Employment Relations Act 2000

Reprint as at 4 April 2016

Coat of Arms of New Zealand

Employment Relations Act 2000

Public Act
 
2000 No 24
Date of assent
 
19 August 2000
Commencement
 
see section 2
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Business, Innovation, and Employment.

Contents

1Title
2Commencement
3Object of this Act
4Parties to employment relationship to deal with each other in good faith
4APenalty for certain breaches of duty of good faith
4BEmployer’s general obligation to keep records relating to minimum entitlement provisions
5Interpretation
5AProvisions affecting application of amendments to this Act
6Meaning of employee
6AStatus of examples
7Object of this Part
8Voluntary membership of unions
9Prohibition on preference
10Contracts, agreements, or other arrangements inconsistent with section 8 or section 9
11Undue influence
12Object of this Part
13Application by society to register as union
14When society entitled to be registered as union
15Registration of society as union
16Annual return of members
17Cancellation of union’s registration
18Union entitled to represent members’ interests
19Workplace does not include dwellinghouse
20Access to workplaces
20ARepresentative of union must obtain consent to enter workplace
21Conditions relating to access to workplaces
22When access to workplaces may be denied
23When access to workplaces may be denied on religious grounds
24Issue of certificate of exemption
25Penalty for certain acts in relation to entering workplace
26Union meetings
27Registrar of Unions
28Registrar of Unions may seek directions of Authority
29Persons who have standing in proceedings relating to unions
30Offence to mislead Registrar
31Object of this Part
32Good faith in bargaining for collective agreement
33Duty of good faith does not require collective agreement to be concluded
34Providing information in bargaining for collective agreement
35Codes of good faith
36Appointment of committee to recommend codes of good faith
37Minister may approve code of good faith not recommended by committee
38Amendment and revocation of code of good faith
39Authority or court may have regard to code of good faith
40Who may initiate bargaining
41When bargaining may be initiated
42How bargaining initiated
43Employees’ attention to be drawn to initiation of bargaining
44When bargaining initiated
44AEmployer may opt out of bargaining for collective agreement, or for agreement to join collective agreement, involving 2 or more employers
44BHow to opt out
44CEffect of opting out
45One or more unions proposing to initiate bargaining with 2 or more employers for single collective agreement
46Terms of question for secret ballot
47When secret ballots required after employer initiates bargaining for single collective agreement
48When requirement for secret ballot does not apply
49Parties joining bargaining after it begins
50Consolidation of bargaining
50APurpose of facilitating collective bargaining
50BReference to Authority
50CGrounds on which Authority may accept reference
50DLimitation on which member of Authority may provide facilitation
50EProcess of facilitation
50FStatements made by parties during facilitation
50GProposals made or positions reached during facilitation
50HRecommendation by Authority
50IParty must deal with Authority in good faith
50JRemedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining
50KAuthority may determine that bargaining has concluded
50KADeclaration or determination under section 50K not to be made if breach of duty of good faith by party seeking declaration
51Ratification of collective agreement
52When collective agreement comes into force and expires
53Continuation of collective agreement after specified expiry date
54Form and content of collective agreement
55Deduction of union fees
56Application of collective agreement
56AApplication of collective agreement to subsequent parties
57Employee bound by only 1 collective agreement in respect of same work
58Employee who resigns as member of union but does not resign as employee
59Copy of collective agreement to be delivered to chief executive
59AInterpretation
59BBreach of duty of good faith to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement
59CBreach of duty of good faith to pass on, in certain circumstances, in collective agreement provisions agreed in other collective bargaining or another collective agreement
60Object of this Part
60AGood faith in bargaining for individual employment agreement
61Employee bound by applicable collective agreement may agree to additional terms and conditions of employment
62Employer’s obligations in respect of new employee who is not member of union
63Terms and conditions of employment of new employee who is not member of union [Repealed]
63ABargaining for individual employment agreement or individual terms and conditions in employment agreement
64Employer must retain copy of individual employment agreement or individual terms and conditions of employment
65Form and content of individual employment agreement
65ADeduction of union fees
66Fixed term employment
67Probationary arrangements
67AWhen employment agreement may contain provision for trial period for 90 days or less
67BEffect of trial provision under section 67A
67CAgreed hours of work
67DAvailability provision
67EEmployee may refuse to perform certain work
67FEmployee not to be treated adversely because of refusal to perform certain work
67GCancellation of shifts
67HSecondary employment provisions
68Unfair bargaining for individual employment agreements
69Remedies for unfair bargaining
69AAObject of this Part
69AAAInterpretation
69AABWhen employee may make request
69AACRequirements relating to request
69AADLimitation on frequency of requests [Repealed]
69AAEEmployer must notify decision as soon as possible
69AAFGrounds for refusal of request by employer
69AAGRole of Labour Inspector
69AAHLabour Inspectors and mediation
69AAIApplication to Authority
69AAJPenalty
69AAKLimitation on challenging employer
[Repealed]
69AALReview of operation of Part after 2 years [Repealed]
69AObject of this subpart
69BInterpretation
69CMeaning of contracting in, contracting out, and subsequent contracting
69CAExempt employer
69CBWarranty
69CCPersons warranty to be provided to
69CDProvision of information for purposes of giving warranty
69CEWhen warranty must be provided
69DMeaning of new employer
69DAAssociated person
69EExamples of contracting in, contracting out, and subsequent contracting
69FApplication of this subpart
69FAEmployer’s breach of obligations not to affect employee’s rights and new employer’s obligations
69GNotice of right to make election
69HEmployee bargaining for alternative arrangements
69IEmployee may elect to transfer to new employer in certain circumstances
69JEmployment of employee who elects to transfer to new employer treated as continuous
69KTerms and conditions of employment of transferring employee under fixed term employment
69LAgreements excluding entitlements for technical redundancy not affected
69LALiability for costs of service-related entitlements of transferring employee
69LBResolving disputes about apportioning liability for costs of service-related entitlements
69LCImplied warranty by employer of transferring employees
69MNew employer becomes party to collective agreement that binds employee electing to transfer
69NEmployee who transfers may bargain for redundancy entitlements with new employer
69OAuthority may investigate bargaining and determine redundancy entitlements
69OAAFalse warranty: exempt employer
69OAObject of this subpart
69OBInterpretation
69OCDisclosure of employee transfer costs information
69ODProvision of employee transfer costs information by other persons
69OEUpdating disclosure of employee transfer costs information
69OEADisclosure of individualised employee information
69OFEmployer who is subject to Official Information Act 1982
69OGSubpart prevails over agreement
69OHObject of this subpart
69OIInterpretation
69OJCollective agreements and individual employment agreements must contain employee protection provision
69OKAffected employee may choose whether to transfer to new employer
[Repealed]
69OLReview of operation of Part after 3 years [Repealed]
69PInterpretation
69QBargaining fee clause does not come into force unless agreed to first by employer and union and then by secret ballot
69REmployer to notify employees if bargaining fee clause agreed to
69SWhich employees bargaining fee clause applies to
69TBargaining fee clause binding on employer and employee
69UAmount of bargaining fee
69VExpiry of bargaining fee clause
69WValidity of bargaining fee clause
69XInterpretation
69YEmployer’s obligation
69ZBreastfeeding breaks additional to breaks under Part 6D
69ZACode of employment practice relating to employer’s obligation
69ZBPenalty
69ZCInterpretation
69ZDEmployee’s entitlement to rest breaks and meal breaks
69ZETiming and duration of rest breaks and meal breaks
69ZEACompensatory measures
69ZEBCompensatory measure must be reasonable
69ZFPenalty
69ZGRelationship between Part and employment agreements
69ZHRelationship between Part and other enactments
70Object of this Part
71Interpretation
72Minister to approve employment relations education
73Union entitled to allocate employment relations education leave
74Calculation of maximum number of days of employment relations education leave
75Union to notify employer of maximum number of days of employment relations education leave calculated
76Allocation of employment relations education leave calculated in respect of another employer
77Allocation of employment relations education leave to eligible employee
78Eligible employee proposing to take employment relations education leave
79Eligible employee taking employment relations education leave entitled to ordinary pay
80Object of this Part
81Meaning of strike
82Meaning of lockout
82ARequirement for union to hold secret ballot before strike
82BTerms of question for secret ballot
82CWhen requirement for secret ballot does not apply
83Lawful strikes and lockouts related to collective bargaining
84Lawful strikes and lockouts on grounds of safety or health
85Effect of lawful strike or lockout
86Unlawful strikes or lockouts
86ANotice of strike
86BNotice of lockout
87Suspension of striking employees
88Suspension of non-striking employees where work not available during strike
89Basis of suspension
90Strikes in essential services
91Lockouts in essential services
92Chief executive to ensure mediation services provided
93Procedure to provide public with notice before strike in certain passenger transport services
94Procedure to provide public with notice before lockout in certain passenger transport services
95Penalty for breach of section 93(4) or 94(4)
95AAWithdrawal of notice of strike or lockout
95AMeaning of partial strike and specified pay deduction
95BEmployer may make specified pay deductions in relation to partial strike
95CNotice of specified pay deduction
95DCalculation of specified pay deduction
95ERelationship between specified pay deduction and minimum wage
95FUnion may request information about specified pay deduction
95GEmployer must respond to request for information about specified pay deduction
95HResolution of problem relating to specified pay deduction
96Employer not liable for wages during lockout
97Performance of duties of striking or locked out employees
98Record of strikes and lockouts
99Jurisdiction of court in relation to torts
100Jurisdiction of court in relation to injunctions
100ACodes of employment practice
100BAmendment and revocation of code of practice
100CAuthority or court may have regard to code of practice
100DCode of good faith for public health sector
100EAmendments to or replacement of code of good faith for public health sector
100FCode of good faith for employment relationships in relation to provision of services by New Zealand Police
100GAmendments to or replacement of code of good faith for employment relationships in relation to provision of services by New Zealand Police
101Object of this Part
102Employee may pursue personal grievance under this Act
103Personal grievance
103ATest of justification
104Discrimination
105Prohibited grounds of discrimination for purposes of section 104
106Exceptions in relation to discrimination
107Definition of involvement in activities of union for purposes of section 104
108Sexual harassment
109Racial harassment
110Duress
110AAdverse conduct for prohibited health and safety reason
111Definitions relating to personal grievances
112Choice of procedures
113Personal grievance provisions only way to challenge dismissal
114Raising personal grievance
115Further provision regarding exceptional circumstances under section 114
116Special provision where sexual harassment alleged
117Sexual or racial harassment by person other than employer
118Sexual or racial harassment after steps not taken to prevent repetition
119Presumption in discrimination cases
120Statement of reasons for dismissal
121Statements privileged
122Nature of personal grievance may be found to be of different type from that alleged
123Remedies
124Remedy reduced if contributing behaviour by employee
125Remedy of reinstatement
126Provisions applying if reinstatement ordered
127Authority may order interim reinstatement
128Reimbursement
129Person bound by, or party to, employment agreement may pursue dispute under this Act
130Wages and time record
131Arrears
132Failure to keep or produce records
133Jurisdiction concerning penalties
133AMatters Authority and court to have regard to in determining amount of penalty
134Penalties for breach of employment agreement
134APenalty for obstructing or delaying Authority investigation
135Recovery of penalties
135AChief executive or Labour Inspector may enforce payment of penalty
136Application of penalties recovered
137Power of Authority to order compliance
138Further provisions relating to compliance order by Authority
139Power of court to order compliance
140Further provisions relating to compliance order by court
140AASanctions for breaches without compliance order
140ACompliance order in relation to disclosure of employee transfer costs information and individualised employee information
141Enforcement of order
142Limitation period for actions other than personal grievances
142AObject of this Part
142BCourt may make declarations of breach
142CPurpose and effect of declarations of breach
142DWhat declaration of breach must state
142EPecuniary penalty orders
142FMatters court to have regard to in determining amount of pecuniary penalty
142GMaximum amount of pecuniary penalty
142HChief executive or Labour Inspector may enforce payment of pecuniary penalty
142ILimitation period for actions for pecuniary penalty orders
142JCourt may make compensation orders
142KApplication of section 132 of this Act and section 83 of Holidays Act 2003
142LTerms of compensation orders
142MBanning orders
142NTerms of banning order
142ODuration of banning order
142PVariation of banning order
142QGeneral provisions for banning orders
142ROffence to breach banning order
142SStandard of proof
142TMore than one kind of order may be made for same breach
142UNo pecuniary penalty and criminal sanction or other penalty for same conduct
142VInsurance against pecuniary penalties unlawful
142WInvolvement in breaches
142XPerson involved in breach liable to penalty
142YWhen person involved in breach liable for default in payment of wages or other money due to employee
142ZState of mind of directors, employees, or agents attributed to body corporate or other principal
142ZAConduct of directors, employees, or agents attributed to body corporate or other principal
142ZBProceedings in which defences apply
142ZCDefences for person in breach
142ZDDefences for person involved in breach
143Object of this Part
144Mediation services
144ADispute resolution services
145Provision of mediation services
146Access to mediation services
147Procedure in relation to mediation services
148Confidentiality
148ACertain entitlements may be subject to mediation and agreed terms of settlement
149Settlements
149ARecommendation to parties
150Decision by authority of parties
150APayment on resolution of problem
151Enforcement of terms of settlement agreed or authorised
152Mediation services not to be questioned as being inappropriate
153Independence of mediation personnel
154Other mediation services
155Arbitration
156Employment Relations Authority
157Role of Authority
158Lodging of applications
159Duty of Authority to consider mediation
159AAWhen mediation in relation to breach of employment standards is appropriate
159ADuty of Authority to prioritise previously mediated matters
160Powers of Authority
161Jurisdiction
162Application of law relating to contracts
163Restriction on Authority’s power in relation to collective agreements
164Application to individual employment agreements of law relating to contracts
165Other provisions relating to investigations of Authority
166Membership of Authority
166ARole of Chief of Authority
166BDelegation of Chief of Authority’s functions, duties, or powers
167Appointment of members
168Oath of office
169Term of office
170Vacation of office
171Salaries and allowances
172Temporary appointments
173Procedure
173ARecommendation to parties
174Authority must give oral determination or oral indication of preliminary findings wherever practicable
174AOral determinations
174BOral indication of preliminary findings
174CAuthority may reserve determination
174DAuthority may determine matter without holding investigation meeting
174EContent of written determinations
175Seal of Authority
176Protection of members of Authority, etc
177Referral of question of law
178Removal to court
178AChallenge in respect of dismissal of frivolous or vexatious proceedings
179Challenges to determinations of Authority
179ALimitation on challenges to certain determinations of Authority
179BLimitations on consideration by Employment Court of matters arising under Part 6AA
179CLimitations on consideration by Employment Court of matters arising under section 30D of Parental Leave and Employment Protection Act 1987
180Election not to operate as stay
181Report in relation to good faith
182Hearings
183Decision
184Restriction on review
185Staff of Authority
186Employment Court
187Jurisdiction of court
188Role in relation to jurisdiction
188AWhen mediation in relation to breach of employment standards is appropriate
189Equity and good conscience
190Application of other provisions
191Other provisions relating to proceedings of court
192Application to collective agreements of law relating to contracts
193Proceedings not to be questioned
194Application for review
194AApplication for review by certain employees
195Non-attendance or refusal to co-operate
196Contempt of court or Authority
197Constitution of court
198Registrar and officers of court
199Seal of court
200Appointment of Judges
200AJudges act on full-time basis but may be authorised to act part-time
201Seniority
202Senior Judge to act as Chief Judge in certain circumstances
203Judges to have immunities of High Court Judges
204Protection of Judges against removal from office
205Age of retirement
206Salaries and allowances of Judges
207Appointment of temporary Judges
208Sittings
209Full court
210Quorum and decision of court
211Statement of case for Court of Appeal
212Court may make rules
213Review of proceedings before court
214Appeals on question of law
214AAAppeals against decisions under Part 9A
214AAppeals to Supreme Court on question of law in exceptional circumstances
215Court of Appeal may refer appeals back for reconsideration
216Obligation to have regard to special jurisdiction of court
217Appeal to Court of Appeal against conviction or order or sentence in respect of contempt of court
218Appeal to Court of Appeal in respect of order on application for review
219Validation of informal proceedings, etc
220Documents under seal and certain signatures to be judicially noticed
221Joinder, waiver, and extension of time
222Application of Official Information Act 1982
223AAAFunctions of chief executive
223Labour Inspectors
223AFunctions of Labour Inspector
223BEnforceable undertakings
223CEnforcement of undertakings
223DLabour Inspector may issue improvement notice
223EObjection to improvement notice
223FPenalty
223GWithdrawal of improvement notice
224Demand notice
225Objections to demand notice
226Authority to determine objection
227Withdrawal of demand notice
228Actions by Labour Inspector
229Powers of Labour Inspectors
230Entry of dwellinghouses
231Entry warrant
232Compilation of wages and time record
233Obligations of Labour Inspectors
233AObligation of Labour Inspector and department not to disclose information
233BInformation sharing
234Circumstances in which officers, directors, or agents of company liable for minimum wages and holiday pay [Repealed]
235Obstruction
235AInterpretation
235BInfringement offences
235CInfringement notices
235DProcedural requirements for infringement notices
235EInfringement fees
235FPayment of infringement fee
235GInfringement fee and penalty not payable for the same conduct
236Representation
237Regulations
237AAChief executive may approve forms
237AAmendments to Schedule 1A [Repealed]
238No contracting out
239New Schedule 3 substituted in Police Act 1958
240Consequential amendments
241Repeals
242Enforcement of existing individual employment contracts
243Enforcement of existing collective employment contracts
244Existing collective employment contracts and collective bargaining
245Existing procedures in relation to disputes and personal grievances
246Expiration of existing collective employment contracts
247Existing proceedings
248Existing causes of action
249Employment Tribunal
250Exercise of powers of Employment Tribunal after 31 January 2001
251Exercise of powers of Authority before close of 31 January 2001
252Exercise by Authority of powers of Tribunal after 31 January 2001
253Existing appointments
254Application, savings, and transitional provisions relating to amendments to Act
Reprint notes
 
1 Title

This Act is the Employment Relations Act 2000.

2 Commencement

This Act comes into force on 2 October 2000.

Part 1 Key provisions

3 Object of this Act

The object of this Act is—

(a)

to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—

(i)

by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence, but also on a legislative requirement for good faith behaviour; and

(ii)

by acknowledging and addressing the inherent inequality of power in employment relationships; and

(iii)

by promoting collective bargaining; and

(iv)

by protecting the integrity of individual choice; and

(v)

by promoting mediation as the primary problem-solving mechanism other than for enforcing employment standards; and

(vi)

by reducing the need for judicial intervention; and

(ab)

to promote the effective enforcement of employment standards, in particular by conferring enforcement powers on Labour Inspectors, the Authority, and the court; and

(b)

to promote observance in New Zealand of the principles underlying International Labour Organisation Convention 87 on Freedom of Association, and Convention 98 on the Right to Organise and Bargain Collectively.

Section 3(a): amended, on 1 December 2004, by section 4(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 3(a)(i): substituted, on 1 December 2004, by section 4(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 3(a)(ii): amended, on 1 December 2004, by section 4(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 3(a)(v): replaced, on 1 April 2016, by section 4(1) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 3(ab): inserted, on 1 April 2016, by section 4(2) of the Employment Relations Amendment Act 2016 (2016 No 9).

Good faith employment relations

4 Parties to employment relationship to deal with each other in good faith

(1)

The parties to an employment relationship specified in subsection (2)—

(a)

must deal with each other in good faith; and

(b)

without limiting paragraph (a), must not, whether directly or indirectly, do anything—

(i)

to mislead or deceive each other; or

(ii)

that is likely to mislead or deceive each other.

(1A)

The duty of good faith in subsection (1)—

(a)

is wider in scope than the implied mutual obligations of trust and confidence; and

(b)

requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative; and

(c)

without limiting paragraph (b), requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of 1 or more of his or her employees to provide to the employees affected—

(i)

access to information, relevant to the continuation of the employees’ employment, about the decision; and

(ii)

an opportunity to comment on the information to their employer before the decision is made.

(1B)

However, subsection (1A)(c) does not require an employer to provide access to confidential information—

(a)

that is about an identifiable individual other than the affected employee if providing access to that information would involve the unwarranted disclosure of the affairs of that other individual:

(b)

that is subject to a statutory requirement to maintain confidentiality:

(c)

where it is necessary, for any other good reason, to maintain the confidentiality of the information (for example, to avoid unreasonable prejudice to the employer’s commercial position).

(1C)

To avoid doubt,—

(a)

subsection (1B) does not affect an employer’s obligations under—

(i)

the Official Information Act 1982 (despite section 52(3) of that Act); or

(ii)

the Privacy Act 1993 (despite section 7(2) of that Act):

(b)

an employer must not refuse to provide access to information under subsection (1A)(c) merely because the information is contained in a document that includes confidential information.

(1D)

For the purposes of subsections (1B) and (1C), confidential information means information that is provided in circumstances where there is a mutual understanding (whether express or implied) of secrecy.

(2)

The employment relationships are those between—

(a)

an employer and an employee employed by the employer:

(b)

a union and an employer:

(c)

a union and a member of the union:

(d)

a union and another union that are parties bargaining for the same collective agreement:

(e)

a union and another union that are parties to the same collective agreement:

(f)

a union and a member of another union where both unions are bargaining for the same collective agreement:

(g)

a union and a member of another union where both unions are parties to the same collective agreement:

(h)

an employer and another employer where both employers are bargaining for the same collective agreement.

(3)

Subsection (1) does not prevent a party to an employment relationship communicating to another person a statement of fact or of opinion reasonably held about an employer’s business or a union’s affairs.

(4)

The duty of good faith in subsection (1) applies to the following matters:

(a)

bargaining for a collective agreement or for a variation of a collective agreement, including matters relating to the initiation of the bargaining:

(b)

any matter arising under or in relation to a collective agreement while the agreement is in force:

(ba)

bargaining for an individual employment agreement or for a variation of an individual employment agreement:

(bb)

any matter arising under or in relation to an individual employment agreement while the agreement is in force:

(c)

consultation (whether or not under a collective agreement) between an employer and its employees, including any union representing the employees, about the employees’ collective employment interests, including the effect on employees of changes to the employer’s business:

(d)

a proposal by an employer that might impact on the employer’s employees, including a proposal to contract out work otherwise done by the employees or to sell or transfer all or part of the employer’s business:

(e)

making employees redundant:

(f)

access to a workplace by a representative of a union:

(g)

communications or contacts between a union and an employer relating to any secret ballots held for the purposes of bargaining for a collective agreement.

(5)

The matters specified in subsection (4) are examples and do not limit subsection (1).

(6)

It is a breach of subsection (1) for an employer to advise, or to do anything with the intention of inducing, an employee—

(a)

not to be involved in bargaining for a collective agreement; or

(b)

not to be covered by a collective agreement.

Section 4(1A): inserted, on 1 December 2004, by section 5(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4(1B): replaced, on 6 March 2015, by section 4 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 4(1C): replaced, on 6 March 2015, by section 4 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 4(1D): inserted, on 6 March 2015, by section 4 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 4(4)(ba): inserted, on 1 December 2004, by section 5(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4(4)(bb): inserted, on 1 December 2004, by section 5(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4(6): added, on 1 December 2004, by section 5(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

4A Penalty for certain breaches of duty of good faith

A party to an employment relationship who fails to comply with the duty of good faith in section 4(1) is liable to a penalty under this Act if—

(a)

the failure was deliberate, serious, and sustained; or

(b)

the failure was intended to undermine—

(i)

bargaining for an individual employment agreement or a collective agreement; or

(ii)

an individual employment agreement or a collective agreement; or

(iii)

an employment relationship; or

(c)

the failure was a breach of section 59B or section 59C.

Section 4A: inserted, on 1 December 2004, by section 6 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Records relating to minimum entitlement provisions

Heading: inserted, on 1 April 2016, by section 5 of the Employment Relations Amendment Act 2016 (2016 No 9).

4B Employer’s general obligation to keep records relating to minimum entitlement provisions

(1)

An employer must keep records in sufficient detail to demonstrate that the employer has complied with minimum entitlement provisions.

(2)

The obligation in subsection (1) is in addition to the requirements in the other provisions of this Act or any other enactment relating to the keeping of records.

Section 4B: inserted, on 1 April 2016, by section 5 of the Employment Relations Amendment Act 2016 (2016 No 9).

Part 2 Preliminary provisions

Interpretation

5 Interpretation

In this Act, unless the context otherwise requires,—

agreed hours of work means the hours of work specified in accordance with section 67C(1)

applicable collective agreement means the collective agreement that is binding on the relevant union and employer, at the relevant point in time in relation to an employee of the employer who is a member of the union

Authority means the Employment Relations Authority established by section 156

bargaining, in relation to bargaining for a collective agreement,—

(a)

means all the interactions between the parties to the bargaining that relate to the bargaining; and

(b)

includes—

(i)

negotiations that relate to the bargaining; and

(ii)

communications or correspondence (between or on behalf of the parties before, during, or after negotiations) that relate to the bargaining

chief executive means the chief executive of the department

Chief Judge means the Chief Judge of the court

Chief of the Authority means the Chief of the Authority who holds office under section 166(1)(a)

collective agreement means an agreement that is binding on—

(a)

1 or more unions; and

(b)

1 or more employers; and

(c)

2 or more employees

compliance order means an order made by the Authority or the court under section 137 or section 139

court means the Employment Court constituted under this Act

coverage clause,—

(a)

in relation to a collective agreement,—

(i)

means a provision in the agreement that specifies the work that the agreement covers, whether by reference to the work or type of work or employees or types of employees; and

(ii)

includes a provision in the agreement that refers to named employees, or to the work or type of work done by named employees, to whom the collective agreement applies:

(b)

in relation to a notice initiating bargaining for a collective agreement, means a provision in the notice specifying the work that the agreement is intended to cover, whether by reference to the work or type of work or employees or types of employees

demand notice means a demand notice issued under section 224(1)

department, in any provision of this Act, means the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of that provision

dispute means a dispute about the interpretation, application, or operation of an employment agreement

dwellinghouse

(a)

means any building or any part of a building to the extent that it is occupied as a residence; and

(b)

in relation to a homeworker who works in a building that is not wholly occupied as a residence, excludes any part of the building not occupied as a residence

employee is defined in section 6

employer means a person employing any employee or employees; and includes a person engaging or employing a homeworker

employment agreement

(a)

means a contract of service; and

(b)

includes a contract for services between an employer and a homeworker; and

(c)

includes an employee’s terms and conditions of employment in—

(i)

a collective agreement; or

(ii)

a collective agreement together with any additional terms and conditions of employment; or

(iii)

an individual employment agreement

employment relationship means any of the employment relationships specified in section 4(2)

employment relationship problem includes a personal grievance, a dispute, and any other problem relating to or arising out of an employment relationship, but does not include any problem with the fixing of new terms and conditions of employment

employment standards means any of the following:

(a)

the requirements of any of sections 64, 69Y, 69ZD, 69ZE, and 130:

(b)

the provisions of the Equal Pay Act 1972:

(c)

the minimum entitlements and payment for those under the Holidays Act 2003:

(d)

the requirements of sections 81 and 82 of the Holidays Act 2003:

(e)

the minimum entitlements under the Minimum Wage Act 1983:

(f)

the provisions of the Wages Protection Act 1983

essential service means a service specified in Schedule 1

homeworker

(a)

means a person who is engaged, employed, or contracted by any other person (in the course of that other person’s trade or business) to do work for that other person in a dwellinghouse (not being work on that dwellinghouse or fixtures, fittings, or furniture in it); and

(b)

includes a person who is in substance so engaged, employed, or contracted even though the form of the contract between the parties is technically that of vendor and purchaser

individual employment agreement means an employment agreement entered into by 1 employer and 1 employee who is not bound by a collective agreement that binds the employer

intended agreement includes part of an intended agreement

Judge means a Judge of the court; and includes a temporary Judge

Labour Inspector means an employee of the department designated under section 223 to be a Labour Inspector

lockout has the meaning given to it by section 82

mediation includes mediation services provided under section 144 by the chief executive, and any other mediation services that are provided (whether by the chief executive or any other person) to help resolve employment relationship problems

mediation services means the mediation services provided, under section 144, by the chief executive

member of the Authority means a member of the Authority who holds office under section 166(1); and includes a temporary member who holds office under section 172

minimum entitlement provisions means—

(a)

the minimum entitlements and payment for those under the Holidays Act 2003; and

(b)

the minimum entitlements under the Minimum Wage Act 1983; and

(c)

the provisions of the Wages Protection Act 1983

Minister, in any provision of this Act, means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of that provision

person intending to work means a person who has been offered, and accepted, work as an employee; and intended work has a corresponding meaning

personal grievance or grievance has the meaning given to it by section 103

prescribed means prescribed by regulations made under this Act

Registrar of the court means any employee of the department designated under section 198 to act as the Registrar of the court

Registrar of Unions means the employee of the department appointed under section 27 to be the Registrar of Unions

relevant Acts,—

(a)

in sections 223A and 223B, means the Acts specified in section 223(1), except section 69LA of this Act:

(b)

in sections 223D to 223F, means the Acts specified in section 223(1), except Part 5 and section 69LA of this Act

strike has the meaning given to it by section 81

union means a union registered under Part 4

wages and time record means a wages and time record kept pursuant to section 130

workplace means a place where an employee works from time to time; and includes a place where an employee goes to do work.

Section 5 agreed hours of work: inserted, on 1 April 2016, by section 6(1) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 5 coverage clause paragraph (a): substituted, on 1 December 2004, by section 7(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 5 dwellinghouse: substituted, on 1 December 2004, by section 7(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 5 employment standards: inserted, on 1 April 2016, by section 6(1) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 5 homeworker paragraph (b): amended, on 1 December 2004, by section 7(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 5 intended agreement: inserted, on 1 April 2011, by section 4 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 5 minimum entitlement provisions: inserted, on 1 April 2016, by section 6(2) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 5 minimum entitlements: repealed, on 1 April 2016, by section 6(2) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 5 relevant Acts: replaced, on 6 March 2015, by section 5 of the Employment Relations Amendment Act 2014 (2014 No 61).

