'Future proofing' members.
Subject: Labor unions (New Zealand)
Labor unions (Laws, regulations and rules)
Labor law (Interpretation and construction)
Author: Lawrie, Jock
Pub Date: 08/01/2010
Publication: Name: Kai Tiaki: Nursing New Zealand Publisher: New Zealand Nurses' Organisation Audience: Trade Format: Magazine/Journal Subject: Health; Health care industry Copyright: COPYRIGHT 2010 New Zealand Nurses' Organisation ISSN: 1173-2032
Issue: Date: August, 2010 Source Volume: 16 Source Issue: 7
Topic: Event Code: 930 Government regulation; 940 Government regulation (cont); 980 Legal issues & crime; 290 Public affairs Advertising Code: 94 Legal/Government Regulation Canadian Subject Form: Labour unions; Labour unions; Labour law Computer Subject: Government regulation
Product: Product Code: 8630000 Labor Unions NAICS Code: 81393 Labor Unions and Similar Labor Organizations SIC Code: 8631 Labor organizations
Organization: Organization: New Zealand Nurses Organisation
Geographic: Geographic Scope: New Zealand Geographic Code: 8NEWZ New Zealand
Accession Number: 236248009
Full Text: Following the National-led Governments recent announcement of its latest attack on employee and union rights/entitlements, it is clear an active campaign will ensue against the proposed changes. NZNO will be actively engaged in this campaign. It is important that in the negotiation of collective agreements, clauses are included that may go some way to future-proofing members against any legislative changes the present government may seek to make.

Fire-at-will provisions

It is currently lawful to "Contract-out" of the fire-at-will (90-day trial period) provisions under s67A of the Employment Relations Act (ERA). If is possible this ability to contract-out will be duplicated in the amending legislation extending the current application of the provision to care all workplaces.

It is important to insert in the personal grievance section of all collective agreements a clause stating: "All employees shall be entitled to raise a personal grievances claim of unjustified dismissal regardless of whether or not an employee has been employed for more than 90 days."

Union access

The proposals to make union access to workplaces conditional on the agreement of the employer is a serious attack on union/union members' rights and entitlements. This gives an employer implicit approval to deny access and seek to have any concerns the union and members might have addressed by way of mediation/ litigation. Effectively, this is a lawyers' charter and no organiser is going to be "waiting at the gate" until they secure written approval from either a mediator or the Employment Relations Authority to access the workplace, given that such approval may take days or weeks.

By the time approval has been granted, the purpose for which access was sought in the first instance may no longer be applicable. Therefore, in effect, access delayed is access denied.

If may be advisable to took at incorporating the wording of both sections 20 and 21 of the ERA into collective agreements. Previously, the courts have viewed these provisions as representing a complete code governing access by organisers.

Annual holidays/sick leave

It may be worth including a clause in the collective agreement prohibiting the cashing up of the fourth week's annual leave entitlement.

Finally, in relation to sick leave, it may be worth including a provision in the collective agreement that the employer will meet the cost of any medical certificate they require, and/ of a clause stipulating no medical certificate will be requested for any sick leave less than three days.

Report by legal adviser Jock Lawrie
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