Despite popular opinion the new Act does not do away with rest and meal breaks altogether. Instead, the changes provide more flexibility in the workplace.
Rather than specifying entitlements by reference to hours worked, the amendments require the employer to provide the employee with a ‘reasonable opportunity’ for ‘rest, refreshment and attention to personal matters’. This requires the employer and employee to consider the nature of the work and negotiate about when the employee can take their breaks. The employer must provide the employee with a reasonable opportunity to negotiate (so consultation will be key). If agreement cannot be reached, the employer has an overriding discretion to implement a rest and breaks structure for that employee, provided it is reasonable.
The obligation to provide breaks does not have to be met where the employer cannot reasonably do so, having regard to the nature of the employee’s work. Using an example from the retail sector, an employee who works in sole charge of a shop will not need to be provided with breaks. However, the employer must reasonably compensate the employee in lieu of rest and meal breaks.
In all workplaces, an employee can also agree to forgo rest and meal breaks for compensation.
These changes may provide employers with an opportunity to introduce greater flexibility into their workplace, or redesign current roster systems, but they will need to negotiate properly and fairly with their employees. Employers will also need to keep in mind their health and safety duties to employees and others in or around the workplace who may be impacted by their employees’ work.
One of the more significant changes is that parties to collective bargaining are no longer required as a matter of good faith to conclude a collective agreement. This amendment aims to prevent bargaining becoming unnecessarily protracted and costly.
A related change is that the Authority will be able to declare that bargaining has concluded (this does not apply where one party has acted in bad faith). Neither party will then be able to reinitiate bargaining for 60 days after the declaration, without agreement from the other party.
Other changes include:
Most strikes and lockouts will now require advance written notice (there is no minimum period of notice specified in the Act). This must cover the nature of the proposed strike or lockout, whether it will be continuous, where and when it will begin, and when it will end.
Employers will also be able to make partial deductions of pay where employees take partial strike action (that is, they do not strike by stopping work but strike by means such as a go-slow or refusing to perform certain tasks). This will be either a fixed deduction of 10%, or a proportionate pay deduction for time lost, using the formula in the Act.
In response to the Employment Court’s decision in the Vice-Chancellor of Massey University v Wrigley case, the good faith provisions of the Act have been amended, although the extent of the change is not as significant as was signalled in the first version of the Bill. The changes will enable an employer proposing a decision likely to affect an employee’s continued employment to withhold confidential information in a wider range of circumstances. In particular, the employer will be able to withhold information where there is a mutual understanding (whether express or implied) of secrecy. However, the express provision in the Bill that would have allowed an employer to withhold evaluative material was removed before the second reading. Further, the exception allowing withholding of information about individuals other than the affected employees has been narrowed, and will now apply only where disclosure would be an ‘unwarranted disclosure’ of the other person’s affairs.
The effect of this is that unless there is an actual mutual understanding of secrecy, employers may well have to disclose information about other employees.
Flexible working arrangements will now be extended to all employees: previously they were restricted to those with caring responsibilities. Employees no longer have to be employed for six months to qualify, and are able to make as many requests within a 12 month period as they wish. Employers now have only one month to respond to any requests (rather than three).
Part 6A has been amended in a number of respects. These include:
The Employment Relations Authority (‘Authority’) will now be required to give an oral determination, or an oral indication of its preliminary findings, at the conclusion of the investigation hearing. It must then follow up with a written determination within three months of the investigation meeting (or receipt of the last information or submissions from the parties, if later).
This may encourage parties to reach a settlement between an oral determination or indication being made, and the written determination being issued.
The Employment Relations Amendment Act 2013 may provide significant opportunities for employers to modernise their workplace. Employers may want to change the dynamic of their workplace with increased flexibility through the amendments to rest and meal breaks or flexible working arrangements. To do so may require employers to update their policies or amend their employment agreements in order to take advantage of these amendments. Some immediate changes you may want to consider are:
Employers may also want to take advantage of the new collective bargaining framework as it will apply to on-going collective bargaining. However, understanding your rights and obligations under the new amendments is crucial to avoiding problems down the track.
As always, the duty of good faith continues to underpin all our employment relationships so an employer must go about introducing any changes following a fair and reasonable process. As a minimum, any such process will include genuine consultation and some changes will also require agreement of the other parties in the employment relationship.
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If you are interested in making changes to your workplace please feel free to contact one of our employment law experts.