5A Provisions affecting application of amendments to this Act

Schedule 1AA contains application, savings, and transitional provisions relating to amendments made to this Act after 1 January 2013 (see section 254).

Section 5A: inserted, on 6 March 2015, by section 6 of the Employment Relations Amendment Act 2014 (2014 No 61).

6 Meaning of employee

(1)

In this Act, unless the context otherwise requires, employee

(a)

means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and

(b)

includes—

(i)

a homeworker; or

(ii)

a person intending to work; but

(c)

excludes a volunteer who—

(i)

does not expect to be rewarded for work to be performed as a volunteer; and

(ii)

receives no reward for work performed as a volunteer; and

(d)

excludes, in relation to a film production, any of the following persons:

(i)

a person engaged in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer:

(ii)

a person engaged in film production work in any other capacity.

(1A)

However, subsection (1)(d) does not apply if the person is a party to, or covered by, a written employment agreement that provides that the person is an employee.

(2)

In deciding for the purposes of subsection (1)(a) whether a person is employed by another person under a contract of service, the court or the Authority (as the case may be) must determine the real nature of the relationship between them.

(3)

For the purposes of subsection (2), the court or the Authority—

(a)

must consider all relevant matters, including any matters that indicate the intention of the persons; and

(b)

is not to treat as a determining matter any statement by the persons that describes the nature of their relationship.

(4)

Subsections (2) and (3) do not limit or affect the Real Estate Agents Act 2008 or the Sharemilking Agreements Act 1937.

(5)

The court may, on the application of a union, a Labour Inspector, or 1 or more other persons, by order declare whether the person or persons named in the application are—

(a)

employees under this Act; or

(b)

employees or workers within the meaning of any of the Acts specified in section 223(1).

(6)

The court must not make an order under subsection (5) in relation to a person unless—

(a)

the person—

(i)

is the applicant; or

(ii)

has consented in writing to another person applying for the order; and

(b)

the other person who is alleged to be the employer of the person is a party to the application or has an opportunity to be heard on the application.

(7)

In this section,—

film means a cinematograph film, a video recording, and any other material record of visual moving images that is capable of being used for the subsequent display of those images; and includes any part of any film, and any copy or part of a copy of the whole or any part of a film

film production means the production of a film or video game

film production work

(a)

means the following work performed, or services provided, in relation to a film production:

(i)

work performed, or services provided, by an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer (whether as an individual or not):

(ii)

pre-production work or services (whether on the set or off the set):

(iii)

production work or services (whether on the set or off the set):

(iv)

post-production work or services (whether on the set or off the set):

(v)

promotional or advertising work or services (whether on the set or off the set) by a person referred to in subparagraphs (i) to (iv); but

(b)

excludes work performed, or services provided, in respect of the production of any programme intended initially for broadcast on television

video game means any video recording that is designed for use wholly or principally as a game

video recording means any disc, magnetic tape, or solid state recording device containing information by the use of which 1 or more series of visual images may be produced electronically and shown as a moving picture.

Section 6(1)(d): added, on 30 October 2010, by section 4(1) of the Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120).

Section 6(1A): inserted, on 30 October 2010, by section 4(2) of the Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120).

Section 6(4): amended, on 16 November 2009, by section 173 of the Real Estate Agents Act 2008 (2008 No 66).

Section 6(7): added, on 30 October 2010, by section 4(3) of the Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120).

6A Status of examples

(1)

In this Act, an example is only illustrative of the provision it relates to and does not limit the provision.

(2)

If an example and the provision it relates to are inconsistent, the provision prevails.

(3)

In this section, example includes any note that relates to the example.

Section 6A: inserted, on 14 September 2006, by section 5 of the Employment Relations Amendment Act 2006 (2006 No 41).

Part 3 Freedom of association

7 Object of this Part

The object of this Part is to establish that—

(a)

employees have the freedom to choose whether or not to form a union or be members of a union for the purpose of advancing their collective employment interests; and

(b)

no person may, in relation to employment issues, confer any preference or apply any undue influence, directly or indirectly, on another person because the other person is or is not a member of a union.

Compare: 1991 No 22 s 5

8 Voluntary membership of unions

A contract, agreement, or other arrangement between persons must not require a person—

(a)

to become or remain a member of a union or a particular union; or

(b)

to cease to be a member of a union or a particular union; or

(c)

not to become a member of a union or a particular union.

Compare: 1991 No 22 s 6

9 Prohibition on preference

(1)

A contract, agreement, or other arrangement between persons must not confer on a person, because the person is or is not a member of a union or a particular union,—

(a)

any preference in obtaining or retaining employment; or

(b)

any preference in relation to terms or conditions of employment (including conditions relating to redundancy) or fringe benefits or opportunities for training, promotion, or transfer.

(2)

Subsection (1) is not breached simply because an employee’s employment agreement or terms and conditions of employment are different from those of another employee employed by the same employer.

(3)

To avoid doubt, this Act does not prevent a collective agreement containing a term or condition that is intended to recognise the benefits—

(a)

of a collective agreement:

(b)

arising out of the relationship on which a collective agreement is based.

Compare: 1991 No 22 s 7

Section 9(3): added, on 1 December 2004, by section 8 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

10 Contracts, agreements, or other arrangements inconsistent with section 8 or section 9

A contract, agreement, or other arrangement has no force or effect to the extent that it is inconsistent with section 8 or section 9.

11 Undue influence

(1)

A person must not exert undue influence, directly or indirectly, on another person with the intention of inducing the other person—

(a)

to become or remain a member of a union or a particular union; or

(b)

to cease to be a member of a union or a particular union; or

(c)

not to become a member of a union or a particular union; or

(d)

in the case of an individual who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or

(e)

to resign from or leave any employment on account of the fact that the other person is or, as the case may be, is not a member of a union or of a particular union.

(2)

Every person who contravenes subsection (1) is liable to a penalty under this Act imposed by the Authority.

Compare: 1991 No 22 s 8

Part 4 Recognition and operation of unions

12 Object of this Part

The object of this Part is—

(a)

to recognise the role of unions in promoting their members’ collective employment interests; and

(b)

to provide for the registration of unions that are accountable to their members; and

(c)

to confer on registered unions the right to represent their members in collective bargaining; and

(d)

to provide representatives of registered unions with reasonable access to workplaces for purposes related to employment and union business.

Registration of unions and related matters

13 Application by society to register as union

(1)

A society that is entitled to be registered as a union may apply to the Registrar of Unions to be registered as a union under this Act.

(2)

An application must be made in the prescribed manner and must be accompanied by—

(a)

a copy of the society’s certificate of incorporation under the Incorporated Societies Act 1908; and

(b)

a copy of the society’s rules as registered under that Act; and

(c)

a statutory declaration made by an officer of the society setting out the reasons why the society is entitled to be registered as a union.

14 When society entitled to be registered as union

(1)

A society is entitled to be registered as a union if—

(a)

the object or, if the society has more than 1 object, an object of the society is to promote its members’ collective employment interests; and

(b)

the society is incorporated under the Incorporated Societies Act 1908; and

(c)

the society’s rules are—

(i)

not unreasonable; and

(ii)

democratic; and

(iii)

not unfairly discriminatory or unfairly prejudicial; and

(iv)

not contrary to law; and

(ca)

the society’s rules contain a provision relating to the process for holding a secret ballot for the purposes of this Act; and

(d)

the society is independent of, and is constituted and operates at arm’s length from, any employer.

(2)

In deciding whether a society is entitled to be registered as a union, the Registrar of Unions may rely on the statutory declaration made under section 13(2)(c).

Section 14(1)(ca): inserted, on 15 May 2012, by section 5 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37).

15 Registration of society as union

(1)

The Registrar of Unions must register a society as a union if the society—

(a)

applies, in accordance with section 13, to be registered as a union; and

(b)

is entitled to be registered as a union.

(2)

Immediately after registering a union, the Registrar of Unions must give a certificate of registration in the prescribed form to the union.

(3)

The certificate of registration is conclusive evidence that—

(a)

all the requirements of this Act relating to the registration of the union have been complied with; and

(b)

on and from the date of registration stated in the certificate, the union is registered as a union under this Act.

16 Annual return of members

A union must deliver to the Registrar of Unions, not later than 1 June in each calendar year, an annual return of members, stating how many members it had as at 1 March in that year.

17 Cancellation of union’s registration

(1)

The Registrar of Unions may cancel the registration of a union under this Act, but only if—

(a)

the union applies to the Registrar of Unions to cancel its registration; or

(b)

the Authority makes an order directing the Registrar of Unions to cancel the union’s registration.

(2)

The Authority may make an order for the purposes of subsection (1)(b) only if the union has ceased to comply with section 14(1).

Union’s right to represent members

18 Union entitled to represent members’ interests

(1)

A union is entitled to represent its members in relation to any matter involving their collective interests as employees.

(2)

This Act does not prevent a union offering different classes of membership.

(3)

A union may represent an employee in relation to the employee’s individual rights as an employee only if the union has an authority from the employee to do so given under section 236.

Access to workplaces

19 Workplace does not include dwellinghouse

For the purposes of sections 20 to 25, workplace does not include a dwellinghouse.

20 Access to workplaces

(1)

A representative of a union is entitled, in accordance with this section and sections 20A and 21, to enter a workplace—

(a)

for purposes related to the employment of its members; or

(b)

for purposes related to the union’s business; or

(c)

both.

(2)

The purposes related to the employment of a union’s members include—

(a)

to participate in bargaining for a collective agreement:

(b)

to deal with matters concerning the health and safety of union members:

(c)

to monitor compliance with the operation of a collective agreement:

(d)

to monitor compliance with this Act and other Acts dealing with employment-related rights in relation to union members:

(e)

with the authority of an employee, to deal with matters relating to an individual employment agreement or a proposed individual employment agreement or an individual employee’s terms and conditions of employment or an individual employee’s proposed terms and conditions of employment:

(f)

to seek compliance with relevant requirements in any case where non-compliance is detected.

(3)

The purposes related to a union’s business include—

(a)

to discuss union business with union members:

(b)

to seek to recruit employees as union members:

(c)

to provide information on the union and union membership to any employee on the premises.

(4)

A discussion in a workplace between an employee and a representative of a union, who is entitled under this section and sections 20A and 21 to enter the workplace for the purpose of the discussion,—

(a)

must not exceed a reasonable duration; and

(b)

is not to be treated as a union meeting for the purposes of section 26.

(5)

An employer must not deduct from an employee’s wages any amount in respect of the time the employee is engaged in a discussion referred to in subsection (4).

Compare: 1991 No 22 ss 13, 14(1)

Section 20(1): amended, on 1 April 2011, by section 5 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 20(4): added, on 1 December 2004, by section 9 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 20(4): amended, on 1 April 2011, by section 5 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 20(5): added, on 1 December 2004, by section 9 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

20A Representative of union must obtain consent to enter workplace

(1)

Before entering a workplace under section 21, a representative of a union must request and obtain the consent of the employer or a representative of the employer.

(2)

If a representative of a union makes a request under subsection (1),—

(a)

the employer or representative of the employer must not unreasonably withhold consent; and

(b)

the employer or representative of the employer must advise the representative of the union of the employer’s or representative of the employer’s decision as soon as is reasonably practicable but no later than the working day after the date on which the request was received; and

(c)

the consent of the employer or representative of the employer (as the case may be) must be treated as having been obtained if the employer or representative of the employer does not respond to the request within 2 working days after the date on which the request was received.

(3)

If an employer or a representative of an employer withholds consent under subsection (2), the employer or representative of the employer must, as soon as is reasonably practicable but no later than the working day after the date of the decision, give reasons in writing for that decision to the representative of the union who made the request.

(4)

This section is subject to sections 22 and 23 (which specify when access to workplaces may be denied).

Section 20A: inserted, on 1 April 2011, by section 6 of the Employment Relations Amendment Act 2010 (2010 No 125).

21 Conditions relating to access to workplaces

(1)

A representative of a union may enter a workplace—

(a)

for a purpose specified in section 20(2) if the representative believes, on reasonable grounds, that a member of the union, to whom the purpose of the entry relates, is working or normally works in the workplace:

(b)

for a purpose specified in section 20(3) if the representative believes, on reasonable grounds, that the union’s membership rule covers an employee who is working or normally works in the workplace.

(2)

A representative of a union exercising the right to enter a workplace—

(a)

may do so only at reasonable times during any period when any employee is employed to work in the workplace; and

(b)

must do so in a reasonable way, having regard to normal business operations in the workplace; and

(c)

must comply with any existing reasonable procedures and requirements applying in respect of the workplace that relate to—

(i)

safety or health; or

(ii)

security.

(3)

A representative of a union exercising the right to enter a workplace must, at the time of the initial entry and, if requested by the employer or a representative of the employer or by a person in control of the workplace, at any time after entering the workplace,—

(a)

give the purpose of the entry; and

(b)

produce—

(i)

evidence of his or her identity; and

(ii)

evidence of his or her authority to represent the union concerned.

(4)

If a representative of a union exercises the right to enter a workplace and is unable, despite reasonable efforts, to find the employer or a representative of the employer or the person in control of the workplace, the representative must leave in a prominent place in the workplace a written statement of—

(a)

the identity of the person who entered the premises; and

(b)

the union the person is a representative of; and

(c)

the date and time of entry; and

(d)

the purpose or purposes of the entry.

(5)

[Repealed]

Compare: 1991 No 22 s 14(2)–(4)

Section 21(5): repealed, on 1 April 2011, by section 7 of the Employment Relations Amendment Act 2010 (2010 No 125).

22 When access to workplaces may be denied

(1)

A representative of a union may be denied access to a workplace if entry to the premises or any part of the premises might prejudice—

(a)

the security or defence of New Zealand; or

(b)

the investigation or detection of offences.

(2)

A certificate given in accordance with subsection (3) is conclusive evidence that grounds exist under subsection (1) for denying entry to the premises or part of the premises.

(3)

A certificate is given in accordance with this subsection if—

(a)

it is given by the Attorney-General; and

(b)

it certifies, in respect of the premises or part of the premises concerned, that permitting entry under section 20 might prejudice—

(i)

the security or defence of New Zealand; or

(ii)

the investigation or detection of offences.

Compare: 1991 No 22 s 15

23 When access to workplaces may be denied on religious grounds

A representative of a union may be denied access to a workplace if—

(a)

all the employees employed in the workplace are employed by an employer who holds a current certificate of exemption issued under section 24; and

(b)

none of the employees employed in the workplace is a member of a union; and

(c)

there are no more than 20 employees employed to work in the workplace.

24 Issue of certificate of exemption

(1)

The chief executive may, for the purposes of section 23, issue a certificate of exemption to an employer who is an individual if the chief executive is satisfied that the employer is a practising member of a religious society or order whose doctrines or beliefs preclude membership of any organisation or body other than the religious society or order of which the employer is a member.

(2)

The chief executive may revoke a certificate of exemption if—

(a)

the employer to whom it has been issued agrees; or

(b)

it was issued in error; or

(c)

the chief executive is satisfied that the employer has ceased to be a person eligible to be issued with the certificate.

25 Penalty for certain acts in relation to entering workplace

Every person is liable to a penalty, imposed by the Authority, who, without lawful excuse,—

(a)

contravenes section 20A(2)(a) by unreasonably withholding consent in relation to a request by a representative of a union under section 20A(1) to enter a workplace; or

(ab)

fails to give reasons in writing for withholding consent to access to a workplace in accordance with section 20A(3); or

(b)

obstructs a representative of a union in entering a workplace or in doing anything reasonably necessary for or incidental to the purpose for entering the workplace; or

(c)

wilfully fails to comply with section 21.

Compare: 1991 No 22 s 14(5)

Section 25(a): substituted, on 1 April 2011, by section 8 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 25(ab): inserted, on 1 April 2011, by section 8 of the Employment Relations Amendment Act 2010 (2010 No 125).

Union meetings

26 Union meetings

(1)

An employer must allow every union member employed by the employer to attend—

(a)

at least 1 union meeting (of a maximum of 2 hours’ duration) in the calendar year 2000; and

(b)

at least 2 union meetings (each of a maximum of 2 hours’ duration) in each calendar year after the calendar year 2000.

(2)

The union must give the employer at least 14 days’ notice of the date and time of any union meeting to which subsection (1) applies.

(3)

The union must make such arrangements with the employer as may be necessary to ensure that the employer’s business is maintained during any union meeting to which subsection (1) applies, including, where appropriate, an arrangement for sufficient union members to remain available during the meeting to enable the employer’s operations to continue.

(4)

Work must resume as soon as practicable after the meeting, but the employer is not obliged to pay any union member for a period longer than 2 hours in respect of any meeting.

(5)

An employer must allow a union member employed by the employer to attend a union meeting under subsection (1) on ordinary pay to the extent that the employee would otherwise be working for the employer during the meeting.

(6)

For the purposes of subsection (5), the union must—

(a)

supply to the employer a list of members who attended the union meeting; and

(b)

advise the employer of the duration of the meeting.

(7)

Every employer who fails to allow a union member to attend a union meeting in accordance with this section is liable to a penalty imposed by the Authority.

Compare: 1987 No 77 s 57

Registrar of Unions

27 Registrar of Unions

(1)

The chief executive may appoint an employee of the department to be the Registrar of Unions, and may appoint another employee of the department to be the Deputy Registrar of Unions.

(2)

An employee appointed under subsection (1) may also hold any other office or position in the department.

(3)

Subject to the control and direction of the Registrar of Unions, the Deputy Registrar of Unions has and may exercise all the powers, duties, and functions of the Registrar.

28 Registrar of Unions may seek directions of Authority

(1)

The Registrar of Unions may apply to the Authority for directions relating to the exercise of his or her powers, duties, or functions under this Part.

(2)

An application must be served on all persons who, in the Registrar’s opinion, are interested in the application.

29 Persons who have standing in proceedings relating to unions

The following persons have standing to commence or be a party to or be heard on matters within the Authority’s jurisdiction that relate to a union under this Part:

(a)

the union:

(b)

a member of the union:

(c)

another union with a direct interest in the proceedings:

(d)

the Registrar of Unions:

(e)

an employer who is directly affected by the existence of the union or its activities:

(f)

with the leave of the Authority, any other person.

30 Offence to mislead Registrar

Every person commits an offence and is liable on conviction by the court to a fine not exceeding $5,000 who does or says anything, or omits to do or say anything, with the intention of misleading or attempting to mislead the Registrar of Unions.

Part 5 Collective bargaining

31 Object of this Part

The object of this Part is—

(a)

to provide the core requirements of the duty of good faith in relation to collective bargaining; and

(aa)
[Repealed]

(b)

to provide for 1 or more codes of good faith to assist the parties to understand what good faith means in collective bargaining; and

(c)

to recognise the view of parties to collective bargaining as to what constitutes good faith; and

(d)

to promote orderly collective bargaining; and

(e)

to ensure that employees confirm proposed collective bargaining for a multi-party collective agreement.

Section 31(aa): repealed, on 6 March 2015, by section 7 of the Employment Relations Amendment Act 2014 (2014 No 61).

Good faith

32 Good faith in bargaining for collective agreement

(1)

The duty of good faith in section 4 requires a union and an employer bargaining for a collective agreement to do, at least, the following things:

(a)

the union and the employer must use their best endeavours to enter into an arrangement, as soon as possible after the initiation of bargaining, that sets out a process for conducting the bargaining in an effective and efficient manner; and

(b)

the union and the employer must meet each other, from time to time, for the purposes of the bargaining; and

(c)

the union and employer must consider and respond to proposals made by each other; and

(ca)
[Repealed]

(d)

the union and the employer—

(i)

must recognise the role and authority of any person chosen by each to be its representative or advocate; and

(ii)

must not (whether directly or indirectly) bargain about matters relating to terms and conditions of employment with persons whom the representative or advocate are acting for, unless the union and employer agree otherwise; and

(iii)

must not undermine or do anything that is likely to undermine the bargaining or the authority of the other in the bargaining; and

(e)

the union and employer must provide to each other, on request and in accordance with section 34, information that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes of the bargaining.

(2)

Subsection (1)(b) does not require a union and an employer to continue to meet each other about proposals that have been considered and responded to.

(3)

The matters that are relevant to whether a union and an employer bargaining for a collective agreement are dealing with each other in good faith include—

(a)

the provisions of a code of good faith that are relevant to the circumstances of the union and the employer; and

(b)

the provisions of any agreement about good faith entered into by the union and the employer; and

(c)

the proportion of the employer’s employees who are members of the union and to whom the bargaining relates; and

(d)

any other matter considered relevant, including background circumstances and the circumstances of the union and the employer.

(4)

For the purposes of subsection (3)(d), circumstances, in relation to a union and an employer, include—

(a)

the operational environment of the union and the employer; and

(b)

the resources available to the union and the employer.

(5)

This section does not limit the application of the duty of good faith in section 4 in relation to bargaining for a collective agreement.

(6)

To avoid doubt, this section does not prevent an employer from communicating with the employer’s employees during collective bargaining (including, without limitation, the employer’s proposals for the collective agreement) as long as the communication is consistent with subsection (1)(d) of this section and the duty of good faith in section 4.

Section 32(1)(ca): repealed, on 6 March 2015, by section 8 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 32(6): added, on 1 April 2011, by section 9 of the Employment Relations Amendment Act 2010 (2010 No 125).

33 Duty of good faith does not require collective agreement to be concluded

(1)

The duty of good faith in section 4 does not require a union and an employer bargaining for a collective agreement—

(a)

to enter into a collective agreement; or

(b)

to agree on any matter for inclusion in a collective agreement.

(2)

However, an employer does not comply with the duty of good faith in section 4 if—

(a)

the employer refuses to enter into a collective agreement; and

(b)

the employer does so because the employer is opposed, or objects in principle, to bargaining for or being a party to a collective agreement.

Section 33: replaced, on 6 March 2015, by section 9 of the Employment Relations Amendment Act 2014 (2014 No 61).

34 Providing information in bargaining for collective agreement

(1)

This section applies for the purposes of section 32(1)(e).

(2)

A request by a union or an employer to the other for information must—

(a)

be in writing; and

(b)

specify the nature of the information requested in sufficient detail to enable the information to be identified; and

(c)

specify the claim or the response to a claim in respect of which information to support or substantiate the claim or the response is requested; and

(d)

specify a reasonable time within which the information is to be provided.

(3)

A union or an employer must provide the information requested—

(a)

direct to the other; or

(b)

to an independent reviewer if the union or employer providing the information reasonably considers that it should be treated as confidential information.

(4)

A person must not act as an independent reviewer unless appointed by mutual agreement of the union and employer.

(5)

As soon as practicable after receiving information under subsection (3), an independent reviewer must—

(a)

decide whether and, if so, to what extent the information should be treated as confidential; and

(b)

advise the union and employer concerned of the decision.

(6)

If an independent reviewer decides that the information should be treated as confidential, the independent reviewer must—

(a)

decide whether and, if so, to what extent the information supports or substantiates the claim or the response to a claim in respect of which the information is requested; and

(b)

advise the union and employer concerned of the decision in a way that maintains the confidentiality of the information; and

(c)

answer any questions from the union or employer that requested the information, in a way that maintains the confidentiality of the information.

(7)

Unless the union and employer otherwise agree, information provided under subsection (3) and advice and answers provided under subsections (5) and (6)—

(a)

must be used only for the purposes of the bargaining concerned; and

(b)

must be treated as confidential by the persons conducting the bargaining concerned; and

(c)

must not be disclosed by those persons to anyone else, including persons who would be bound by the collective agreement being bargained for.

(8)

This section does not limit or affect the Privacy Act 1993.

(9)

Nothing in the Official Information Act 1982 (except section 6) enables an employer that is subject to that Act to withhold information that is required under section 32(1)(e).

Codes of good faith

35 Codes of good faith

(1)

The Minister may, by notice in the Gazette,—

(a)

approve 1 or more codes of good faith recommended by the committee appointed under section 36:

(b)

approve 1 or more codes of good faith if section 37 applies.

(2)

The notice in the Gazette may, instead of setting out the code of good faith being approved, provide sufficient information to identify the code, specify the date on which it comes into force, and state where copies of the code may be obtained.

(3)

The purpose of a code of good faith is to provide guidance about the application of the duty of good faith in section 4 in relation to collective bargaining—

(a)

generally; or

(b)

in relation to particular types of situations; or

(c)

in relation to particular parts or areas of the employment environment.

36 Appointment of committee to recommend codes of good faith

(1)

The Minister may appoint a committee for the purpose of recommending to the Minister 1 or more codes of good faith.

(2)

The membership of the committee must comprise—

(a)

at least 1 person who represents unions; and

(b)

at least 1 person who represents employers’ organisations; and

(c)

such other persons as the Minister thinks fit to appoint.

(3)

The Minister must appoint the same number of persons under both subsection (2)(a) and subsection (2)(b).

(4)

The chairperson of the committee is the member appointed by the Minister to be the chairperson.

(5)

Subject to any directions given to it by the Minister, the committee may determine its own procedure.

37 Minister may approve code of good faith not recommended by committee

(1)

The Minister may approve a code of good faith under section 35(1)(b) if—

(a)

the committee has not recommended a code of good faith within a time specified by the Minister; or

(b)

the Minister declines to approve a code of good faith recommended by the committee.

(2)

Before the Minister approves a code of good faith under section 35(1)(b), the Minister may consult such persons and organisations as the Minister thinks appropriate.

(3)

If the Minister declines to approve a code of good faith recommended by the committee, the Minister must notify the committee—

(a)

that the Minister has declined to approve the code; and

(b)

of the reasons for declining to approve the code.

38 Amendment and revocation of code of good faith

A code of good faith may be amended or revoked in the same manner as the code is approved.

39 Authority or court may have regard to code of good faith

The Authority or court may, in determining whether or not a union and an employer have dealt with each other in good faith in bargaining for a collective agreement, have regard to a code of good faith approved under section 35 that—

(a)

was in force at the relevant time; and

(b)

in the form in which it was then in force, related to the circumstances before the Authority or the court.

Bargaining

40 Who may initiate bargaining

(1)

Bargaining for a collective agreement may be initiated by—

(a)

1 or more unions with 1 or more employers; or

(b)

1 or more employers with 1 or more unions.

(2)

However, bargaining for a collective agreement may not be initiated by an employer (whether alone or with other employers) unless the coverage clause will cover work (whether in whole or in part) that is or was covered by another collective agreement to which the employer is or was a party.

41 When bargaining may be initiated

(1)

If there is no applicable collective agreement in force between a union and an employer, the union or the employer may initiate bargaining with the other at any time.

(2)

Subsection (1) applies subject to section 40(2).

(3)

If there is an applicable collective agreement in force, neither a union nor an employer may initiate bargaining earlier than 60 days before the date on which the collective agreement expires.

(4)

However, if there is more than 1 applicable collective agreement in force that binds 1 or more unions or 1 or more employers, or both, that are intended to be parties to the bargaining, then neither a union nor an employer may initiate bargaining before the later of the following dates:

(a)

the date that is 120 days before the date on which the last applicable collective agreement expires; and

(b)

the date that is 60 days before the date on which the first applicable collective agreement expires.

(5)

For the purposes of this section, an applicable collective agreement is in force between a union and an employer if the agreement binds employees whose work is intended to come within the coverage clause in the collective agreement being bargained for.

Section 41(3): replaced, on 6 March 2015, by section 10 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 41(4): replaced, on 6 March 2015, by section 10 of the Employment Relations Amendment Act 2014 (2014 No 61).

42 How bargaining initiated

(1)

A union or employer initiates bargaining for a collective agreement by giving to the intended party or parties to the agreement a notice that complies with subsection (2).

(2)

A notice complies with this subsection if—

(a)

it is in writing and signed by the union or the employer giving the notice or its duly authorised representative; and

(b)

it identifies each of the intended parties to the collective agreement; and

(c)

it identifies the intended coverage of the collective agreement.

43 Employees’ attention to be drawn to initiation of bargaining

(1)

An employer that initiates bargaining or that receives a notice initiating bargaining for a collective agreement must draw the existence and coverage of the bargaining, and the intended parties to it, to the attention of all employees (whether or not members of a union concerned) whose work would be covered by the intended coverage clause if the collective agreement were entered into.

(2)

An employer must comply with subsection (1)—

(a)

as soon as possible; but

(b)

not later than—

(i)

10 days after initiating the bargaining or receiving the notice, if only 1 employer is identified as an intended party to the bargaining:

(ii)

15 days after initiating the bargaining or receiving the notice, if 2 or more employers are identified as intended parties to the bargaining.

Section 43(1): amended, on 6 March 2015, by section 11(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 43(2): inserted, on 6 March 2015, by section 11(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

44 When bargaining initiated

(1)

Bargaining for a collective agreement is initiated,—

(a)

if only 1 notice is required under section 42, on the day on which the notice is given:

(b)

if more than 1 notice is required under section 42, on the day on which the last notice is given.

(2)

Consolidated bargaining for a single collective agreement under section 50 is initiated on the day by which all the unions concerned agree to the request from the employer to consolidate bargaining initiated by the unions.

44A Employer may opt out of bargaining for collective agreement, or for agreement to join collective agreement, involving 2 or more employers

(1)

This section applies to an employer that—

(a)

is an intended party to bargaining—

(i)

for a single collective agreement involving 2 or more employers; or

(ii)

for an agreement for the employer to become a party to a concluded collective agreement involving 1 or more employers; and

(b)

has received a notice initiating bargaining for the agreement.

(2)

The employer may, not later than 10 days after receiving the notice, opt out of bargaining for the agreement.

Section 44A: inserted, on 6 March 2015, by section 12 of the Employment Relations Amendment Act 2014 (2014 No 61).

44B How to opt out

(1)

An employer that wishes to opt out of bargaining under section 44A must, within the time limit specified in section 44A(2), give notice (an opt-out notice) to all other intended parties identified in the notice initiating bargaining.

(2)

An opt-out notice must—

(a)

be in writing and be signed by the employer or its duly authorised representative; and

(b)

state that the employer has opted out of the bargaining in accordance with section 44A.

(3)

An opt-out notice takes effect on and from the date on which it is given to all other intended parties identified in the notice initiating bargaining (see section 42).

