The Employment Environment: An Update Geoff Bevan Chapman Tripp v1

Employment Relations Act (October 2000) Focused on: n Good faith / consultation n Collective bargaining / union access (strengthening unions) n Dispute resolution (emphasis on mediation)

Employment Relations Amendment Act (December 2004) n Strengthening good faith requirement –$10,000 fine for serious and sustained breach –“Active and constructive” in establishing and maintaining “responsive and communicative” relationships n Consultation –Must consult on proposals that impact employees –Asset sale / contracting out – not share sales n Collective bargaining

Collective Bargaining n University of Auckland case –Parties must come to the table –Attendance at first meeting. –Must conclude collective agreement unless genuine reasons not to n Passing on –Collective agreements: Effect and intent –Terms reached during bargaining: Effect or intent n Bargaining fee

Collective Bargaining (cont.) n Conciliation in the Authority –Hard to get in –Non-binding recommendations –Stagecoach n Employee protection provisions –Vulnerable workers (cleaners / food service workers) –Crest Commercial Cleaning – 3 rd generation outsourcing. –Other employees

Other developments n Holidays Act (update) –Increased costs / administrative burden –Commission / bonus issue –4 weeks: April 2007 (?) n Change to unjustified dismissal test –Steps a reasonable employer would [not could] have taken n Remedies: Telecom v Nutter

Justifying disciplinary action n To warn or dismiss an employee an employer must: (1) Have substantive cause: Can dismiss for: –redundancy –poor performance –serious misconduct / misconduct –incapacity (2) Follow a fair process.

Fair process n In any situation, fair process involves: –no surprises –employee has the employer’s beliefs / allegations very clearly (bluntly!) put to them –employee has opportunity to respond –employer takes that response into account before making any decision n No predetermination –you can’t decide to take any disciplinary action before you’ve put your views to the employee and asked for a response

Fair process (cont). n Disciplinary meetings: –Advanced notice (24 – 48 hours) –Subject –Consequences –Right to a support person n Consider, then make a decision.

Other developments n Three Foot Six case –Cannot place too much weight on industry practice –Need written agreement n Workplace stress –First successful OSH prosecution