Bell Gully Partner Liz Coats and Solicitor Charlotte Joy discuss the Ministry of Business, Innovation and Employment’s release of its prescribed Active Choice Form as part of changes to the Employment Relations Act 2000 (ERA) which came into force this week, Monday, 6 May. 
Introduction
It is a new requirement for employers to issue employees with an “Active Choice Form” for new employees who are not union members but whose work is covered by a collective employment agreement (CEA) (affected employees). The Active Choice Form is prescribed by the Chief Executive of MBIE, and all employers will have to use this form for affected employees.
Employers now have access to the prescribed Active Choice Form, as well as guidance regarding how to use the Active Choice Form.
How to use the Active Choice Form
In summary, within 10 days of commencing employment, employers must provide new affected employees with the Active Choice Form for them to complete. The form seeks information from the affected employee about whether they intend to join the union that is a party to the CEA that covers the affected employee’s role. The form does not need to be provided to employees who are already employed by the business and have transferred to a new role that falls within the CEA coverage.
It is optional for affected employees to complete and return the Active Choice Form to their employer.
However, in all cases, an employer must pass on information to the relevant union(s):
- If employee returns the form and wants to join a union – the form must be provided to the union(s) (by the employer).
- If employee returns the form and does not want to join a union – the form must be provided to the union(s) (by the employer) unless the employee has ticked the box stating that they do not want the form to be passed onto the union.
- If employee does not return the form – the employer must provide the name of the employee to the union(s) and inform them that the employee did not complete and return the form.
In all instances, the employer must provide the relevant information to the union(s) within 10 days of the completion of the new affected employee’s first 30 days of employment.
Potential consequences for employers
If an employer does not provide new affected employees with the Active Choice Form, or does not provide the applicable information to relevant union(s) after the first 30 days of employment, the employer may be liable for a financial penalty of up to $10,000 for an individual and $20,000 for a company.
Practically, this may be quite onerous for employers. Employers should ensure that they have an internal system which ensures that it complies with its obligations and timings.
Key timings
Key timings are as follows:
- Day 1 to 10 – the Active Choice Form must be provided to new affected employees.
- Day 1 to 30 – the affected employee must consider whether to fill out the form and return it to their employer.
- Day 30 to 40 – the employer must provide information to the union(s).
Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. Contact the authors if you have any queries about this article or topic. Bell Gully’s employment team is supporting a number of clients with the transition to the new requirements under these amendments.
Liz Coats is a specialist employment lawyer who delivers practical, commercially-focused advice. She has extensive experience advising on a range of employment issues. She regularly advises employers on redundancy and restructuring issues, managing poor performance, disciplinary processes, investigations and restraints of trade. She has also advised a significant number of large employers, in both the public and private sectors, on Holidays Act compliance issues and remediation projects. Liz is also part of our health and safety team, supporting clients in their responses to safety incidents and interactions with WorkSafe. Liz works to reduce the time and cost for clients when settling employment disputes and is experienced in all forms of dispute resolution. If litigation is unavoidable, she has substantial experience in the Employment Relations Authority, Employment Court and Court of Appeal, as well as dealing with the Labour Inspectorate. Liz has a reputation for being accessible and responsive to her clients, and is known for her pragmatic, commercially-focused advice. Chambers Asia Pacific 2019 names Liz as an ‘associate to watch’, with clients describing her as “practical and clear” as well as “astute, commercial and pragmatic”. Liz was also praised for bringing “legislation into operational life”. Liz was noted as acting for employers on such mandates as redundancies, restructurings and disciplinary processes. In The Legal 500 Asia Pacific 2019, Liz was described as a ‘next generation lawyer’ in the labour and employment practice area. In 2016, Liz was appointed to the Employment Law Committee by the Council of the Auckland District Law Society. Contact Liz at liz.coats@bellgully.com or connect via LinkedIn 
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Charlotte Joy is a Solicitor at Bell Gully. Contact Charlotte at charlotte.joy@bellgully.com or connect via LinkedIn .
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