Section 44B: inserted, on 6 March 2015, by section 12 of the Employment Relations Amendment Act 2014 (2014 No 61).

44C Effect of opting out

(1)

An employer that opts out of bargaining under section 44A ceases, on the date on which the opt-out notice takes effect under section 44B(3),—

(a)

to be a party to bargaining for the agreement; and

(b)

to have any further obligations under this Act in relation to that bargaining.

(2)

To avoid doubt,—

(a)

an employer must opt out separately in relation to each notice given under section 42; and

(b)

an employer that gives an opt-out notice may be included as an intended party in any subsequent notice given under section 42; and

(c)

nothing in this section or section 44A or 44B prevents an employer from opting out of bargaining for a collective agreement involving 2 or more employers that is intended to replace a previous collective agreement that covered those employers.

Section 44C: inserted, on 6 March 2015, by section 12 of the Employment Relations Amendment Act 2014 (2014 No 61).

45 One or more unions proposing to initiate bargaining with 2 or more employers for single collective agreement

(1)

This section applies to—

(a)

1 union proposing to initiate bargaining with 2 or more employers for a single collective agreement:

(b)

2 or more unions proposing to initiate bargaining with 1 or more employers for a single collective agreement.

(2)

Before bargaining for the single collective agreement is initiated under section 42, the union or each union (as the case may require) must hold, in accordance with its rules, separate secret ballots of its members employed by each employer intended to be a party to the bargaining.

(3)

A secret ballot may be held only if the members of the union employed by the employer are—

(a)

not covered by an applicable collective agreement that is in force; or

(b)

covered by an applicable collective agreement that is in force and the secret ballot is held not earlier than 60 days before the time within which bargaining may be initiated by the union under section 41.

(4)

The result of a secret ballot of members of the union employed by an employer is determined by a simple majority of the members who are entitled to vote and who do vote.

(5)

If, at the conclusion of the secret ballots, 2 or more secret ballots have resulted in a decision in favour of bargaining for a single collective agreement, then the union proposing to initiate bargaining for a single collective agreement may initiate bargaining by giving a notice in accordance with section 42 to each employer in respect of which a secret ballot has resulted in a decision in favour of bargaining for a single collective agreement.

(6)

The notice must include the following additional information in respect of each employer whose employees voted in a secret ballot:

(a)

the name of the employer; and

(b)

the number of the employer’s employees who are members of the union; and

(c)

the number of those members who voted; and

(d)

the number of those members who voted in favour of bargaining for a single collective agreement.

46 Terms of question for secret ballot

The question to be voted on in a secret ballot for the purposes of section 45 is—

(a)

whether the member is in favour of bargaining for a single collective agreement, irrespective of the employers or unions concerned; or

(b)

whether the member is in favour of bargaining for a single collective agreement with named employers or unions; or

(c)

whether the member is in favour of bargaining for a single collective agreement except with 1 or more named employers or unions.

47 When secret ballots required after employer initiates bargaining for single collective agreement

(1)

This section applies to—

(a)

2 or more unions in relation to which 1 employer has initiated bargaining for a single collective agreement:

(b)

1 or more unions in relation to which 2 or more employers have initiated bargaining for a single collective agreement.

(2)

A union to which subsection (1)(a) applies must hold a secret ballot of its members employed by the employer if the union considers that a majority of its members employed by the employer would disagree with bargaining for a single collective agreement.

(3)

A union to which subsection (1)(b) applies must hold a secret ballot of its members employed by an employer to which subsection (1)(b) applies if it considers that a majority of its members employed by the employer would disagree with bargaining for a single collective agreement.

(4)

A secret ballot held under subsection (2) or subsection (3) must be held in accordance with sections 45 and 46, and those sections apply with all necessary modifications.

(5)

At the conclusion of a secret ballot, the union must inform the following employers of the result of the secret ballot:

(a)

the employer of the employees in respect of whom the secret ballot has been held; and

(b)

if subsection (1)(b) applies, the other employers concerned.

(6)

At the conclusion of the secret ballots, bargaining for a single collective agreement may continue,—

(a)

where subsection (1)(a) applies, if the members of each of the 2 unions or of a majority of the unions, if more than 2,—

(i)

have voted in favour of bargaining for a single collective agreement with the employer; or

(ii)

are considered by their union to be in favour of bargaining for a single collective agreement with the employer; or

(iii)

both; or

(b)

where subsection (1)(b) applies, if the members of the union or of each union, if there are 2, or of a majority of the unions, if more than 2,—

(i)

have voted in favour of bargaining for a single collective agreement with the 2 or more employers; or

(ii)

are considered by the union or each union, as the case may be, to be in favour of bargaining for a single collective agreement with the 2 or more employers; or

(iii)

both.

48 When requirement for secret ballot does not apply

Sections 45, 46, and 47 do not apply to bargaining for a single collective agreement if—

(a)

the collective agreement is intended to replace a single collective agreement that is in force; and

(b)

the parties to the bargaining are 2 or more of the same parties to the single collective agreement; and

(c)

the scope of the coverage clause is not wider than the scope of the coverage clause in the single collective agreement.

49 Parties joining bargaining after it begins

(1)

A union or employer may become a party to bargaining for a collective agreement after bargaining has been initiated, but only if the requirements of this section are met.

(2)

The union or employer that wishes to become a party to the bargaining must, at the time that it seeks to become a party, meet the requirements (including but not limited to those for secret ballots) that would have applied if the union or employer had been a party at the initiation of the bargaining.

(3)

The parties to the bargaining must consent to the union or employer becoming a party to the bargaining.

50 Consolidation of bargaining

(1)

This section applies if—

(a)

an employer receives 2 or more notices under section 42 from different unions; and

(b)

the notices relate, in whole or in part, to the same type of work.

(2)

The employer may, within 40 days after receiving the first notice, request each union concerned to consolidate the bargaining initiated by each notice into bargaining for a single collective agreement.

(3)

Each union receiving a request under subsection (2) must, within 30 days after receiving the request,—

(a)

agree to the request; or

(b)

withdraw the notice given under section 42.

(4)

A union that does not comply with subsection (3) is to be treated as if it had withdrawn the notice given under section 42.

(5)

If all the unions concerned agree to the request, the bargaining initiated by each notice is consolidated into bargaining for a single collective agreement.

Facilitating bargaining

Heading: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50A Purpose of facilitating collective bargaining

(1)

The purpose of sections 50B to 50I is to provide a process that enables 1 or more parties to collective bargaining who are having serious difficulties in concluding a collective agreement to seek the assistance of the Authority in resolving the difficulties.

(2)

Sections 50B to 50I do not—

(a)

prevent the parties from seeking assistance from another person in resolving the difficulties; or

(b)

apply to any agreement or arrangement with the other person providing such assistance.

Section 50A: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50B Reference to Authority

(1)

One or more matters relating to bargaining for a collective agreement may be referred to the Authority for facilitation to assist in resolving difficulties in concluding the collective agreement.

(2)

A reference for facilitation—

(a)

may be made by any party to the bargaining or 2 or more parties jointly; and

(b)

must be made on 1 or more of the grounds specified in section 50C(1).

Section 50B: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50C Grounds on which Authority may accept reference

(1)

The Authority must not accept a reference for facilitation unless satisfied that 1 or more of the following grounds exist:

(a)

that—

(i)

in the course of the bargaining, a party has failed to comply with the duty of good faith in section 4; and

(ii)

the failure—

(A)

was serious and sustained; and

(B)

has undermined the bargaining:

(b)

that—

(i)

the bargaining has been unduly protracted; and

(ii)

extensive efforts (including mediation) have failed to resolve the difficulties that have precluded the parties from entering into a collective agreement:

(c)

that—

(i)

in the course of the bargaining there has been 1 or more strikes or lockouts; and

(ii)

the strikes or lockouts have been protracted or acrimonious:

(d)

that—

(i)

in the course of bargaining, a party has proposed a strike or lockout; and

(ii)

the strike or lockout, if it were to occur, would be likely to affect the public interest substantially.

(2)

For the purposes of subsection (1)(d)(ii), a strike or lockout is likely to affect the public interest substantially if—

(a)

the strike or lockout is likely to endanger the life, safety, or health of persons; or

(b)

the strike or lockout is likely to disrupt social, environmental, or economic interests and the effects of the disruption are likely to be widespread, long-term, or irreversible.

(3)

The Authority must not accept a reference in relation to bargaining for which the Authority has already acted as a facilitator unless—

(a)

circumstances relating to the bargaining have changed; or

(b)

the bargaining since the previous facilitation has been protracted.

Section 50C: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50D Limitation on which member of Authority may provide facilitation

A member of the Authority who facilitates collective bargaining must not be the member of the Authority who accepted the reference for facilitation.

Section 50D: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50E Process of facilitation

(1)

The process to be followed during facilitation—

(a)

must be conducted in private; and

(b)

is the process determined by the Authority.

(2)

During facilitation, the collective bargaining that the facilitation relates to continues subject to the process determined by the Authority.

(3)

During facilitation, the Authority—

(a)

is not acting as an investigative body; and

(b)

may not exercise the powers it has for investigating matters.

(4)

The provision of facilitation by the Authority may not be challenged or called in question in any proceedings on the ground—

(a)

that the nature and content of the facilitation was inappropriate; or

(b)

that the manner in which the facilitation was provided was inappropriate.

Section 50E: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50F Statements made by parties during facilitation

(1)

A statement made by a party for the purposes of facilitation is not admissible against the party in proceedings under this Act.

(2)

A party may make a public statement about facilitation only if—

(a)

it is made in good faith; and

(b)

it is limited to the process of facilitation or the progress being made.

Section 50F: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50G Proposals made or positions reached during facilitation

(1)

A proposal made by a party or a position reached by parties to collective bargaining during facilitation is not binding on a party after facilitation has come to an end.

(2)

This section—

(a)

applies to avoid doubt; and

(b)

is subject to any agreement of the parties.

Section 50G: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50H Recommendation by Authority

(1)

While assisting parties to bargaining for a collective agreement, the Authority may make 1 or more recommendations about—

(a)

the process the parties should follow to reach agreement; or

(b)

the provisions of the collective agreement the parties should conclude; or

(c)

both.

(2)

The Authority may give public notice of a recommendation in such manner as the Authority determines.

(3)

A recommendation made by the Authority is not binding on a party, but a party must consider a recommendation before deciding whether to accept the recommendation.

Section 50H: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50I Party must deal with Authority in good faith

During facilitation, a party to bargaining for a collective agreement must deal with the Authority in good faith.

Section 50I: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Determining collective agreement if breach of duty of good faith

Heading: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50J Remedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining

(1)

A party to bargaining for a collective agreement may apply, on the grounds specified in subsection (3), to the Authority for a determination fixing the provisions of the collective agreement being bargained for.

(2)

The Authority may fix the provisions of the collective agreement being bargained for if it is satisfied that—

(a)

the grounds in subsection (3) have been made out; and

(b)

it is appropriate, in all the circumstances, to do so.

(3)

The grounds are that—

(a)

a breach of the duty of good faith in section 4

(i)

has occurred in relation to the bargaining; and

(ii)

was sufficiently serious and sustained as to significantly undermine the bargaining; and

(b)

all other reasonable alternatives for reaching agreement have been exhausted; and

(c)

fixing the provisions of the collective agreement is the only effective remedy for the party or parties affected by the breach of the duty of good faith.

(4)

The Authority may make a determination under this section whether or not any penalty for a breach of good faith has been awarded under section 4A in relation to the same bargaining and whether or not the breach is the same breach.

(5)

The effect of a determination of the Authority fixing the provisions of a collective agreement is to make the collective agreement binding and enforceable as if it had been—

(a)

ratified as required by section 51; and

(b)

signed by the parties under section 54(1)(b).

(6)

Section 59 applies to the determination as if it were a collective agreement.

(7)

If the bargaining for the collective agreement was subject to facilitation under sections 50A to 50I, the member of the Authority who makes a determination under this section must not be the member of the Authority who conducted the facilitation if a party to the bargaining objects.

Section 50J: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Authority may determine that bargaining has concluded

Heading: inserted, on 6 March 2015, by section 13 of the Employment Relations Amendment Act 2014 (2014 No 61).

50K Authority may determine that bargaining has concluded

(1)

A party to bargaining for a collective agreement may apply to the Authority for a determination as to whether bargaining has concluded because of difficulties in concluding bargaining.

(2)

Where an application is made under subsection (1), the Authority—

(a)

must consider whether an attempt has been made to resolve the difficulties by the use of—

(i)

mediation or further mediation under section 159; or

(ii)

facilitation under sections 50B to 50I; and

(b)

may direct the parties to try to resolve the difficulties by mediation or further mediation; but

(c)

if any of the grounds in section 50C(1) exist, must direct that facilitation be used before the Authority investigates the matter, unless the Authority considers that use of facilitation—

(i)

will not contribute constructively to resolve the difficulties; or

(ii)

will not, in all the circumstances, be in the public interest; or

(iii)

will undermine the urgent nature of the process; or

(iv)

will be otherwise impractical or inappropriate in the circumstances.

(3)

If the Authority determines that bargaining has concluded,—

(a)

the Authority must make a declaration to that effect; and

(b)

none of the parties to that bargaining may initiate further bargaining earlier than 60 days after the date of the declaration without the agreement of the other party or parties concerned.

(4)

If the Authority determines that bargaining has not concluded,—

(a)

the Authority may make a recommendation as to the process that the parties should follow to resolve the difficulties; and

(b)

none of the parties to that bargaining may make another application under subsection (1) in respect of that bargaining until the process recommended by the Authority has been followed.

(5)

If the Authority determines that bargaining has not concluded, but does not make a recommendation under subsection (4)(a), none of the parties to that bargaining may make another application under subsection (1) in respect of that bargaining earlier than 60 days after the date of the determination without the agreement of the other party or parties concerned.

(6)

This section applies subject to section 50KA.

Section 50K: inserted, on 6 March 2015, by section 13 of the Employment Relations Amendment Act 2014 (2014 No 61).

50KA Declaration or determination under section 50K not to be made if breach of duty of good faith by party seeking declaration

(1)

The Authority must dismiss an application made under section 50K(1) and must refuse to make a declaration or determination under section 50K(3) or (4) if the Authority is satisfied that the party seeking the declaration has failed to observe good faith as described in subsection (3).

(2)

However, the Authority is not precluded from making a declaration or determination if the party seeking the declaration has failed to observe good faith, but the Authority is satisfied that the party has rectified the failure.

(3)

The failures to observe good faith are as follows:

(a)

a failure to comply with the duty of good faith in section 4, if the failure—

(i)

relates to the collective bargaining in respect of which the declaration is sought; and

(ii)

has undermined the collective bargaining:

(b)

a failure to deal in good faith in any mediation or facilitation directed by the Authority under section 50K(2) (whether in relation to the Authority or the other party or parties to the collective bargaining).

(4)

To avoid doubt, for the purposes of subsection (3)(a), a failure may relate to a matter before or after the application for the determination is made.

(5)

If the Authority is precluded by subsection (1) from making a declaration or a determination, the Authority may make orders or recommendations or issue directions about what steps the parties to the collective bargaining ought to or must take, including (but not limited to) how the party who has failed to observe good faith may rectify the failure.

Section 50KA: inserted, on 6 March 2015, by section 14 of the Employment Relations Amendment Act 2014 (2014 No 61).

Collective agreements

51 Ratification of collective agreement

(1)

A union must not sign a collective agreement or a variation of it unless the agreement or variation has been ratified in accordance with the ratification procedure notified under subsection (2).

(2)

At the beginning of bargaining for a collective agreement or a variation of it, a union must notify the other intended party or parties to the collective agreement of the procedure for ratification by the employees to be bound by it that must be complied with before the union may sign the collective agreement or variation of it.

52 When collective agreement comes into force and expires

(1)

A collective agreement comes into force on—

(a)

the date specified in the agreement as the date on which it comes into force; or

(b)

if no such date is specified, the date on which the last party to the agreement, or its duly authorised representative, signed the agreement.

(2)

A collective agreement may provide that 1 or more of its provisions have effect from 1 or more dates before or after the date on which the agreement comes into force.

(3)

A collective agreement expires on the close of the earliest of the following dates:

(a)

the date specified in the agreement as the date on which the agreement expires:

(b)

the date on which an event occurs, being an event that is specified by the agreement as an event on the occurrence of which the agreement expires:

(c)

the date that is the third anniversary of the agreement coming into force.

(4)

Subsection (3) applies subject to section 53.

53 Continuation of collective agreement after specified expiry date

(1)

A collective agreement that would otherwise expire as provided in section 52(3) continues in force—

(a)

if subsection (2) is complied with; and

(b)

for the period specified in subsection (3).

(2)

This subsection is complied with if the union or the employer initiated collective bargaining before the collective agreement expired and for the purpose of replacing the collective agreement.

(2A)

However, a collective agreement that binds 2 or more employers continues in force in relation to an employer that has opted out of bargaining under section 44A, but only—

(a)

if (after the employer’s opt-out notice takes effect and before the collective agreement expires) the employer or the union initiated collective bargaining for the purpose of replacing the collective agreement; and

(b)

for the period (not exceeding 12 months) during which bargaining continues for a collective agreement to replace the collective agreement that has expired.

(3)

The period is the period (not exceeding 12 months) during which bargaining continues for a collective agreement to replace the collective agreement that has expired.

(4)

However, for the purposes of calculating the period referred to in subsection (2A)(b) or (3), the period referred to in section 50K(3)(b) is to be disregarded if—

(a)

the Authority or the court determines that the collective bargaining has concluded; and

(b)

the determination has been successfully challenged or appealed against.

Section 53(2): amended, on 6 March 2015, by section 15(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 53(2A): inserted, on 6 March 2015, by section 15(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 53(4): inserted, on 6 March 2015, by section 15(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

54 Form and content of collective agreement

(1)

A collective agreement has no effect unless—

(a)

it is in writing; and

(b)

it is signed by each union and employer that is a party to the agreement.

(2)

A collective agreement may contain such provisions as the parties to the agreement mutually agree on.

(3)

However, a collective agreement—

(a)

must contain—

(i)

a coverage clause; and

(ii)
[Repealed]

(iii)

a plain language explanation of the services available for the resolution of employment relationship problems, including a reference to the period of 90 days in section 114 within which a personal grievance must be raised; and

(iv)

a clause providing how the agreement can be varied; and

(v)

the date on which the agreement expires or an event on the occurrence of which the agreement is to expire; and

(b)

must not contain anything—

(i)

contrary to law; or

(ii)

inconsistent with this Act.

Section 54(3)(a)(ii): repealed, on 1 December 2004, by section 15 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

55 Deduction of union fees

(1)

A collective agreement is to be treated as if it contains a provision that requires an employer that is a party to the agreement to deduct, with the consent of a union member, the member’s union fee from the member’s salary or wages on a regular basis during the year.

(2)

A collective agreement may exclude or vary the effect of subsection (1).

(3)

Union fees deducted from a member’s salary or wages must be paid to the union concerned in accordance with any arrangement agreed with the union.

56 Application of collective agreement

(1)

A collective agreement that is in force binds and is enforceable by—

(a)

the union and the employer that are the parties to the agreement; and

(b)

employees—

(i)

who are employed by an employer that is a party to the agreement; and

(ii)

who are or become members of a union that is a party to the agreement; and

(iii)

whose work comes within the coverage clause in the agreement.

(1A)

However, an employee who is bound by a collective agreement and who holds a minimum wage exemption permit under section 8 of the Minimum Wage Act 1983 may be paid wages at the rate specified in the permit,—

(a)

while the permit is in force; and

(b)

if the union that is a party to the collective agreement agrees.

(2)

If the registration of a union that is a party to a collective agreement is cancelled or the union ceases to be an incorporated society, the collective agreement continues to bind the employer or employers who are parties to the agreement, and the members of the union who were bound by the collective agreement immediately before the cancellation of the union’s registration or the cessation of the union as an incorporated society.

(3)

If the union’s registration is cancelled as a result of the union’s amalgamation with 1 or more other unions, the collective agreement binds the amalgamated union.

Section 56(1A): inserted, on 1 December 2004, by section 16 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 56(1A): amended, on 28 March 2007, by section 5(1) of the Minimum Wage Amendment Act 2007 (2007 No 12).

56A Application of collective agreement to subsequent parties

(1)

An employer who is not a party to a collective agreement may become a party to the collective agreement if—

(a)

the agreement provides for an employer to become a party to the agreement after it has been signed by the original parties to the agreement; and

(b)

the work of some or all of the employer’s employees comes within the coverage clause in the agreement; and

(c)

the employees referred to in paragraph (b) are not bound by another collective agreement in respect of their work for the employer; and

(d)

the employer notifies all the parties to the agreement in accordance with subsection (5) that the employer proposes to become a party to the agreement.

(2)

On the day after the day on which all parties to the collective agreement have been notified in accordance with subsection (5),—

(a)

the employer becomes a party to the collective agreement; and

(b)

the collective agreement also binds and is enforceable by—

(i)

the employer:

(ii)

employees—

(A)

who are employed by the employer; and

(B)

who are or become members of a union that is a party to the agreement; and

(C)

whose work comes within the coverage clause in the agreement.

(3)

A union that is not a party to a collective agreement may become a party to the collective agreement if—

(a)

the agreement provides for a union to become a party to the agreement after it has been signed by the original parties to the agreement; and

(b)

the union has members doing work that comes within the coverage clause of the collective agreement; and

(c)

as a result of a secret ballot of those members, a majority of them who are entitled to vote and do vote are in favour of the union becoming a party to the collective agreement; and

(d)

the union notifies all the parties to the collective agreement in accordance with subsection (5) that the union proposes to become a party to the agreement.

(4)

On the day after the day on which all parties to the collective agreement have been notified in accordance with subsection (5),—

(a)

the union becomes a party to the collective agreement; and

(b)

the collective agreement also binds and is enforceable by—

(i)

the union:

(ii)

employees—

(A)

who are employed by an employer that is a party to the agreement; and

(B)

who are or become members of the union; and

(C)

whose work comes within the coverage clause in the agreement.

(5)

For the purposes of this section, a party to a collective agreement is notified—

(a)

when the notice is given to the party; or

(b)

if the notice is posted to the party, on the seventh day after the day on which the notice is posted.

(6)

For the purposes of subsection (1)(b) and (c), employees includes persons whom the employer might employ in the future.

Section 56A: inserted, on 1 December 2004, by section 17 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

57 Employee bound by only 1 collective agreement in respect of same work

If an employee is a member of more than 1 union, the employee is bound by only 1 collective agreement covering the same work done by the employee, being the collective agreement resulting from the bargaining first initiated which covered the employee’s work.

58 Employee who resigns as member of union but does not resign as employee

(1)

A member of a union who is bound by a collective agreement and who resigns as a member of the union but does not resign from his or her employment, may not be subject to any other bargaining for a collective agreement or bound by any other collective agreement until the 60th day before the expiry date of the collective agreement binding on the member before resigning as a member of the union.

(2)

For the purposes of subsection (1), the expiry date of a collective agreement is determined under section 52(3) without taking section 53 into account.

59 Copy of collective agreement to be delivered to chief executive

(1)

The parties to a collective agreement must ensure that, as soon as practicable after they enter into the agreement, a copy of the agreement is delivered to the chief executive.

(2)

The copy of the agreement delivered to the chief executive must include any document referred to, or incorporated by reference, in the collective agreement, unless the document is publicly available.

(3)

Nothing in the Official Information Act 1982 applies to copies of collective agreements delivered to the chief executive under subsection (1).

(4)

The information contained in the copies of collective agreements delivered to the chief executive under subsection (1) must be used only for statistical or analytical purposes.

Undermining collective bargaining or collective agreement

Heading: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

59A Interpretation

In sections 59B and 59C, reached, in relation to a term or condition in bargaining for a collective agreement, means a term or condition that the parties have agreed or accepted should be a term or condition of the collective agreement if the agreement is concluded and ratified.

Section 59A: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

59B Breach of duty of good faith to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement

(1)

It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee who is not bound by a collective agreement should be the same or substantially the same as a term or condition in a collective agreement that binds the employer.

(2)

However, it is a breach of the duty of good faith in section 4 for an employer to do so if—

(a)

the employer does so with the intention of undermining the collective agreement; and

(b)

the effect of the employer doing so is to undermine the collective agreement.

(3)

It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee should be the same or substantially the same as a term or condition reached in bargaining for a collective agreement.

(4)

However, it is a breach of the duty of good faith in section 4 for an employer to do so if—

(a)

the employer does so with the intention of undermining the collective bargaining; or

(b)

the effect of the employer doing so is to undermine the collective bargaining.

(5)

It is not a breach of the duty of good faith in section 4 if anything referred to in subsection (2) or subsection (4) is done with the agreement of the union concerned.

(6)

In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account:

(a)

whether the employer bargained with the employee before they agreed on the term or condition of employment:

(b)

whether the employer consulted the union in good faith before agreeing to the term or condition of employment:

(c)

the number of the employer’s employees bound by the collective agreement or covered by the collective bargaining compared to the number of the employer’s employees not bound by the collective agreement or not covered by the collective bargaining:

(d)

how long the collective agreement has been in force.

(e)
[Repealed]

(7)

Subsection (6) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).

(8)

Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act.

Section 59B: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 59B(6)(e): repealed, on 6 March 2015, by section 16 of the Employment Relations Amendment Act 2014 (2014 No 61).

59C Breach of duty of good faith to pass on, in certain circumstances, in collective agreement provisions agreed in other collective bargaining or another collective agreement

(1)

It is not a breach of the duty of good faith in section 4 for an employer to conclude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions in another collective agreement to which the employer is a party.

(2)

However, it is a breach of the duty of good faith in section 4 for an employer to do so if—

(a)

the intention of the employer is to undermine the other collective agreement; and

(b)

the effect of the employer doing so is to undermine the other collective agreement.

(3)

It is not a breach of the duty of good faith in section 4 for an employer to conclude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions reached in bargaining for another collective agreement.

(4)

However, it is a breach of the duty of good faith in section 4 for an employer to do so if—

(a)

the employer does so with the intention of undermining the other collective bargaining; or

(b)

the effect of the employer doing so is to undermine the other collective bargaining.

(5)

It is not a breach of the duty of good faith in section 4 if anything referred to in subsection (2) or subsection (4) is done with the agreement of the parties to the other collective agreement or collective bargaining.

(6)

In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account:

(a)

whether the employer and union bargained before agreeing on the provision:

(b)

whether the employer and union consulted, in good faith, the parties to the other collective agreement or collective bargaining:

(c)

the number of the employer’s employees bound by the collective agreement or covered by the collective bargaining compared to the number of the employer’s employees bound by the other collective agreement or covered by the other collective bargaining:

(d)

how long the other collective agreement has been in force.

(7)

Subsection (4) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).

(8)

Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act.

Section 59C: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Part 6 Individual employees’ terms and conditions of employment

60 Object of this Part

The object of this Part is—

(a)

to specify the rules for determining the terms and conditions of an employee’s employment; and

(b)

to require new employees, whose terms and conditions of employment are not determined with reference to a collective agreement, to be given sufficient information and an adequate opportunity to seek advice before entering into an individual employment agreement; and

(c)

to recognise that, in relation to individual employees and their employers, good faith behaviour is—

(i)

promoted by providing protection against unfair bargaining; and

(ia)

required when entering into and varying individual employment agreements; and

(ii)

consistent with, but not limited to, the implied term of mutual trust and confidence in the relationship between employee and employer.

Section 60(c)(ia): inserted, on 1 December 2004, by section 19(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 60(c)(ii): amended, on 1 December 2004, by section 19(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

60A Good faith in bargaining for individual employment agreement

(1)

The matters that are relevant to whether an employee and employer bargaining for an individual employment agreement are dealing with each other in good faith include the circumstances of the employee and employer.

(2)

For the purposes of subsection (1), circumstances, in relation to an employee and an employer, include—

(a)

the operational environment of the employee and employer; and

(b)

the resources available to the employee and employer.

Section 60A: inserted, on 1 December 2004, by section 20 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

61 Employee bound by applicable collective agreement may agree to additional terms and conditions of employment

(1)

The terms and conditions of employment of an employee who is bound by an applicable collective agreement may include any additional terms and conditions that are—

(a)

mutually agreed to by the employee and the employer, whether before, on, or after the date on which the employee became bound by the collective agreement; and

(b)

not inconsistent with the terms and conditions in the collective agreement.

(2)

If the applicable collective agreement expires or the employee resigns from the union that is bound by the agreement,—

(a)

the employee is employed under an individual employment agreement based on the collective agreement and any additional terms and conditions agreed under subsection (1); and

(b)

the employee and employer may, by mutual agreement, vary that individual employment agreement as they think fit.

62 Employer’s obligations in respect of new employee who is not member of union

(1)

This section—

(a)

applies to a new employee who—

(i)

is not a member of a union that is a party to a collective agreement that covers the work to be done by the employee; and

(ii)

enters into an individual employment agreement with an employer that is a party to a collective agreement that covers the work to be done by the employee; but

(b)

does not apply to an employee who—

(i)

resigns as a member of a union and enters into an individual employment agreement with the same employer; or

(ii)

enters into a new individual employment agreement with the same employer.

(1A)

For the purposes of subsection (1), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).

(2)

At the time when the employee enters into the individual employment agreement with an employer, the employer must—

(a)

inform the employee—

(i)

that the collective agreement exists and covers work to be done by the employee; and

(ii)

that the employee may join the union that is a party to the collective agreement; and

(iii)

about how to contact the union; and

(iv)

that, if the employee joins the union, the employee will be bound by the collective agreement; and

(v)
[Repealed]

(b)

give the employee a copy of the collective agreement; and

(c)

if the employee agrees, inform the union as soon as practicable that the employee has entered into the individual employment agreement with the employer.

(3)

If the work to be done by the employee is covered by more than 1 collective agreement, the employer must—

(a)

comply with subsection (2) in relation to the collective agreement that binds more of the employer’s employees in relation to the work the new employee will be performing than any of the other collective agreements; and

(b)

inform the employee of the existence of the other agreement or agreements.

(4)

Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.

