The Employment Relations Amendment Bill has passed and in a few months will become law. But with numerous amendments coming into effect with the bill, what do employers need to be considering?
Minter Ellison Rudd Watts employment lawyers Aaron Lloyd and Natalie Lord recommend employers consider the following to ensure they are prepared:
Review policies to ensure they are up-to-date: Many employers have policies which may need to be reviewed or amended in view of the amendments to the Employment Relations Act (ERA). For example, if an employer has a flexible working request policy, it will need to be updated to reflect that employees may make a request under the Act straight away upon commencing employment, the request is no longer confined to employees with caring responsibilities, and employers have one month as opposed to three months to consider a flexible working request.
Ensure that they understand what is required for compliance: In our view, some of the amendments to the ERA could be misunderstood, and it may be difficult for employers to ascertain exactly what the changes mean in practice. For example, the repeal of the “30-day rule” which required employers to apply the terms of the relevant collective agreement to new employees for the first 30 days of employment even if the employee was not a member of the union, did not affect certain other obligations an employer has in relation to new employees. Under section 62(2)(a) of the Act, the employer must still inform an employee when they enter into an individual employment agreement:
(i) that the collective agreement exists and covers work to be done by the employee; and
(ii) that the employee may join the union that is a party to the collective agreement; and
(iii) about how to contact the union; and
(iv) that, if the employee joins the union, the employee will be bound by the collective agreement.
Consider whether your business could benefit from the amendments: At present, many employers struggle to comply with the requirements to provide breaks under the ERA in situations where employees work sole-charge, or the nature of their work means that the business is not able to easily accommodate breaks. Employers and employees are now able to negotiate in good faith as to when breaks should be taken. If the parties agree, or having regard to the nature of the work performed by the employee, the employer cannot reasonably provide the employee with rest breaks and meal breaks, employees may be provided with reasonable compensatory measures instead of a break. We recommend that employers reflect on whether this amendment could assist in effectively running their business and, if they wish to take advantage of the amendment, speak to their staff and get their views as to whether this is something that could be mutually beneficial.
Lloyd and Lord said overall, they expect employers will appreciate the increased flexibility that the Bill has provided for, but they do not expect that most employers will find that there has been a fundamental shift in the employment relations framework in which they operate.
Employment Relations Amendment Bill becomes law