One step closer to a new employment landscape

The Education and Workforce Select Committee has issued its report on the Employment Relations Amendment Bill (the Bill).  While the Select Committee has recommended a number of amendments to the Bill, very few are substantial.

The Bill proposes to amend the Employment Relations Act 2000 (the Act) by rolling back a number of the previous changes made to the Act by the previous National-led Government, and introducing a range of new requirements.  A detailed description of the amendments originally proposed to the Act can be found in our previous article here.

The Select Committee's revised amendments to the Bill are set out below.

Employee-centric changes

The Select Committee’s proposed amendments to the employee-centric provisions in the Bill include:

  1. Amending the rest and meal break provisions to:
    1. include an exemption for employers engaged in the protection of national security; and
    2. clarify how financial compensation should be calculated in circumstances where rest and meal breaks cannot be provided.

Overall, these amendments have not made the rigid rest and meal break provisions any more flexible.  The provisions are therefore still substantially the same as was the case in 2015 before the Act was amended.

2. Retaining the limit on the use of trial periods to small-to-medium-sized employers. However, for clarity a definition of small-to-medium-sized employers has been inserted as employers with fewer than 20 employees at the beginning of the day on which a relevant employment agreement is entered into (note the cap includes any part-time employees as well). Interestingly the focus has remained on employers with fewer than 20 employees, rather than organisations with fewer than 20 staff members or workers.  This leaves open the possibility that an employer may have fewer than 20 employees, but more than 20 staff members or workers if the organisation engages a number of independent contractors.

3. Providing the Minister of Workplace Relations and Safety the power to recommend to the Governor-General to add, delete or amend by order in Council the categories of employees listed in Schedule 1A of the Act based on specific criteria including the frequency of restructuring in the sector and the bargaining power of the employees. This means the categories currently specified in Schedule 1A may be extended beyond the current categories of cleaning, food catering, caretaking, orderly services, and laundry services in specified sectors.

Changes aimed at strengthening collective bargaining and union rights

The Select Committee’s changes include clarifying that employers and employees should be able to negotiate terms and conditions that are more favourable than those included in an applicable collective agreement during the 30-day period at the beginning of their employment while employees are initially employed on the terms in that collective agreement.

New proposals under the Bill

The Select Committee’s proposed amendments to the new provisions in the Bill include:

  1. Amending the requirement that a collective agreement has to contain the exact rate of salary or wages, so that only minimum rates or a method of calculating rates are required. However, a collective agreement will need to indicate how the rate of wages or salary payable to an employee may increase during the term of the agreement.
  2. Clarifying time spent on union activities by union delegates is to be paid at the same rate as if the employee were performing their ordinary employment duties.
  3. Amending and clarifying the requirements for the provision of information from employers to prospective employees about the union’s role and function, including:
    1. amending the grounds for an employer to refuse to provide information to whether the information is about the employer, would (or is likely to) mislead or deceive the prospective employee, and would significantly undermine bargaining between the employer and the prospective employee;
    2. providing that the unions should bear the cost of providing the information; and
    3. clarifying the process for employers passing on employees' information on to a union, and the process for employees notifying employers of their intention to join a union.
  4. Providing that minor or technical errors in providing notice of a strike under section 86A will not invalidate the strike.

New proposals by the Select Committee

The Select Committee has recommended that the Bill includes a definition of wages, to be defined as including amounts payable for time, piece work or commission (whether wholly or in part).  This amendment is simply codifying the widely accepted definition of wages.

In its minority report, the National Party strongly opposes “both the ideological basis of this Bill and the specific legislative changes contained in it” and has indicated that “a future National-led Government will repeal these provisions.”

A full copy of the Select Committee report can be found here.  If you have any further questions please contact one of our experts.

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