Section 62(1)(a): substituted, on 1 December 2004, by section 21(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 62(1A): inserted, on 1 December 2004, by section 21(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 62(2)(a)(v): repealed, on 6 March 2015, by section 17 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 62(3)(a): amended, on 1 December 2004, by section 21(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

63 Terms and conditions of employment of new employee who is not member of union
[Repealed]

Section 63: repealed, on 6 March 2015, by section 18 of the Employment Relations Amendment Act 2014 (2014 No 61).

63A Bargaining for individual employment agreement or individual terms and conditions in employment agreement

(1)

This section applies when bargaining for terms and conditions of employment in the following situations:

(a)

under section 61(1), in relation to additional terms and conditions to the applicable collective agreement:

(b)

under section 61(2), in relation to—

(i)

additional terms and conditions to the collective agreement on which the individual employment agreement is based; and

(ii)

variations to the individual employment agreement in subparagraph (i):

(c)
[Repealed]

(d)
[Repealed]

(e)

in relation to terms and conditions of an individual employment agreement, including any variations to that agreement:

(f)

where a fixed term of employment, or probationary or trial period of employment, is proposed:

(g)

under section 69OJ in relation to employee protection provisions in individual employment agreements:

(h)

under section 69N in relation to redundancy entitlements with a new employer.

(2)

The employer must do at least the following things:

(a)

provide to the employee a copy of the intended agreement under discussion; and

(b)

advise the employee that he or she is entitled to seek independent advice about the intended agreement; and

(c)

give the employee a reasonable opportunity to seek that advice; and

(d)

consider any issues that the employee raises and respond to them.

(3)

Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.

(4)

Failure to comply with this section does not affect the validity of the employment agreement between the employee and the employer.

(5)

The requirements imposed by this section are in addition to any requirements that may be imposed under any provision in this Act.

(6)

[Repealed]

(7)

In this section, employee includes a prospective employee.

Section 63A: inserted, on 1 December 2004, by section 23 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 63A(1)(c): repealed, on 6 March 2015, by section 19(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 63A(1)(d): repealed, on 6 March 2015, by section 19(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 63A(1)(e): amended, on 6 March 2015, by section 19(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 63A(1)(g): amended, on 6 March 2015, by section 19(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 63A(1)(h): amended, on 6 March 2015, by section 19(4) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 63A(2)(a): amended, on 1 April 2011, by section 10(1) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 63A(2)(b): amended, on 1 April 2011, by section 10(2) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 63A(6): repealed, on 6 March 2015, by section 19(5) of the Employment Relations Amendment Act 2014 (2014 No 61).

64 Employer must retain copy of individual employment agreement or individual terms and conditions of employment

(1)

When section 63A applies, the employer must retain a signed copy of the employee’s individual employment agreement or the current terms and conditions of employment that make up the employee’s individual terms and conditions of employment (as the case may be).

(2)

If an employer has provided an employee with an intended agreement under section 63A(2)(a), the employer must retain a copy of that intended agreement even if the employee has not—

(a)

signed the intended agreement; or

(b)

agreed to any of the terms and conditions specified in the intended agreement.

(3)

If requested by the employee, the employer must, as soon as is reasonably practicable, provide the employee with a copy of the employee’s—

(a)

individual employment agreement or current terms and conditions of employment retained under subsection (1); or

(b)

intended agreement retained under subsection (2).

(4)

An employer who fails to comply with subsection (1), (2), or (3) is liable, in an action brought by a Labour Inspector or the employee concerned, to a penalty imposed by the Authority.

(5)

Before bringing an action under subsection (4), the Labour Inspector must—

(a)

give the employer written notice of the breach of this section; and

(b)

give the employer 7 working days to remedy the breach.

(6)

To avoid doubt, an intended agreement must not be treated as the employee’s employment agreement if the employee has not—

(a)

signed the intended agreement; or

(b)

agreed to any of the terms and conditions specified in the intended agreement.

Section 64: substituted, on 1 July 2011, by section 11 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 64(4): amended, on 1 April 2016, by section 7 of the Employment Relations Amendment Act 2016 (2016 No 9).

65 Form and content of individual employment agreement

(1)

The individual employment agreement of an employee

(a)

must be in writing; and

(b)

may contain such terms and conditions as the employee and employer think fit.

(2)

However, the individual employment agreement—

(a)

must include—

(i)

the names of the employee and employer concerned; and

(ii)

a description of the work to be performed by the employee; and

(iii)

an indication of where the employee is to perform the work; and

(iv)

any agreed hours of work specified in accordance with section 67C or, if no hours of work are agreed, an indication of the arrangements relating to the times the employee is to work; and

(v)

the wages or salary payable to the employee; and

(vi)

a plain language explanation of the services available for the resolution of employment relationship problems, including a reference to the period of 90 days in section 114 within which a personal grievance must be raised; and

(b)

must not contain anything—

(i)

contrary to law; or

(ii)

inconsistent with this Act.

(3)

[Repealed]

(4)

An employer who fails to comply with this section is liable, in an action brought by a Labour Inspector or the employee concerned, to a penalty imposed by the Authority.

Section 65 heading: replaced, on 6 March 2015, by section 20(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 65(1): amended, on 6 March 2015, by section 20(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 65(2)(a)(iv): amended, on 1 April 2016, by section 8(1) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 65(3): repealed, on 6 March 2015, by section 20(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 65(4): added, on 1 April 2011, by section 12 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 65(4): amended, on 1 April 2016, by section 8(2) of the Employment Relations Amendment Act 2016 (2016 No 9).

65A Deduction of union fees

(1)

An individual employment agreement of an employee who is a member of a union is to be treated as if it contains a provision that requires the employee’s employer to deduct, with the consent of the employee, the employee’s union fee from the employee’s salary or wages on a regular basis during the year.

(2)

An individual employment agreement may exclude or vary the effect of subsection (1).

(3)

Union fees deducted from an employee’s salary or wages under subsection (1) must be paid to the union concerned in accordance with any arrangement agreed with the union.

Section 65A: inserted, on 1 December 2004, by section 26 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

66 Fixed term employment

(1)

An employee and an employer may agree that the employment of the employee will end—

(a)

at the close of a specified date or period; or

(b)

on the occurrence of a specified event; or

(c)

at the conclusion of a specified project.

(2)

Before an employee and employer agree that the employment of the employee will end in a way specified in subsection (1), the employer must—

(a)

have genuine reasons based on reasonable grounds for specifying that the employment of the employee is to end in that way; and

(b)

advise the employee of when or how his or her employment will end and the reasons for his or her employment ending in that way.

(3)

The following reasons are not genuine reasons for the purposes of subsection (2)(a):

(a)

to exclude or limit the rights of the employee under this Act:

(b)

to establish the suitability of the employee for permanent employment:

(c)

to exclude or limit the rights of an employee under the Holidays Act 2003.

(4)

If an employee and an employer agree that the employment of the employee will end in a way specified in subsection (1), the employee’s employment agreement must state in writing—

(a)

the way in which the employment will end; and

(b)

the reasons for ending the employment in that way.

(5)

Failure to comply with subsection (4), including failure to comply because the reasons for ending the employment are not genuine reasons based on reasonable grounds, does not affect the validity of the employment agreement between the employee and the employer.

(6)

However, if the employer does not comply with subsection (4), the employer may not rely on any term agreed under subsection (1)—

(a)

to end the employee’s employment if the employee elects, at any time, to treat that term as ineffective; or

(b)

as having been effective to end the employee’s employment, if the former employee elects to treat that term as ineffective.

Section 66(3)(c): added, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 66(4): added, on 1 December 2004, by section 27 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 66(5): added, on 1 December 2004, by section 27 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 66(6): added, on 1 December 2004, by section 27 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

67 Probationary arrangements

(1)

Where the parties to an employment agreement agree as part of the agreement that an employee will serve a period of probation after the commencement of the employment,—

(a)

the fact of the probation period must be specified in writing in the employment agreement; and

(b)

neither the fact that the probation period is specified, nor what is specified in respect of it, affects the application of the law relating to unjustifiable dismissal to a situation where the employee is dismissed in reliance on that agreement during or at the end of the probation period.

(2)

Failure to comply with subsection (1)(a) does not affect the validity of the employment agreement between the parties.

(3)

However, if the employer does not comply with subsection (1)(a), the employer may not rely on any term agreed under subsection (1) that the employee serve a period of probation if the employee elects, at any time, to treat that term as ineffective.

Section 67(1): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67(1)(a): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67(1)(b): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67(2): added, on 1 December 2004, by section 28 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 67(3): added, on 1 December 2004, by section 28 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 67(3): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

67A When employment agreement may contain provision for trial period for 90 days or less

(1)

An employment agreement containing a trial provision, as defined in subsection (2), may be entered into by an employee, as defined in subsection (3), and an employer.

(2)

Trial provision means a written provision in an employment agreement that states, or is to the effect, that—

(a)

for a specified period (not exceeding 90 days), starting at the beginning of the employee’s employment, the employee is to serve a trial period; and

(b)

during that period the employer may dismiss the employee; and

(c)

if the employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.

(3)

Employee means an employee who has not been previously employed by the employer.

(4)

[Repealed]

(5)

To avoid doubt, a trial provision may be included in an employment agreement under section 61(1)(a), but subject to section 61(1)(b).

Section 67A: inserted, on 1 March 2009, by section 7 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67A(1): amended, on 1 April 2011, by section 13(1) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 67A(4): repealed, on 1 April 2011, by section 13(2) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 67A(5): replaced, on 6 March 2015, by section 21 of the Employment Relations Amendment Act 2014 (2014 No 61).

67B Effect of trial provision under section 67A

(1)

This section applies if an employer terminates an employment agreement containing a trial provision under section 67A by giving the employee notice of the termination before the end of the trial period, whether the termination takes effect before, at, or after the end of the trial period.

(2)

An employee whose employment agreement is terminated in accordance with subsection (1) may not bring a personal grievance or legal proceedings in respect of the dismissal.

(3)

Neither this section nor a trial provision prevents an employee from bringing a personal grievance or legal proceedings on any of the grounds specified in section 103(1)(b) to (h).

(4)

An employee whose employment agreement contains a trial provision is, in all other respects (including access to mediation services), to be treated no differently from an employee whose employment agreement contains no trial provision or contains a trial provision that has ceased to have effect.

(5)

Subsection (4) applies subject to the following provisions:

(a)

in observing the obligation in section 4 of dealing in good faith with the employee, the employer is not required to comply with section 4(1A)(c) in making a decision whether to terminate an employment agreement under this section; and

(b)

the employer is not required to comply with a request under section 120 that relates to terminating an employment agreement under this section.

Section 67B: inserted, on 1 March 2009, by section 7 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67B(3): amended, on 4 April 2016, by section 4 of the Employment Relations Amendment Act 2015 (2015 No 73).

67C Agreed hours of work

(1)

Hours of work agreed by an employer and employee must be specified as follows:

(a)

in the case of an employee covered by a collective agreement,—

(i)

in the collective agreement; and

(ii)

if section 61 applies, in the employee’s additional terms and conditions of employment included under that section; or

(b)

in the case of an employee covered by an individual employment agreement, in the employee’s individual employment agreement.

(2)

In subsection (1), hours of work includes any or all of the following:

(a)

the number of guaranteed hours of work:

(b)

the days of the week on which work is to be performed:

(c)

the start and finish times of work:

(d)

any flexibility in the matters referred to in paragraph (b) or (c).

Section 67C: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9).

67D Availability provision

(1)

In this section and section 67E, an availability provision means a provision in an employment agreement under which—

(a)

the employee’s performance of work is conditional on the employer making work available to the employee; and

(b)

the employee is required to be available to accept any work that the employer makes available.

(2)

An availability provision may only—

(a)

be included in an employment agreement that specifies agreed hours of work and that includes guaranteed hours of work among those agreed hours; and

(b)

relate to a period for which an employee is required to be available that is in addition to those guaranteed hours of work.

(3)

An availability provision must not be included in an employment agreement unless—

(a)

the employer has genuine reasons based on reasonable grounds for including the availability provision and the number of hours of work specified in that provision; and

(b)

the availability provision provides for the payment of reasonable compensation to the employee for making himself or herself available to perform work under the provision.

(4)

An availability provision that is not included in an employment agreement in accordance with subsection (3) is not enforceable against the employee.

(5)

In considering whether there are genuine reasons based on reasonable grounds for including an availability provision, an employer must have regard to all relevant matters, including the following:

(a)

whether it is practicable for the employer to meet business demands for the work to be performed by the employee without including an availability provision:

(b)

the number of hours for which the employee would be required to be available:

(c)

the proportion of the hours referred to in paragraph (b) to the agreed hours of work.

(6)

Compensation payable under an availability provision must be determined having regard to all relevant matters, including the following:

(a)

the number of hours for which the employee is required to be available:

(b)

the proportion of the hours referred to in paragraph (a) to the agreed hours of work:

(c)

the nature of any restrictions resulting from the availability provision:

(d)

the rate of payment under the employment agreement for the work for which the employee is available:

(e)

if the employee is remunerated by way of salary, the amount of the salary.

(7)

For the purposes of subsection (3)(b), an employer and an employee who is remunerated for agreed hours of work by way of salary may agree that the employee’s remuneration includes compensation for the employee making himself or herself available for work under an availability provision.

Section 67D: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9).

67E Employee may refuse to perform certain work

An employee is entitled to refuse to perform work in addition to any guaranteed hours specified in the employee’s employment agreement if the agreement does not contain an availability provision that provides for the payment of reasonable compensation to the employee for making himself or herself available to perform work under the availability provision.

Section 67E: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9).

67F Employee not to be treated adversely because of refusal to perform certain work

(1)

An employer must not treat adversely an employee who refuses to perform work under section 67E.

(2)

In this section, an employer treats an employee adversely if the employer—

(a)

refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially the same qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(b)

dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or

(c)

retires that employee, or requires or causes that employee to retire or resign.

(3)

For the purposes of subsection (2)(b), detriment includes anything that has a detrimental effect on that employee’s employment, job performance, or job satisfaction.

Section 67F: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9).

67G Cancellation of shifts

(1)

This section applies in relation to an employee who is required under the employee’s employment agreement to undertake shift work.

(2)

The employer must not cancel a shift of the employee unless the employee’s employment agreement specifies—

(a)

a reasonable period of notice that must be given before the cancellation of a shift; and

(b)

reasonable compensation that must be paid to the employee if the employer cancels a shift of the employee without giving the specified notice.

(3)

In cancelling a shift of an employee, the employer must—

(a)

give the employee the notice specified in the employee’s employment agreement under subsection (2)(a); or

(b)

if that notice is not given, pay to the employee the compensation specified in the employee’s employment agreement under subsection (2)(b).

(4)

The period of notice specified under subsection (2)(a) must be determined having regard to all relevant factors, including—

(a)

the nature of the employer’s business, including the employer’s ability to control or foresee the circumstances that have given rise to the proposed cancellation; and

(b)

the nature of the employee’s work, including the likely effect of the cancellation on the employee; and

(c)

the nature of the employee’s employment arrangements, including whether there are agreed hours of work in the employee’s employment agreement and, if so, the number of guaranteed hours of work (if any) included among those agreed hours.

(5)

Compensation specified under subsection (2)(b) must be determined having regard to all relevant matters, including the following:

(a)

the period of notice specified in the employee’s employment agreement under subsection (2)(a):

(b)

the remuneration that the employee would have received for working the shift:

(c)

whether the nature of the work requires the employee to incur any costs in preparing for the shift.

(6)

Without limiting subsection (5), an employee is entitled to what he or she would have earned for working a shift if—

(a)

the shift is cancelled and the employee’s employment agreement does not comply with this section; or

(b)

the shift is cancelled, but the employee has not been notified of the cancellation until the commencement of the shift; or

(c)

the remainder of a shift is cancelled after the shift has begun.

(7)

If an employee whose shift is cancelled is entitled, under his or her employment agreement or under subsection (6), to the remuneration that he or she would have earned for working the shift, that remuneration is a part of the employee’s ordinary weekly pay and relevant daily pay for the purposes of sections 8 and 9 of the Holidays Act 2003.

(8)

To avoid doubt, nothing in this section enables an employer to cancel an employee’s shift if that cancellation would breach the employee’s employment agreement.

(9)

In this section, shift means a period of work performed in a system of work in which periods of work—

(a)

are continuous or effectively continuous; and

(b)

may occur at different times on different days of the week.

Section 67G: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9).

67H Secondary employment provisions

(1)

In this section, a secondary employment provision is a provision in an employee’s employment agreement that—

(a)

prohibits or restricts the employee from performing work for another person; or

(b)

prohibits or restricts the employee from performing work for another person without the employer’s consent.

(2)

A secondary employment provision must not be included in an employee’s employment agreement unless—

(a)

the employer has genuine reasons based on reasonable grounds for including the provision; and

(b)

the reasons are stated in the employee’s employment agreement.

(3)

For the purposes of subsection (2)(a) and without limiting that provision, a genuine reason may relate to—

(a)

protecting an employer’s commercially sensitive information; or

(b)

protecting an employer’s intellectual property rights; or

(c)

protecting an employer’s commercial reputation; or

(d)

preventing a real conflict of interest that cannot be managed without including a secondary employment provision.

(4)

A secondary employment provision in an employee’s employment agreement must not—

(a)

prohibit the employee from performing work for another person unless it is necessary having regard to the reasons for which the provision is included; or

(b)

restrict the employee from performing work for another person to a greater extent than is necessary having regard to the reasons for which the provision is included.

(5)

This section does not limit or affect the law relating to restraint of trade provisions.

Section 67H: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9).

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).

69 Remedies for unfair bargaining

(1)

If a party to an individual employment agreement is found to have bargained unfairly under section 68, the Authority may do 1 or more of the following things:

(a)

make an order that the party pay to the other party such sum, by way of compensation, as the Authority thinks fit:

(b)

make an order cancelling or varying the agreement:

(c)

make such other order as it thinks fit in the circumstances.

(2)

The Authority must not make an order under subsection (1)(b) unless the requirements in section 164 have been met, and that section applies accordingly with all necessary modifications.

Part 6AA Flexible working

Part 6AA: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AA Object of this Part

The object of this Part is to—

(a)

provide employees with a statutory right to request a variation of their working arrangements; and

(b)

require an employer to deal with a request as soon as possible but not later than 1 month after receiving it; and

(c)

provide that an employer may refuse a request only if it cannot be accommodated on certain grounds; and

(d)

if an employer does not deal with a request in accordance with the process specified in this Part, provide for reference of the matter to a Labour Inspector, then to mediation, and then to the Authority.

Section 69AA: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AA(a): replaced, on 6 March 2015, by section 22(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69AA(b): amended, on 6 March 2015, by section 22(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

69AAA Interpretation

In this Part, unless the context otherwise requires,—

mediation means mediation provided under section 144

request means a written request made—

(a)

under this Part; and

(b)

by an employee to his or her employer to vary the employee’s terms and conditions of employment relating to the employee’s working arrangements

working arrangements, in relation to an employee, means 1 or more of the following:

(a)

hours of work:

(b)

days of work:

(c)

place of work (for example, at home or at the employee’s place of work).

Section 69AAA: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AAA non-compliance with section 69AAE: repealed, on 6 March 2015, by section 23 of the Employment Relations Amendment Act 2014 (2014 No 61).

Employee’s statutory right to make request

Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAB When employee may make request

An employee may make a request at any time.

Section 69AAB: replaced, on 6 March 2015, by section 24 of the Employment Relations Amendment Act 2014 (2014 No 61).

69AAC Requirements relating to request

A request must be in writing and—

(a)

state—

(i)

the employee’s name; and

(ii)

the date on which the request is made; and

(iii)

that the request is made under this Part; and

(b)

specify the variation of the working arrangements requested and whether the variation is permanent or for a period of time; and

(c)

specify the date on which the employee proposes that the variation take effect and, if the variation is for a period of time, the date on which the variation is to end; and

(d)
[Repealed]

(e)

explain, in the employee’s view, what changes, if any, the employer may need to make to the employer’s arrangements if the employee’s request is approved.

Section 69AAC: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AAC(d): repealed, on 6 March 2015, by section 25 of the Employment Relations Amendment Act 2014 (2014 No 61).

69AAD Limitation on frequency of requests
[Repealed]

Section 69AAD: repealed, on 6 March 2015, by section 26 of the Employment Relations Amendment Act 2014 (2014 No 61).

Duties of employer

Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAE Employer must notify decision as soon as possible

(1)

An employer must deal with a request as soon as possible, but not later than 1 month after receiving it, and must notify the employee in writing of whether his or her request has been approved or refused.

(2)

If the employer refuses an employee’s request, the notification given under subsection (1) must—

(a)

state that the request is refused because of a ground specified in section 69AAF(2) or (3); and

(b)

state the ground for refusal; and

(c)

explain the reasons for that ground.

Section 69AAE: replaced, on 6 March 2015, by section 27 of the Employment Relations Amendment Act 2014 (2014 No 61).

69AAF Grounds for refusal of request by employer

(1)

An employer may refuse a request only if the employer determines that the request cannot be accommodated on 1 or more of the grounds specified in subsection (2).

(2)

The grounds are—

(a)

inability to reorganise work among existing staff:

(b)

inability to recruit additional staff:

(c)

detrimental impact on quality:

(d)

detrimental impact on performance:

(e)

insufficiency of work during the periods the employee proposes to work:

(f)

planned structural changes:

(g)

burden of additional costs:

(h)

detrimental effect on ability to meet customer demand.

(3)

However, an employer must refuse a request if—

(a)

the request is from an employee who is bound by a collective agreement; and

(b)

the request relates to working arrangements to which the collective agreement applies; and

(c)

the employee’s working arrangements would be inconsistent with the collective agreement if the employer were to approve the request.

Section 69AAF: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AAF(1): replaced, on 6 March 2015, by section 28 of the Employment Relations Amendment Act 2014 (2014 No 61).

Resolving disputes

Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAG Role of Labour Inspector

(1)

For the purposes of this Part, a Labour Inspector may provide to employees and employers such assistance as he or she considers appropriate in the circumstances.

(2)

This section applies subject to section 69AAH(2).

Section 69AAG: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAH Labour Inspectors and mediation

(1)

This section applies if an employee believes that his or her employer has not complied with section 69AAE.

(2)

The employee may refer the non-compliance with section 69AAE to a Labour Inspector who must, to the extent practicable in the circumstances, assist the employee and employer to resolve the matter.

(3)

If, after completion of the process under subsection (2), the employee is dissatisfied with the result, the employee may refer the matter to mediation.

(4)

For the purposes of subsection (3), non-compliance with section 69AAE is an employment relationship problem.

Section 69AAH: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAI Application to Authority

(1)

This section applies if—

(a)

an employee believes that his or her employer has not complied with section 69AAE; and

(b)

mediation has not resolved the matter.

(2)

The employee may apply to the Authority for a determination as to whether the employer has complied with section 69AAE.

(3)

An application under subsection (2) must be made within 12 months after the relevant date.

(4)

[Repealed]

(5)

In subsection (3), relevant date means,—

(a)

if the employer notifies a refusal within 1 month after receiving a request, the date on which the employer notifies the employee of the employer’s refusal:

(b)

in any other case, the date 1 month after the employer received the employee’s request.

Section 69AAI: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AAI(4): repealed, on 6 March 2015, by section 29(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69AAI(5)(a): amended, on 6 March 2015, by section 29(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69AAI(5)(b): amended, on 6 March 2015, by section 29(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

69AAJ Penalty

(1)

An employer who does not comply with section 69AAE is liable to a penalty not exceeding $2,000, imposed by the Authority.

(2)

The penalty is payable to the employee concerned.

Section 69AAJ: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAK Limitation on challenging employer

An employee may not challenge his or her employer’s refusal of a request, or failure to respond to a request, except—

(a)

if the employee believes his or her employer has not complied with section 69AAE; and

(b)

to the extent provided by sections 69AAH to 69AAJ.

Section 69AAK: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Review of Part[Repealed]

Heading: repealed, on 6 March 2015, by section 30 of the Employment Relations Amendment Act 2014 (2014 No 61).

69AAL Review of operation of Part after 2 years
[Repealed]

Section 69AAL: repealed, on 6 March 2015, by section 30 of the Employment Relations Amendment Act 2014 (2014 No 61).

Part 6A Continuity of employment if employees’ work affected by restructuring

Part 6A: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Subpart 1—Specified categories of employees

Subpart 1: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69A Object of this subpart

(1)

The object of this subpart is to provide protection to specified categories of employees if, as a result of a proposed restructuring, their work is to be performed by another person.

(2)

The categories of employees—

(a)

are the categories of employees specified in Schedule 1A; and

(b)

are specified in Schedule 1A because they are employees—

(i)

who are employed in sectors in which restructuring of an employer’s business occurs frequently; and

(ii)

whose terms and conditions of employment tend to be undermined by the restructuring of an employer’s business; and

(iii)

who have little bargaining power.

(3)

The protection conferred by this subpart gives—

(a)

the employees a right to elect to transfer to the other person as employees on the same terms and conditions of employment; and

(b)

the employees who have transferred a right,—

(i)

subject to their employment agreements, to bargain for redundancy entitlements from the other person if made redundant by the other person for reasons relating to the transfer of the employees or to the circumstances arising from the transfer of the employees; and

(ii)

if redundancy entitlements cannot be agreed with the other person, to have the redundancy entitlements determined by the Authority.

(4)

The protection provided by this subpart does not apply if the other person who is to perform the employees’ work is an exempt employer.

Section 69A: replaced, on 6 March 2015, by section 31 of the Employment Relations Amendment Act 2014 (2014 No 61).

69B Interpretation

In this subpart, unless the context otherwise requires,—

agreement means a contract or arrangement

associated person means a person who (under section 69DA) is an associated person of a person providing a warranty under section 69CA

contracting in has the meaning set out in section 69C

contracting out has the meaning set out in section 69C

exempt employer has the meaning given to it by section 69CA

independent contractor means a person engaged to perform work under an agreement that is not an employment agreement

new employer has the meaning set out in section 69D

redundancy entitlements includes redundancy compensation

restructuring

(a)

means—

(i)

contracting out; or

(ii)

contracting in; or

(iii)

subsequent contracting; or

(iv)

selling or transferring an employer’s business (or part of it) to another person; but

(b)

to avoid doubt, does not include,—

(i)

in the case of an employer that is a company, the sale or transfer of any or all of the shares in the company; or

(ii)

any contract, arrangement, sale, or transfer entered into, made, or concluded while the employer is adjudged bankrupt or in receivership or liquidation

specified date has the meaning given to it by section 69I(4)

subcontractor

(a)

means a person engaged by an independent contractor to perform work—

(i)

under an agreement that is not an employment agreement; and

(ii)

that the independent contractor has agreed to perform for another person; and

(b)

includes another person engaged by a subcontractor (within the meaning of paragraph (a)) to perform the work or part of the work under an agreement that is not an employment agreement

subsequent contracting has the meaning set out in section 69C

work, in relation to work performed by an employee, includes part of the work performed by the employee.

Section 69B: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 69B associated person: inserted, on 6 March 2015, by section 32 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69B exempt employer: inserted, on 6 March 2015, by section 32 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69B specified date: inserted, on 6 March 2015, by section 32 of the Employment Relations Amendment Act 2014 (2014 No 61).

69C Meaning of contracting in, contracting out, and subsequent contracting

(1)

In this subpart, unless the context otherwise requires, contracting in means a situation where—

(a)

a person (person A) has an agreement with another person (person B) under which person B performs work as an independent contractor for person A; and

(b)

the work or some of the work is actually performed by employees of person B or of a subcontractor; and

(c)

the agreement, or that part of the agreement, under which person B performs the work expires or is terminated; and

(d)

the work is to be performed by person A or employees (if any) of person A.

(2)

In this subpart, unless the context otherwise requires, contracting out means a situation where—

(a)

a person (person A) enters into an agreement with another person (person B) under which person B is to perform work as an independent contractor for person A; and

(b)

the employees of person A are actually performing, or employed to undertake, the work or some of the work before the agreement takes effect.

(3)

The definition of contracting out applies whether or not the work is to be performed by—

(a)

person B or employees (if any) of person B; or

(b)

a subcontractor or employees (if any) of a subcontractor.

(4)

In this subpart, unless the context otherwise requires,—

subsequent contracting means a situation where—

(a)

a person (person A) has an agreement with another person (person B) under which person B performs work as an independent contractor for person A; and

(b)

the work or some of the work is actually performed by employees of person B or of a subcontractor; and

(c)

the agreement or that part of the agreement under which person B performs the work expires or is terminated; and

(d)

person A enters into an agreement with another person (person C) under which person C is to perform the work as an independent contractor for person A.

(5)

The definition of subsequent contracting applies whether or not—

(a)

the work concerned has previously been the subject of a subsequent contracting:

(b)

the engagement of person B as an independent contractor constituted a contracting out:

(c)

the work is to be performed by—

(i)

person C or employees (if any) of person C; or

(ii)

a subcontractor or employees (if any) of a subcontractor.

(6)

To avoid doubt, in the definitions of contracting in, contracting out, and subsequent contracting, references to work in relation to person A—

(a)

mean work that person A is doing or would otherwise do in person A’s own right; and

(b)

include work that person A is doing or would otherwise do as an independent contractor or as a subcontractor.

Section 69C: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69CA Exempt employer

(1)

For the purposes of this subpart, an employer is an exempt employer if—

(a)

the employer is a person described in subsection (2); and

(b)

the employer, together with any associated person of the employer (as at the date on which the employer provides a warranty under section 69CB),—

(i)

has no employees; or

(ii)

employs 19 or fewer employees; and

(c)

the employer provides a warranty that complies with section 69CB.

(2)

A person is an employer for the purposes of subsection (1)(a) if the person would, were the restructuring to proceed, be—

(a)

person A in a contracting in:

(b)

person B in a contracting out:

(c)

person C in a subsequent contracting:

(d)

the person to whom an employer’s business (or part of it) is sold or transferred:

(e)

a subcontractor if the work or part of the work would be performed not by employees of person B in a contracting out or of person C in a subsequent contracting but by employees of the subcontractor.

(3)

An employer that does not provide a warranty that complies with section 69CB must comply in full with the requirements of this subpart.

