Getting the balance right - MARCH 2018 Employment Relations Amendment Bill - Simpson Grierson
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Getting the balance right
Findings of a survey on the proposed
Employment Relations Amendment Bill
MARCH 2018
ABOUT SIMPSON GRIERSON CONTENTS
We have what is widely considered to be
New Zealand's leading employment law practice. Introduction 1
Our expert advice is called on by many of
New Zealand's top organisations in both the Key findings 2
private and public sector. We act for a number of Section 1: Reinstatement 3
New Zealand's largest companies. We also have a
portfolio of major international corporate clients. Section 2: Bargaining 4
We act for many major government departments
and local authorities. Section 3: New employees 7
We advise on all employment-related work. This Section 4: Unions 9
includes accident compensation, collective
bargaining and industrial relations, employee Section 5: Trial periods 11
benefits, employment and contracting agreements, Section 6: Rest and Meal breaks 12
health and safety, human rights, superannuation
(including KiwiSaver), legislative compliance, Methodology 13
personal grievance claims, privacy, restructuring,
redundancy, union issues, and strikes and lockouts.
This survey was carried out in March 2018. We
CONTACTS received responses from 134 HR specialists on
the Simpson Grierson database.
Phillipa Muir – Partner
DDI: + 64 9 977 5071
M: +64 27 593 5402
E: phillipa.muir@simpsongrierson.com
Samantha Turner – Partner
DDI: + 64 4 924 3460
M: +64 021 310 216
E: samantha.turner@simpsongrierson.com
Rebecca Rendle – Senior Associate
DDI: + 64 9 977 5208
M: +64 21 302 476
E: rebecca.rendle@simpsongrierson.com
Mike Mercer – Solicitor
DDI: + 64 4 924 3530
E: mike.mercer@simpsongrierson.com
INTRODUCTION
Key Message – Overhaul of Employment Laws
Goes Too Far
The Employment Relations Act 2000 (Act) is an important piece of legislation that
impacts all employers and employees. The changes proposed in the Employment
Relations Amendment Bill 2018 (Bill) are far reaching and largely repeal the previous
Government’s amendments to the Act.
The new Government says the aim of this Bill is to restore fairness in the workplace.
The Bill proposes changes to collective bargaining and wages as well as minimum
standards and protection of employees.
We recently conducted a short survey of our employer clients on the proposed
changes to the Act. The responses confirm that employers strongly believe the Act
does not need major overhaul. We will be including the results of this survey in our
submissions to Select Committee on the Bill. The key findings of our survey are:
• reinstatement should not be the primary remedy for unjustified dismissal;
• an employer should be entitled to opt out of bargaining for a multi-employer
collective agreement;
• an employer should have the ability to offer an Individual Employment Agreement
alongside a Collective Agreement;
• a union representative should be required to have an employer’s consent before
entering a workplace;
• 90 day trial periods should apply to all employers; and
• the timing of rest and meal breaks should not be prescribed in legislation.
1
SUMMARY OF KEY FINDINGS
1: Reinstatement should not be the primary remedy for
unjustified dismissal
2: An employer should be entitled to opt out of bargaining
for a multi-employer collective agreement
3: An employer should have the ability to offer an Individual
Employment Agreement alongside a Collective Agreement
4: A union representative should be required to have an
employer’s consent before entering a workplace
30 5: 90 day trial periods should apply to all employers
6: The timing of rest and meal breaks should not be
prescribed in legislation
2SECTION 1: REINSTATEMENT
Key finding: Reinstatement should "The employment relationship
not be the primary remedy for is usually broken by the time
unjustified dismissal you get to this stage so
reinstatement is a very poor
The first question asked respondents about reinstatement. The
result was clear – 80% of respondents disagreed or strongly
outcome for both parties."
disagreed that reinstatement should be restored as the primary
remedy for unjustified dismissal.
"Where there is no trust and
Q1. REINSTATEMENT SHOULD BE RESTORED AS THE
PRIMARY REMEDY FOR UNJUSTIFIED DISMISSAL confidence from either side,
then reinstatement is not an
Strongly agree 2%
effective remedy."
Agree 4%
Neutral 14%
"Reinstatement should remain
Disagree 35% as a remedy, but in the
majority of cases it's not the
Strongly disagree 45% desired remedy for any party.
Having it as the primary
remedy does nothing to
protect the employee or
employer's interests."
3SECTION 2: BARGAINING
"Multi employee CAs are only
Key finding: An employer should
appropriate in some settings. be entitled to opt out of
For most private sector bargaining for a multi-employer
employers they often fail to collective agreement
take account of individual
business circumstances (eg The next set of questions asked respondents for their views on
proposed changes to bargaining.
locations and local costs and
On the key issue of bargaining for a multi-employer collective
local wage structures)." agreement, 77% of respondents strongly agreed or agreed that an
employer should be able to opt out.
