November 24, 2010 9:04am by David Farrar

The employment law changes

Parliament has now passed the Employment Relations Amendment Bill (No 2) and Holiday Amendment Bill into law. This was the bill that the union movement had declared a jihad against, but since the CTU’s disastrous involvement with The Hobbit, their roars have faded.

So what are the actual law changes? There are several, and while I support most of them, I actually agree with the union criticism of one aspect of the changes.

Consent needed by employer for union to enter workplace, but can not be reasonably withheld, and a response to a request must be given by end of the next working day, and reasons for any declining within two days max. Basically this just calls for some good faith between unions and employers. Unions can’t barge in whenever they like, and employers can’t unreasonably restrict access. Not sure there was a big problem to fix here though, so give this a 6/10. Was a 2008 election policy.
Allowing employers to communicative with employees during collective bargaining, so long as not breach of good faith. This allows an employer to tell the truth to employees about what they have offered, if te union is mis-representing or lying about their offer. A not totally uncommon problem. 7/10
Extending the 90 day trial provisions to all workplaces. This has been incredibly successful in workplaces of less than 20 employees. A DOL survey has found 40% of staff hired under a probation period would not have been offered the job without this provision. The CTU campaign against the bill has failed to come up with even one convincing example of abuse. I rate this extension as a 9/10.
A small but significant change to the justification test for employers. The test changes from “what a fair and reasonable employer would have done” to “what a fair and reasonable employer could have done”. I’d rate this 8/10 as the current law had it almost impossible for employers to meet what was almost a mythical standard of perfection.
An employee can ask an employer to cash up their 4th week of leave. This was National election policy and will be great for employees who need some extra money so they can enjoy the other three weeks of holidays more. It is worth noting that when you leave a job you get your outstanding leave paid out anyway, so not a big change for many. I give this a 9/10 as it is a big win for employees in giving them choice.
Allows an employer to ask for a sick leave certificate for sick leave of less than three days duration, if the employer will pay for it. Previously an employer had to have reasons to suspect abuse. I don’t like this part of the law change. I think it is impractical as no doctor will ever be able to state whether someone really was sick two days ago for a day. People won’t be able to get in to see doctors in time. I give this change 2/10.