In force 21 February 2026 — Employment Relations Amendment Act 2026. Check your agreements now. Free health check →
Employment Law Update

ERA 2026 — Plain-English Guide

The Employment Relations Amendment Act 2026 came into force on 21 February 2026. This is the most significant change to NZ employment law since 2018. Here's what changed and what you need to do.

In force 21 Feb 2026 Applies to all NZ employers Not legal advice
On this page
  1. Contractor gateway test — s6(7)
  2. 30-day rule repealed
  3. Trial periods — unchanged
  4. Restructuring — employee choice
  5. Flexible working — faster decisions
  6. Your action checklist
What changed

1. Contractor gateway test — s6(7)

Critical

The biggest change. A new five-factor gateway test determines whether a worker can genuinely be classified as an independent contractor. If a worker meets all five criteria in their written agreement, they are presumed to be a contractor. If not, they are presumed to be an employee.

The five gateway criteria (ERA 2026 s6(7)):

  • The worker can subcontract or assign the work
  • The worker provides their own equipment
  • The worker can work for others at the same time
  • The worker's payment is tied to the result of the work (not time)
  • The worker takes on financial risk for the work

All five must be in the written agreement AND reflect the reality of the working relationship. A written agreement alone is not enough if the reality differs.

Before (pre-2026)
Courts weighed multiple factors with no single test. Contract wording carried significant weight.
After (ERA 2026)
Five specific criteria must all be present in writing AND in practice. Failing any one = employee status presumed.
ERA 2026 s6(7)
Action required
  • Review every independent contractor agreement against all five criteria
  • Update agreements to explicitly address each criterion
  • Audit the actual working arrangement — does it match the contract?
  • Misclassified contractors may now have employee rights (holidays, KiwiSaver, minimum wage)

2. 30-day rule — repealed

High

The requirement for new employees to receive terms no less favourable than a collective agreement for the first 30 days of employment has been repealed.

Before (pre-2026)
New employees in a workplace with a collective agreement had to receive matching or better terms for their first 30 days.
After (ERA 2026)
30-day rule is gone. Individual agreements can now differ from collective terms from day one.
ERA 2000 s62A — repealed
Action required
  • Remove any 30-day rule clauses from your employment agreement templates — they are now obsolete
  • Ensure new individual agreements don't inadvertently reference the old rule

3. Trial periods — no change in 2026

No change

90-day trial periods for all employers (not just small employers) were already extended in December 2023 under the ERA (Trial Periods) Amendment Act 2023. This was not a 2026 change.

The rules remain: trial periods must be agreed in writing before employment starts, apply only to new employees, and are limited to 90 days. The employer may dismiss during the trial without the employee bringing a personal grievance for unjustified dismissal — but other grounds for grievance (discrimination, harassment) still apply.

ERA 2000 s67A
Check your agreements
  • Confirm trial period clauses are correctly worded — must be signed before work commences
  • Confirm you are not confusing this with the 2026 changes

4. Restructuring — employee choice provisions

Medium

When a business is sold, transferred, or contracted out, the employee choice provisions now apply more broadly. Affected employees must be given written information about the restructure and have the right to choose whether to transfer to the new employer.

ERA 2000 ss69OI–69OL (amended)
Action required
  • Update restructuring procedures to include written disclosure requirements
  • Ensure HR processes capture the employee election process correctly

5. Flexible working — faster employer response

Medium

Employers must now respond to flexible working requests within 10 working days (reduced from one month). The right to request flexible working from day one of employment (introduced in 2023) is unchanged.

Before
Employer had up to one month to respond to a flexible working request.
After (ERA 2026)
Employer must respond within 10 working days.
ERA 2000 s69AAF (amended)
Action required
  • Update your HR response workflow for flexible working requests
  • Ensure managers know the 10 working day deadline
Your action checklist

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