Update: The Employment Relations Amendment Bill 2018

The Employment Relations Amendment Bill 2018 (“the Bill”) underwent its third and final reading on 5 December 2018 and received Royal Assent on 11 December 2018.  It is now the ‘Employment Relations Amendment Act 2018’ (“the Act”).   

As per our previous updates on the progress of the Bill, the purpose of the Act is to restore protections for employees, especially vulnerable employees, and strengthens the role of collective bargaining in the workplace.  Many of the changes merely revert to the law as at 2015.   
Most changes take effect in two stages:

  1. 12 December 2018 (the day after Royal Assent); and
  2. 6 May 2019.

Changes: 12 December 2018

A summary of the changes that came into effect on 12 December 2018 include:

  • reinstatement restored as the primary remedy for personal grievance claims; 
  • the Minister is able to recommend additions, deletions, or amendments to the categories of ‘vulnerable employees’.  Traditionally, ‘vulnerable employees’ are those who provide cleaning, food catering, or laundry services; 
  • union representatives can enter workplaces without consent, provided the employees are covered under, or bargaining towards, a collective employment agreement (“CEA”); 
  • pay deductions are not permissible for partial strikes, i.e. wearing t-shirts instead of uniforms as part of low-level industrial action; 
  • businesses need to enter into bargaining for multi-employer CEAs, if asked to join by a union; 
  • employees are afforded extended protections against discrimination on the basis of their union membership status; and 
  • unions can initiate bargaining 20 days ahead of an employer.

Changes: 6 May 2019

A summary of the changes that are expected to come into effect on 6 May 2019 include:

  • prescribed rest and meal breaks will be restored and a method of calculating financial compensation in lieu of breaks for employees on variable rates will be introduced; 
  • 90-day trial periods will be restricted to businesses with less than 20 employees; 
  • employees in specified ‘vulnerable industries’ will be able to transfer on their current terms and conditions in their employment agreement if their work is restructured, regardless of the size of their employer.  Vulnerable employees will also have more time to consider whether to transfer to a new employer; 
  • the duty to conclude bargaining will be restored for single-employer collective bargaining, unless there are genuine reasons based on reasonable grounds not to; 
  • the 30-day rule will be restored.  This means that for the first 30 days, new employees must be employed under terms consistent with the CEA.  The parties may agree to more favourable terms than the CEA; 
  • pay rates will need to be included in CEAs, along with an indication of how the rate of wages or salary payable may increase over the CEA’s term; 
  • employers will need to provide new employees with an “approved active choice form” within the first ten days of employment.  The form gives employees time to talk to their union representatives before making a choice about whether to join a union or remain on the individual employment agreement; 
  • employers will need to allow union delegates reasonable paid time to undertake their union activities; and 
  • employers will need to pass on information about the role and function of unions to prospective employees.

If you have any questions about how these changes may impact your organisation, please do not hesitate to contact us for further details. 

Author: Madeleine Lister, Associate 

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