New labour laws take us back to when Kate Wilkinson was Minister
By Richard Rudman (author)
The Minister of Workplace Relations and Safety promised “the start of a progressive programme in workplace relations”. Clearly he wasn’t referring to this week’s Employment Relations Amendment Bill, which does little more than restore changes made by the previous National government.
Richard Rudman, author of the New Zealand Employment Law Guide, assesses the Bill.
There’s nothing really new, or particularly controversial in the Employment Relations Amendment Bill. It mainly undoes changes made by its National Party predecessor, most of them dating only from 2015.
The current Minister claims that “many of the changes in the Bill are focused on lifting wages through collective bargaining”. It’s hard to see how. The requirement for collective agreements to include a wages clause is unlikely to have that much impact.
Perhaps the wish is to be the father to the thought.
Pay back for unions
Many of the changes might be described ungenerously as Labour’s payback for unions’ support — or the price the unions have exacted for that support.
While every new government seeks to swing the employment relations pendulum in its direction, these changes do little more than restore the law to where it was for 15 years up to 2015.
Nevertheless, there will be criticism and controversy.
For example, employers might not like having to let their employees — those elected as union delegates — have time off for union activities, and having to pay them for that time.
The employer will be able to refuse if the delegate’s activities would unreasonably disrupt the employer’s business or the employee’s work performance. Of course, some employers will argue that any union activity disrupts their business — which gives fertile ground for disagreement and dispute.
The Bill also cancels the need for union representatives to seek the employer’s consent before entering a workplace. But access will still be available only at reasonable times, and with due regard to health and safety and similar requirements.
National inserted the requirement for consent in 2011 at the behest of a very few companies in a strife-prone industry. Predictably, those employers have been squabbling in the courts ever since over union access: the fault does not lie in the language of the legislation.
Collective bargaining regains primacy
There’s an abiding myth that employers and workers have a straight choice between collective and individual employment agreements.
In fact, since the early days of New Zealand industrial relations, collective bargaining and collective agreements have held sway over individual agreements. (The Employment Contracts Act 1991 was a brief aberration.)
The 2018 Bill restores some of the superior position which unions, collective bargaining and collective agreements lost in 2015.
Once again, unions will be able to initiate collective bargaining earlier than employers — which is an advantage because the unions then get to set the bargaining scope and agenda.
Employers engaged in collective bargaining will again be required to conclude a collective agreement — unless they have genuine and reasonable grounds not to. Opposing collective bargaining in principle is not a genuine or reasonable reason.
Nor will an employer be able to opt out of collective bargaining for a multi-employer agreement. An employer will be able to negotiate its way out, but just saying “No” will not be enough.
None of this is new. None of these provisions caused significant dispute or disruption when they were previously in force. There’s no cause for alarm now.
In future, collective agreements will have to set out employees’ rates of wages or salary. This is because some employers have tried to keep remuneration out of their collective agreements —reducing the scope of the bargaining and weakening the unions’ negotiating leverage.
But a collective agreement won’t have to state actual wages or salaries: it will enough to include ranges of wages or salary, or the method of calculating wages or salaries.
Again, there’s no cause for alarm. Individual employment agreements already state the employee’s wages or salary.
Two measures in the Bill seem designed to promote union membership.
Non-union members who take up a job covered by a collective agreement will, for the first 30 days, have the same terms and conditions of employment as those in the collective agreement. Then, they can choose to join the union and be covered by the collective agreement, or negotiate an individual employment agreement with the employer.
But that change simply reinstates the pre-2015 law.
Unions will also be able to provide union-related information for an employer (who is a party to a collective agreement) to pass on to a new employee. The employer could only refuse if the information was defamatory.
Yet employers are already required to give non-union members information about an applicable collective agreement and the union that is party to that agreement.
Keeping election promises
Ninety-day trial periods — which Labour and the unions condemned as fire-at-will provisions — are to go, except for employers with fewer than 20 employees.
This suggests that Labour has modified its opposition to 90-day trials — even though their teeth have been largely drawn by the courts.
Why they’re being kept for small employers — whose employment practices are most often questioned by the Employment Relations Authority — is a question to ponder. The Minister says he wants to keep low barriers to hiring for small businesses — but surely not at the expense of workers.
Fortunately, the proposal for a grievance referee has been dropped.
But it’s difficult to understand why provision for probationary arrangements is being retained. Just like a dismissal at any other time, a dismissal at the end of a probationary period must be justifiable reasons and procedurally correct. In other words, probationary arrangements are essentially meaningless.
Putting the clock back
The Bill restores specified times for rest breaks and meal periods. That’s what the Act originally provided, but National thought employers and workers could be left to negotiate the detailed arrangements for themselves. Labour disagrees.
This may illustrate a philosophical difference between the two sides of Parliament. The former government seemed to prefer a hands-off approach, apparently trusting employers and employees to make reasonable deals — with the Authority and the Court as backstop for employees with grievances.
Labour, on the other hand, seems to think that Parliament must set standards and entitlements in detail. Some call it the nanny state.
The Bill also restores reinstatement as the primary remedy for an unjustifiable dismissal. But this is largely rhetoric.
Reinstatement is to be ordered “wherever practicable and reasonable” — although the courts are careful to balance the interests of the parties and the justice of their positions with regard to both the past and the future. They don’t interpret “practicable and reasonable” in a narrow sense, and reinstatement has been far from automatic or inevitable.
Further back to the future
So there’s not much in this Bill.
We’ll just have to wait patiently for “the progressive programme” to emerge.
Perhaps it will come with legislation on the promised fair pay agreements — about which the government needs more time for consultation.
A little more interesting is the Employment Relations (Triangular Employment) Amendment Bill, a member’s Bill introduced last week by Labour list MP Kieran McAnulty. It aims to bring agency workers and employees of labour-hire companies within the coverage of collective agreements in the organisations which control or direct the work they mainly do. The workers would also have a right to take personal grievances against those secondary employers.
Given this Bill was a Labour Party election promise — and deals, partly but not wholly, with a growing problem — we might wonder why it wasn’t included with the government’s amendments.
Meanwhile, the Minister has appointed a working group to consult on the proposed repeal of John Key’s Hobbit law. Quite why it needs to consult is unexplained.
As the courts made clear in the Bryson case, which led to the Hobbit law, film industry workers can be either employees or independent contractors — as defined by the law. The choice is one for the workers and their employers, within the clearly established legal frameworks.
The Employment Relations Act covers all that. There’s no need for special legislation for film industry workers. Unless, like its predecessors, Labour fears it can be bullied by Hollywood moguls.
The 2018 edition of the New Zealand Employment Law Guide is now available at https://books.wolterskluwer.co.nz.