Q2. AN EMPLOYER SHOULD BE ENTITLED TO OPT OUT OF
"The union and the employer BARGAINING FOR A MULTI-EMPLOYER COLLECTIVE
should work in partnership AGREEMENT
and both should be Strongly agree 41%
responsible for initiating
bargaining in a set time period Agree 36%
before a CA expires." Neutral 16%
Disagree 5%
Strongly disagree 2%
Q3. A UNION SHOULD HAVE THE ABILITY TO INITIATE
BARGAINING FOR A COLLECTIVE AGREEMENT 20 DAYS
BEFORE THE EMPLOYER
Strongly agree 2%
Agree 5%
Neutral 46%
Disagree 29%
Strongly disagree 18%
4Q4. AN EMPLOYER SHOULD BE ENTITLED TO MAKE
PROPORTIONATE DEDUCTIONS, OR ALTERNATIVELY "Partial strikes have real costs
DEDUCT 10 PER CENT, FROM EMPLOYEES’ PAY IN within the workplace - it's only
RESPONSE TO PARTIAL STRIKES
fair to recoup, in essence, a
Strongly agree 25% small portion of the cost."
Agree 43%
Neutral 18% "The process for determining
performance and reward can
Disagree 11%
be agreed via a collective, but
Strongly disagree 3% actual pay rates should be
outside the agreement."
Q5. RATES OF PAY SHOULD BE INCLUDED IN COLLECTIVE
AGREEMENTS
Strongly agree 7% "The concept of requiring two
or more parties to conclude
Agree 28% an agreement is nonsense. In
reality, the most that can be
Neutral 34%
achieved is to require the
Disagree 18% parties to continue to
negotiate with each other. It
Strongly disagree 13%
is also wrong to say that the
parties are failing to act in
Q6. THE DUTY OF GOOD FAITH SHOULD REQUIRE PARTIES
TO CONCLUDE A COLLECTIVE AGREEMENT good faith, if they do not
reach an agreement."
Strongly agree 13%
Agree 26%
Neutral 23%
Disagree 22%
Strongly disagree 16%
5Q7. THE EMPLOYMENT RELATIONS AUTHORITY SHOULD
"If the positions of the parties HAVE THE POWER TO DETERMINE THAT BARGAINING
are truly irreconcilable then IS AT AN END
there needs to be some Strongly agree 19%
mechanism to end fruitless
bargaining." Agree 48%
Neutral 23%
"The Employment Relations Disagree 6%
Authority should act as the Strongly disagree 4%
arbiter in resolving
contentious issues of
collective bargaining between
employer and employee."
6SECTION 3: NEW EMPLOYEES
Key finding: An employer should "The new employee should
have the ability to offer an always have the right to
Individual Employment decide who they wish to
Agreement alongside a bargain for them, not have it
forced by legislation."
Collective Agreement
The next set of questions asked for views on proposals relating to
how new employees are treated.
"It would be more consistent
There was strong support on the key issue of employers also being
able to offer an Individual Employment Agreement alongside a with the principles of freedom
Collective Agreement. 87% of respondents agreed or strongly of association and the
agreed with this suggestion, and only 3% of respondents disagreed
or strongly disagreed.
promotion of individual choice
to allow an applicant to decide
Q8. AN EMPLOYER SHOULD HAVE THE ABILITY TO OFFER whether to be covered by an
AN INDIVIDUAL EMPLOYMENT AGREEMENT
ALONGSIDE A COLLECTIVE AGREEMENT TO AN
IEA or CA."
APPLICANT CONSIDERING EMPLOYMENT
Strongly agree 60%
Agree 27%
Neutral 10%
Disagree 2%
Strongly disagree 1%
7Q9. NEW EMPLOYEES SHOULD BE COVERED BY THE
"Employees should have APPLICABLE COLLECTIVE AGREEMENT FOR THE FIRST
the choice." 30 DAYS OF THEIR EMPLOYMENT
Strongly agree 1%
Agree 8%
Neutral 25%
Disagree 34%
Strongly disagree 32%
Q10. AN EMPLOYER SHOULD BE REQUIRED TO SHARE NEW
"Employee information must EMPLOYEE INFORMATION WITH THE UNION UNLESS
be confidential to them, THE EMPLOYEE OBJECTS
unless they have given express Strongly agree 4%
permission for it to be shared."
Agree 12%
Neutral 18%
"This is contrary to best
Disagree 30%
practice when it comes to
privacy - there should be an Strongly disagree 36%
opt in, rather than an opt out."
8SECTION 4: UNIONS
Key finding: A union "I'm not against union
representative should be required representatives entering the
to have an employer’s consent workplace but there needs to
before entering a workplace be protocols in doing so to
avoid unnecessary disruption
The next set of questions asked respondents about proposals to and impacts on health and
strengthen unions’ role in workplaces. safety."