(4)

To avoid doubt,—

(a)

an employer who is an exempt employer is an exempt employer only in relation to the restructuring that the employer provides a warranty for; and

(b)

if the work concerned is performed by the employees of 2 or more employers and warranties are provided in accordance with this subpart to some but not all of the employers, a failure to provide the other warranty or warranties does not invalidate the warranties provided.

Section 69CA: inserted, on 6 March 2015, by section 33 of the Employment Relations Amendment Act 2014 (2014 No 61).

69CB Warranty

A warranty under section 69CA must—

(a)

be in writing; and

(b)

confirm that, on the date on which the warranty is provided, the employer (together with any associated person of the employer)—

(i)

has no employees; or

(ii)

has 19 or fewer employees; and

(c)

be provided in accordance with sections 69CC to 69CE.

Section 69CB: inserted, on 6 March 2015, by section 33 of the Employment Relations Amendment Act 2014 (2014 No 61).

69CC Persons warranty to be provided to

(1)

The warranty must be provided to the persons as specified in subsections (2) to (5).

Contracting in

(2)

In a contracting in or proposed contracting in, the warranty must be provided by person A to—

(a)

person B if the work concerned is performed by person B’s employees; or

(b)

a subcontractor if the work concerned is performed by employees of the subcontractor; or

(c)

person B and the subcontractor if the work concerned is performed partly by employees of person B and partly by employees of the subcontractor.

Contracting out

(3)

In a contracting out or proposed contracting out, the warranty must be provided by—

(a)

person B to person A if the work concerned is to be performed by person B or employees (if any) of person B; or

(b)

a subcontractor to person A if the work concerned is to be performed by the subcontractor or employees (if any) of the subcontractor; or

(c)

person B and the subcontractor to person A if the work concerned is to be performed partly by person B or employees (if any) of person B and partly by the subcontractor or employees (if any) of the subcontractor.

Subsequent contracting

(4)

In a subsequent contracting or proposed subsequent contracting, the warranty must be provided by—

(a)

person C to person B if the work, or some of the work, concerned—

(i)

is performed by employees of person B; and

(ii)

is to be performed by person C or employees (if any) of person C:

(b)

a subcontractor to person B if the work, or some of the work, concerned—

(i)

is performed by employees of person B; and

(ii)

is to be performed by the subcontractor or employees (if any) of the subcontractor:

(c)

person C to a subcontractor if the work, or some of the work, concerned—

(i)

is performed by employees of the subcontractor; and

(ii)

is to be performed by person C or the employees (if any) of person C:

(d)

a subcontractor to another subcontractor if the work, or some of the work, concerned—

(i)

is performed by employees of the other subcontractor; and

(ii)

is to be performed by the subcontractor or employees (if any) of the subcontractor.

Sale or transfer of business

(5)

In the sale or transfer of a business (or part of it), the warranty must be provided by the purchaser or transferee to the seller or transferor.

Section 69CC: inserted, on 6 March 2015, by section 33 of the Employment Relations Amendment Act 2014 (2014 No 61).

69CD Provision of information for purposes of giving warranty

(1)

The purpose of this section is to provide for the disclosure of information so that a person wishing to provide a warranty under section 69CA has sufficient information to identify and contact the employer of the employees who perform work that is to be performed by the employees of another person as a result of a proposed restructuring.

(2)

An obligation under this section to request or provide information does not apply if, or to the extent that, the person required to make the request or the person to whom information is to be provided already has the information.

Contracting in

(3)

In a contracting in or proposed contracting in, person A may request person B—

(a)

to confirm whether all the work concerned is performed by the employees of person B; and

(b)

if some or all of the work concerned has been subcontracted, to provide information that identifies the subcontractor and that contains the contact details of the subcontractor.

(4)

If person B provides information under subsection (3)(b), person A may make the same request to the subcontractor as made under subsection (3) and that subsection applies with the necessary modifications.

(5)

The process under subsections (3) and (4) may be repeated (and those provisions apply accordingly with the necessary modifications) until person A has the information that identifies and contains the contact details of all the employers of the employees performing the work concerned.

Contracting out

(6)

In a contracting out or proposed contracting out, if some or all of the work is to be subcontracted, person B must—

(a)

provide information to person A that identifies the subcontractor and contains the contact details of the subcontractor; and

(b)

provide information to the subcontractor that identifies person A and contains the contact details of person A.

(7)

Person B must ask the subcontractor—

(a)

to confirm whether all the work concerned is to be performed by the employees of the subcontractor; and

(b)

if some or all of the work concerned is to be further subcontracted, to provide information that identifies the subcontractor and that contains the contact details of the subcontractor.

(8)

If the subcontractor provides information under subsection (7)(b), person B must provide the same information and make the same request to the other subcontractor as provided under subsections (6) and (7) and those subsections apply with all necessary modifications.

(9)

The process under subsections (7) and (8) must be repeated (and those provisions apply accordingly with the necessary modifications) until person B has the information that identifies and contains the contact details of all the employers of the employees who are to perform the work concerned.

(10)

Person B must provide the information obtained under subsections (7) to (9) to person A.

Subsequent contracting

(11)

In a subsequent contracting or proposed subsequent contracting, person A must ask person B—

(a)

to confirm whether all the work concerned is performed by employees of person B; and

(b)

if some or all of the work concerned has been subcontracted, to provide information that identifies the subcontractor and contains the contact details of the subcontractor.

(12)

If person B provides information under subsection (11)(b), person A must make the same request to the subcontractor as made under subsection (11) and that subsection applies with the necessary modifications.

(13)

The process under subsections (11) and (12) must be repeated (and those provisions apply accordingly with the necessary modifications) until person A has the information that identifies and contains the contact details of all the employers of the employees performing the work concerned.

(14)

Person A must—

(a)

advise person C that the work concerned is not performed by employees of person A but by employees of another person; and

(b)

provide the information obtained under subsections (11) to (13) to person C if the information is requested by person C.

(15)

If some or all of the work is to be subcontracted, person C must provide to the subcontractor information person C obtains under subsection (14).

Compliance

(16)

Information must be sought and provided under this section as follows:

(a)

in a contracting in, a person who receives a request for information under subsection (3) or (4) must provide the information immediately:

(b)

in a contracting out—

(i)

person B must provide and ask for the information under subsections (6) to (10) in time for any warranty to be provided in accordance with this subpart; and

(ii)

a person receiving a request under subsection (7) or (8) must provide the information immediately:

(c)

in a subsequent contracting—

(i)

person A must make a request under subsections (11) and (12) in time for any warranty to be provided in accordance with this subpart:

(ii)

a person receiving a request under subsection (11) or (12) must provide the information immediately:

(iii)

person A must provide information under subsection (14)(a) in time for any warranty to be provided in accordance with this subpart:

(iv)

person A must provide information to person C under subsection (14)(b) immediately after receiving a request to provide it:

(v)

person C must provide information under subsection (15) in time for any warranty to be provided in accordance with this subpart.

Penalty

(17)

A person who, without reasonable excuse, fails to comply with this section is liable to a penalty imposed by the Authority.

Section 69CD: inserted, on 6 March 2015, by section 33 of the Employment Relations Amendment Act 2014 (2014 No 61).

69CE When warranty must be provided

(1)

A warranty must be provided on the date or dates specified in this section.

Contracting in

(2)

If section 69CC(2) applies, the warranty must be provided on whichever of the following dates applies:

(a)

the date on which person A informs person B that the agreement relating to the work concerned is or will be terminated:

(b)

the date on which the agreement relating to the work concerned expires.

Contracting out

(3)

If section 69CC(3) applies, the warranty must be provided on—

(a)

the date on which a tender (if any) relating to the work concerned is provided by person B to person A; and

(b)

the date on which the agreement relating to the work concerned is signed.

Subsequent contracting

(4)

If section 69CC(4) applies, the warranty must be provided on—

(a)

the date on which a tender (if any) relating to the work concerned is provided by person C to person A; and

(b)

the date on which the agreement relating to the work is signed.

Sale or transfer of business

(5)

If section 69CC(5) applies, the warranty must be provided on—

(a)

the date on which a tender (if any) is submitted to the seller or transferor of the business; and

(b)

the date on which the agreement for sale and purchase is entered into or the agreement to transfer is entered into.

Section 69CE: inserted, on 6 March 2015, by section 33 of the Employment Relations Amendment Act 2014 (2014 No 61).

69D Meaning of new employer

(1)

In section 69I, new employer,—

(a)

in relation to contracting in, means person A in the definition of that term:

(b)

in relation to contracting out,—

(i)

means person B in the definition of that term; but

(ii)

if, instead of person B or employees (if any) of person B performing the work concerned, person B subcontracts the work (whether before or at the same time as the contracting out), means the subcontractor:

(c)

in relation to subsequent contracting,—

(i)

means person C in the definition of that term; but

(ii)

if, instead of person C or employees (if any) of person C performing the work concerned, person C subcontracts the work (whether before or at the same time as the subsequent contracting), means the subcontractor:

(d)

in relation to the sale or transfer of an employer’s business (or part of it), means the person to whom the business (or part of it) is sold or transferred.

(2)

In the rest of this subpart, new employer means the person to whom an employee—

(a)

may elect or has elected to transfer under section 69I; or

(b)

has transferred under that section.

Section 69D: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69DA Associated person

(1)

For the purposes of this subpart, a person is an associated person of a person providing a warranty under section 69CA if—

(a)

the person is a holding company or subsidiary of the person providing the warranty:

(b)

the person and the person providing the warranty are both subsidiaries of the same body corporate:

(c)

the person providing the warranty—

(i)

is a subcontractor of the person; and

(ii)

was engaged, either before the restructuring or on the date on which the restructuring takes effect, to perform the work concerned:

(d)

the person (not being a person to which paragraph (a), (b), or (c) applies) has, either before the restructuring or on the date on which the restructuring takes effect, granted a franchise to the person providing the warranty to perform work that is, or will be, the same type of work as the work concerned.

(2)

However, subsection (1)(d) does not apply if the person granting the franchise will not be, or has not been, involved in negotiating, tendering, or entering into an agreement under which the person providing the warranty is to perform the work concerned.

(3)

In subsection (1), holding company and subsidiary have the same meaning as in section 5 of the Companies Act 1993.

Section 69DA: inserted, on 6 March 2015, by section 34 of the Employment Relations Amendment Act 2014 (2014 No 61).

69E Examples of contracting in, contracting out, and subsequent contracting

(1)

This section contains examples of contracting in, contracting out, and subsequent contracting.

(2)

Whether, in the following examples, an employee has the right to elect to transfer to a new employer depends on whether—

(a)

section 69F applies to the employee; and

(b)

the new employer is an exempt employer.

(3)

This subsection sets out examples of contracting in.

Example A

A rest home carries on business in the age-related residential care sector. Instead of providing food catering services through its employees, it enters into an agreement with an independent contractor to provide those services.

The agreement under which the independent contractor provides those services to the rest home expires or is terminated.

The rest home then uses its employees or engages further employees to provide those services.

Employees of the independent contractor to whom section 69F applies may elect to transfer to the rest home.

Example B

The circumstances in this example are the same as in example A except that the independent contractor engages a subcontractor to provide food catering services to the rest home.

As a result of the agreement between the rest home and the independent contractor expiring or being terminated, the agreement between the independent contractor and the subcontractor expires or is terminated.

Employees of the subcontractor to whom section 69F applies may elect to transfer to the rest home.

Note

In both example A and example B, it does not matter whether the rest home’s or the independent contractor’s employees originally provided the food catering services or whether the work was contracted out or subcontracted at the outset.

In example A and example B, the persons relate to the definition of contracting in as follows:

  • the rest home is person A:

  • the independent contractor is person B.

(4)

This subsection sets out examples of contracting out.

Example C

A school has employees who provide cleaning services.

The school then enters into an agreement with an independent contractor to do that work or some of that work.

The employees of the school to whom section 69F applies may elect to transfer to the independent contractor.

Note

Example C would not be a contracting out if, at the outset, the school did not have employees providing cleaning services.

In example C, the persons relate to the definition of contracting out as follows:

  • the school is person A:

  • the independent contractor is person B.

Example D

The circumstances in this example are the same as in example C, except that later on the independent contractor decides that, instead of using its employees for the contract for the school, it will engage a subcontractor to do the work or some of the work.

Employees of the independent contractor to whom section 69F applies may elect to transfer to the subcontractor.

Note

In example D, the persons relate to the definition of contracting out as follows:

  • the independent contractor is person A:

  • the subcontractor is person B.

Note

In example C and example D if, at the outset, the independent contractor did not have employees providing cleaning services, but subcontracts the work straight away, then the employees to whom section 69F applies may elect to transfer to the subcontractor.

(5)

This subsection sets out examples of subsequent contracting.

Example E

An airport operator enters into an agreement with an independent contractor to provide food catering services at the airport.

Some time later, the agreement under which the independent contractor provides those services expires or is terminated.

The airport operator then enters into an agreement with a second independent contractor to provide food catering services at the airport.

Employees of the first independent contractor to whom section 69F applies may elect to transfer to the second independent contractor.

Note

In example E, it does not matter whether the agreement between the airport operator and the first independent contractor constitutes a contracting out.

In example E, the persons relate to the definition of subsequent contracting as follows:

  • the airport operator is person A:

  • the first independent contractor is person B:

  • the second independent contractor is person C.

Example F

The circumstances in this example are the same as in example E, except that the first independent contractor engages a subcontractor to do the work or some of the work.

Later on, the agreement under which the subcontractor provides the work expires or is terminated and the first independent contractor engages a second subcontractor to provide food catering services at the airport.

The employees of the first subcontractor to whom section 69F applies may elect to transfer to the second subcontractor.

Note

In example F, the subsequent contracting occurs at the subcontracting level.

In example F, the persons relate to the definition of subsequent contracting as follows:

  • the independent contractor is person A:

  • the first subcontractor is person B:

  • the second subcontractor is person C.

Section 69E: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 69E(2): replaced, on 6 March 2015, by section 35 of the Employment Relations Amendment Act 2014 (2014 No 61).

69F Application of this subpart

(1)

This subpart applies to an employee if—

(a)

Schedule 1A applies to the employee; and

(b)

as a result of a proposed restructuring,—

(i)

the employee will no longer be required by his or her employer to perform the work performed by the employee; and

(ii)

the work performed by the employee (or work that is substantially similar) is to be performed by or on behalf of another person.

(2)

To avoid doubt, this subpart applies even though the performance of the work by or on behalf of the other person does not begin immediately after an employee ceases to perform the work for his or her employer.

Section 69F: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69FA Employer’s breach of obligations not to affect employee’s rights and new employer’s obligations

To avoid doubt, any failure by an employee’s employer to comply with the obligations imposed on employers by this subpart does not limit or affect the rights of an employee under this subpart or the obligations of a new employer under this subpart.

Section 69FA: inserted, on 6 March 2015, by section 36 of the Employment Relations Amendment Act 2014 (2014 No 61).

69G Notice of right to make election

(1)

As soon as practicable, but no later than 15 working days before the date on which a restructuring takes effect, the employer of the employees who will be affected by a restructuring must provide the affected employees with—

(a)

information about whether the employees have a right to make an election under section 69I; and

(b)

if the employees have a right to make an election under section 69I, an opportunity to exercise that right; and

(c)

information sufficient for the employees to make an informed decision about whether to exercise any right to make an election; and

(d)

the date by which any right to make an election must be exercised, which is—

(i)

the date that is 5 working days after the day on which the employees are provided with the information described in paragraphs (a) to (c); or

(ii)

if the employees’ employer and the new employer agree to a later date, that agreed date.

(2)

Without limiting the information to be provided under subsection (1)(c), the information provided under that provision must include—

(a)

the name of the new employer:

(b)

the nature and scope of the restructuring:

(c)

the date on which the restructuring is to take effect:

(d)

a statement to the effect that an election must be made in writing, signed by the employee, and sent to the employee’s employer:

(e)

notice that—

(i)

certain information will be provided to the new employer about employees who elect to transfer; and

(ii)

those employees are entitled to access the information, and to request correction of the information, in accordance with the Privacy Act 1993.

(3)

A notice under subsection (1) must specify that an election may be delivered, sent by post, or sent by electronic means (for example, by fax or email) to the employee’s employer.

(4)

If the employees do not have any right to make an election under section 69I, the employees’ employer must also provide the following information to the employees:

(a)

that the new employer has provided a written warranty that, on the date of giving the warranty, the new employer is an exempt employer; and

(b)

that the employees therefore do not have any right to transfer to the new employer; and

(c)

that, if the warranty is false, the employees may raise a personal grievance against the new employer as if the employees—

(i)

had elected to transfer to the new employer under subsection (1); and

(ii)

were unjustifiably dismissed (as provided for in section 103(1)(a)); but

(d)

that the remedies available in respect of a personal grievance referred to in paragraph (c) do not include an order for reinstatement.

(5)

In subsection (4)—

exempt employer means an employer who is an exempt employer within the meaning of section 69CA(1)(a) and (b)

new employer means a person who is a new employer within the meaning of section 69D(1).

(6)

The employees’ employer must send an election that complies with subsections (1)(d) and (2)(d) to the new employer as soon as practicable, but no later than 5 working days after the day on which that election is received by the employees’ employer.

(7)

If an employee sends an election that complies with subsection (2)(d) by post or electronic means before the date described in subsection (1)(d), the employee must be treated as having exercised his or her right to make an election by that date.

(8)

If the employee’s employer sends an election to the new employer by post or electronic means before the date that is 5 working days after the day on which the employee’s employer received that election, the employee’s employer must be treated as having met the deadline specified in subsection (6).

(9)

If the restructuring is a contracting in or a subsequent contracting, person A in the definition that applies must give the employer sufficient notice of, and information about, the restructuring to enable the employer to comply with subsection (1).

(10)

In subsection (9), sufficient notice means—

(a)

as soon as practicable; but

(b)

no later than 20 working days before the date on which the restructuring takes effect.

(11)

An employer or other person who fails to comply with this section is liable to a penalty imposed by the Authority.

Section 69G: replaced, on 6 March 2015, by section 37 of the Employment Relations Amendment Act 2014 (2014 No 61).

69H Employee bargaining for alternative arrangements

(1)

To avoid doubt, an employee may, after his or her employer has complied with section 69G(1) and before deciding whether to exercise any right to elect to transfer to the new employer, bargain with his or her employer for alternative arrangements.

(2)

If the employee and employer agree on alternative arrangements,—

(a)

the alternative arrangements must be recorded in writing; and

(b)

if paragraph (a) is complied with, the employee may not subsequently elect to transfer to the new employer.

Section 69H: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 69H(1): amended, on 6 March 2015, by section 38 of the Employment Relations Amendment Act 2014 (2014 No 61).

69I Employee may elect to transfer to new employer in certain circumstances

(1)

An employee to whom this subpart applies may, before the date provided to the employee under section 69G(1)(d), elect to transfer to the new employer.

(1A)

However, subsection (1) does not apply if the new employer is an exempt employer.

(2)

If an employee elects to transfer to the new employer, then to the extent that the employee’s work is to be performed by the new employer, the employee—

(a)

becomes an employee of the new employer on and from the specified date; and

(b)

is employed on the same terms and conditions by the new employer as applied to the employee immediately before the specified date, including terms and conditions relating to whether the employee is employed full-time or part-time; and

(c)

is not entitled to any redundancy entitlements under those terms and conditions of employment from his or her previous employer because of the transfer.

(3)

To avoid doubt,—

(a)

the election of an employee to transfer to a new employer may result in the employee being employed by more than 1 employer if—

(i)

only part of the employee’s work is affected by the restructuring; or

(ii)

the work performed by the employee will be performed by or on behalf of more than 1 new employer; and

(b)

a person becomes the new employer of an employee who elects to transfer to the new employer whether or not the new employer—

(i)

has, or intends to have, employees performing the type of work (or work that is substantially similar) to the work performed by the employee who has elected to transfer to the new employer; or

(ii)

was an employer before the employee transferred to the new employer:

(c)

this section does not affect the employment agreement of an employee who elects not to transfer to the new employer.

Example

This example relates to subsection (3)(a). A retailer owns 3 gift shops and engages an independent contractor to clean the shops. The independent contractor employs a cleaner to clean the gift shops.

The cleaning contract between the retailer and the independent contractor expires.

The retailer enters into a cleaning contract with a second independent contractor for the cleaning of 1 shop, and enters into a new cleaning contract with the first independent contractor for the cleaning of the other 2 shops.

As a result, the first independent contractor no longer requires the cleaner to clean 1 of the shops.

The second independent contractor did not provide, under section 69CA(1), any warranty about exempt employer status to the retailer.

The cleaner may elect to transfer and become an employee of the second independent contractor in relation to 1 shop while remaining an employee of the first independent contractor in relation to the other 2 shops.

(4)

In this section, specified date means the date on which the restructuring takes effect.

Section 69I: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 69I heading: amended, on 6 March 2015, by section 39(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69I(1): amended, on 6 March 2015, by section 39(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69I(1A): inserted, on 6 March 2015, by section 39(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69I(3) example: amended, on 6 March 2015, by section 39(4) of the Employment Relations Amendment Act 2014 (2014 No 61).

69J Employment of employee who elects to transfer to new employer treated as continuous

(1)

The employment of an employee who elects to transfer to a new employer is to be treated as continuous, including for the purpose of service-related entitlements whether legislative or otherwise.

(2)

To avoid doubt, and without limiting subsection (1),—

(a)

in relation to an employee’s entitlements under the Holidays Act 2003,—

(i)

the period of employment of an employee with the employer that ends with the transfer must be treated as a period of employment with the new employer for the purpose of determining the employee’s entitlement to annual holidays, sick leave, and bereavement leave; and

(ii)

the employer must not pay the employee for annual holidays not taken before the date of transfer; and

(iii)

the new employer must recognise the employee’s entitlement to—

(A)

any sick leave, including any sick leave carried over under section 66 of that Act, not taken before the date of transfer; and

(B)

any annual holidays not taken before the date of transfer; and

(C)

any alternative holidays not taken or exchanged for payment under section 61 of that Act before the date of transfer:

(b)

for the purposes of determining an employee’s rights and benefits to parental leave and parental leave payments under the Parental Leave and Employment Protection Act 1987,—

(i)

the period of employment of an employee with the employer that ends with the transfer must be treated as a period of employment with the new employer; and

(ii)

the new employer must treat any notice given to or by the employer under the Act as if it had been given to or by the new employer.

Section 69J: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69K Terms and conditions of employment of transferring employee under fixed term employment

(1)

This section applies to an employee if—

(a)

he or she is an employee of—

(i)

person A in the definition of contracting out; or

(ii)

person B or of a subcontractor in the definition of contracting in; or

(iii)

person B or of a subcontractor in the definition of subsequent contracting; or

(iv)

an employer who is selling or transferring the employer’s business (or part of it) to another person; and

(b)

the employee’s terms and conditions of employment include a term agreed under section 66(1) that is—

(i)

linked to the expiry or termination of the agreement under which his or her employer performs the work; or

(ii)

included in contemplation of his or her employer entering into an agreement that constitutes a restructuring.

(2)

Despite the employee’s terms and conditions of employment containing a term referred to in subsection (1)(b), the employee may elect, under section 69I, to transfer to the new employer.

(3)

If the employee elects, under section 69I, to transfer to the new employer, then the following provisions apply:

(a)

if the restructuring is a contracting out, the employee’s terms and conditions of employment must be read and applied as if the term agreed under section 66(1) were linked to the expiry or termination of the agreement between person A and person B (or a subcontractor):

(b)

if the restructuring is a contracting in, the employee’s terms and conditions of employment cease to include the term referred to in subsection (1)(b):

(c)

if the restructuring is a subsequent contracting, the employee’s terms and conditions of employment must be read and applied as if the term agreed under section 66(1) were linked to the expiry or termination of the contract or arrangement between person A and person C (or a subcontractor):

(d)

if the restructuring is a sale or transfer of an employer’s business, the employee’s terms and conditions of employment cease to include the term referred to in subsection (1)(b).

Section 69K: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69L Agreements excluding entitlements for technical redundancy not affected

(1)

To avoid doubt, this subpart does not limit or affect any terms and conditions of employment under which the employee’s entitlement to redundancy entitlements is excluded where the employee may transfer to the new employer but elects not to do so.

(2)

This subpart does not limit or affect section 77HA of the State Sector Act 1988.

Section 69L: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69LA Liability for costs of service-related entitlements of transferring employee

(1)

This section applies if—

(a)

an employee elects to transfer to a new employer; and

(b)

on the specified date, the employee has not taken, or been paid for, service-related entitlements (whether legislative or otherwise) that relate to the employee’s period of employment before the specified date.

(2)

Liability for the costs of service-related entitlements (whether legislative or otherwise) of the employee must be apportioned between the employee’s employer and the new employer.

(3)

If the employee’s employer and the new employer cannot agree before the specified date on how to apportion those costs, the costs must be apportioned as follows:

(a)

the employee’s employer is liable for the costs that the employer would have been liable to pay to the employee if the employee had resigned and ceased employment with the employer on the day before the specified date (for example, costs related to annual holidays or alternative holidays not taken before the specified date); and

(b)

the new employer is liable for the costs of any service-related entitlements that accrued before the specified date but would not have been paid to the employee if the employee had resigned and ceased employment with his or her previous employer on the day before the specified date (for example, costs relating to sick leave not taken before the specified date).

(4)

The employee’s employer must pay to the new employer—

(a)

the amount agreed before the specified date by the employee’s employer and the new employer; or

(b)

if no amount is agreed, the costs described in subsection (3)(a).

(5)

The employee’s employer must comply with subsection (4)—

(a)

by the specified date; or

(b)

if the employee’s employer and the new employer agree to a later date, by that agreed date.

(6)

If the new employer does not receive payment from the employee’s employer by the specified date or the agreed date (if any), the new employer may recover the payment, in any court of competent jurisdiction, as a debt due from the employee’s employer.

(7)

To avoid doubt,—

(a)

if only part of the employee’s work is affected by the restructuring, the apportionment of costs described in subsection (3) must relate only to the work that is affected by the restructuring:

(b)

if the work performed by the employee will be performed for, or on behalf of, more than 1 new employer, the apportionment of costs described in subsection (3) must be adjusted between the employee’s employer and each new employer on a pro rata basis:

(c)

on and from the specified date, the new employer is liable to pay the employee for all service-related entitlements (whether legislative or otherwise), including those referred to in subsection (3)(a).

Section 69LA: inserted, on 6 March 2015, by section 40 of the Employment Relations Amendment Act 2014 (2014 No 61).

69LB Resolving disputes about apportioning liability for costs of service-related entitlements

(1)

This section applies to a dispute between an employee’s employer and the new employer (or, if more than 1 new employer is involved, all or any of the new employers) about apportioning liability for the costs of service-related entitlements under section 69LA(3).

(2)

If the dispute cannot be resolved between the employee’s employer and the new employer or employers,—

(a)

the parties may access mediation services as if the dispute were an employment relationship problem:

(b)

proceedings to resolve the dispute may be commenced before the Authority as if the dispute were an employment relationship problem.

(3)

For the purposes of subsection (2)(a), the parties may agree to access mediation services that are—

(a)

provided under section 144 (in which case, sections 145 to 153 apply, with any necessary modifications); or

(b)

referred to in section 154.

(4)

If proceedings are commenced before the Authority, the Authority must determine the apportionment of the costs of the service-related entitlements in accordance with section 69LA(3).

Section 69LB: inserted, on 6 March 2015, by section 40 of the Employment Relations Amendment Act 2014 (2014 No 61).

69LC Implied warranty by employer of transferring employees

(1)

This section applies if 1 or more employees of an employer elect to transfer to a new employer, as provided for in section 69I.

(2)

There is an implied warranty by the employees’ employer to the new employer that the employees’ employer has not, without good reason, changed—

(a)

the work affected by the restructuring; or

(b)

the employees who perform the work affected by the restructuring (for example, replacing employees with employees who are less experienced or less efficient); or

(c)

the terms and conditions of employment of 1 or more of those employees.

(3)

The warranty implied by this section applies in relation to changes occurring in the period—

(a)

beginning on the day on which the employees’ employer is informed about the proposed restructuring; and

(b)

ending on the day before the specified date.

(4)

If the employees’ employer breaches the implied warranty, and that breach adversely affects the new employer, the new employer may commence proceedings for damages, in any court of competent jurisdiction, against that employer.

(5)

For the purposes of subsection (2), whether a reason is a good reason is to be determined on an objective basis.

Section 69LC: inserted, on 6 March 2015, by section 40 of the Employment Relations Amendment Act 2014 (2014 No 61).

69M New employer becomes party to collective agreement that binds employee electing to transfer

(1)

This section applies if—

(a)

an employee who elects to transfer to a new employer is a member of a union and bound by a collective agreement; and

(b)

the new employer is not a party to the collective agreement that the union is a party to.

(2)

On and from the date on which the employee becomes an employee of the new employer, the new employer becomes a party to the collective agreement, but only in relation to, and for the purposes of, that employee.

Section 69M: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69N Employee who transfers may bargain for redundancy entitlements with new employer

(1)

This section applies to an employee if—

(a)

the employee elects, under section 69I(1), to transfer to a new employer; and

(b)

the new employer proposes to make the employee redundant for reasons relating to the transfer of the employees or to the circumstances arising from the transfer of the employees; and

(c)

the employee’s employment agreement—

(i)

does not provide for redundancy entitlements for those reasons or in those circumstances; or

(ii)

does not expressly exclude redundancy entitlements for those reasons or in those circumstances.

(2)

The employee is entitled to redundancy entitlements from his or her new employer.

(3)

If an employee seeks redundancy entitlements from his or her new employer, the employee and new employer must bargain with a view to reaching agreement on appropriate redundancy entitlements.

Section 69N: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69O Authority may investigate bargaining and determine redundancy entitlements

(1)

If an employee and his or her new employer fail to agree on redundancy entitlements under section 69N(3), the employee or new employer may apply to the Authority to investigate the bargaining relating to the matter.

(2)

After concluding the investigation, the Authority must determine—

(a)

if, in the Authority’s view, it is possible for the bargaining to continue, how further bargaining should occur; or

(b)

if, in the Authority’s view, further bargaining is not warranted, the redundancy entitlements due to an employee.

