Changes to the Employment Act 2000 – Part 3

This article will focus specifically on the introduction of the Labour Relations and Trade Union (Consolidation) Act 2020 (TULRCA) and the following primary changes to the labour law:

1. The changes to the union certification and decertification process
2. The establishment of civil penalties
3. Introduction of a single Tribunal to hear employment and labour disputes.

Union Certification

“Certification” is the formal process by which a group of employees (a “shop”) who have collectively determined that they wish to be unionised go about becoming members of a union. The group of employees will serve a notice on the employer and the union that they desire certification and a vote will occur where at least 60 percent of the eligible employees must vote in favour of certification to succeed.

Once certified, the employees are entitled to be represented by their union and go about negotiating the terms of their employment collectively, rather than individually. Employees that are a part of a shop will have mandatory deductions from their pay that will either be paid to the respective union or to a charity of their choice.

The opposite of certification is decertification, which is the process by which a group of already unionised employees determine that they no longer want to be unionised.

Some of the key changes TULRCA will introduce to the certification/decertification processes are:

• The ability for all parties to agree on certification/decertification without the need for a formal vote.
• For a decertification vote, all members of the relevant shop will be eligible to vote, rather than only those who pay union dues. This has been a contentious issue as under the current legislation those persons not paying union dues – inevitably those most likely people to vote to decertify – are automatically excluded from voting.
• Employees will no longer have the option to pay money to a charity rather than the union. Employees can still choose not to be union members but their union dues will be paid to the union in lieu of membership. The justification from the Government for this change is that the non-union members who are part of a shop will still get the benefit of collectively-bargained terms and the union will still incur costs on those non-members’ behalf.

Civil Penalties

The outgoing labour legislation had statutory offenses for certain conduct that were criminal offenses. Examples include:

• An employee taking part in any strike action or irregular industrial action short of a strike which is declared unlawful.
• Failure to comply with the rules in the case of peaceful picketing.

Presently, any commission of these offences can only be prosecuted as a criminal offence, which involves a complaint being issued to the Department of Public Prosecutions. TULRCA will grant powers to the new Tribunal and the Labour Relations Manager to issue civil penalties for these offences of:

• Essential worker unlawful strike/irregular industrial action: Labour Relations Manager can issue a penalty up to $5,000 and the Tribunal can issue a penalty up to $10,000.
• Breach of rules in relation to peaceful picketing: The Tribunal (only) can issue a civil penalty of up to $10,000.

Employment and Labour Disputes Tribunal

Currently, where an employee pursues a complaint about a breach of their employment rights under the Employment Act 2000, it is referred to the Employment Tribunal for hearing and determination if not resolved at the conciliation stage. Under the existing Labour Relations Act 1975 and Trade Union Act 1965, unresolved disputes about labour issues are referred to the Permanent Arbitration Tribunal for determination.

The new legislative framework will change the tribunal structure and process in the following key ways:

• The legislation will amalgamate the different Tribunals;
• All hearings in the combined Tribunal will be heard in public, unless the Tribunal determines that it should be heard in private; and
• The Tribunal will now have express statutory powers to issue directions concerning procedure for the hearing of disputes, for example in relation to disclosure of documents.

The practical benefit of the amalgamation of the different Tribunals is that there will be a larger pool of panel members to call on for hearings, and a single procedural framework. Presently, the pool of panel members for each Tribunal is relatively small and it can be difficult to find enough available members to schedule hearings.]

The shift from private to public hearings will result in legal practitioners and employers having the benefit of public reports on decisions made by the new Tribunal. However, it was often seen as a benefit, particularly by employers, to have employment disputes determined in private. Employers, employees and unions will have to consider at an early stage the potential impact of a public hearing on their reputational and business interests, as part of their litigation strategy.

Summary

Along with the changes discussed in Parts 1 and 2 of this series, the changes discussed above will impact the employment and labour law arena significantly. Employers will have to navigate the new requirements carefully, especially now that breaches of certain legislative provisions could lead to the issuance of a civil penalty.

Anyone with any questions concerning how the amendments may impact their business can contact a member of our Employment and Immigration Practice: Bradley Houlston ([email protected]) or Jordan Knight ([email protected]).