees in this position. The employer can only refuse to pass on information in two circumstances: the information is confidential, or it is about the employer and would or is likely to mislead or deceive the employee and would significantly undermine bargaining between them. An employer who is bargaining for terms and conditions to cover the first 30 days must inform the prospective employee: that a collective agreement exists and covers work to be done by the prospective employee, that the prospective employee may join a union party to the collective agreement, how to contact the union, that joining the union means the employee is bound by a collective agreement, and that entering into an individual agreement means being bound for 30 days by the terms and conditions of the collective agreement plus any agreed additional terms and conditions. A copy of the collective agreement must be provided to the employee. Within 10 days of commencing employment, an employee subject to this must be given the Active Choice Form prescribed by MBIE (now available) to complete as to whether the employee intends joining a union. The employee can also use the form to object to the employer providing information about the employee to any union (if the employee does not intend joining one) or, if the employee intends joining a particular union, to any other union. If the employee does not so object, the employer must supply the employee’s details to any union party to a collective covering the type of work performed by the employee. The Act leaves an employee at liberty to join any union at any time. After 30 days of employment, the individual agreement may be varied as the parties think fit. The provisions relating to individual employment agreements and individual terms and conditions (eg supply of a copy of an intended agreement, independent advice, consideration of issues raised by the employee) apply to an employee’s agreement both during and, if varied, after the 30-day period.

Protection to vulnerable employees

Small-to-medium-sized employers will no longer be exempt from the current rules about business transfers (of vulnerable employees). The time frame for employees to elect to transfer to an incoming employer has been extended.

Reproduced by permission of Wolters Kluwer NZ

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