New governments often spell major change for employment law, and this time is no exception. In the short time since New Zealand’s new government took shape, there have already been two big shakeups to employment law, and there are likely more changes ahead.
Implemented changes
First, the Fair Pay Agreements Act 2022 (Act) has been repealed. This Act was a relatively new and highly complex piece of legislation, which had the potential to transform New Zealand’s employment landscape. Its purpose was to enable eligible groups to bargain for industry or occupation wide minimum employment terms, such as hours of work, minimum base wage rates, overtime penalty rates, and so on. Any Fair Pay Agreement (FPA) reached in accordance with the Act would have then been a legally binding agreement for all those within its coverage (irrespective of whether they were involved in bargaining).
While FPAs are now off the table, it is, of course, still possible for employees and unions to bargain with employers under the Employment Relations Act 2000.
Second, trial period provisions are now available to all employers, irrespective of their size. Previously, only employers with fewer than 20 employees were able to include such provisions in employment agreements. The usual requirements around how these provisions should be drafted and used in order to be lawful remain, and we note that the employment institutions take a strict approach in this regard. Proceed with caution if using these provisions and seek specialist legal advice.
Looking to the coalition agreements
While it is impossible to say with complete certainty what changes we can expect to see, the new government’s coalition agreements provide good guidance on what the Government has on its agenda.
National and Act have agreed to:
- Reform health and safety laws;
- Consider simplifying personal grievances (based on Act's election policies, this could mean removing eligibility for remedies where the employee is at fault, and setting an income threshold above which a personal grievance cannot be pursued); and
- Consider prohibiting contractors from challenging their employment status in certain circumstances.
Hon Brooke van Velden, the current Minister for Workplace Relations and Safety, recently reaffirmed that the above points are priorities for the government in her speech to the Auckland Business Chamber of Commerce. She further announced that reform of the Holidays Act 2003 is also on the government’s agenda. This is not unexpected, with reform having been on the cards since 2019 following several recommendations made by a special taskforce and, anecdotally, draft legislation having made it to the Minister of Labour’s office under the previous government.
National and New Zealand First have agreed to:
- Improve the Accredited Employer Work Visa;
- Commit to moderate increases to the minimum wage every year;
- Ensure that Immigration New Zealand is engaged in proper risk management and verification in respect of migrant workers;
- Commit to enforcement and action to ensure those found responsible for the abuse of migrant workers face appropriate consequences; and
- Investigate the establishment of an “Essential Worker” workforce planning mechanism.
Member’s Bills
|
Bill |
Stage |
Overview |
Likelihood of becoming law? |
|
Crimes (Theft by Employer) Amendment Bill |
Select Committee |
Clarifies that not paying an employee their wages constitutes theft, and introduces an offence for employers who intentionally withhold wages. |
Unlikely, as neither National nor Act supported the Bill at its first reading. |
|
Employment Relations (Protection for KiwiSaver Members) Amendment Bill |
Select Committee |
Provides better protection against discrimination of workers enrolled in KiwiSaver. |
Possible, as National supported the Bill at its first reading. Act did not support the Bill. |
|
Employment Relations (Restraint of Trade) Amendment Bill |
Select Committee |
Introduces certain criteria that must be met for restraints of trade provisions to be lawful. |
Unlikely, as neither National nor Act supported the Bill at its first reading. |
|
Human Rights (Prohibition of Discrimination on Grounds of Gender Identity or Expression, and Variations of Sex Characteristics) Amendment Bill |
Introduced |
Adds two new grounds: (a) gender identity or expression, and (b) variations of sex characteristics, to the list of prohibited grounds of discrimination. |
Unclear, as the Bill is yet to have its first reading. |
|
Employment Relations (Employee Remuneration Disclosure) Amendment Bill |
Introduced |
Allows employees to disclose their remuneration to third parties, including other employees. |
Unclear, as the Bill is yet to have its first reading. |
Authors: Bridget Perkins and Jim Roberts
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