Changes to the Employment Relations Act

Employment

Changes to the Employment Relations Act (‘ERA’) in April 2011 introduced legislative amendments aimed at promoting a more flexible relationship between employees and employers.

Some of the important changes to note are:

Adjustments to Personal Grievance Regime

Changes to the personal grievance regime are aimed at reducing compliance costs, improving resolution processes and reducing delays. The changes also create an interim step for dispute resolution before the authorities get involved. For example, one such change is that the Mediation Service is now able to make recommendations, which both parties have seven days to accept or decline, and if accepted the recommendations become binding. The amendments also ensure that the Employment Relations Authority (‘the Authority’) acts more formally and consistently without jeopardising the investigative nature of its inquiries. The changes also allow the Authority to dismiss claims that are deemed to have no merit, and allows parties to cross examine witnesses during Authority investigations.

90-Day Trial Period

Another major change is the extension of the 90-day trial period to all employers, which was previously limited to employers with 19 staff or less. Statistics showed that 40% of employers said they would not have employed new staff if it was not for the 90-day trial period, and 75% of all job-seekers who worked under the trial period maintained their employment. As a result, the trial period allowed more job-seekers to enter the workforce as more employers were willing to hire new staff. The purpose of extending the 90 day trial is therefore to extend such benefits to a wider range of employers and employees.

Union Access

Unions are now required to gain the consent of the employer before accessing a workplace. Currently unions are able to enter workplaces without consent and without giving notice. The change is aimed at standardising current practices and recognises an employer’s right to authorise who enters their premises. It also allows employers to identify when union representatives are on site and to take measures to ensure business operations are not unduly disrupted. Consent must not, however, be unreasonably withheld and reasons for refusal must be provided within two working days. Failure to provide such reasons or withholding consent unreasonably may result in a penalty for breaching the ERA.

Communications during Collective Bargaining

Although direct communication with employees was never prohibited, there was a great deal of confusion surrounding the matter. The changes clarify that employers can directly communicate with employees during collective bargaining and can include details of any settlement offer. Any communication must be consistent with the employer’s overriding duty of good faith under the ERA.

Employment Agreements

Employers are now required to keep original signed copies of employment agreements of every employee. Where an agreement has not been signed, a draft copy must be kept on record.

Failure to comply with these requirements can result in a fine.

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