Posted on: Oct 02, 2013

26 September 2013

The New Zealand Law Society has recommended clarification of proposed changes to clauses in the Employment Relations Amendment Bill.

In its submission to the Transport and Industrial Relations Committee the Law Society said proposed changes to clauses 7, 8 and 9 will remove the “duty of good faith” requirements that parties in collective bargaining need to conclude a collective agreement unless there is a genuine reason not to.

The Law Society notes that a possible consequence of the proposed changes is that employers may seek to refuse to continue bargaining or to enter into a collective agreement on the basis they oppose a collective agreement in principle or would prefer individual employment agreements.

“It is not clear that this is an intentional consequence of the proposed changes to the legislation. Regardless, if clause 9 is passed in its current form, there is likely to be litigation on this issue,’’ the submission says.

The Law Society suggested the committee should consider whether the intent of the proposals was that parties should be able to resist bargaining or a collective agreement on the basis that they object in principle to a collective agreement.

“If not, a new provision should be included to address that. If the intention is that parties should be able to oppose a collective agreement in principle, the Act could clarify this.”

The Law Society also queries the proposed compensatory measures for rest and meal breaks, and whether an employee simply could be financially compensated instead of being provided with such breaks.

Although an issue of policy, the Law Society pointed out a possible conflict with health and safety obligations and analogously, the general purpose behind the Holidays Act 2003 of providing rest and recreation, with the exception of an ability to pay out of the fourth week of annual leave.

Source: New Zealand Law Society

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