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On 2 October, the Employment Relations Act comes into force. Most employers in New Zealand employ less than 10 workers. Being small employer's they will
not notice a lot of change on 2 October 2000. Those employing large numbers of employees will be affected more.
One change that will affect all employers is union access to workplaces. Under the Employment Contracts Act, union officials had access to a workplace generally only with the employer's
agreement. The exception was where a worker had authorised the union to represent the worker in negotiations for an employment contract, the worker was employed on premises at the time the
official wanted access, and the union official wanted access for the purpose of those negotiations. In those circumstances, an official could enter a workplace at any reasonable time
when workers were employed to discuss matters with the worker who had given authority regarding the negotiations.
You can see that the employee would already be a member of the union. Access was limited to entry for the purpose of negotiations. The official was subject to any reasonable health and
safety procedures and requirements, and these might well limit the entry of outsiders, including the union official concerned, to particular parts of the premises.
The right of entry provisions under the Employment Relations Act give sweeping access for unions. In the first place, the union official can enter a workplace to talk to people who are union
members, or to people that the official wants to recruit into the union, provided the union rules cover the employees concerned. Unions are likely to draft their rules very widely so this restriction is not likely to make any difference.
Because the union can enter to recruit members, the provision will enable union officials to enter virtually every workplace. There are some limitations and employers would be wise to become
very familiar with these. In the first place, the union official can enter only at a reasonable time when employees are working, so it would presumably be unreasonable for an official to enter to
speak to kitchen staff who were working in the lunch period. Secondly, the union official must enter in a reasonable way, having regard to the normal business operations of a workplace.
Presumably this means they cannot disrupt the employer's business and intrude on the privacy of other people who may be there.
The union official must comply with any existing reasonable procedures and requirements applying in respect of the workplace that relate to safety, health or security. It is important for the
employer to ensure that they have clear-cut procedures in place so that these can provide something of a gate to guide the union official's entry. Provisions relating to safety and health
could exclude union officials from a kitchen. Provisions relating to security may prevent a union official from gaining access to the resident's room in an old peoples' home.
The union official exercising his or her right to enter a workplace must, at the time of entry and if requested by the employer at any time after entering the workplace, provide certain information.
The official must give the purpose of entry and produce evidence of his or her identity and his or her authority to represent the union concerned.
Where the union official exercises the right of entry and is unable, despite reasonable efforts, to find the employer or the employer's representative, or a person in control of the workplace, the
union official must leave in a prominent place in the workplace, a written statement. This must give the person's identity, the union they represent, the date and time of entry and the purpose of entry.
Despite these restrictions, an employer is not to unreasonably deny a union official access to the workplace.
The only other barrier to entry relates to the ability of the Attorney General to prevent entry to a very limited number of workplaces. Those are workplaces where entry might prejudice the
security or defence of New Zealand, or the investigation or detection of offences. This sounds like the security service, military establishments and police establishments.
Finally, there is the ability to limit entry on religious grounds but to qualify for this a certificate of exemption has to be obtained.
Unions have the ability to enter workplaces to recruit members. They did not previously have that ability. Employers need to be aware prior to 2 October 2000 of the grounds upon which they can
deny a union official entry. To try and think this up on the spot when an official is walking through the front door is likely to end in a mess.
| There is a second area covered by the new legislation that is important for all employers and
particularly important for small employers. That relates to the process that must be followed when engaging staff. Staff will be able to be employed on a collective employment agreement or
an individual employment agreement after 2 October 2000. Small employers will generally employ staff on an individual employment agreement, but they have to follow a very prescribed process if their agreement is to be effective.
Where there is no collective agreement, which covers the work done by the worker in question and the employer wishes to employ them on an individual employment agreement, key steps
must be followed. Prior to concluding an agreement the employer must provide the employee with a copy of the intended agreement and advise the worker that the employee is entitled to
seek independent advice about the intended agreement and give the worker reasonable opportunity to seek that advice.
The intended agreement given to the worker must include the names of the employee and employer, description of the work to be performed by the employee, and an indication of where
the employee is to perform that work. In addition, an indication of the arrangements relating to the times the employee is to work and the wages and salary payable to the employee must be
covered. An explanation of the services available for the resolution of employment relationship problems, including reference to the 90 day time limit for raising a personal grievance, must be included too.
Following the return of the worker after they have had their opportunity to seek independent advice, the agreement will be finalised. Again, the individual employment agreement must be
reduced to writing and must include the terms set out above. | |
The employer is not allowed to bargain unfairly with an individual for an employment agreement. Unfair bargaining includes circumstances where the worker was not given the information prior to
being employed, or an opportunity to seek advice, as set out above. Other grounds for unfairness are where the worker is unable to understand adequately the provisions of the
proposed agreement by reason of diminished capacity. Similarly, where the worker reasonably relies on the skill, care or advice of the employer or person acting for the employer or where the
worker is induced to enter the agreement by oppressive means, including undue influence or duress. But the most common reason that employers are likely to be tripped up by, when
engaging an individual, is that they have not given them the basic information they are obliged to, along with an opportunity to take advice before entering into a contract. It is a landmine that will take many a limb.
If an employer does engage in unfair bargaining, the Authority may make an order that the employer pay the worker compensation, make an order cancelling or varying the agreement, or
make such other order as it thinks fit. Accordingly, the employer could be up for compensation or could have the agreement varied and end up perhaps having to pay a higher hourly rate. The
employee could complain that the hourly rate struck is well below the going rate, and if they had had an opportunity to talk to their uncle who is a union secretary, they would have learned that
and not taken the job unless they got another $7 an hour. It seems that they could ask the Authority to vary their contract upwards by that amount, if the employer mucks up on the process.
So, every employer needs to be very alert to their obligations in a procedural sense when employing staff.
As with other parts of the Act, the provisions governing the employment of new workers are very prescriptive and if the employer makes a process failure, it could be extraordinarily costly. The
only advice one can give is not to make a mistake. Get it right and be safe. See Also
Section 65
- Terms and conditions of employment where no collective agreement applies
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