Generally, the views of respondents were relatively balanced on many
of the proposals.
However, a large majority – 87% of respondents – strongly agreed or
agreed that union representatives should be required to have an "Unions are an important part
employer’s consent before entering a workplace.
of the NZ landscape, but they
Q11. A UNION REPRESENTATIVE SHOULD BE REQUIRED TO HAVE are not the employer and
AN EMPLOYER’S CONSENT BEFORE ENTERING A WORKPLACE therefore should not be able
to enter work premises
Strongly agree 41%
without employer consent.
Agree 46% However, consent should not
be unreasonably withheld."
Neutral 5%
Disagree 6%
Strongly disagree 2% "Union representatives should
be paid by the company
Q12. UNION REPRESENTATIVES SHOULD HAVE REASONABLE when they work for the
PAID TIME OFF TO REPRESENT EMPLOYEES company, and paid by other
Strongly agree 5% parties (eg unions) when they
work for other parties."
Agree 43%
Neutral 25%
Disagree 17%
Strongly disagree 10%
9Q13. AN EMPLOYER MUST PROVIDE INFORMATION ABOUT THE ROLE
"Employers should be AND FUNCTIONS OF THE UNION TO NEW EMPLOYEES, IF REQUESTED
BY THE UNION, UNLESS THE INFORMATION IS DEFAMATORY
required to confirm unions
are available, but then it Strongly agree 4%
should be up to the Agree 31%
employee to ask for details."
Neutral 26%
Disagree 24%
Strongly disagree 15%
Q14. GROUNDS FOR DISCRIMINATION SHOULD BE EXTENDED TO
INCLUDE AN EMPLOYEE’S UNION MEMBERSHIP
Strongly agree 12%
Agree 31%
Neutral 23%
Disagree 17%
Strongly disagree 17%
Q15. THE TIMEFRAME FOR WHICH AN EMPLOYEE’S UNION ACTIVITIES
MAY BE CONSIDERED TO CONTRIBUTE TO AN EMPLOYER’S
"There is no reason or need DISCRIMINATORY BEHAVIOUR SHOULD BE EXTENDED FROM 12
for this change." TO 18 MONTHS
Strongly agree 2%
Agree 4%
Neutral 43%
Disagree 31%
Strongly disagree 20%
10SECTION 5: TRIAL PERIODS
Key finding: 90 day trial periods "This encourages employers to
30
should apply to all employers create opportunities for people
who want to enter the
On the proposal around restricting 90-day trial periods, the finding
was clear: 69% of respondents thought that trial periods should workforce by providing a less
continue to apply to all employers. risky mechanism for them to
offer employment."
Q16. 90-DAY TRIAL PERIODS SHOULD APPLY TO:
69% All employers
7% Employers with fewer "As a large employer we have
than 50 employees
found the 90 day trial an
12% Employers with fewer
than 20 employees excellent way to bring 'untested'
9% No employers workers in to our business,
3% I don't know particularly in smaller towns
and rural centres."
11SECTION 6: RESTS AND
MEAL BREAKS
Key finding: The timing of rest and
meal breaks should not be
prescribed in legislation
The final two questions related to rest and meal breaks. 73% of
respondents disagreed or strongly disagreed that the timing of
these should be prescribed in legislation.
Q17. THE TIMING OF REST AND MEAL BREAKS SHOULD (WITH
"This should be able to be LIMITED EXCEPTIONS) BE PRESCRIBED IN LEGISLATION
agreed between the employer
and employee, as long as basic
Strongly agree 5%
rights aren't being violated. Agree 11%
Every work place is different,
with different needs." Neutral 11%
Disagree 39%
Strongly disagree 34%
Q18. EMPLOYERS AND EMPLOYEES SHOULD BE ABLE TO
"Being able to opt out is OPT OUT OF HAVING REST AND MEAL BREAKS SET FOR
THEM, WHERE THE BREAKS ARE DIFFICULT TO
pragmatic and allows ACCOMMODATE DUE TO THE NATURE OF THE WORK
companies and their workers AND THE EMPLOYEE IS PREPARED TO ACCEPT
COMPENSATION INSTEAD
to be flexible and agree terms
which work for both parties." Strongly agree 28%
Agree 48%
"Sometimes the nature of the Neutral 5%
work would suggest that a
break is required for health, Disagree 11%
safety and wellbeing reasons." Strongly disagree 8%
12METHODOLOGY
This survey was carried out in March 2018. We received responses
from 134 employers and HR specialists on the Simpson Grierson
database. Questions in the survey were not compulsory leaving
respondents to address the topics they were most knowledgeable
about.
Question Number of responses
1 133
2 131
3 129
4 132
5 130
6 129
7 129
8 131
9 132
10 128
11 133
12 132
13 131
14 132
15 127
16 133
17 132
18 134
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