Support workers – request for additional employment protections
Support workers have not been granted extra employment protections, as the required statutory criteria were not met.
The Minister for Workplace Relations and Safety received a request from E tū and the Public Service Association (PSA) unions under section 237A of the ERA, to include support workers in Schedule 1A of the Employment Relations Act (which lists the workforces who are granted extra employment protections).
MBIE’s report concluded that support workers should not be added to Schedule 1A, as they do not meet any of the 3 criteria set out in the Act. Therefore, the Minister for Workplace Relations and Safety has declined the request.
Schedule 1A employees
Employee groups listed in Schedule 1A receive additional employment protections in certain restructuring situations, set out in subpart 1 of Part 6A of the ERA.
These protections include the ability for an employee to elect to transfer to a new employer on their existing terms and conditions for example, if the business they work for is sold, or a contract for services is changed to a different service provider.
Read more about how Part 6A operates(external link) — Employment NZ website
In order to be added to Schedule 1A, certain criteria must be met
The Minister may recommend that the Governor-General adds a category of employees to Schedule 1A, by Order in Council. The Minister must first be satisfied that all 3 of the following criteria are met:
- The employees are employed in a sector in which restructuring of an employer’s business occurs frequently.
- The employees have terms and conditions of employment that tend to be undermined by the restructuring of an employer’s business.
- The employees have little bargaining power.
MBIE’s analysis
MBIE analysed the request and provided a report on the request, which it developed following engagement with key stakeholders. The report concludes that support workers should not be added to Schedule 1A, as they do not meet any of the 3 criteria in the Act.
MBIE consulted interested parties on this report, which resulted in no change to MBIE’s recommendations: that none of the 3 criteria are met, so the application should not be accepted.
Read MBIE’s analysis provided to the Minister for Workplace Relations and Safety
Post consultation advice on Support Workers’ request for extra restructuring protections [PDF 472KB]
Read the application documents
When beginning its analysis, MBIE discussed the request with E tū and the PSA, who then provided an Addendum clarifying aspects of the request. The 2 documents comprise the request and should be read together. Where there are differences between the documents, the Addendum prevails.
The key difference between the 2 documents is in the definition of the group of employees that the request was about. The final definition was 'support worker' as defined in the Support Workers (Pay Equity) Settlements Act 2017, which includes:
- care and support worker
- mental health and addiction support worker
- vocational and disability support worker.
Support Workers (Pay Equity) Settlements Act 2017(external link) — New Zealand Legislation