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Increasing Awareness and Protection for New Employees

1 May 2019

Many recent and upcoming key changes to the Employment Relations Act 2000 (the ‘Act’) are aimed at strengthening union and collective bargaining rights. They also increase awareness and protection for new employees, particularly where their new role is covered by a collective agreement (CEA).

Under changes to the Act which come in to force on 6 May 2019, employers have to employ new, non-union employees on terms consistent with the CEA - if the new employee’s role is work covered by a CEA - for their first 30 days of employment (‘the 30-day rule’). Employers will also be required to provide information about unions to new employees and a copy of the CEA.

Active Choice form

A recent change to the Act in December last year also saw the introduction of section 62A requiring the employer to share certain new employee information with the relevant union(s), unless the employee objects. Section 62A applies only to new, non-union employees who enter into an individual employment agreement (IEA). MBIE has now released its prescribed Active Choice Form as part of the changes brought about by section 62A(2). This form is prescribed by the Chief Executive of MBIE and comes into effect on 6 May 2019. All employers will have to use this form.

The form enables new employees to indicate if they intend to join a union and allows them to object to the employer providing information about them as to whether they intend to join a union or not. The form can either be provided to the new employee in hard copy or via email; but whatever format it must be done within ten days of their new role starting.

Completion by employee is voluntary

Whether new employees complete and return the form is entirely up to them. They have up to 30 days from the first day of their employment to decide whether they will fill out the form and return it to the employer. This timeframe also allows employees time to seek legal advice and speak with the relevant union representatives before making a choice about whether to join a union (and transfer to the relevant CEA) or remain on their IEA.

What the employer must do

What the employer does with the form depends on what choices are made by the employee. If the employee does not fill the form in and return it to the employer within 30 days of starting their new job, the employer is required to inform the relevant union(s) of the new employees’ name and that the form was not returned. If the employee completes and returns the form within 30 days of starting their new job, the employer is required to pass the form and the new employee’s name to the union(s) that cover the employee’s work, unless the employee has objected to this on the form. The employer is required to inform the relevant union(s) of the employee’s choices within ten days of the new employee completing their first 30 days of employment (i.e. within days 30 to 40).

Significant fines for non-compliance by employers

An employer’s failure to comply with section 62A exposes the employer to the possibility of hefty financial penalties of up to $10,000 for an individual and $20,000 for a company. This acts as an incentive for employers to review their policies and practices to ensure they comply with their obligations.

The Active Choice Form is available online from MBIE

MBIE have also issued guidance as to how to use the form