10.12.2018

Time for Change (again!)

The winds of change are once again blowing through the employment law landscape.

Throughout this year, we have seen numerous bills make their way through Parliament, amending and adding to employment law.  Some of these changes are set to come into force next year.  So what do you need to know?  

Employment Relations Amendment Bill

This week, the Employment Relations Amendment Bill passed its third reading in Parliament.  It is now just awaiting Royal assent.  This means the Bill in its current form will likely become law by the end of 2018, and will (for the most part) take effect next year.

This Bill amends the Employment Relations Act 2000.  According to the Minister of Workplace Relations and Safety, its purpose is to restore key minimum standards and protections for employees, and implements a suite of changes to promote and strengthen collective bargaining and union rights in the workplace. 

The general amendments include:

  • Restricting 90 day trial periods to employers with fewer than 20 employees. This change takes the 90 day clause back to its 2009 form, which subsisted until the “fewer than 20 employees” limit was removed in 2011 (comes into force on 6 May 2019).
  • Changes to sections relating to the continuity of employment if an employee’s work is affected by restructuring (comes into force on 6 May 2019).
  • Restoring prescribed rest and meal breaks with a limited exception for workers in essential services and national security who cannot be replaced (comes into force on 6 May 2019).         
  • Restoring reinstatement as the primary remedy for unjustified dismissal. It will require an employer to argue that reinstatement is impracticable and unreasonable (comes into force the day after Royal assent).
  • Providing further protections for employees in vulnerable industries, which the Bill also identifies (comes into force the day after Royal assent).

The amendments to collective bargaining and union rights include:

  • Employers to provide reasonable paid time for union delegates undertaking union activities during the employees’ normal hours of work, with limited exceptions (comes into force on 6 May 2019).
  • A union representative does not require the employer’s consent to enter a workplace, but the employer’s consent is required if there are no union members in the workplace covered by, or bargaining for, a collective agreement.
  • A penalty for refusing to permit a union representative who is entitled to enter a workplace to enter the workplace (comes into force the day after Royal assent).
  • A union party to a collective agreement may request an employer party to pass on union information to prospective employees, but the employer may refuse to comply on certain grounds, including the information being confidential (comes into force on 6 May 2019). 
  • Requiring the parties bargaining for a collective agreement who come to a standstill or reach a deadlock about a matter, to continue to bargain about any other matters on which they have not reached agreement (comes into force on 6 May 2019).
  • Requiring the parties bargaining for a collective agreement to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to. While opposition to collective agreements in general is not a good reason to fail to settle, opposition to concluding a multi-employer collective agreement is a genuine reason not to conclude if that opposition is based on reasonable grounds (comes into force on 6 May 2019). 
  • Restoring the earlier initiation timeframes for unions in collective bargaining (comes into force the day after Royal assent).
  • Repealing opt out of bargaining for collective agreement sections (comes into force the day after Royal assent).
  • Requiring collective agreements to include pay rates of wages or salary payable to employees bound by the agreement (comes into force on 6 May 2019).
  • Restoring the 30 day rule where for the first 30 days new employees must be employed under terms consistent with the collective agreement (comes into force on 6 May 2019).
  • Repealing partial strike pay deductions (where employers can deduct wages for low-level industrial action) (comes into force the day after Royal assent).
  • Provides greater protections against discrimination for union members (comes into force 6 months after the date of Royal assent).

Domestic Violence – Victims’ Protection Act 2018

 This Act makes amendments to the Employment Relations Act 2000, the Holidays Act 2003 and Human Rights Act 1993.  These amendments enhance protection in the workplace for persons affected by domestic violence and reduce the financial impact of domestic violence on persons affected by enabling an employee to request flexible working arrangements for two months or less and providing up to ten days domestic violence leave each year.  It comes into force on 1 April 2019. 

This may require changes to your employment agreement templates and potentially your relevant workplace policies and procedures.  Given the sensitivity of the topic, it may be useful to get expert insight into how to appropriately implement these changes in your workplace.

We have previously written about this Act here.

Keep an eye out

But wait, there’s more!  In addition to the changes to the Employment Relations Act 2000, and the Domestic Violence – Victims’ Protection Act, there are few other bills waiting in the wings. 

  • The Equal Pay Amendment Bill seeks to improve the process for raising and progressing pay equity claims, and to eliminate and prevent discrimination on the basis of sex in the remuneration and employment terms and conditions for work done within female-dominated jobs. The Select Committee report is due on 16 April 2019.  This is not to be mistaken for the Employment (Pay Equity and Equal Pay) Bill, which was introduced in July 2017, but has since been withdrawn from Parliament.
  • The Employment Relations (Triangular Employment) Amendment Bill seeks to ensure that employees employed by one employer, but working under the control and direction of another business or organisation, are not deprived of the right to coverage of a collective agreement, and to ensure that such employees are not subject to a detriment in their right to allege a personal grievance. The Select Committee report is due on 17 December 2018.
  • The Holidays (Bereavement Leave for Miscarriage) Amendment Bill seeks to make it clear that the unplanned death of a foetus constitutes grounds for bereavement leave for the mother and her partner or spouse, and that the duration of the bereavement leave should be up to three days.
  • The Government established a taskforce this year to review the Holidays Act 2003.

We will be running client seminars in the new year to discuss all these changes further, and we can help you with amendments to your agreements, and adjustments to your workplace practices. 

In the meantime, if you have burning questions, please feel free to contact us.

Do you need expert legal advice?
Contact the expert team at Hesketh Henry.
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Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

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