A number of proposed changes to employment law received Cabinet approval on 14 May 2012. These changes reflect those signalled earlier in the year to collective bargaining and the right to request flexible working hours (see our March 2012 alert) but, interestingly, two new changes have been announced. They will allow employers to initiate collective bargaining at the same time as unions and will require unions and employers to provide notice of a strike or lock out.
These changes are expected to go before Parliament this year. The exact nature of the changes will be clearer once the bill is introduced but, at this stage, it appears that they will all be welcomed by employers engaged in collective bargaining.
The changes approved are:
Permitting employers to initiate bargaining at the same time as unions
Currently unions are entitled to a 20 day "headstart" when initiating collective bargaining. In our experience, unions see this as a fundamental right as it allows them to define the scope of bargaining. As a result, this change may have significant implications, albeit that the Government's press release describes the change as simply fixing an "anomaly". Timing issues could also arise if both parties initiate at the same time.
Unions and employers will be required to provide notice of a strike or lock out
Currently, notice of a strike or lock out is only required where "essential services" are involved. Details such as of the length of notice have not yet been released but it is likely to result in preventing unions from conducting some industrial action, such as "lightning strikes".
Removal of the current requirement to conclude collective bargaining
This proposed change has attracted the most comment from unions as it may allow employers to walk away from bargaining at an earlier stage. It will be interesting to see whether the continued obligation to bargain in good faith will be able to compensate for the removal of this requirement.
Removal of the "30 day rule" requiring employers to offer the terms of any applicable collective agreement to a new employee for the first 30 days of employment
This change will probably be the one most widely welcomed by employers with collective agreements as they will be able to immediately offer new employees their standard individual employment agreement.
Allowing employers to opt out of negotiations for a multi employer collective agreement (MECA)
As the law currently stands, employers are required to enter into negotiations with their employees, their competitors and their competitors' employees if bargaining for a MECA has been initiated. This change will presumably allow employers to opt for site specific bargaining instead.
Allowing partial pay reductions for partial strikes
There has been some confusion as to whether employers can deduct partial pay and this will hopefully clarify the situation. This change will be in line with other jurisdictions.
Extension of flexible working arrangements from carers to all employees
This is unlikely to be a particularly significant change in practice, other than reflecting the reality that flexible working is becoming more common place. The Government's press release has emphasised the extension of the right to request flexible working but, in our view, the most significant changes clearly relate to collective bargaining. We will continue to monitor the legislation as it proceeds through Parliament and will keep you updated. The Government's press release can be viewed here.
On a separate note, on 14 May 2012, the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 received royal assent. This was a Private Members Bill from Tau Henare and requires unions to hold a secret ballot of their members before undertaking any strike action. This requirement comes into force on 14 May 2013.