The Transport and Industrial Relations Committee reported back to Parliament late last year and the Government has indicated its proposed reconsiderations to the Amendment Bill.
To summarise the Amendment Bill:-
- Clarifies disclosure requirements
- Provides for a new process to terminate collective bargaining
- There is also a new procedure to provide for an employer deciding to opt out of collective bargaining which involves multiple employers
- Changes to the flexible working arrangements by extending employee’s current right to request a variation of their working arrangements
- Part 6A of the Act continues the Government’s initial proposal which is to exclude from Part 6A smaller to medium size businesses, and for the first time the COMMERCIAL playing field will become unequal.
- Many other significant suggestions regarding Part 6A to make it more workable have been ignored.
- Rest and meal provisions are amended to provide for more flexibility
- All strikes and lockouts require advanced written notice and there is a problematic procedure for an employer to be able to make specified pay deductions for what are termed “partial strikes”
- There are various changes to the workings of the Employment Relations Authority.
Whilst many of the changes involve collective bargaining, some are more technical in nature.
Clients will be aware that we have been very involved in all of the Part 6A cases that have been, and continue to be, in the Employment Court, the Court of Appeal, and the Supreme Court. For those employers and employees who are involved in the specified (protective) industries, Part 6A can be something of a nightmare to administer. The reality is that Part 6A, despite its intentions, is very badly drafted, and relies on parties’ goodwill to effect transfers. If that goodwill is not present, and increasingly it is not, then it is something of a “dog’s breakfast” to administer. In particular, we have made submissions regarding who is and who is not “a vulnerable employee” who can elect to transfer. This needs clarification. This has been and continues to be a source of significant litigation in the Employment Court primarily but also creates considerable uncertainty for everyone involved. The legislation does not contain any sort of definition and employers who are confronted with the transfer situation are left largely to guess who is, and who is not, a vulnerable employee. Despite everyone referring to the phrase “vulnerable employee” as the Employment Court has noted on a number of occasions, that phrase is not contained anywhere in the legislation. It would have been a simple exercise to make these provisions more user/business/employee friendly, however the Parliamentary Committee has ignored the many submissions made to it along these lines.
As a further comment regarding collective bargaining, the removal of the requirement to conclude a collective agreement ends a very long statutory encouragement of collective bargaining. There can be no doubt that the removal of such statutory provisions will see fewer collective agreements concluded. Despite the Government’s statements to the contrary this can, and will be, the main consequence. With that of course will be a reduction in union membership.