Whilst the other main political parties have each released their employment related policies, National has remained largely silent. This may reflect other priorities, or it could be a deliberate decision not to scare-monger. What we do know, is that in previous election cycles, National has taken a diametrically opposed view of certain employment laws to that of Labour and this has resulted in these provisions bouncing in and out of the Employment Relations Act with successive changes in government.
When we couple the likelihood of change in these areas with some of the more extreme positions of ACT and NZ First, there could be a significant impact on employee and union rights post-election.
Starting with what they have announced, National will repeal the Fair Pay Agreements Act immediately such that it is unlikely that we will see any fair pay agreements concluded under this legislation. Christopher Luxon has also said that National would reinstate 90 day trial periods for all employers. This law was first introduced by a National led government in 2009, but was originally only able to be used by employers of 20 employees or less. This restriction was lifted by National in 2011 but reinstated by a Labour led government in 2018.
Removing the 20 employee limit again would be potentially significant as this would mean that all employers could dismiss any employee in their first 90 days of employment, without having to establish good cause or work through a full and fair process. Effectively it is employment at will and employees would have no right to challenge their dismissal. This could open up the floodgates to widespread use of this provision by employers, and create employment uncertainty for employees changing jobs.
Other areas of potential change are likely to include repealing the 30 day rule which requires employers to offer all employees the equivalent of the terms of any applicable collective agreement during their first 30 days of employment. This means that non-union members also get the benefit of collectively negotiated terms, but has been criticised by even the unions who view it as enabling “free loading” by allowing people to piggy back off the work of unions for free.
Additionally, we will likely see some retrenchment of union rights, including the entitlement of union officials to access worksites at any time to check on compliance with laws and policies and also to solicit for new members.
The Labour led government also introduced the requirement to conclude a collective agreement unless there are good reasons not to, and this could well be pared back to the simple requirement that an employer to negotiate in good faith, but still with the ultimate right to refuse to settle. Pay deductions for partial strikes is another area where National could reinstate the position it has previously adopted, and given the escalation in industrial action and in particular the use of partial strikes as a strategy in recent years, it would be surprising if this did not occur.
Rest and meal breaks is another area that may be targeted, with National likely to repeal the mandatory requirement on employers to provide prescribed rest and meal breaks, and to substitute this with a more flexible regime.
The emphasis given to the remedy of reinstatement has also bounced around with different governments. The Labour led government amended the legislation in 2018 to provide that this was a primary remedy, meaning that if an employee established a case of unjustified dismissal and sought reinstatement, they should get it wherever practicable and reasonable. National did not support this at the time and their likely coalition partner ACT has taken a more extreme view that reinstatement should never be ordered by the Authority unilaterally and should require the employer to agree to it.
Other ACT policies include reintroducing 90 day trial periods for all employers, placing a moratorium on minimum wage increases for three years, and removing eligibility for remedies in personal grievance cases where the employee is found to have been at fault.
If NZ First are part of any government, they have said that they would reinstate those employees who lost their jobs due to not complying with COVID-19 mandates, although how practical this would be is highly questionable this far down the track.
A National – ACT – NZ First coalition could result in quite significant changes to employment law. Invariably, and consistent with their voter profile, the likely changes would be largely business and employer friendly. The flip side of this is that they may be viewed as employee unfriendly and as taking workplace relations back a decade to a place where there was a clear imbalance in power in the employee-employer relationship.
This article was originally published in The Post
