ERA changes update: MBIE releases Active Choice Form

Friday 26 April 2019

Authors: Liz Coats and Charlotte Joy

MBIE has released its prescribed Active Choice Form as part of changes to the Employment Relations Act 2000 (ERA) which come into force on 6 May 2019 (discussed in our previous update). 

It will be a new requirement for employers to issue employees with an "Active Choice Form" for new employees who are not union members but whose work is covered by a collective employment agreement (CEA) (affected employees). The Active Choice Form is prescribed by the Chief Executive of MBIE, and all employers will have to use this form for affected employees.

Employers now have access to the prescribed Active Choice Form (available here), as well as guidance regarding how to use the Active Choice Form (available here).

How to use the Active Choice Form

In summary, within 10 days of commencing employment, employers must provide new affected employees with the Active Choice Form for them to complete.  The form seeks information from the affected employee about whether they intend to join the union that is a party to the CEA that covers the affected employee's role.  The form does not need to be provided to employees who are already employed by the business and have transferred to a new role that falls within the CEA coverage. 

It is optional for affected employees to complete and return the Active Choice Form to their employer. 

However, in all cases, an employer must pass on information to the relevant union(s):

  • If employee returns the form and wants to join a union – the form must be provided to the union(s) (by the employer).

  • If employee returns the form and does not want to join a union – the form must be provided to the union(s) (by the employer) unless the employee has ticked the box stating that they do not want the form to be passed onto the union. 

  • If employee does not return the form – the employer must provide the name of the employee to the union(s) and inform them that the employee did not complete and return the form.

In all instances, the employer must provide the relevant information to the union(s) within 10 days of the completion of the new affected employee's first 30 days of employment.

Potential consequences for employers

If an employer does not provide new affected employees with the Active Choice Form, or does not provide the applicable information to relevant union(s) after the first 30 days of employment, the employer may be liable for a financial penalty of up to $10,000 for an individual and $20,000 for a company.

Practically, this may be quite onerous for employers.  Employers should ensure that they have an internal system which ensures that it complies with its obligations and timings. 

Key timings

Key timings are as follows:

  • Day 1 to 10 – the Active Choice Form must be provided to new affected employees.

  • Day 1 to 30 – the affected employee must consider whether to fill out the form and return it to their employer.

  • Day 30 to 40 – the employer must provide information to the union(s).

Bell Gully's employment team is supporting a number of clients with the transition to the new requirements under these amendments. If you have any questions or concerns about how the amendments may impact on your workplace or processes, please get in touch with the authors or your usual Bell Gully advisor.


This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

For more information
  • Liz Coats

    Partner Auckland
  • Tim Clarke

    Partner Auckland
  • Rachael Brown

    Partner Wellington
Related areas of expertise
  • Employment and workplace safety