Employment Relations Amendment Bill

The Transport and Industrial Relations Select Committee has released its recommendations on the proposed Employment Relations Amendment Bill.

The Bill is proposed to principally change the duty of good faith, collective bargaining, flexible working arrangements, rest and meal breaks, strikes and lockouts and Employment Relations Authority (Authority) provisions of the Employment Relations Act:

The Select Committee has recommended that the Bill be passed with some amendments. These include:

  • Adding a new section to state an employer is not complying with their duty of good faith if they refuse to conclude a collective employment agreement simply because they object in principle to collective bargaining.
  • Providing employers a further five days to notify employees about the initiation of collective bargaining.
  • Adding a new clause to make clear that the Authority must (rather than “may”) make a declaration if it finds that bargaining has concluded.
  • Requiring employers to respond in writing to a flexible working arrangement request.
  • Provide guidance as to the kind of employees who would be covered by the protections afforded by Part 6A (vulnerable workers).
  • Clarification of the definition of “associated person” so franchisees with 19 or fewer employees who operated at arm’s length from the franchisor would be included in the definition of an exempt business for the purposes of Part 6A.
  • Clarifying that all notices for a strike or lockout must include both a start and end date and time, or specify an event (such as the reaching of agreement) which would mark the end of the strike or lockout.
  • Clarifying what constitutes a partial strike.
  • Allowing an employer five days to provide notice to an employee about a deduction from wages following a partial strike, instead of the originally proposed one day.
  • Adding a new section requiring the Authority to provide an oral determination or indication of its preliminary findings at the conclusion of an investigation meeting wherever practicable, but allowing it to reserve its determination if satisfied there were good reasons why it was not practicable to do so.
  • Inserting a new section to make it clear that, as at present, the Authority should be able to determine matters on the basis of written material, without holding a hearing or investigation meeting.
  • Where the Authority had given an oral determination at the conclusion of an investigation meeting, it would be required to provide the written determination in writing within one month, rather than the three months originally proposed.
  • Clarifying that challenges to a determination of the Authority is 28 days from the written, not oral determination.
  • Improving provisions around disclosure of information to strike a better balance between providing natural justice and recognising that some situations demand particular sensitivity by introducing a new section which draws on an approach used under the Privacy Act. The proposed new section provides that an employer would not be required to provide access to confidential information about an identifiable person other than the affected employee if it would involve an unwarranted disclosure of the affairs of that individual.
  • Removing sections of the Bill which would have provided employers with grounds for withholding evaluative or opinion material, or information identifying the person who compiled it. This is because the Committee believes that where a person’s continued employment is at risk, the need for them to see and be able to respond to such material about themselves outweighs confidentiality regarding the person who supplied the material.
  • Clarifying an employer could not refuse to provide information simply because it was contained in a document that included confidential information.
  • Inserting a new section to make it clear that “confidential information” means information that is provided in circumstances where there is a mutual understanding (whether express or implied) of secrecy, as described in the judgment of the Employment Court in Massey University v Wrigley.
  • Although there has been a lot of concern raised with the provisions in the Bill regarding meal breaks, the Committee didn’t feel that any changes were needed to these provisions.

The Bill will now go to a second reading. The next step after that is Committee of the Whole House, then a third reading and then Royal assent.

As usual, we will keep you updated with how the Bill progresses. Please contact us on (06) 878 5454 if you have any questions about the Bill and how it might affect your business.