(3)

In determining the redundancy entitlements under subsection (2)(b), the Authority may take into account 1 or more of the following matters:

(a)

the redundancy entitlements (if any) provided in the employee’s employment agreement for redundancy in circumstances other than restructuring:

(b)

the employee’s length of service with his or her previous employer and new employer:

(c)

how much notice of the redundancy the employee has received:

(d)

the ability of the new employer to provide redundancy entitlements:

(e)

the likelihood of the employee being re-employed or obtaining employment with another employer:

(f)

any other relevant matter that the Authority thinks fit.

Section 69O: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69OAA False warranty: exempt employer

(1)

A person who provides a false warranty is liable to a penalty imposed by the Authority.

(2)

An employee affected by the restructuring may raise a personal grievance against the person who provided the false warranty as if the employee had—

(a)

elected to transfer to the person under section 69I; and

(b)

been unjustifiably dismissed (within the meaning given in section 103(1)(a)).

(3)

However, where the Authority or the court determines that the employee has a personal grievance, neither the Authority nor the court may make an order for reinstatement under sections 123(1)(a) and 125 in relation to that employee.

(4)

An employer to whom the false warranty was provided under section 69CC may commence proceedings for damages, in a court of competent jurisdiction, against the person who provided the warranty.

(5)

In this section, false warranty means a warranty under section 69CA

(a)

that confirms, on the date that the warranty is provided, the employer (together with any associated person or persons, if applicable) employs 19 or fewer employees; but

(b)

where, on the date that the warranty is provided, the employer (together with any associated person or persons, if applicable) employs more than 19 employees.

(6)

To avoid doubt, whether or not the person giving the warranty, or any other person, knew, or ought reasonably to have known, that the warranty was a false warranty is irrelevant.

Section 69OAA: inserted, on 6 March 2015, by section 41 of the Employment Relations Amendment Act 2014 (2014 No 61).

Subpart 2—Disclosure of information relating to transfer of employees

Subpart 2: substituted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Subpart 2 heading: replaced, on 6 March 2015, by section 42 of the Employment Relations Amendment Act 2014 (2014 No 61).

69OA Object of this subpart

The object of this subpart is to make provision for the disclosure of employee transfer costs information and individualised employee information relating to employees who have elected to transfer to a new employer under section 69I.

Section 69OA: replaced, on 6 March 2015, by section 43 of the Employment Relations Amendment Act 2014 (2014 No 61).

69OB Interpretation

(1)

In this subpart,—

employee transfer costs information, in relation to a proposed restructuring,—

(a)

means information about employment-related entitlements of the employees who would be eligible to elect, under section 69I, to transfer to a new employer if the proposed restructuring were to proceed and the new employer were not an exempt employer; and

(b)

includes—

(i)

the number of employees who would be eligible to make an election; and

(ii)

the wages or salary payable in a stated period (for example, a week, fortnight, or month) to the employees for performing the work that would be subject to the proposed restructuring; and

(iii)

the total number of hours the employees spend in a stated period (for example, a week, fortnight, or month) performing the work that would be subject to the proposed restructuring; and

(iv)

the cost of service-related entitlements of the employees, whether legislative or otherwise; and

(v)

the cost of any other entitlements of the employees in their capacity as employees, including any entitlements already agreed but not due until a future date or time

individualised employee information—

(a)

means information about an employee kept by the employee’s employer for employment-related purposes, including—

(i)

any personnel records relating to the employee; and

(ii)

information about any disciplinary matters relating to the employee; and

(iii)

information about any personal grievances raised by the employee against the employer; and

(iv)

information about an employee that the employee’s employer is required to keep under this Act or any other enactment, for example,—

(A)

the employee’s individual employment agreement, the current terms and conditions of employment that make up the employee’s individual terms and conditions of employment, or the relevant collective agreement (as the case may be); and

(B)

a copy of the wages and time record; and

(C)

a copy of the holiday and leave record; and

(D)

a copy of the employee’s tax code declaration; and

(E)

details of any employer contribution (as defined in section 4(1) of the KiwiSaver Act 2006) and any deductions of contributions from the employee’s wages for the purposes of the KiwiSaver Act 2006; and

(F)

details of any deductions from the employee’s wages made under section 36 of the Student Loan Scheme Act 2011; and

(G)

details of any deductions from the employee’s wages made under Part 10 of the Child Support Act 1991; but

(b)

does not include any information about the employee that is subject to a statutory or contractual requirement to maintain confidentiality.

(2)

Any term or expression defined in subpart 1 and used but not defined in this subpart has the same meaning as in subpart 1.

Section 69OB: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 69OB(1): replaced, on 6 March 2015, by section 44 of the Employment Relations Amendment Act 2014 (2014 No 61).

69OC Disclosure of employee transfer costs information

(1)

A request for the disclosure of employee transfer costs information may be made either—

(a)

where—

(i)

disclosure is sought for the purpose of—

(A)

deciding whether to terminate an agreement or let it expire; or

(B)

negotiating an agreement; or

(C)

deciding whether to enter into an agreement; or

(D)

tendering for an agreement; and

(ii)

a restructuring would result if the agreement were to be—

(A)

terminated or to expire; or

(B)

concluded; or

(C)

entered into; or

(D)

awarded; or

(b)

where—

(i)

the restructuring referred to in paragraph (a)(ii) is a contracting out or a subsequent contracting; and

(ii)

a subcontractor is engaged, before or at the same time as the restructuring, to perform the work, or some of the work, affected by the restructuring.

(2)

The persons who may make the request are—

(a)

the persons who would (if they were parties to the restructuring and the restructuring were to proceed) be—

(i)

person A in a contracting in:

(ii)

person B in a contracting out:

(iii)

person C in a subsequent contracting:

(iv)

the person to whom an employer’s business (or part of it) is sold or transferred:

(b)

the persons who would (if the restructuring were to proceed and if the work were to be subcontracted before or at the same time as the restructuring) be—

(i)

a subcontractor engaged to perform the work for person B in a contracting out:

(ii)

a subcontractor engaged to perform the work for person C in a subsequent contracting.

(2A)

However, an employer or other person that would be an exempt employer if the proposed restructuring were to take effect cannot make a request for disclosure of employee transfer costs information.

(3)

The persons to whom a request may be made are the persons who would, if the restructuring were to proceed and they were parties to the restructuring, be—

(a)

person B in the definition of contracting in:

(b)

person A in the definition of contracting out:

(c)

person A in the definition of subsequent contracting:

(d)

the seller or transferor in the case of the sale or transfer of an employer’s business (or part of it).

(3A)

A request for disclosure of employee transfer costs information must be accompanied by a written warranty stating that, on the date on which the warranty is provided, the person making the request is not an exempt employer.

(3B)

If a request is not accompanied by the warranty described in subsection (3A), the person to whom the request is made must decline to provide employee transfer costs information to the person who made the request.

(3C)

A person to whom a request is made for a purpose described in subsection (1)(a) must provide the information in sufficient time for the person who made the request to take the information into account for that purpose.

(4)

A person to whom a request is made under subsection (3) must provide to the person who made the request under subsection (2) employee transfer costs information that relates to the proposed restructuring.

(5)

[Repealed]

(6)

Employee transfer costs information provided under this section must be provided—

(a)

in aggregate form; and

(b)

to the extent practicable, in a form that protects the privacy of the employees concerned.

(7)

In subsections (2A) and (3A), exempt employer means an employer who is an exempt employer within the meaning of section 69CA(1)(a) and (b).

Section 69OC: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 69OC(1): replaced, on 6 March 2015, by section 45(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OC(2): replaced, on 6 March 2015, by section 45(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OC(2A): inserted, on 6 March 2015, by section 45(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OC(3A): inserted, on 6 March 2015, by section 45(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OC(3B): inserted, on 6 March 2015, by section 45(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OC(3C): inserted, on 6 March 2015, by section 45(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OC(5): repealed, on 6 March 2015, by section 45(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OC(7): inserted, on 6 March 2015, by section 45(4) of the Employment Relations Amendment Act 2014 (2014 No 61).

69OD Provision of employee transfer costs information by other persons

(1)

Subsection (2) applies to a person who receives a request for employee transfer costs information under section 69OC(3)(a).

(2)

If the request relates (whether wholly or in part) to work that has been subcontracted and the person receiving the request does not have some or all of the information requested, the person must immediately require the subcontractor to provide the information.

(3)

Subsection (4) applies to a person who receives a request for employee transfer costs information under section 69OC(3)(c).

(4)

If the person does not have some or all of the information requested, the person must immediately require the person who performs the work to which the request relates to provide the information.

(5)

If the person who performs the work has subcontracted some or all of the work and does not have some or all of the information requested, the person must immediately require the subcontractor to provide the information.

(6)

A person required to provide information—

(a)

under subsection (2) or (4) must provide the information—

(i)

to the person who received the request; and

(ii)

in time for that person to comply with section 69OC(3C):

(b)

under subsection (5) must provide the information—

(i)

to the person who required the information; and

(ii)

in time for the person who received the request to comply with section 69OC(3C).

(7)

However, if the subcontractor who is required to provide the information under subsection (2) or (5) does not have some or all of the information requested because the work has been further subcontracted, the subcontractor must immediately provide to the person who required the information any details the subcontractor has about who the other subcontractor is and how to contact the other subcontractor, and (to avoid doubt) subsection (2) or (5) (as the case may require) applies accordingly.

(8)

Employee transfer costs information provided under this section must be provided—

(a)

in aggregate form; and

(b)

to the extent practicable, in a form that protects the privacy of the employees concerned.

Section 69OD: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 69OD(6)(a)(ii): amended, on 6 March 2015, by section 46 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OD(6)(b)(ii): amended, on 6 March 2015, by section 46 of the Employment Relations Amendment Act 2014 (2014 No 61).

69OE Updating disclosure of employee transfer costs information

(1)

This section applies if—

(a)

employee transfer costs information has been provided under section 69OC or 69OD; and

(b)

after the provision of the information, there is a change in the employment-related entitlements or circumstances that the information relates to; and

(c)

the change makes the information provided out of date.

(2)

The person who provided the employee transfer costs information must, immediately after the change in the employment-related entitlements or circumstances, provide to the person who was originally provided with the information details specifying—

(a)

the information that is out of date; and

(b)

what the up-to-date information is.

(3)

If the person who is provided with the up-to-date employee transfer costs information is not the person who made the request for the original information under section 69OC,—

(a)

the person must, immediately after receiving the up-to-date information, provide it to the person who received the request for the original information; and

(b)

that person must, immediately after receiving the up-to-date information, provide it to the person who made the request for the original information.

(4)

A person is not required to provide up-to-date information if, at the time of the change in the employment-related entitlements or circumstances, a request could not have been made for the information under section 69OC.

Section 69OE: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69OEA Disclosure of individualised employee information

(1)

This section applies if an employee elects to transfer under section 69I to a new employer.

(2)

The employee’s employer must provide the new employer with individualised employee information about the employee.

(3)

The employee’s employer must provide the individualised employee information—

(a)

as soon as practicable; but

(b)

no later than—

(i)

the date on which the restructuring takes effect; or

(ii)

any later date agreed to by the employee’s employer and the new employer.

(4)

Subsection (5) applies if—

(a)

individualised employee information has been provided under subsection (2); and

(b)

after the provision of the information, there is a change in the matters or circumstances that the information relates to; and

(c)

the change makes the information provided out of date.

(5)

The employee’s employer must, immediately after the change in the matters or circumstances, provide the new employer with the information details, specifying—

(a)

the information that is out of date; and

(b)

what the up-to-date information is.

(6)

Every employer who fails to comply with subsections (2) to (5) is liable to a penalty imposed by the Authority.

(7)

To avoid doubt, the new employer may keep, use, or disclose individualised employee information only in accordance with the Privacy Act 1993.

Section 69OEA: inserted, on 6 March 2015, by section 47 of the Employment Relations Amendment Act 2014 (2014 No 61).

69OF Employer who is subject to Official Information Act 1982

Nothing in the Official Information Act 1982 (except section 6) enables an employer that is subject to that Act to withhold information that is requested under this subpart.

Section 69OF: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69OG Subpart prevails over agreement

A contract, agreement, or other arrangement has no force or effect to the extent that it is inconsistent with this subpart.

Section 69OG: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Subpart 3—Other employees

Subpart 3: added, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69OH Object of this subpart

The object of this subpart is to provide protection to employees to whom subpart 1 does not apply if, as a result of a restructuring, their work is to be performed by or on behalf of another person and, to this end, to require their employment agreements to contain employee protection provisions relating to negotiations between the employer and the other person about the transfer of affected employees to the other person.

Section 69OH: inserted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69OI Interpretation

(1)

In this subpart, unless the context otherwise requires,—

employee means an employee to whom Schedule 1A does not apply

employee protection provision means a provision—

(a)

the purpose of which is to provide protection for the employment of employees affected by a restructuring; and

(b)

that includes—

(i)

a process that the employer must follow in negotiating with a new employer about the restructuring to the extent that it relates to affected employees; and

(ii)

the matters relating to the affected employees’ employment that the employer will negotiate with the new employer, including whether the affected employees will transfer to the new employer on the same terms and conditions of employment; and

(iii)

the process to be followed at the time of the restructuring to determine what entitlements, if any, are available for employees who do not transfer to the new employer

new employer, in relation to a restructuring, means,—

(a)

in the case of a contracting out, person B in the definition of that term; or

(b)

in the case of a sale or transfer of a business, the person to whom the business is sold or transferred

restructuring

(a)

means—

(i)

contracting out; or

(ii)

selling or transferring the employer’s business (or part of it) to another person; but

(b)

to avoid doubt, does not include—

(i)

contracting in; or

(ii)

subsequent contracting; or

(iii)

in the case of an employer that is a company, the sale or transfer of any or all of the shares in the company; or

(iv)

any contract, arrangement, sale, or transfer entered into, made, or concluded while the employer is adjudged bankrupt or in receivership or liquidation.

(2)

For the purposes of this subpart, an employee is an affected employee if,—

(a)

as a result of a restructuring, the employee is, or will be, no longer required by his or her employer to perform the work performed by the employee; and

(b)

the type of work performed by the employee (or work that is substantially similar) is, or is to be, performed by or on behalf of another person.

(3)

Any term or expression defined in subpart 1 and used but not defined in this subpart has the same meaning as in subpart 1.

Section 69OI: inserted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69OJ Collective agreements and individual employment agreements must contain employee protection provision

Every collective agreement and every individual employment agreement must contain an employee protection provision to the extent that the agreement binds employees to whom this subpart applies.

Section 69OJ: inserted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

69OK Affected employee may choose whether to transfer to new employer

If an employer, in relation to a restructuring, arranges for an affected employee to transfer to the new employer, the affected employee may—

(a)

choose to transfer to the new employer; or

(b)

choose not to transfer to the new employer.

Section 69OK: inserted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Subpart 4—Review of Part

[Repealed]

Subpart 4: repealed, on 6 March 2015, by section 48 of the Employment Relations Amendment Act 2014 (2014 No 61).

69OL Review of operation of Part after 3 years
[Repealed]

Section 69OL: repealed, on 6 March 2015, by section 48 of the Employment Relations Amendment Act 2014 (2014 No 61).

Part 6B Bargaining fees

Part 6B: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69P Interpretation

In this Part, unless the context otherwise requires,—

bargaining fee means an amount payable by an employee to a union under a bargaining fee clause, whether payable as a lump sum or on a periodical basis

bargaining fee clause means a provision in a collective agreement that, subject to this Part,—

(a)

applies to the employer’s employees who are not members of a union and who perform work that comes within the coverage clause of the collective agreement; and

(b)

specifies the amount of the bargaining fee; and

(c)

requires those employees to pay a bargaining fee; and

(d)

provides that those employees’ terms and conditions of employment comprise the terms and conditions of employment specified in the collective agreement.

Section 69P: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69Q Bargaining fee clause does not come into force unless agreed to first by employer and union and then by secret ballot

(1)

A bargaining fee clause does not come into force unless the clause has—

(a)

first been agreed to by the employer and the union in a collective agreement; and

(b)

then been agreed to in a secret ballot held in accordance with this section.

(2)

The secret ballot must be—

(a)

held before the collective agreement comes into force; and

(b)

conducted jointly by the employer and union.

(3)

An employee is entitled to vote in a secret ballot if—

(a)

the work performed by the employee comes within the coverage clause in the collective agreement; and

(b)

the employee is—

(i)

not a member of any union; or

(ii)

a member only of the union that is a party to the collective agreement with the employer.

(4)

For the purposes of a secret ballot, a ballot paper must contain, or have attached to it, a copy of the bargaining fee clause.

(5)

A bargaining fee clause is agreed to in a secret ballot if a majority of the employer’s employees who vote, vote in favour of the clause.

Section 69Q: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69R Employer to notify employees if bargaining fee clause agreed to

(1)

If a bargaining fee clause is agreed to in a secret ballot, the employer must provide the employees referred to in section 69S(a) to (c) with a copy of the collective agreement that contains the bargaining fee clause and notify them in writing that—

(a)

their terms and conditions of employment will comprise the terms and conditions of employment specified in the collective agreement (including the obligation to pay a bargaining fee) on and from the later of the following:

(i)

the expiry of the period referred to in paragraph (c); or

(ii)

the date on which the collective agreement comes into force; and

(b)

the bargaining fee will be deducted from their wages, specifying the amount of the bargaining fee; and

(c)

if an employee does not wish to pay the bargaining fee, the employee must notify the employer in writing within the period specified in the collective agreement for that purpose that the employee does not agree to pay the bargaining fee.

(2)

If an employee notifies his or her employer that the employee does not agree to pay the bargaining fee,—

(a)

the bargaining fee clause does not apply to the employee; and

(b)

the employee’s terms and conditions of employment remain the same until such time as varied by agreement with the employer.

Section 69R: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69S Which employees bargaining fee clause applies to

When a bargaining fee clause has been agreed to in a secret ballot and comes into force, the clause applies to an employee if—

(a)

the work performed by the employee comes within the coverage clause of the collective agreement; and

(b)

the employee is not a member of any union; and

(c)

the employee was—

(i)

entitled to vote in the secret ballot that agreed to the clause; or

(ii)

employed in the period beginning immediately after the secret ballot was held and ending with the close of the day before the date on which the collective agreement came into force; and

(d)

the employee has not notified his or her employer in writing, within the period specified under section 69R(1)(c) that the employee does not agree to pay the bargaining fee.

Section 69S: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69T Bargaining fee clause binding on employer and employee

While a bargaining fee clause applies to an employee,—

(a)

the clause is binding on the employee and his or her employer; and

(b)

the employer must deduct the bargaining fee from the employee’s wages and pay it to the union concerned.

Section 69T: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69U Amount of bargaining fee

(1)

A bargaining fee must not be greater than the union fee that an employee would be required to pay to the union if the employee were a member of the union.

(2)

A bargaining fee has no effect to the extent (if any) that the bargaining fee does not comply with subsection (1).

Section 69U: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69V Expiry of bargaining fee clause

A bargaining fee clause expires when the collective agreement that contains the clause expires.

Section 69V: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69W Validity of bargaining fee clause

A bargaining fee clause, and anything done under it in accordance with this Part,—

(a)

is not a breach of, or inconsistent with, this Act (in particular sections 8, 9, 11, and 68(2)(c)); and

(b)

Section 69W: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Part 6C Breastfeeding facilities and breaks

Part 6C: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

69X Interpretation

In this Part, unless the context otherwise requires,—

breastfeeding includes expressing breast milk

work period has the same meaning as in section 69ZC.

Section 69X: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

69Y Employer’s obligation

(1)

An employer must ensure that, so far as is reasonable and practicable in the circumstances,—

(a)

appropriate facilities are provided in the workplace for an employee who is breastfeeding and who wishes to breastfeed in the workplace; and

(b)

appropriate breaks are provided to an employee who is breastfeeding and wishes to breastfeed during a work period.

(2)

For the purpose of subsection (1)(b), the breaks are paid only if the employee and employer agree that they are paid.

(3)

In subsection (1), circumstances includes—

(a)

the employer’s operational environment; and

(b)

the employer’s resources.

Section 69Y: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

69Z Breastfeeding breaks additional to breaks under Part 6D

(1)

Breastfeeding breaks provided under this Part are in addition to breaks an employee is entitled to under Part 6D.

(2)

However, if an employee and employer agree, the same break may be taken for the purposes of this Part and Part 6D.

(3)

To avoid doubt, a break taken for the purposes of this Part and Part 6D is a paid break to the same extent as it would be if taken separately under Part 6D.

Section 69Z: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

69ZA Code of employment practice relating to employer’s obligation

As soon as practicable after the commencement of this Part, the Minister must approve, under section 100A, a code of employment practice relating to an employer’s obligation under section 69Y.

Section 69ZA: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

69ZB Penalty

An employer who does not comply with section 69Y is liable to a penalty imposed by the Authority.

Section 69ZB: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

Part 6D Rest breaks and meal breaks

Part 6D: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

69ZC Interpretation

In this Part, unless the context otherwise requires,—

compensatory measure

(a)

means a measure that is designed to compensate an employee for a failure to provide rest breaks or meal breaks in accordance with section 69ZD(1); and

(b)

includes (without limitation) a measure that provides the employee with time off work at an alternative time during the employee’s work period, for example, by allowing a later start time, an earlier finish time, or an accumulation of time off work that may be taken on 1 or more occasions

work period—

(a)

means the period—

(i)

beginning with the time when, in accordance with an employee’s terms and conditions of employment, an employee starts work; and

(ii)

ending with the time when, in accordance with an employee’s terms and conditions of employment, an employee finishes work; and

(b)

to avoid doubt, includes all authorised breaks (whether paid or not) provided to an employee or to which an employee is entitled during the period specified in paragraph (a).

Section 69ZC: replaced, on 6 March 2015, by section 49 of the Employment Relations Amendment Act 2014 (2014 No 61).

69ZD Employee’s entitlement to rest breaks and meal breaks

(1)

An employee is entitled to, and an employer must provide the employee with, rest breaks and meal breaks that—

(a)

provide the employee with a reasonable opportunity, during the employee’s work period, for rest, refreshment, and attention to personal matters; and

(b)

are appropriate for the duration of the employee’s work period.

(2)

The employee’s entitlement to rest breaks and meal breaks may be subject to restrictions, but only if the restrictions—

(a)

are—

(i)

reasonable and necessary, having regard to the nature of the employee’s work; or

(ii)

if subparagraph (i) does not apply, reasonable and agreed to by the employer and employee (whether in an employment agreement or otherwise); and

(b)

relate to 1 or more of the following:

(i)

the employee continuing to be aware of his or her work duties or, if required, continuing to perform some of his or her work duties, during the break:

(ii)

the circumstances when an employee’s break may be interrupted:

(iii)

the employee taking his or her break in the workplace or at a specified place within the workplace.

(3)

An employee’s entitlement to rest breaks under this section is to paid rest breaks.

Section 69ZD: replaced, on 6 March 2015, by section 50 of the Employment Relations Amendment Act 2014 (2014 No 61).

69ZE Timing and duration of rest breaks and meal breaks

(1)

An employee must take his or her rest breaks and meal breaks—

(a)

at the times and for the duration agreed between the employee and his or her employer; but

(b)

in the absence of such agreement, at the reasonable times and for the reasonable duration specified by the employer.

(2)

For the purposes of subsection (1)(b), an employer may specify reasonable times and durations that, having regard to the employer’s operational environment or resources and the employee’s interests, enable the employer to maintain continuity of service or production.

(3)

An employer must provide an employee with a reasonable opportunity to negotiate with the employer and reach agreement under subsection (1)(a) on the times when the employee’s rest breaks and meal breaks are to be taken and on the duration of the breaks.

(4)

To avoid doubt, subsection (3) does not limit the requirement of the employer and employee to deal with each other in good faith as set out in section 4.

Section 69ZE: replaced, on 6 March 2015, by section 50 of the Employment Relations Amendment Act 2014 (2014 No 61).

69ZEA Compensatory measures

(1)

An employer is exempt from the requirement to provide rest breaks and meal breaks in accordance with section 69ZD(1)

(a)

to the extent that the employer and the employee agree that the employee is to be provided with compensatory measures; or

(b)

if paragraph (a) does not apply, only to the extent that, having regard to the nature of the work performed by the employee, the employer cannot reasonably provide the employee with rest breaks and meal breaks.

(2)

To the extent that an employer is not required to provide rest breaks and meal breaks under subsection (1), an employee is entitled to, and the employee’s employer must provide the employee with, compensatory measures.

Section 69ZEA: inserted, on 6 March 2015, by section 50 of the Employment Relations Amendment Act 2014 (2014 No 61).

69ZEB Compensatory measure must be reasonable

(1)

A compensatory measure provided to an employee under section 69ZEA must be reasonable.

(2)

To avoid doubt, if an employer provides an employee with a compensatory measure that involves time off work at an alternative time during the employee’s work period, that measure is to be treated as complying with subsection (1) if—

(a)

the employee is provided with an equivalent amount of time off work (that is, the same amount of time that the employee would otherwise have taken as a rest break or meal break); and

(b)

the time off work at an alternative time is provided on the same basis as the rest break or meal break that the employee would have otherwise taken.

Section 69ZEB: inserted, on 6 March 2015, by section 50 of the Employment Relations Amendment Act 2014 (2014 No 61).

69ZF Penalty

An employer who does not comply with any of sections 69ZD to 69ZEB is liable to a penalty imposed by the Authority.

Section 69ZF: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

Section 69ZF: amended, on 6 March 2015, by section 51 of the Employment Relations Amendment Act 2014 (2014 No 61).

69ZG Relationship between Part and employment agreements

(1)

This Part does not prevent an employer from providing an employee with enhanced or additional entitlements to rest breaks and meal breaks (whether specified in an employment agreement or otherwise) on a basis agreed with the employee.

(2)

An employment agreement that excludes or reduces an employee’s entitlement to rest breaks and meal breaks under section 69ZD(1) or (3) or 69ZE or to compensatory measures under section 69ZEA

(a)

has no effect to the extent that it does so; but

(b)

is not an illegal contract under the Illegal Contracts Act 1970.

(3)

An employment agreement that restricts an employee’s rest breaks or meal breaks otherwise than in accordance with section 69ZD(2)

(a)

has no effect to the extent that it does so; but

(b)

is not an illegal contract under the Illegal Contracts Act 1970.

Section 69ZG: replaced, on 6 March 2015, by section 52 of the Employment Relations Amendment Act 2014 (2014 No 61).

69ZH Relationship between Part and other enactments

Where an employee is a person who is required to take rest breaks or meal breaks by, or under, an enactment other than this Part, the requirement for rest breaks or meal breaks defined by, or under, the other enactment applies instead of this Part.

Section 69ZH: replaced, on 6 March 2015, by section 52 of the Employment Relations Amendment Act 2014 (2014 No 61).

Part 7 Employment relations education leave

70 Object of this Part

The object of this Part is to provide paid leave to certain employees to increase their knowledge about employment relations for the purpose of—

(a)

improving relations among unions, employees, and employers; and

(b)

promoting the object of this Act, especially the duty of good faith.

71 Interpretation

In this Part, unless the context otherwise requires,—

eligible employee, in relation to a union or an employer, means an employee who is a member of a union

employment relations education means employment relations education approved under section 72

specified date means—

(a)

1 March; or

(b)

such other date in a year as is specified in a collective agreement for the purposes of this Part

year means,—

(a)

if a collective agreement does not provide a specified date as an alternative date to 1 March, a period of 12 months beginning on 1 March and ending on the close of the last day of February in the following year, the first such year being 1 March 2001 to 28 February 2002:

(b)

if a collective agreement does provide a specified date as an alternative date to 1 March, a period of 12 months beginning on the specified date.

Section 71 eligible employee: substituted, on 1 December 2004, by section 31 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

72 Minister to approve employment relations education

(1)

The Minister may, for the purposes of this Part, approve courses of employment relations education.

(2)

The Minister may approve a course of employment relations education only if satisfied that the course will further the object of this Part.

(3)

The Minister may delegate his or her power under subsection (1) to 1 or more persons.

Section 72(1): amended, on 1 December 2004, by section 32 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

73 Union entitled to allocate employment relations education leave

(1)

A union is entitled to allocate employment relations education leave to eligible employees in accordance with this Part.

(2)

The maximum number of days of employment relations education leave that a union is entitled to allocate in a year in respect of an employer’s eligible employees is the number of days calculated in accordance with section 74, unless the employer agrees to the allocation of additional days.

(3)

The maximum number of days of employment relations education leave that a union is entitled to allocate in a year to an eligible employee is 5 days, unless the employee’s employer agrees to the allocation of additional days.

(4)

Employment relations education leave expires if it is not allocated by the end of the year in respect of which it is calculated under section 74, unless the employer agrees that the leave may be carried forward to the next year.

74 Calculation of maximum number of days of employment relations education leave

(1)

The maximum number of days of employment relations education leave that a union is entitled to allocate in respect of an employer is based on the number of full-time equivalent eligible employees employed by the employer as at the 30th day before the specified date in a year, and is determined in accordance with the following table:

Full-time equivalent eligible employees as at the 30th day before the specified date in a yearMaximum number of days of employment relations education leave that union entitled to allocate
1–53
6–505
51–2801 day for every 8 full-time equivalent eligible employees or part of that number
281 or more35 days plus 5 days for every 100 full-time equivalent eligible employees or part of that number that exceeds 280

(2)

For the purposes of calculating the number of full-time equivalent eligible employees employed by an employer,—

(a)

an eligible employee who normally works 30 hours or more during a week is to be counted as 1:

(b)

an eligible employee who normally works less than 30 hours during a week is to be counted as one-half.

Section 74(1): amended, on 1 December 2004, by section 33(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 74(1) table: amended, on 1 December 2004, by section 33(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

75 Union to notify employer of maximum number of days of employment relations education leave calculated

(1)

After calculating the maximum number of days of employment relations education leave, a union must give the employer concerned a notice containing—

(a)

the maximum number of days calculated in respect of the employer; and

(b)

the details of the calculation.

