Unfair bargaining

Heading: inserted, on 12 December 2018, by section 26 of the Employment Relations Amendment Act 2018 (2018 No 53).

68 Unfair bargaining for individual employment agreements

(1)

Bargaining for an individual employment agreement is unfair if—

(a)

1 or more of paragraphs (a) to (d) of subsection (2) apply to a party to the agreement (person A); and

(b)

the other party to the agreement (person B) or another person who is acting on person B’s behalf—

(i)

knows of the circumstances described in the paragraph or paragraphs that apply to person A; or

(ii)

ought to know of the circumstances in the paragraph or paragraphs that apply to person A because person B or the other person is aware of facts or other circumstances from which it can be reasonably inferred that the paragraph or paragraphs apply to person A.

(2)

The circumstances are that person A, at the time of bargaining for or entering into the agreement,—

(a)

is unable to understand adequately the provisions or implications of the agreement by reason of diminished capacity due (for example) to—

(i)

age; or

(ii)

sickness; or

(iii)

mental or educational disability; or

(iv)

a disability relating to communication; or

(v)

emotional distress; or

(b)

reasonably relies on the skill, care, or advice of person B or a person acting on person B’s behalf; or

(c)

is induced to enter into the agreement by oppressive means, undue influence, or duress; or

(d)

where section 63A applied, did not have the information or the opportunity to seek advice as required by that section.

(3)

In this section, individual employment agreement includes a term or condition of an individual employment agreement.

(4)

Except as provided in this section, a party to an individual employment agreement must not challenge or question the agreement on the ground that it is unfair or unconscionable.

Section 68(2)(d): amended, on 1 December 2004, by section 29 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).