Labour Announces Changes to Employment Law Legislation

Jacinda Ardern’s Labour Government has announced its intended changes to New Zealand’s employment law landscape.

By and large, most of these amendments were relatively predictable in that they roll back some of the changes made by the previous National government.

Key points amongst the proposed amendments include:

  • 90 day trial periods – may only be utilised by small employers

90 day trial periods will now be restricted to employers with 19 or less employees. 

Employers with 20 or more employees will no longer be able to rely on 90 day trial periods and must be able to justify any dismissal occurring within 90 days if a personal grievance is raised by the dismissed employee.

  • Rest and meal breaks – a return to structured break times

The existing law currently allows employers and employees to negotiate flexible rest and meal break times, with the option of providing “compensatory measures” instead of breaks if the parties agree or where the employer could not reasonably provide a break.

This will now revert back to the law that was in force prior to 2014, whereby minimum rest and meal break times and duration will now be prescribed by statute (with exceptions for essential services where this is no practicable – such as air traffic controllers).

  • Reinstatement - status restored as “primary remedy”

If an employee who is successful in establishing a personal grievance seeks reinstatement to their previous position, the Employment Relations Authority or the Employment Court will once again be required to consider this as the “primary remedy.”

The impact of this change will depend upon the way in which the legislation is framed.  At present, the Authority or the Court “may” order reinstatement where it is practicable and reasonable to do so.

Prior to 2011, the law stated that the Authority or the Court “must” order reinstatement if this was sought by the dismissed employee and wherever this was practicable.

If the new amendments utilise similar language to the pre-2011 legislative framework, it would appear that the pathway to a successful reinstatement application will face significantly less roadblocks than the current position.

  • Restoration of the 30 day rule

In 2014, the National government repealed s63 of the Employment Relations Act 2000, ending the 30 day rule.

The new government will restore this rule, which requires employers to offer all of their new employees terms and conditions of employment that are identical to any applicable collective agreement for the first 30 days of their employment, regardless of whether that employee is a union member. 

In addition to the amendments outlined above, many other proposed changes have been announced, including greater protections for workers in “vulnerable industries” (such as cleaning and catering staff), significant changes to laws relating to collective bargaining and union member rights.

For further information or analysis, please contact our specialist employment law team.