(2)

The union must comply with subsection (1) within 1 month after the specified date in each year.

(3)

Until a union complies with this section, the union must not allocate employment relations education leave.

(4)

If a union fails to comply with subsections (1) and (2), the union forfeits one-twelfth of the employment relations education leave for each complete month that the failure continues.

76 Allocation of employment relations education leave calculated in respect of another employer

(1)

This section applies to a union that is a party to a collective agreement with 2 or more employers.

(2)

A union may allocate employment relations education leave calculated in respect of an employer to 1 or more eligible employees of another employer only if, and to the extent that, the employers concerned agree, and subject to any terms and conditions agreed with the employers.

77 Allocation of employment relations education leave to eligible employee

(1)

A union allocates employment relations education leave to an eligible employee by giving a notice to the employee, and a copy of the notice to the employee’s employer, that informs the employee—

(a)

that the union has allocated employment relations education leave to the employee; and

(b)

of the number of days of employment relations education leave allocated to the employee; and

(c)

that the employee must take the employment relations education leave by the end of the year in which it is allocated; and

(d)

of the terms or effect of sections 78 and 79.

(2)

The allocation of employment relations education leave does not, of itself, entitle the employee to take the leave.

78 Eligible employee proposing to take employment relations education leave

(1)

An eligible employee proposing to take employment relations education leave must tell his or her employer—

(a)

that the employee proposes to take that leave; and

(b)

the dates on which the employee proposes to take that leave; and

(c)

the employment relations education that the employee proposes to undertake during that leave.

(2)

An eligible employee must not take employment relations education leave unless the employee complies with subsection (1) as soon as possible, but in any event no later than 14 days before the first day of such leave.

(3)

An employer may refuse to allow an eligible employee to take employment relations education leave if the employer is satisfied, on reasonable grounds, that the employee taking employment relations education leave on the dates notified would unreasonably disrupt the employer’s business.

(3A)

To avoid doubt, a representative of an eligible employee may comply with subsection (1) on behalf of the eligible employee.

(4)

In subsection (2), day means a day of the week other than a day in the period beginning with 25 December in any year and ending with 5 January in the following year.

Section 78(3A): inserted, on 1 December 2004, by section 34 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

79 Eligible employee taking employment relations education leave entitled to ordinary pay

(1)

An employer must pay to an eligible employee the employee’s relevant daily pay as defined in section 9 of the Holidays Act 2003 or average daily pay calculated in accordance with section 9A of that Act (as the case may be) for every day or part of a day taken by the employee as employment relations education leave.

(2)

However, an employer is not required to comply with subsection (1) in respect of any day for which the eligible employee is paid weekly compensation under the Accident Compensation Act 2001.

Section 79(1): substituted, on 1 April 2011, by section 18 of the Holidays Amendment Act 2010 (2010 No 126).

Section 79(2): amended, on 1 April 2002, by section 337(1) of the Accident Compensation Act 2001 (2001 No 49).

Section 79(2): amended on 3 March 2010, pursuant to section 5(1)(b) of the Accident Compensation Amendment Act 2010 (2010 No 1).

Part 8 Strikes and lockouts

80 Object of this Part

The object of this Part is—

(a)

to recognise that the requirement that a union and an employer must deal with each other in good faith does not preclude certain strikes and lockouts being lawful (as defined in this Part); and

(b)

to define lawful and unlawful strikes and lockouts; and

(ba)

to provide notice requirements for all strikes and lockouts; and

(bb)

to provide for specified pay deductions, and to specify how the amount of such deductions must be calculated; and

(c)

to ensure that where a strike or lockout is threatened in an essential service, there is an opportunity for a mediated solution to the problem.

Section 80(ba): inserted, on 6 March 2015, by section 53 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 80(bb): inserted, on 6 March 2015, by section 53 of the Employment Relations Amendment Act 2014 (2014 No 61).

Interpretation

81 Meaning of strike

(1)

In this Act, strike means an act that—

(a)

is the act of a number of employees who are or have been in the employment of the same employer or of different employers—

(i)

in discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it; or

(ii)

in refusing or failing after any such discontinuance to resume or return to their employment; or

(iii)

in breaking their employment agreements; or

(iv)

in refusing or failing to accept engagement for work in which they are usually employed; or

(v)

in reducing their normal output or their normal rate of work; and

(b)

is due to a combination, agreement, common understanding, or concerted action, whether express or, as the case requires, implied, made or entered into by the employees.

(2)

In this Act, strike does not include an employees’ meeting authorised—

(a)

by an employer; or

(b)

by an employment agreement; or

(c)

by this Act.

(3)

In this Act, to strike means to become a party to a strike.

Compare: 1991 No 22 s 61

Section 81(1)(b): amended, on 14 May 2013, by section 6 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37).

82 Meaning of lockout

(1)

In this Act, lockout means an act that—

(a)

is the act of an employer—

(i)

in closing the employer’s place of business, or suspending or discontinuing the employer’s business or any branch of that business; or

(ii)

in discontinuing the employment of any employees; or

(iii)

in breaking some or all of the employer’s employment agreements; or

(iv)

in refusing or failing to engage employees for any work for which the employer usually employs employees; and

(b)

is done with a view to compelling employees, or to aid another employer in compelling employees, to—

(i)

accept terms of employment; or

(ii)

comply with demands made by the employer.

(2)

In this Act, to lock out means to become a party to a lockout.

Compare: 1991 No 22 s 62

Lawfulness of strikes and lockouts

82A Requirement for union to hold secret ballot before strike

(1)

This section applies to—

(a)

a union that—

(i)

is bound by a current collective agreement; or

(ii)

will be bound by a proposed collective agreement; and

(b)

members of that union who are employees who are or have been in the employment of the same employer or of different employers and who—

(i)

are or were bound (as the case may be) by the current collective agreement referred to in paragraph (a)(i); or

(ii)

will be bound (as the case may be) by the proposed collective agreement referred to in paragraph (a)(ii).

(2)

Before a strike may proceed under this Part,—

(a)

the union must hold, in accordance with its rules, a secret ballot of its members who are employed by the same or different employers (as the case may be) and who would become a party to the strike; and

(b)

the result of the secret ballot must be in favour of the strike.

(3)

For the purposes of subsection (2)(b), the result of a secret ballot is determined by a simple majority of the members of the union who are entitled to vote and who do vote.

(4)

As soon as is reasonably practicable after the conclusion of the secret ballot under subsection (2), the union must notify the result of the ballot to the members of the union who were entitled to vote.

Section 82A: inserted, on 14 May 2013, by section 7 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37).

82B Terms of question for secret ballot

The question to be voted on in a secret ballot for the purposes of section 82A is whether the member of the union is in favour of the strike.

Section 82B: inserted, on 14 May 2013, by section 7 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37).

82C When requirement for secret ballot does not apply

Sections 82A and 82B do not apply if the proposed strike is lawful under section 84 (which relates to lawful strikes on the grounds of safety or health).

Section 82C: inserted, on 14 May 2013, by section 7 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37).

83 Lawful strikes and lockouts related to collective bargaining

Participation in a strike or lockout is lawful if the strike or lockout—

(a)

is not unlawful under section 86; and

(b)

relates to bargaining—

(i)

for a collective agreement that will bind each of the employees concerned; or

(ii)

with regard to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declaration made by the court under section 192(2)(c).

Compare: 1991 No 22 s 64(1)

84 Lawful strikes and lockouts on grounds of safety or health

Participation in a strike or lockout is lawful if the employees who strike have, or the employer who locks out has, reasonable grounds for believing that the strike or lockout is justified on the grounds of safety or health.

Compare: 1991 No 22 s 71(1)

85 Effect of lawful strike or lockout

(1)

Lawful participation in a strike or lockout does not give rise—

(a)

to proceedings under section 99 that are founded on tort; or

(b)

to proceedings under section 100 for the grant of an injunction; or

(c)

to any action or proceedings—

(i)

for a breach of an employment agreement; or

(ii)

for a penalty under this Act; or

(iii)

for the grant of a compliance order.

(2)

Where it is proved in proceedings that participation in a strike or lockout of a kind described in section 86 has occurred, a party to those proceedings who alleges that participation in the strike or lockout was lawful by virtue of section 84 has the burden of proving that allegation.

Compare: 1991 No 22 ss 64(2), 71(2)

86 Unlawful strikes or lockouts

(1)

Participation in a strike or lockout is unlawful if the strike or lockout—

(aa)

in the case of a strike, takes place in contravention of section 82A; or

(a)

occurs while a collective agreement binding the employees participating in the strike or affected by the lockout is in force, unless subsection (2) applies; or

(b)

occurs during bargaining for a proposed collective agreement that will bind the employees participating in the strike or affected by the lockout, unless—

(i)

at least 40 days have passed since the bargaining was initiated; and

(ii)

if on the date bargaining was initiated the employees were bound by the same collective agreement, that collective agreement has expired; and

(iii)

if on that date the employees were bound by different collective agreements, at least 1 of those collective agreements has expired; or

(ba)

occurs in a situation where,—

(i)

in the case of a strike, the employee has failed to comply with the notice requirements in section 86A or 93, as the case may be:

(ii)

in the case of a lockout, the employer has failed to comply with the notice requirements in section 86B or 94, as the case may be; or

(c)

relates to a personal grievance; or

(d)

relates to a dispute; or

(da)

relates to a bargaining fee clause or proposed bargaining fee clause under Part 6B; or

(e)

relates to any matter dealt with in Part 3; or

(f)

is in an essential service and the requirements as to notice that are contained in section 90 or section 91, as the case may be, have not been complied with; or

(g)

takes place in contravention of an order of the court.

(2)

Subsection (1)(a) does not apply—

(a)

to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declaration made by the court under section 192(2)(c); or

(b)

to a collective agreement that is still in force after the first of the collective agreements referred to in subsection (1)(b)(iii) has expired, for so long as that bargaining continues.

(3)

For the purposes of this section, in determining whether a collective agreement is in force or has expired section 53 is not to be taken into account.

Compare: 1991 No 22 s 63(a)–(d), (f), (g)

Section 86(1)(aa): inserted, on 14 May 2013, by section 8 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37).

Section 86(1)(ba): inserted, on 6 March 2015, by section 54 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 86(1)(da): inserted, on 1 December 2004, by section 35 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Notice of strike or lockout

Heading: inserted, on 6 March 2015, by section 55 of the Employment Relations Amendment Act 2014 (2014 No 61).

86A Notice of strike

(1)

No employees may strike—

(a)

unless participation in the strike is lawful under section 83 or 84; and

(b)

without having given to the employees’ employer and to the chief executive notice of the employees’ intention to strike; and

(c)

before the date and time specified in the notice as the date and time on which the strike will begin.

(2)

The notice required under subsection (1) must—

(a)

be in writing; and

(b)

specify the following information:

(i)

the period of notice given; and

(ii)

the nature of the proposed strike, including whether or not it will be continuous; and

(iii)

the place or places where the proposed strike will occur; and

(iv)

the date and time on which the strike will begin; and

(v)

the date and time on which, or an event on the occurrence of which, the strike will end.

(3)

The notice—

(a)

must be signed by a representative of the employees’ union on the employees’ behalf:

(b)

need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who—

(i)

are members of a union that is a party to the bargaining; and

(ii)

are covered by the bargaining; and

(iii)

are employed in the relevant part of the workplace or at any particular place or places where the work is carried on.

(4)

To avoid doubt, this section does not apply if notice is required under any of the following provisions:

(a)

section 90 (strikes in essential services):

(b)

section 93 (procedure to provide public with notice before strike in certain passenger transport services):

(c)

section 74AC of the State Sector Act 1988 (strikes in schools to be notified).

Section 86A: inserted, on 6 March 2015, by section 55 of the Employment Relations Amendment Act 2014 (2014 No 61).

86B Notice of lockout

(1)

No employer may lock out any employees—

(a)

unless participation in the lockout is lawful under section 83 or 84; and

(b)

without having given to the employees’ union or unions and to the chief executive notice of the employer’s intention to lock out; and

(c)

before the date and time specified in the notice as the date and time on which the lockout will begin.

(2)

The notice required under subsection (1) must—

(a)

be in writing; and

(b)

specify the following information:

(i)

the period of notice given; and

(ii)

the nature of the proposed lockout, including whether or not it will be continuous; and

(iii)

the place or places where the proposed lockout will occur; and

(iv)

the date and time on which the lockout will begin; and

(v)

the date and time on which, or an event on the occurrence of which, the lockout will end; and

(vi)

the names of the employees who will be locked out.

(3)

The lockout notice must be signed by the employer or on the employer’s behalf.

(4)

To avoid doubt, this section does not apply if notice is required under any of the following provisions:

(a)

section 91 (lockouts in essential services):

(b)

section 94 (procedure to provide public with notice before lockout in certain passenger transport services).

Section 86B: inserted, on 6 March 2015, by section 55 of the Employment Relations Amendment Act 2014 (2014 No 61).

Suspension of employees during strikes

87 Suspension of striking employees

(1)

Where there is a strike, the employer may suspend the employment of an employee who is a party to the strike.

(2)

Unless sooner revoked by the employer, a suspension under subsection (1) continues until the strike is ended.

(3)

The suspension under this section of all or any of the employees who are on strike does not end the strike and those employees do not, by reason only of their suspension under subsection (1), cease to be parties to the strike.

(4)

An employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the suspension.

(5)

On the resumption of the employee’s employment, the employee’s service must be treated as continuous, despite the period of suspension, for the purpose of rights and benefits that are conditional on continuous service.

Compare: 1991 No 22 s 65

88 Suspension of non-striking employees where work not available during strike

(1)

Where there is a strike, and as a result of the strike an employer is unable to provide for a non-striking employee work that is normally performed by that employee, the employer may suspend the employee’s employment until the strike is ended.

(2)

A non-striking employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the suspension.

(3)

On the resumption of the employee’s employment, that employee’s service must be treated as continuous, despite the period of suspension, for the purpose of rights and benefits that are conditional on continuous service.

(4)

Where a non-striking employee or group of non-striking employees is suspended under subsection (1), that employee or group of employees may—

(a)

challenge the suspension by applying for the grant of a compliance order under section 137; and

(b)

seek other remedies under this Act in respect of the suspension, including (without limitation) arrears of wages.

(5)

In this section, non-striking employee means an employee who is in the employer’s employment and who is not on strike.

Compare: 1991 No 22 s 66(1), (2)

89 Basis of suspension

Where an employer suspends an employee under section 87 or section 88, the employer must indicate to the employee, at the time of the employee’s suspension, the section under which the suspension is being effected.

Compare: 1991 No 22 s 67

Essential services

90 Strikes in essential services

(1)

No employee employed in an essential service may strike—

(a)

unless participation in the strike is lawful under section 83 or section 84; and

(b)

if subsection (2) applies,—

(i)

without having given to his or her employer and to the chief executive, within 28 days before the date of the commencement of the strike, notice in writing of his or her intention to strike; and

(ii)

before the date and time specified in the notice as the date and time on which the strike will begin.

(2)

The requirements specified in subsection (1)(b) apply if—

(a)

the proposed strike will affect the public interest, including (without limitation) public safety or health; and

(b)

the proposed strike relates to bargaining of the type specified in section 83(b).

(3)

The notice required by subsection (1)(b)(i) must specify—

(a)

the period of notice, being a period that is—

(i)

no less than 14 days in the case of an essential service described in Part A of Schedule 1; and

(ii)

no less than 3 days in the case of an essential service described in Part B of Schedule 1; and

(b)

the nature of the proposed strike, including whether or not the proposed action will be continuous; and

(c)

the place or places where the proposed strike will occur; and

(d)

the date and time on which the strike will begin; and

(e)

the date and time on which, or an event on the occurrence of which, the strike will end.

(4)

The notice—

(a)

must be signed by a representative of the employee’s union on the employee’s behalf:

(b)

need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who—

(i)

are members of a union that is a party to the bargaining; and

(ii)

are covered by the bargaining; and

(iii)

are employed in the relevant part of the essential service or at any particular place or places where the essential service is carried on.

Compare: 1991 No 22 s 69

Section 90(1)(b)(ii): replaced, on 6 March 2015, by section 56(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 90(3)(d): replaced, on 6 March 2015, by section 56(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 90(3)(e): inserted, on 6 March 2015, by section 56(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

91 Lockouts in essential services

(1)

No employer engaged in an essential service may lock out any employees who are employed in the essential service—

(a)

unless participation in the lockout is lawful under section 83 or section 84; and

(b)

if subsection (2) applies,—

(i)

without having given to the employees’ union or unions and to the chief executive, within 28 days before the date of commencement of the lockout, notice in writing of the employer’s intention to lock out; and

(ii)

before the date and time specified in the notice as the date and time on which the lockout will begin.

(2)

The requirements specified in subsection (1)(b) apply if—

(a)

the proposed lockout will affect the public interest, including (without limitation) public safety or health; and

(b)

the proposed lockout relates to bargaining of the type specified in section 83(b).

(3)

The notice required by subsection (1)(b)(i) must specify—

(a)

the period of notice, being a period that is—

(i)

no less than 14 days in the case of an essential service described in Part A of Schedule 1; and

(ii)

no less than 3 days in the case of an essential service described in Part B of Schedule 1; and

(b)

the nature of the proposed lockout, including whether or not it will be continuous; and

(c)

the place or places where the proposed lockout will occur; and

(d)

the date and time on which the lockout will begin; and

(da)

the date and time on which, or an event on the occurrence of which, the lockout will end; and

(e)

the names of the employees who will be locked out.

(4)

The notice must be signed either by the employer or on the employer’s behalf.

Compare: 1991 No 22 s 70

Section 91(1)(b)(ii): replaced, on 6 March 2015, by section 57(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 91(3)(d): replaced, on 6 March 2015, by section 57(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 91(3)(da): inserted, on 6 March 2015, by section 57(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

92 Chief executive to ensure mediation services provided

Where the chief executive receives a notice of intention to strike or lock out under section 90(1)(b)(i) or section 91(1)(b)(i), the chief executive must ensure that mediation services are provided as soon as possible to the parties to the proposed strike or lockout for the purpose of assisting the parties to avoid the need for the strike or lockout.

Procedure to provide public with notice before strike or lockout in certain passenger transport services

93 Procedure to provide public with notice before strike in certain passenger transport services

(1)

No employee employed in a passenger road service or a passenger rail service may strike—

(a)

unless participation in the strike is lawful under section 83 or section 84; and

(b)

without the employee’s union giving his or her employer notice in writing of the employee’s intention to strike.

(2)

The notice required by subsection (1) must specify—

(a)

the period of notice, being a period of not less than 24 hours; and

(b)

the nature of the proposed strike, including whether or not the proposed action will be continuous; and

(c)

the particular passenger road service or passenger rail service that will be affected by the strike; and

(d)

the date and time on which the strike will begin; and

(e)

the date and time on which, or an event on the occurrence of which, the strike will end.

(3)

The notice—

(a)

must be signed by a representative of the employee’s union; and

(b)

need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who—

(i)

are members of a union that is a party to the bargaining; and

(ii)

are covered by the bargaining; and

(iii)

are employed in the relevant part of the passenger road service or passenger rail service.

(4)

An employer who is given notice of a strike under subsection (1) must take all practicable steps to ensure that the public who are likely to be affected are notified of the strike as soon as possible after the employer receives the notice.

(5)

For the purposes of this section and section 94, passenger road service means the carriage of passengers on any road, whether or not for hire or reward, by means of a large passenger service vehicle within the meaning of that term in section 2(1) of the Land Transport Act 1998 (not including any service specified as an exempt service in the regulations or the rules made under that Act).

Section 93(2)(d): replaced, on 6 March 2015, by section 58 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 93(2)(e): inserted, on 6 March 2015, by section 58 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 93(5): substituted, on 1 October 2007, by section 95(6) of the Land Transport Amendment Act 2005 (2005 No 77).

94 Procedure to provide public with notice before lockout in certain passenger transport services

(1)

No employer engaged in providing a passenger road service or passenger rail service may lock out employees who are employed in the service—

(a)

unless participation in the lockout is lawful under section 83 or section 84; and

(b)

without having given to the employees’ union or unions notice in writing of the employer’s intention to lock out.

(2)

The notice required by subsection (1) must specify—

(a)

the period of notice, being a period of not less than 24 hours; and

(b)

the nature of the proposed lockout, including whether or not it will be continuous; and

(c)

the particular passenger road service or passenger rail service that will be affected by the lockout; and

(d)

the date and time on which the lockout will begin; and

(da)

the date and time on which, or an event on the occurrence of which, the lockout will end; and

(e)

the names of the employees who will be locked out.

(3)

The notice must be signed either by the employer or on the employer’s behalf.

(4)

An employer engaged in providing a passenger road service or passenger rail service and who intends to lock out any employees who are employed in the service must take all practicable steps to ensure that the public who are likely to be affected are notified of the lockout as soon as possible.

Section 94(2)(d): replaced, on 6 March 2015, by section 59(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 94(2)(da): inserted, on 6 March 2015, by section 59(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

95 Penalty for breach of section 93(4) or 94(4)

(1)

An employer who fails to comply with section 93(4) or 94(4) is liable to a penalty imposed by the court under this Act.

(2)

Except as provided in this section, an employer is under no liability (whether under this Act or the general law) for a failure to comply with section 93(4) or 94(4).

Section 95: replaced, on 6 March 2015, by section 60 of the Employment Relations Amendment Act 2014 (2014 No 61).

Withdrawal of notice of strike or lockout

Heading: inserted, on 6 March 2015, by section 61 of the Employment Relations Amendment Act 2014 (2014 No 61).

95AA Withdrawal of notice of strike or lockout

(1)

A strike notice given under section 86A, 90, or 93 may be withdrawn at any time by a representative of the employees’ union giving written notice of the withdrawal to—

(a)

the employees’ employer; and

(b)

the chief executive.

(2)

A lockout notice given under section 86B, 91, or 94 may be withdrawn at any time by the employer or a representative of the employer giving written notice of the withdrawal to—

(a)

the employees’ union or unions; and

(b)

the chief executive.

Section 95AA: inserted, on 6 March 2015, by section 61 of the Employment Relations Amendment Act 2014 (2014 No 61).

Interpretation

Heading: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

95A Meaning of partial strike and specified pay deduction

In this Act,—

partial strike

(a)

means an act of the employees who are a party to the strike in continuing to perform some work for their employer or employers during the strike instead of wholly discontinuing their employment during the strike, and includes without limitation—

(i)

a partial discontinuance of work through a refusal or failure to accept engagement for work that forms part of the employees’ normal duties:

(ii)

a reduction in the employees’ normal performance of work, normal output, or normal rate of work:

(b)

means an act of the employees who are a party to the strike in breaking their employment agreement, whether or not the act involves any reduction in the employees’ normal duties, normal performance of work, normal output, or normal rate of work

specified pay deduction means a deduction—

(a)

made, or to be made, from an employee’s salary or wages in accordance with section 95B; and

(b)

either—

(i)

calculated in accordance with section 95D(1) and (2); or

(ii)

imposed at a flat rate of 10% under section 95D(3).

Section 95A: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

Specified pay deductions in relation to partial strike

Heading: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

95B Employer may make specified pay deductions in relation to partial strike

(1)

Where there is a partial strike, the employer may make specified pay deductions from the salary or wages of an employee who is a party to the strike.

(2)

However, the employer must not make a specified pay deduction—

(a)

if the partial strike is lawful on the grounds referred to in section 84 (which relates to lawful strikes on the grounds of safety or health); or

(b)

if—

(i)

the employee is paid by piecework; and

(ii)

the partial strike results in the employee reducing his or her normal output; or

(c)

if the partial strike involves—

(i)

a refusal to work overtime; or

(ii)

a refusal to perform call-out work if the employee would otherwise receive a special payment for performing that work.

(3)

Before making any deduction, the employer must comply with the notice requirements in section 95C.

(4)

The amount of the deduction must be calculated in accordance with section 95D.

(5)

To avoid doubt,—

(a)

deductions under this section may only relate to the employee’s salary or wages that would have been payable for the work performed by that employee had the partial strike not occurred:

(b)

an employer may make deductions under this section without having to suspend or lock out the employee.

Section 95B: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

95C Notice of specified pay deduction

(1)

Where an employer has received notice of a partial strike, and the employer intends to make specified pay deductions in relation to that strike, the employer must give notice to each employee who is a party to the strike that the employer will make those deductions.

(2)

A notice under subsection (1) must be in writing and must—

(a)

be given—

(i)

before the deduction is made; and

(ii)

within the pay period during which the deduction or (if the deductions are to be ongoing) the first deduction is to be made; and

(b)

specify the pay period or periods during which deductions will be made.

(3)

Where 2 or more of the employer’s employees are parties to a partial strike, the employer may, instead of giving notice to each of those employees, give notice under this section by—

(a)

providing a single notice to all those employees or their union; or

(b)

providing a notice, with the same wording, to each of those employees.

(4)

To avoid doubt,—

(a)

an employer may choose the method of giving notice under this section:

(b)

the validity of a notice is not affected merely because it is also given to employees who are not subject to the specified pay deduction (for example, non-striking employees):

(c)

where the partial strike continues over more than 1 pay period, the employer is not required to give notice more than once:

(d)

a notice under this section is not required to specify the amount or proportion of the pay deduction.

Section 95C: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

95D Calculation of specified pay deduction

(1)

An employer must calculate the amount of a specified pay deduction by—

(a)

identifying, for the employee or group of employees, the usual hours of work for the day of the partial strike; and

(b)

identifying the work that the employee or employees will not be performing because of that strike (which must be by reference to the information contained in the relevant strike notice); and

(c)

estimating how much time the employee or employees would, but for the strike, have spent performing the work referred to in paragraph (b) on the day of the strike; and

(d)

calculating the time referred to in paragraph (c) as a percentage of the employee’s or employees’ usual hours of work (as identified for the purposes of paragraph (a)).

(2)

The percentage referred to in subsection (1)(d) is the percentage of the employee’s or employees’ wages that may be deducted.

(3)

However, despite subsections (1) and (2), an employer may choose, instead of calculating and applying a deduction in accordance with those provisions, to impose a 10% deduction on the employee’s or employees’ wages, regardless of whether the amount of deduction calculated in accordance with subsection (1) would have been more or less than 10%.

(4)

An employer may make a specified pay deduction under subsection (1) or (3), as the case may be, in respect of a group of employees only if each member of the group performs work of the same, or a similar, nature.

Section 95D: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

95E Relationship between specified pay deduction and minimum wage

(1)

Section 6 of the Minimum Wage Act 1983 must be read as not applying to an employee who receives payment at less than the applicable minimum rate of wages prescribed under section 4, 4A, or 4B of that Act if the payment—

(a)

is the result of a specified wage deduction; or

(b)

is, in the case of an employee who is paid by piecework, the result of—

(i)

the employee being party to a partial strike; and

(ii)

the employee’s normal output being reduced because of the employee being party to that partial strike.

(2)

Subsection (1)(a) applies only in relation to a period during which deductions may be made under sections 95B to 95D.

Section 95E: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

Rights of union in relation to specified pay deductions

Heading: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

95F Union may request information about specified pay deduction

(1)

Where an employee or a group of employees considers that the employer has incorrectly made a specified pay deduction in relation to that employee or those employees, the union representing that employee or those employees may request that the employer provide the union with information relied on to make the specified pay deduction under section 95D.

(2)

A request under subsection (1) must—

(a)

be in writing; and

(b)

be made as soon as is reasonably practicable after the pay day on which the deduction was first made.

(3)

To avoid doubt, this section does not permit an employee, or a group of employees, to request the information from the employee’s, or employees’, employer.

Section 95F: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

95G Employer must respond to request for information about specified pay deduction

(1)

Where an employer has received a request under section 95F, the employer must provide the union with—

(a)

all information relied on by the employer to make the specified pay deduction under section 95D; and

(b)

an explanation of how the calculation under section 95D(1) and (2), or the 10% deduction under section 95D(3), was applied to make the deduction from the employee’s or employees’ wages under section 95B.

(2)

The information and explanation required under subsection (1) must be provided—

(a)

in writing; and

(b)

as soon as is reasonably practicable after the employer receives the request.

Section 95G: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

95H Resolution of problem relating to specified pay deduction

(1)

Where, having considered the information and explanation provided under section 95G, the employee or group of employees is not satisfied that the specified pay deduction was made correctly, the union, on behalf of that employee or those employees, must give the employer notice of that fact, and the matter must be dealt with as an employment relationship problem.

(2)

The notice under subsection (1) must be provided—

(a)

in writing; and

(b)

as soon as is reasonably practicable after the union receives the information and explanation.

(3)

Where the employer and the union are unable to resolve the problem (including by way of mediation), the union may lodge an application with the Authority in accordance with section 158.

Section 95H: inserted, on 6 March 2015, by section 62 of the Employment Relations Amendment Act 2014 (2014 No 61).

Employer’s liability for wages during lockout

96 Employer not liable for wages during lockout

(1)

Where any employees are locked out by their employer, those employees are not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the lockout, unless the employer’s participation in the lockout is unlawful.

(2)

On the resumption of work by the employees, their service must be treated as continuous, despite the period of the lockout, for the purpose of rights and benefits that are conditional on continuous service.

Compare: 1991 No 22 s 72

Performance of duties of striking or locked out employees

97 Performance of duties of striking or locked out employees

(1)

This section applies if there is a lockout or lawful strike.

(2)

An employer may employ or engage another person to perform the work of a striking or locked out employee only in accordance with subsection (3) or subsection (4).

(3)

An employer may employ another person to perform the work of a striking or locked out employee if the person—

(a)

is already employed by the employer at the time the strike or lockout commences; and

(b)

is not employed principally for the purpose of performing the work of a striking or locked out employee; and

(c)

agrees to perform the work.

(4)

An employer may employ or engage another person to perform the work of a striking or locked out employee if—

(a)

there are reasonable grounds for believing it is necessary for the work to be performed for reasons of safety or health; and

(b)

the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health.

(5)

A person who performs the work of a striking or locked out employee in accordance with subsection (3) or subsection (4) must not perform that work for any longer than the duration of the strike or lockout.

