KEY POINTS:
Now that National has won the election, the question for many is whether they will they merely tinker with the employment relations framework, or introduce more radical change.
The message National delivered while in opposition was very much "steady as she goes".
Rather than the radical change that
happened the last time National got into power, in the form of the Employment Contracts Act, National has indicated that it will tinker round the edges - it won't scrap the whole system. This is in part a recognition of the fact that changes of government have resulted in major policy swings in employment relations, both with the Employment Contracts Act in 1991, and in 2000, the Employment Relations Act. National appears to want to bring some stability to this area, which from a practitioner's point of view is a plus.
National's manifesto reflects this. Generally the proposed changes are insignificant, for a new government with a comfortable majority (especially given what their various predecessors did).
The flagship change is the proposal to allow businesses with less than 20 employees to agree a trial period with new staff, so that they will not be able to bring personal grievance claims in the first 90 days of employment.
In addition, employees will be permitted to "cash up" their fourth week of annual leave. They will also be able to engage in collective bargaining without belonging to a union. Under the Employment Contracts Act, many employees organised themselves and bargained collectively, and National no doubt envisages that this will happen again. There are other well-publicised changes on the agenda, including to Kiwisaver.
The big question, however, is that now National is no longer encumbered by the need to persuade the electorate to vote them in, will they stick to their guns? Given their majority, they have plenty of freedom to introduce more radical changes. They will also face pressure from ACT on this front.
ACT has a radical employment relations agenda, involving the complete abolition of the current framework (including the minimum wage), on the basis that it has destroyed jobs and created "special privileges" for union officials. This is highly unlikely to happen, but ACT may be able to win some concessions for a wider-ranging review of employment legislation as part of any deal.
The Maori Party and United Future appear to have little in the way of specific policy in this area.
One possible change is to allow employers and employees to agree that any personal grievance is dealt with not by the Employment Relations Authority, but by a third party such as an arbitrator. This was permitted under the Employment Contracts Act, although it was only taken up in a small minority of cases, often with senior executives. It is being advocated by some commentators again now, with a possible safeguard being a requirement to take legal advice before doing so (the assumption being that most employers will only seek to opt out in this way with senior executives, given the hassle and cost of getting new hires to take legal advice).
Another possibility is that the flexible working regime could be scrapped. There is a view held by some within National that legislation is unnecessary to get employers and employees to agree to flexible working arrangements: the argument goes that there are plenty of these already, and the legislation is simply more red tape. This would however be an unpopular move and there is nothing in the manifesto about this.
We will find out more in due course. However, there is every chance that despite the limited changes proposed by National in opposition, they will find it tempting to introduce more wide ranging reforms.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
photo: Sarah Ivey