How new laws could change your workplace

Michael Woodhouse

Changes to the Employment Relations Act are a poster child for flexibility, fairness, and choice in the labour market - according to the Government. But to unions, they are a threat to workers' rights. Catherine Gaffaney visualises the opposing parties in a lunchroom, debating how the "tea break law" will change your work place.

It could well be the biggest discussion point around office lunchrooms by March - that's if workers are still allowed to gather in such places.

When the Employment Relations Amendment Bill narrowly passed by 62 votes to 58, the MP in charge, Michael Woodhouse, said "flexible and balanced employment relations legislation" was essential for business to grow while ensuring protections for workers were retained.

But the amendments have been criticised for the potential to do the opposite in their removal of workers' rights to have guaranteed rest and meal breaks.

In November, the manager of a prominent Auckland hotel appeared to confirm union fears by telling employees they couldn't take a break for seven hours. The manager apologised for attempting to control workers' breaks before she was legally allowed.

Under the law changes, which come into effect in March, employers will be required to compensate workers if they restrict breaks.

At one end of the lunchroom table, the Unite Union, which represents many service workers, says any compensation will be limited, if given at all, and more stories of affected workers are inevitable.

Tom Buckley, assistant secretary of Unite Union, says the "hostile" legislation will increase the vulnerability of employees.

"People not getting breaks is already a serious issue, particularly in the service industry," he says.

"The hotel incident is a taste of exactly what we thought would happen. People will be told they can't take breaks, or not be allowed to take them, until the end of their shift.

"Either politicians are used to working 9 to 5pm and know they'll still get breaks, or they simply don't care."

The most vulnerable - young and migrant workers - will suffer the most, he says.

"The idea is that you'll get compensation if you don't get breaks, but we're expecting the compensation, if there is any, to be minor ... perhaps a cup of coffee."

Seated next to Mr Buckley, Equal Employment Opportunities Commissioner Dr Jackie Blue, a former National MP, also says the vulnerability of workers is of concern.

"There are a number of changes in the Act that put workers with low wages and low bargaining powers in a more precarious position," she says.

"Workers won't be guaranteed the same pay or conditions if they move to a new business, they won't be covered by the provisions of collective agreements for their first 30 days of employment and the ability for unions to negotiate will be weakened."

But unions and employers shouldn't be butting heads over the changes.

"Unions aren't the enemy," Dr Blue says. "If employers and unions work together, it can be win-win for everyone."

The good news is the law changes allow all employees to request flexible working hours, she says.

"Employees will be happier and more productive. If employers are open-minded, they may be pleasantly surprised."

At the other end of the table an employers' advocate is unsurprisingly sanguine about the Act.

Employment and Manufacturers Association chief executive Kim Campbell says the law changes are "minor in many respects".

"They're just minor adjustments to the law that needed to happen," he says. "Most employees will notice very little change.

"All the law change really does is give people more flexibility."

Fears around having meal breaks are exaggerated, he says.

"People thought they weren't going to be able to have lunch or go to the loo but that's really not the case.

"It enables people to negotiate when those breaks take place which is useful for people like pilots and firemen who often have to work through their lunch breaks."

The Auckland hotel case is an exception, he says.

"If reasonable people take reasonable care, there will be reasonable solutions."

To Mr Campbell's left is Business New Zealand chief executive Phil O'Reilly.

He says implementing flexible working hours and breaks is very close to what's already happening in a lot of workplaces.

"The changes are hardly dramatic," he says. "They're really just tidy-ups of the law so it catches up with what's been happening in workplaces for decades.

"Employers that want good staff know they have to treat them right."

In the middle of the discussion, Claire English, senior associate at Chen Palmer public and employment law specialists, cautions employers to "get their house in order".

"There's a tension between the ability for employers to have greater control of rest and meal breaks and the ability for employees to push for flexible working hours," she says.

"Employers need to sit down before the law comes into force and think about what they want and what will work for their employees.

"If they're in a business that isn't able to be flexible, be consistent. Everyone should have the same treatment, regardless of seniority."

Ultimately, employers could be in major trouble if workers don't get enough breaks, she says. "If accidents happen because workers are fatigued from not having breaks, employers will be accountable."

What will change

-Flexible work hours

The current law allows employees with caring responsibilities to request flexible work arrangements every 12 months and requires the employer to respond within three months. The new law extends the right to any employee. There will be no limit on requests but the employer must respond within a month.

-Rests and meal breaks

In 2008, minimum paid rest breaks and unpaid meal breaks were established in law. The new law removes the requirement to provide such breaks if restrictions are deemed reasonable and necessary having regard to the nature of the work, and employers would be required to provide a reasonable compensatory measure such as the equivalent time off.

-Part 6A

At present, certain groups of vulnerable employees, such as cleaners, are protected when their work is about to be taken over due to restructuring. They have the right to transfer to the new entity taking over their work and to bargain for redundancy or have it set by the Employment Relations Authority. Under the new law, any company with less than 20 employees will be exempt from 6A. At present the classes of employees with the 6A protections can be changed by regulation but the new law removes such flexibility and any alteration must be made by Parliament with a change to the act.

-Collective bargaining

The current requirement as a duty of good faith on unions and employers to conclude a collective agreement unless there is a genuine reason not to will be removed. It will allow a party to the bargaining to get a declaration from the Employment Relations Authority that the bargaining had concluded. If it is so declared, industrial action or new bargaining can be initiated within 60 days.

-Multi-Employer Collective agreements

At present if a workforce votes to be covered under a multi-employer collective agreement (MECA), the employer must join the negotiations. The law will allow employers to opt out of a MECA but opponents say it will undermine the sort of bargaining that has set industry standards.

-Thirty day protection

The law removes the requirement to offer new employees at least the same terms and conditions for 30 days of employees doing the same work as those covered by a union, even if the new employee does not belong to a union.

-Strikes and lockouts

The law ends open-ended strikes or lock-outs. Any employees, not just certain essential industries as is the case now, will have to give written notice of industrial action which must include a start and finish date, likewise for lock-outs by employers. The new law also gives employers the power to deduct 10 per cent of an employee's pay for partial strike action.

How it unfolded
April 26, 2013 - Bill is introduced to Parliament.
June 6, 2013 - Bill has first reading led by Labour Minister Simon Bridges.
October 30, 2013 - Thousands of workers take part in nationwide tea break to protest against bill.
March 9, 2014 - Bill has second reading.
June 8, 2014 - John Banks resigns from Parliament, effective from the 13th. Bill is put on hold as it would no longer have enough support to pass third reading.
October 21, 2014 - Michael Woodhouse becomes Minister for Workplace Relations and Safety (the new Labour Minister title) and inherits leadership of the bill.
October 30, 2014 - Labour tables petition opposing the bill with more than 51,000 signatures. Bill passes third and final reading by 62 votes to 58 to become the third term National's government's first law. Support given by National, Act and United Future. Labour, the Greens, NZ First and the Maori Party vote against the bill.
November 20, 2014 - Reports of employees at a prominent Auckland hotel being told they can't have a break for seven hours. Manager apologises shortly after for trying to enforce the law early.
March 7, 2015 - Law will come into effect.