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Proposed change in Collective Bargaining Regime

Published 01 Mar 2014

Change Proposed In Collective Bargaining Regime — The Employment Relations Amendment Bill

These changes aim to remove some of the obstacles employers currently face when engaged in collective bargaining.In particular, there will be a return to the original position where the duty of good faith does not require the parties to conclude a collective agreement.

Duty to conclude collective agreement abolished

The Act currently provides that the duty of good faith requires a union and an employer bargaining for a collective agreement to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to.The Bill will provide that the duty of good faith does not require those parties in those circumstances “to enter into a collective agreement” or “to agree on any matter for inclusion in a collective agreement”.

Employer may opt out of collective bargaining involving multiple employers

In addition, employers will be allowed to opt out of multi-employer bargaining at the beginning of the bargaining process if they wish to do so, resulting in less time and administration being devoted to bargaining with unwilling employer parties. The Bill provides that where an employer is an intended party to such an agreement and has received a notice initiating bargaining for that agreement, the employer may, opt out of bargaining for the agreement by giving a written opt-out notice to all other intended parties identified in the notice that initiates bargaining not later than 10 days after receiving notice.. The notice takes effect on and from the date that it is given in the notice. When the notice takes effect, the employer is no longer a party to bargaining for the collective agreement and ceases to have any further obligations under the Act

Conclusion of bargaining

The Employment Relations Authority will also be empowered to declare in certain circumstances that collective bargaining has ended.There is likely to be less protracted collective bargaining disputes, such as that of Ports of Auckland, as bargaining will simply be declared to be at an end in stalemate situations.The Bill will allow a party bargaining for a collective agreement to apply to the Employment Relations Authority (the Authority) for a determination as to whether the bargaining has concluded. The Authority may not make such a determination unless it is satisfied that the parties have attempted to resolve the difficulties in concluding a collective agreement by way of mediation and, if applicable, facilitation under the Act, that those attempts have failed, and that further attempts are unlikely to be successful.

The Authority may determine that:
•bargaining has concluded, in which case the Authority may make a declaration to that effect; or
•bargaining has not concluded, in which case the Authority may either make a recommendation to the parties as to the process they should follow to resolve the difficulties; or
•decide not to make a recommendation.

Where the Authority determines that the bargaining has concluded, none of the parties to the bargaining may initiate further bargaining earlier than 60 days after the date of the declaration, unless the other parties agree. In cases where the Authority determines that bargaining has not concluded, none of the parties may make another application until the recommended process has been followed or (if no recommendation has been made) until 60 days after the Authority’s determination, unless the other parties agree

Terms and conditions of new employee who is not a member of a union

A further welcome change for employers will be the removal of the “30-day rule” which requires non-union members to be employed under the terms and conditions of a collective agreement (where one is in force which covers their work) for the first 30 days of their employment.

Employers will instead be able to employ non-union members on individual terms negotiated directly between the employer and employee from day one.The Bill abolishes that provision in the Act which currently provides that the terms and conditions of employment for a new employee who is not a member of a union are, for the first 30 days of employment, the same as those in the collective agreement that would apply to the employee if he or she were a union member together with any additional terms and conditions that have been agreed to and that are not inconsistent with the collective agreement.