(6)

An employer who fails to comply with this section is liable to a penalty imposed by the Authority under this Act in respect of each person who performs the work concerned.

Record of strikes and lockouts

98 Record of strikes and lockouts

If a strike or lockout occurs, the employer of the employees participating in the strike or affected by the lockout must—

(a)

keep a record, in the prescribed form, of the strike or lockout; and

(b)

give to the chief executive, within 1 month after the end of the strike or lockout, a copy of that record.

Compare: 1991 No 22 s 142

Jurisdiction of Employment Court

99 Jurisdiction of court in relation to torts

(1)

The court has full and exclusive jurisdiction to hear and determine proceedings founded on tort—

(a)

issued against a party to a strike or lockout that is threatened, is occurring, or has occurred, and that have resulted from or are related to that strike or lockout:

(b)

issued against any person in respect of picketing related to a strike or lockout.

(2)

No other court has jurisdiction to hear and determine any action or proceedings founded on tort—

(a)

resulting from or related to a strike or lockout:

(b)

in respect of any picketing related to a strike or lockout.

(3)

Where any action or proceedings founded on tort are commenced in the court, and the court is satisfied that the proceedings resulted from or related to participation in a strike or lockout that is lawful under section 83 or section 84,—

(a)

the court must dismiss those proceedings; and

(b)

no proceedings founded on tort and resulting from or related to that strike or lockout may be commenced in the District Court or the High Court.

Compare: 1991 No 22 s 73

100 Jurisdiction of court in relation to injunctions

(1)

The court has full and exclusive jurisdiction to hear and determine any proceedings issued for the grant of an injunction—

(a)

to stop a strike or lockout that is occurring or to prevent a threatened strike or lockout; or

(b)

to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout; or

(c)

to stop a specified pay deduction that is being, or is to be, made.

(2)

No other court has jurisdiction to hear and determine any action or proceedings seeking the grant of an injunction—

(a)

to stop a strike or lockout that is occurring or to prevent a threatened strike or lockout; or

(b)

to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout; or

(c)

to stop a specified pay deduction that is being, or is to be, made.

(3)

Where any action or proceedings seeking the grant of an injunction to stop a strike or lockout or to prevent a threatened strike or lockout are commenced in the court, and the court is satisfied that participation in the strike or lockout is lawful under section 83 or section 84,—

(a)

the court must dismiss that action or those proceedings; and

(b)

no proceedings seeking the grant of an injunction to stop that strike or lockout or to prevent that threatened strike or lockout may be commenced in the District Court or the High Court.

(4)

Subsection (5) applies where any action or proceedings seeking the grant of an injunction to stop a specified pay deduction that is being, or is to be, made are commenced in the court, and the court is satisfied that—

(a)

notice has been given in accordance with section 95C; and

(b)

the deduction has been correctly calculated in accordance with section 95D.

(5)

Where the court is satisfied of the matters specified in subsection (4)(a) and (b),—

(a)

the court must dismiss that action or those proceedings; and

(b)

no proceedings seeking the grant of an injunction to stop that specified pay deduction being made may be commenced in the District Court or the High Court.

Compare: 1991 No 22 s 74

Section 100(1)(b): amended, on 6 March 2015, by section 63(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 100(1)(c): inserted, on 6 March 2015, by section 63(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 100(2)(b): amended, on 6 March 2015, by section 63(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 100(2)(c): inserted, on 6 March 2015, by section 63(4) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 100(4): inserted, on 6 March 2015, by section 63(5) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 100(5): inserted, on 6 March 2015, by section 63(5) of the Employment Relations Amendment Act 2014 (2014 No 61).

Part 8A Codes of employment practice and code of good faith for public health sector

Part 8A: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Codes of employment practice

Heading: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

100A Codes of employment practice

(1)

The Minister may, by notice in the Gazette, approve 1 or more codes of employment practice.

(2)

The notice in the Gazette may, instead of setting out the code of employment practice being approved,—

(a)

provide sufficient information to identify the code; and

(b)

specify the date on which the code comes into force; and

(c)

state where copies of the code may be obtained.

(3)

Before the Minister approves a code of employment practice, the Minister must consult, or be satisfied that there has been consultation, with such persons and organisations as the Minister thinks appropriate, including relevant employer and employee interests.

(4)

The purpose of a code of employment practice is to provide guidance on the application of this Act—

(a)

generally; or

(b)

in relation to particular types of situations; or

(c)

in relation to particular parts or areas of the employment environment.

Section 100A: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

100B Amendment and revocation of code of practice

A code of practice may be amended or revoked in the same manner as the code is approved.

Section 100B: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

100C Authority or court may have regard to code of practice

The Authority or the court may, in determining any matter within its jurisdiction, have regard to a code of employment practice that—

(a)

was in force at the relevant time; and

(b)

in the form in which it was then in force, related to the circumstances before the Authority or the court.

Section 100C: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Code of good faith for public health sector

Heading: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

100D Code of good faith for public health sector

(1)

Schedule 1B contains a code of good faith for the public health sector.

(2)

The code—

(a)

applies subject to the other provisions of this Act and any other enactment; and

(b)

in particular, does not limit the application of the duty of good faith in section 4 in relation to the public health sector.

(3)

Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4 has been complied with.

(4)

It is a breach of the duty of good faith in section 4 for a person to whom the code applies to fail to comply with the code.

(5)

This section does not prevent a code of good faith approved under section 35 or a code of employment practice approved under section 100A applying in relation to the public health sector.

(6)

However, in the case of any inconsistency, the code set out in Schedule 1B prevails over a code approved under section 35 or section 100A.

Section 100D: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

100E Amendments to or replacement of code of good faith for public health sector

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, amend or replace the code of good faith for the public health sector set out in Schedule 1B.

(2)

The Minister must not make a recommendation under subsection (1) unless—

(a)

requested to do so by—

(i)

not less than three-quarters of district health boards; and

(ii)

unions who represent not less than three-quarters of union members employed by district health boards; and

(b)

the Minister has consulted the Minister of Health and such other persons and organisations as he or she considers appropriate.

Section 100E: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

100F Code of good faith for employment relationships in relation to provision of services by New Zealand Police

(1)

Schedule 1C contains a code of good faith for employment relationships in relation to the provision of services by the New Zealand Police.

(2)

The code—

(a)

applies subject to the other provisions of this Act and any other enactment; and

(b)

in particular, does not limit the application of the duty of good faith in section 4 in relation to the New Zealand Police.

(3)

Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4 has been complied with.

(4)

It is a breach of the duty of good faith in section 4 for a person to whom the code applies to fail to comply with the code.

(5)

This section does not prevent a code of good faith approved under section 35 or a code of employment practice approved under section 100A applying to employment relationships in relation to the provision of services by the New Zealand Police.

(6)

However, in the case of any inconsistency, the code set out in Schedule 1C prevails over a code approved under section 35 or 100A.

Section 100F: inserted, on 1 October 2008, by section 120 of the Policing Act 2008 (2008 No 72).

100G Amendments to or replacement of code of good faith for employment relationships in relation to provision of services by New Zealand Police

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, amend or replace the code of good faith for employment relationships in relation to the provision of services by the New Zealand Police set out in Schedule 1C.

(2)

The Minister must not make a recommendation under subsection (1) unless—

(a)

requested to do so by the Commissioner of Police and service organisations representing not less than three-quarters of service organisation members employed by the Police; and

(b)

the Minister has consulted the Minister of Police and any other persons and organisations that he or she considers appropriate.

(3)

In this section, service organisation has the same meaning as in section 55 of the Policing Act 2008.

Section 100G: inserted, on 1 October 2008, by section 120 of the Policing Act 2008 (2008 No 72).

Part 9 Personal grievances, disputes, and enforcement

Object

101 Object of this Part

The object of this Part is—

(a)

to recognise that, in resolving employment relationship problems, access to both information and mediation services is more important than adherence to rigid formal procedures; and

(ab)

to recognise that employment relationship problems are more likely to be resolved quickly and successfully if the problems are first raised and discussed directly between the parties to the relationship; and

(b)

to continue to give special attention to personal grievances, and to facilitate the raising of personal grievances with employers; and

(c)
[Repealed]

(d)

to ensure that the role of the Authority and the court in resolving employment relationship problems is to determine the rights and obligations of the parties rather than to fix terms and conditions of employment.

Section 101(ab): inserted, on 1 December 2004, by section 37 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 101(c): repealed, on 1 April 2011, by section 14 of the Employment Relations Amendment Act 2010 (2010 No 125).

Personal grievances

102 Employee may pursue personal grievance under this Act

An employee who believes that he or she has a personal grievance may pursue that grievance under this Act.

103 Personal grievance

(1)

For the purposes of this Act, personal grievance means any grievance that an employee may have against the employee’s employer or former employer because of a claim—

(a)

that the employee has been unjustifiably dismissed; or

(b)

that the employee’s employment, or 1 or more conditions of the employee’s employment (including any condition that survives termination of the employment), is or are or was (during employment that has since been terminated) affected to the employee’s disadvantage by some unjustifiable action by the employer; or

(c)

that the employee has been discriminated against in the employee’s employment; or

(d)

that the employee has been sexually harassed in the employee’s employment; or

(e)

that the employee has been racially harassed in the employee’s employment; or

(f)

that the employee has been subject to duress in the employee’s employment in relation to membership or non-membership of a union or employees organisation; or

(g)

that the employee’s employer has failed to comply with a requirement of Part 6A; or

(h)

that the employee has been disadvantaged by the employee’s employment agreement not being in accordance with section 67C, 67D, 67G, or 67H; or

(i)

that the employee’s employer has contravened section 67F or 67G(4).

(j)

that the employee’s employer has, in relation to the employee,—

(i)

engaged in adverse conduct for a prohibited health and safety reason; or

(ii)

contravened section 92 of the Health and Safety at Work Act 2015 (which prohibits coercion or inducement).

(2)

For the purposes of this Part, a representative, in relation to an employer and in relation to an alleged personal grievance, means a person—

(a)

who is employed by that employer; and

(b)

who either—

(i)

has authority over the employee alleging the grievance; or

(ii)

is in a position of authority over other employees in the workplace of the employee alleging the grievance.

(3)

In subsection (1)(b), unjustifiable action by the employer does not include an action deriving solely from the interpretation, application, or operation, or disputed interpretation, application, or operation, of any provision of any employment agreement.

Compare: 1991 No 22 s 27

Section 103(1)(f): amended, on 14 September 2006, by section 7(1) of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 103(1)(g): added, on 14 September 2006, by section 7(2) of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 103(1)(g): amended, on 10 September 2008, by section 7(1) of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

Section 103(1)(h): replaced, on 1 April 2016, by section 10 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 103(1)(i): inserted, on 1 April 2016, by section 10 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 103(1)(j): inserted, on 4 April 2016, by section 5 of the Employment Relations Amendment Act 2015 (2015 No 73) (as amended by the Employment Relations Amendment Act 2016 (2016 No 9)).

103A Test of justification

(1)

For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2).

(2)

The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

(3)

In applying the test in subsection (2), the Authority or the court must consider—

(a)

whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and

(b)

whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and

(c)

whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns before dismissing or taking action against the employee; and

(d)

whether the employer genuinely considered the employee’s explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.

(4)

In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate.

(5)

The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were—

(a)

minor; and

(b)

did not result in the employee being treated unfairly.

Section 103A: substituted, on 1 April 2011, by section 15 of the Employment Relations Amendment Act 2010 (2010 No 125).

104 Discrimination

(1)

For the purposes of section 103(1)(c), an employee is discriminated against in that employee’s employment if the employee’s employer or a representative of that employer, by reason directly or indirectly of any of the prohibited grounds of discrimination specified in section 105, or involvement in the activities of a union in terms of section 107,—

(a)

refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(b)

dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or

(c)

retires that employee, or requires or causes that employee to retire or resign.

(2)

For the purposes of this section, detriment includes anything that has a detrimental effect on the employee’s employment, job performance, or job satisfaction.

(3)

This section is subject to the exceptions set out in section 106.

Compare: 1991 No 22 s 28(1)

Section 104(1): amended, on 4 April 2016, by section 6 of the Employment Relations Amendment Act 2015 (2015 No 73).

Section 104(1): amended, on 5 May 2003, by section 33(1) of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).

105 Prohibited grounds of discrimination for purposes of section 104

(1)

The prohibited grounds of discrimination referred to in section 104 are the prohibited grounds of discrimination set out in section 21(1) of the Human Rights Act 1993, namely—

(a)

sex:

(b)

marital status:

(c)

religious belief:

(d)

ethical belief:

(e)

colour:

(f)

race:

(g)

ethnic or national origins:

(h)

disability:

(i)

age:

(j)

political opinion:

(k)

employment status:

(l)

family status:

(m)

sexual orientation.

(2)

The items listed in subsection (1) have the meanings (if any) given to them by section 21(1) of the Human Rights Act 1993.

106 Exceptions in relation to discrimination

(1)

Section 104 must be read subject to the following provisions of the Human Rights Act 1993 dealing with exceptions in relation to employment matters:

(a)

section 24 (which provides for an exception in relation to crews of ships and aircraft):

(b)

section 25 (which provides for an exception in relation to work involving national security):

(c)

section 26 (which provides for an exception in relation to work performed outside New Zealand):

(d)

section 27 (which provides for exceptions in relation to authenticity and privacy):

(e)

section 28 (which provides for exceptions for purposes of religion):

(f)

section 29 (which provides for exceptions in relation to disability):

(g)

section 30 (which provides for exceptions in relation to age):

(h)

section 31 (which provides for an exception in relation to employment of a political nature):

(i)

section 32 (which provides for an exception in relation to family status):

(j)
[Repealed]

(k)

section 34 (which relates to regular forces and Police):

(l)

section 35 (which provides a general qualification on exceptions):

(m)

section 70 (which relates to superannuation schemes).

(2)

For the purposes of subsection (1), sections 24 to 35 of the Human Rights Act 1993 must be read as if they referred to section 104 of this Act, rather than to section 22 of that Act. In particular,—

(a)

references in sections 24 to 29, 31, and 32 of that Act to section 22 of that Act must be read as if they were references to section 104(1); and

(b)

references in section 30 or section 34 of that Act—

(i)

to section 22(1)(a) or 22(1)(b) of that Act must be read as if they were references to section 104(1)(a); and

(ii)

to section 22(1)(c) of that Act must be read as if they were references to section 104(1)(b); and

(iii)

to section 22(1)(d) of that Act must be read as if they were references to section 104(1)(c).

(3)

Nothing in section 104 includes as discrimination—

(a)

anything done or omitted for any of the reasons set out in paragraph (a) or paragraph (b) of section 73(1) of the Human Rights Act 1993 (which relate to measures to ensure equality); or

(b)

preferential treatment granted by reason of any of the reasons set out in paragraph (a) or paragraph (b) of section 74 of the Human Rights Act 1993 (which relate to pregnancy, childbirth, or family responsibilities); or

(c)

retiring an employee or requiring or causing an employee to retire at a particular age that has effect by virtue of section 149(2) of the Human Rights Act 1993 (which is a savings provision in relation to retirement ages specified in certain employment contracts).

Section 106(1)(j): repealed, on 5 May 2007, by section 6(2) of the Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16).

Section 106(1)(m): added, on 1 December 2004, by section 39 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 106(2)(a): amended, on 5 May 2007, by section 6(3) of the Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16).

107 Definition of involvement in activities of union for purposes of section 104

(1)

For the purposes of section 104, involvement in the activities of a union means that, within 12 months before the action complained of, the employee—

(a)

was an officer of a union or part of a union, or was a member of the committee of management of a union or part of a union, or was otherwise an official or representative of a union or part of a union; or

(b)

had acted as a negotiator or representative of employees in collective bargaining; or

(ba)

had participated in a strike lawfully; or

(c)

was involved in the formation or the proposed formation of a union; or

(d)

had made or caused to be made a claim for some benefit of an employment agreement either for that employee or any other employee, or had supported any such claim, whether by giving evidence or otherwise; or

(e)

had submitted another personal grievance to that employee’s employer; or

(f)

had been allocated, had applied to take, or had taken any employment relations education leave under this Act; or

(g)

was a delegate of other employees in dealing with the employer on matters relating to the employment of those employees.

(2)

[Repealed]

Compare: 1991 No 22 s 28(2)

Section 107(1)(ba): inserted, on 1 December 2004, by section 40 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 107(2): repealed, on 4 April 2016, by section 7 of the Employment Relations Amendment Act 2015 (2015 No 73).

108 Sexual harassment

(1)

For the purposes of sections 103(1)(d) and 123(d), an employee is sexually harassed in that employee’s employment if that employee’s employer or a representative of that employer—

(a)

directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains—

(i)

an implied or overt promise of preferential treatment in that employee’s employment; or

(ii)

an implied or overt threat of detrimental treatment in that employee’s employment; or

(iii)

an implied or overt threat about the present or future employment status of that employee; or

(b)

by—

(i)

the use of language (whether written or spoken) of a sexual nature; or

(ii)

the use of visual material of a sexual nature; or

(iii)

physical behaviour of a sexual nature,—

directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee’s employment, job performance, or job satisfaction.

(2)

For the purposes of sections 103(1)(d) and 123(d), an employee is also sexually harassed in that employee’s employment (whether by a co-employee or by a client or customer of the employer), if the circumstances described in section 117 have occurred.

Compare: 1991 No 22 s 29

109 Racial harassment

For the purposes of sections 103(1)(e) and 123(d), an employee is racially harassed in the employee’s employment if the employee’s employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly—

(a)

expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and

(b)

is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and

(c)

has, either by its nature or through repetition, a detrimental effect on the employee’s employment, job performance, or job satisfaction.

110 Duress

(1)

For the purposes of section 103(1)(f), an employee is subject to duress in that employee’s employment in relation to membership or non-membership of a union or employees organisation if that employee’s employer or a representative of that employer directly or indirectly—

(a)

makes membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee’s employment; or

(b)

makes non-membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee’s employment; or

(c)

exerts undue influence on that employee, or offers, or threatens to withhold or does withhold, any incentive or advantage to or from that employee, or threatens to or does impose any disadvantage on that employee, with intent to induce that employee—

(i)

to become or remain a member of a union or employees organisation or a particular union or employees organisation; or

(ii)

to cease to be a member of a union or employees organisation or a particular union or employees organisation; or

(iii)

not to become a member of a union or employees organisation or a particular union or employees organisation; or

(iv)

in the case of an employee who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or

(v)

on account of the fact that the employee is, or, as the case may be, is not, a member of a union or employees organisation or of a particular union or employees organisation, to resign from or leave any employment; or

(vi)

to participate in the formation of a union or employees organisation; or

(vii)

not to participate in the formation of a union or employees organisation.

(2)

In this section and in section 103(1)(f), employees organisation means any group, society, association, or other collection of employees other than a union, however described and whether incorporated or not, that exists in whole or in part to further the employment interests of the employees belonging to it.

Compare: 1991 No 22 s 30

110A Adverse conduct for prohibited health and safety reason

(1)

For the purposes of this Part, an employer engages in adverse conduct for a prohibited health and safety reason if the employer or a representative of the employer, for a prohibited health and safety reason,—

(a)

dismisses an employee; or

(b)

refuses or omits to offer or afford to the employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(c)

subjects the employee to any detriment in circumstances in which other employees employed by the employer in work of that description are not or would not be subjected to such detriment; or

(d)

retires the employee, or requires or causes the employee to retire or resign.

(2)

For the purposes of subsection (1), conduct described in that section is engaged in for a prohibited health and safety reason if it is engaged in for a reason described in section 89 of the Health and Safety at Work Act 2015.

(3)

An employer may be found to have engaged in adverse conduct for a prohibited health and safety reason only if the prohibited health and safety reason was a substantial reason for the conduct.

(4)

For the purposes of subsection (3), a prohibited health and safety reason is presumed to be a substantial reason for the conduct unless the employer proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

(5)

It is a defence to an action for a personal grievance under section 103(1)(h)(i) if the employer proves that—

(a)

the conduct was reasonable in the circumstances; and

(b)

a substantial reason for the conduct was to comply with the requirements of the Health and Safety at Work Act 2015 or other relevant health and safety legislation (as defined in section 16 of that Act).

(6)

For the purposes of this section,—

(a)

an employer also engages in adverse conduct if the employer or a representative of the employer, in relation to the employee,—

(i)

organises to take any action referred to in subsection (1) or threatens to organise or take that action; or

(ii)

requests, instructs, induces, encourages, authorises, or assists another person to engage in adverse conduct for a prohibited health and safety reason:

(b)

detriment includes anything that has a detrimental effect on the employee’s employment, job performance, or job satisfaction.

Section 110A: replaced, on 4 April 2016, by section 8 of the Employment Relations Amendment Act 2015 (2015 No 73).

111 Definitions relating to personal grievances

Each of the terms personal grievance, discrimination, sexual harassment, racial harassment, duress, and adverse conduct for prohibited health and safety reason have in any employment agreement the meanings given to those terms by sections 103, 104, 105, 106, 107, 108, 109, 110, and 110A unless the employment agreement gives an extended meaning to the term.

Compare: 1991 No 22 s 31

Section 111: amended, on 4 April 2016, by section 9 of the Employment Relations Amendment Act 2015 (2015 No 73).

112 Choice of procedures

(1)

Where the circumstances giving rise to a personal grievance by an employee are also such that that employee would be entitled to make a complaint under the Human Rights Act 1993, the employee may take 1, but not both, of the following steps:

(a)

the employee may, if the grievance is not otherwise resolved, apply to the Authority for the resolution of the grievance:

(b)

the employee may make, in relation to those circumstances, a complaint under the Human Rights Act 1993.

(2)

For the purposes of subsection (1)(b), an employee makes a complaint when proceedings in relation to that complaint are commenced by the complainant or the Commission.

(3)

If an employee applies to the Authority for a resolution of the grievance under subsection (1)(a), the employee may not exercise or continue to exercise any rights in relation to the subject matter of the grievance that the employee may have under the Human Rights Act 1993.

(4)

If an employee makes a complaint under subsection (1)(b), the employee may not exercise or continue to exercise any rights in relation to the subject matter of the complaint that the employee may have under this Act.

Compare: 1991 No 22 s 39

Section 112(2): substituted, on 1 January 2002, by section 71(1) of the Human Rights Amendment Act 2001 (2001 No 96).

Section 112(3): added, on 1 December 2004, by section 41 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 112(4): added, on 1 December 2004, by section 41 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

113 Personal grievance provisions only way to challenge dismissal

(1)

If an employee who has been dismissed wishes to challenge that dismissal or any aspect of it, for any reason, in any court, that challenge may be brought only in the Authority under this Part as a personal grievance.

(2)

Nothing in subsection (1) prevents an action under this Part to recover—

(a)

wages relating to a period of notice or alleged period of notice; or

(b)

wages or other money relating to the employment prior to the dismissal; or

(c)

other money payable on dismissal.

114 Raising personal grievance

(1)

Every employee who wishes to raise a personal grievance must, subject to subsections (3) and (4), raise the grievance with his or her employer within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period.

(2)

For the purposes of subsection (1), a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.

(3)

Where the employer does not consent to the personal grievance being raised after the expiration of the 90-day period, the employee may apply to the Authority for leave to raise the personal grievance after the expiration of that period.

(4)

On an application under subsection (3), the Authority, after giving the employer an opportunity to be heard, may grant leave accordingly, subject to such conditions (if any) as it thinks fit, if the Authority—

(a)

is satisfied that the delay in raising the personal grievance was occasioned by exceptional circumstances (which may include any 1 or more of the circumstances set out in section 115); and

(b)

considers it just to do so.

(5)

In any case where the Authority grants leave under subsection (4), the Authority must direct the employer and employee to use mediation to seek to mutually resolve the grievance.

(6)

No action may be commenced in the Authority or the court in relation to a personal grievance more than 3 years after the date on which the personal grievance was raised in accordance with this section.

Compare: 1991 No 22 s 33

115 Further provision regarding exceptional circumstances under section 114

For the purposes of section 114(4)(a), exceptional circumstances include—

(a)

where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period specified in section 114(1); or

(b)

where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; or

(c)

where the employee’s employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 or section 65, as the case may be; or

(d)

where the employer has failed to comply with the obligation under section 120(1) to provide a statement of reasons for dismissal.

116 Special provision where sexual harassment alleged

Where a personal grievance involves allegations of sexual harassment, no account may be taken of any evidence of the complainant’s sexual experience or reputation.

Compare: 1991 No 22 s 35

117 Sexual or racial harassment by person other than employer

(1)

This section applies where—

(a)

a request of the kind described in section 108(1)(a) is made to an employee by a person (not being a representative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer; or

(b)

an employee is subjected to behaviour of the kind described in section 108(1)(b) by a person (not being a representative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer; or

(c)

an employee is subjected to behaviour of the kind described in section 109 by a person (not being a representative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer.

(2)

If this section applies, the employee may make a complaint about that request or behaviour to the employee’s employer or to a representative of the employer.

(3)

The employer or representative, on receiving a complaint under subsection (2), must inquire into the facts.

(4)

If the employer or representative is satisfied that the request was made or that the behaviour took place, the employer or representative must take whatever steps are practicable to prevent any repetition of such a request or of such behaviour.

Compare: 1991 No 22 s 36(1), (2)

118 Sexual or racial harassment after steps not taken to prevent repetition

(1)

This section applies if—

(a)

a person in relation to whom an employee has made a complaint under section 117(2) either—

(i)

makes to that employee after the complaint a request of the kind described in section 108(1)(a); or

(ii)

subjects that employee after the complaint to behaviour of the kind described in section 108(1)(b) or section 109; and

(b)

the employer of that employee, or a representative of that employer, has not taken whatever steps are practicable to prevent the repetition of such a request or such behaviour.

(2)

If this section applies, the employee is deemed for the purposes of this Act and for the purposes of any employment agreement to have a personal grievance by virtue of having been sexually harassed or racially harassed, as the case may be, in the course of the employee’s employment as if the request or behaviour were that of the employee’s employer.

Compare: 1991 No 22 s 36(3)

119 Presumption in discrimination cases

(1)

Subsection (2) applies if, in any matter before the Authority or the court,—

(a)

the employee establishes that the employer or the employer’s representative took any action or omitted any action as described in any of paragraphs (a) to (c) of section 104(1) in relation to that employee; and

(b)

if it is a case where the employee alleges that the discrimination was by reason directly or indirectly of the employee’s involvement in the activities of a union, the employee establishes that he or she was a person described in section 107.

(2)

If this subsection applies, there is a rebuttable presumption that the employer or representative of the employer discriminated against the employee on the grounds, or for the reason, specified in section 104(1) and alleged by the employee.

120 Statement of reasons for dismissal

(1)

Where an employee is dismissed, that employee may, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later, request the employer to provide a statement in writing of the reasons for the dismissal.

(2)

Every employer to whom a request is made under subsection (1) must, within 14 days after the day on which the request is received, provide the statement to the person who made the request.

Compare: 1991 No 22 s 38

121 Statements privileged

Any statements made or information given in the course of raising a personal grievance or in the course of attempting to resolve the grievance or in the course of any matter relating to a personal grievance are absolutely privileged.

Compare: 1991 No 22 s 37

122 Nature of personal grievance may be found to be of different type from that alleged

Nothing in this Part or in any employment agreement prevents a finding that a personal grievance is of a type other than that alleged.

Compare: 1991 No 22 s 34

Remedies in relation to personal grievances

123 Remedies

(1)

Where the Authority or the court determines that an employee has a personal grievance, it may, in settling the grievance, provide for any 1 or more of the following remedies:

(a)

reinstatement of the employee in the employee’s former position or the placement of the employee in a position no less advantageous to the employee:

(b)

the reimbursement to the employee of a sum equal to the whole or any part of the wages or other money lost by the employee as a result of the grievance:

(c)

the payment to the employee of compensation by the employee’s employer, including compensation for—

(i)

humiliation, loss of dignity, and injury to the feelings of the employee; and

(ii)

loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to obtain if the personal grievance had not arisen:

(ca)

if the Authority or the court finds that any workplace conduct or practices are a significant factor in the personal grievance, recommendations to the employer concerning the action the employer should take to prevent similar employment relationship problems occurring:

(d)

if the Authority or the court finds an employee to have been sexually or racially harassed in his or her employment, recommendations to the employer—

(i)

concerning the action the employer should take in respect of the person who made the request or was guilty of the harassing behaviour, which action may include the transfer of that person, the taking of disciplinary action against that person, or the taking of rehabilitative action in respect of that person:

(ii)

about any other action that it is necessary for the employer to take to prevent further harassment of the employee concerned or any other employee.

(2)

When making an order under subsection (1)(b) or (c), the Authority or the court may order payment to the employee by instalments, but only if the financial position of the employer requires it.

Compare: 1991 No 22 s 40

Section 123(1)(ca): inserted, on 1 December 2004, by section 42(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 123(2): added, on 1 December 2004, by section 42(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

124 Remedy reduced if contributing behaviour by employee

Where the Authority or the court determines that an employee has a personal grievance, the Authority or the court must, in deciding both the nature and the extent of the remedies to be provided in respect of that personal grievance,—

(a)

consider the extent to which the actions of the employee contributed towards the situation that gave rise to the personal grievance; and

(b)

if those actions so require, reduce the remedies that would otherwise have been awarded accordingly.

Compare: 1991 No 22 ss 40(2), 41(3)

125 Remedy of reinstatement

(1)

This section applies if—

(a)

it is determined that the employee has a personal grievance; and

(b)

the remedies sought by or on behalf of an employee in respect of a personal grievance include reinstatement (as described in section 123(1)(a)).

(2)

The Authority may, whether or not it provides for any of the other remedies specified in section 123, provide for reinstatement if it is practicable and reasonable to do so.

Section 125: substituted, on 1 April 2011, by section 16 of the Employment Relations Amendment Act 2010 (2010 No 125).

126 Provisions applying if reinstatement ordered

Where the remedy of reinstatement is provided by the Authority or the court, the employee must be reinstated immediately or on such date as is specified by the Authority or the court and, despite any challenge to or appeal against the determination of the Authority or the court, the provisions for reinstatement remain in full force pending the outcome of those proceedings unless the Authority or