Jol Bates: Recent law changes may help employers

Jol Bates

The law has a sneaky habit of changing on you, without fanfare. It's hard enough for lawyers keeping up with the changes, let alone the public at large.

So for you employers out there here's a bit of a cheat sheet to some of the changes which have now taken effect under the Employment Relations Act 2000. Some of the changes are quite significant.

Businesses these days are under constant challenges to operate more efficiently. The last thing businesses, particularly small to medium enterprises, need is to trip themselves up and find themselves the subject of otherwise avoidable costly personal grievance proceedings when restructuring.

Recent legislation makes some changes which might help businesses with their flexibility in a restructuring environment. The "good faith" consultation requirements with staff have changed significantly.

The duty of good faith no longer dictates that employers who may be proposing to make a business decision which may have an adverse impact on the employment of an employee (eg, a potential redundancy here) must provide that employee with access to confidential information (such as "in house" board financial reviews, or even external review documents) where it would unwarrantedly disclose the affairs of another individual; is subject to a statutory requirement to maintain confidentiality (for example under the Privacy Act 1993) or is necessary, for any other good reason, to maintain the confidentiality of the information.

The legislative amendment is clearly in response to an Employment Court decision in 2011 regarding Massey University where disaffected staff fired off a raft of different requests for private information, including private information about their own colleagues in the course of a selection process for employment under a restructuring occurring at Massey University.

The pathway toward implementing changes in the workplace becomes a little easier for employers faced with the already difficult task of streamlining their businesses and dotting the 'i's and crossing the 't's on process requirements.

"Give me a break" - this thorny issue has also become a little easier. Having dealt with a number of cases arising from this situation, the legislation really created more trouble than it was worth in the end. Sure, some employers were not acting entirely fairly in relation to work and rest breaks but most employers that I have worked with cater for these types of issues without unworkable prescriptive rules.

The legislation is more workable now because rather than having a rigid formula as to rest and meal breaks, there is now a broad requirement that employers provide paid breaks which provided an employee with a reasonable opportunity for rest, refreshment, and attention to personal matters. These may be subject to restrictions only if they are reasonable and necessary having regard to the nature of the employer's work. In my view, this was really a case of unbroken legislation being broken and then fixed again.

There are also changes to the law regarding flexible working arrangements. All employees, not just those with caring responsibilities, are now able to request flexible working arrangements from their employers. Employees are entitled to make such a request at any time, and in turn employers must respond. The employer must justify itself by stating the reasons for refusing a request.

There is no doubt that the world is changing and more and more skilled employees in particular are being accommodated in their personal circumstances with family commitments. No longer is it the case that employers are insisting that employees spend full-time hours in the office. With modern technology, there is no reason why certain employees cannot be accommodated in flexi arrangements. Employers need to be aware at least of their legal duties in this regard. Employees also need to appreciate that such flexible arrangements, if they have been carefully negotiated and acceded to by employers, represent good faith on the part of employers and should not be abused.

There are some changes that look like "Union busting" ones. The "30 day rule" has been repealed and new employees can now simply be placed on an individual employment agreement from the commencement of their employment.

This particular rule was something that unions saw as beneficial as it redirected staff for at least the 30 day rules into the union's camp before an employee could exercise an opt-out of a union-negotiated deal. The abolishment of this rule may erode union recruitment.

The duty of good faith has also been amended so that employers can pull the pin on unduly protracted negotiations with unions for collective agreements. The duty of good faith no longer requires an employer and union bargaining for a collective agreement to conclude that agreement, or continue bargaining when there is a deadlock in negotiations. In my view, although this looks like another so-called "Union busting" measure, I have been involved in deadlocked employment negotiations in the past that have run on for years to the detriment of the employees more than anyone else.

And finally, the Employment Relations Authority is now required to provide either an oral determination or an indication of its findings at the conclusion of an investigation meeting (for example in unjustified dismissal cases they must say who wins and who loses) and must provide a written determination within 3 months.

This will no doubt make for some uncomfortable moments as between lawyers and their clients as the verdict will come quicker, and at a time when both the lawyer and the client are sitting together. Awkward.

-Jol Bates is a civil and employment litigation lawyer at Brown & Bates. He and his partner Libby Brown are contactable at jol@brownandbates.nz or libby@brownandbates.nz about any thorny legal issues.

-Mike Williams' column will return next week.