A Brief Analysis of National's Employment Law Changes
Holidays Amendment Bill
The main change to the Holidays Act is to allow sale of the 4th week of statutory annual leave. We opposed this change but are aware that some workers who are cash and/or time poor may want to use it. For us it is an issue of diluting annual holiday entitlement. It has taken us 30 years to catch up with Australia to get 4 weeks leave and already it's for sale.
Another change to the Holidays Act is the inclusion of a different calculation for leave.
Also in the Holidays Amendment is the requirement to get a doctor’s certificate even for one day’s absence. This is extremely unfair and impractical. But it also overlooks the current requirements that say that if an employer has reasonable grounds for believing a worker’s sickness (or illness of their child) is not genuine, the employer can already require a doctors certificate for one or two days. So now they can demand a certificate on unreasonable grounds.
Employment Relations Amendment Bill (No 2)
There are 32 changes to the Employment Relations Act. We did not oppose all these changes. But the main ones that cause concern are:
- Extending the 90 day trial to all employers. This is where the right to appeal against unfair dismissal is removed.
- Union officials seeking to enter a workplace must obtain the employer's consent 'which should not be unreasonably withheld'. We have operated under such provisions in the past and it has meant union officials being effectively barred from access for extended periods, workers having to meet a union official in a room opposite the boss’s office, and widespread intimidation by anti-union employers.
- Amending the Act to allow employers to directly communicate with union members during bargaining. In the past this has meant employers writing to workers at their home prior to a vote in bargaining and threaten all sorts of consequences if they do not agree with the employer position.
- Removing reinstatement as a primary remedy. This allows employers to sack someone in the knowledge that, even if they are found to have unfairly dismissed the worker, they are extremely unlikely to have to re-employ them. They will therefore be more likely to dismiss and pay the monetary price if necessary.
- Amend the justification for any action by an employer including dismissal. The simple change from the word ‘would’ to ‘could’ means that the range of circumstances where a dismissal is deemed to be justified is greatly expanded.
- Amend the Act on process requirements around dismissal and other matters so that the employer is not subject to ‘pedantic scrutiny’. This will weaken requirements for procedural fairness.
- Early mediation without representation. This could hugely disadvantage workers.
The NZ legislation website has final copies of the actual amendment Acts available.
Employment Relations Act Amendment
The actual updates to the principal Acts won’t happen until the changes come into force (so the Holidays Act has been updated to reflect the changes to otherwise working days for closedowns but the other changes won’t be incorporated until 1 April 2011 and 1 July 2011).