The employment law tennis match…

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Employment law is the traditional political tennis match with changes being made and previous changes repealed as governments come and go. There is an employment amendment bill winding through Parliament at the moment, restoring previous elements of law repealed by the last National government, and making a few additional changes as well.

There are changes to rest and meal breaks, trial periods, employee protection, collective bargaining and union rights, and reinstatement.

As befits a Labour government, the changes to the employee protection, collective bargaining and union rights all strengthen the union and employee rights and protect employees seeking to exercise those rights.

The return to rest and meal breaks sets a requirement for providing rest and meal breaks based on the length of an employee’s shift.  It also gives a schedule upon which those breaks must be taken, however the employer and employee are free to agree to alternative timing.  There is a very limited exception from the requirement to provide rest and meal breaks for essential services where the costs of providing cover for employees on breaks would be unreasonable.

Reinstatement would be restored by this bill to being the primary remedy provided by the Employment Relations Authority and Employment Court in the event of a personal grievance dispute arising from a dismissal. Reinstatement is an extremely tricky remedy for small to medium sized businesses in particular. In the case of very large employers with multiple branches and teams, reinstating an employee to an alternative but equivalent position is generally simple. However, where a dismissed employee is inserted back into a smaller organisation in close proximity with the people who they had a grievance with, all sorts of problems can arise. For that reason, reinstatement is a useful item of leverage for employees in the course of a personal grievance.

Restoring reinstatement as the primary remedy does not mean that it will be granted in every case, but it does send a signal to the Employment Relations Authority and the Employment Court that reinstatement is to be given additional consideration.

The most visible proposed change is reduce trial periods so that they apply only to employers with less than 20 employees. Trial periods generated considerable controversy when they were initially rolled out with unions and other organisations vowing to name and shame employers who used or misused them. This was insufficient to prevent trial periods from becoming an ordinary and expected part of employment practice.

Limiting their applicability to smaller businesses will reduce the stress and uncertainty suffered by a great many employees.  Conversely, this change will put an additional burden on employers who would otherwise have been able to rely on them to dismiss an employee with reduced risk.

This also signals the scramble by employers with slightly more than 19 employees to find ways to skirt around the restriction. The change to this law benefits employers with small full-time workforces and disadvantages employers with larger part-time workforces. There has been some criticism that this discriminates against women, and other groups that form disproportionately large parts of the part-time workforce. We also expect to see more employers trying to rely on contracting arrangements rather than taking on new employees. Some businesses that have very large contracting workforces and very few employees will benefit from reliance on the letter of the law, if not the spirit.

Our specialist employment team is here to guide you through any employment legislation changes and concerns you might have about how these affect you or your business. Get in touch with Simon or Kylie if this article raises any questions for you.

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