Employment Relations (Triangular Employment) Amendment Bill

Employment Relations (Triangular Employment) Amendment Bill

Member’s Bill

17—1

Explanatory note

General policy statement

This Bill has 2 purposes. The first is to ensure that employees employed by one employer, but working under the control and direction of another business or organisation, are not deprived of the right to coverage of a collective agreement covering the work being performed for that other business or organisation.

The second purpose is to ensure that such employees are not subjected to a detriment in their right to allege a personal grievance by providing that where an employee is employed by one employer, but working under the control and direction of another business or organisation, that employee may join the other business or organisation that is party to any personal grievance action. Such joinder requires the leave of the Authority or the court.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause and provides that the Bill comes into force on the day after the date on which it receives the Royal assent.

Clause 3 provides that the Bill amends the Employment Relations Act 2000 (the principal Act).

Clause 4 amends section 5 to extend the definition of applicable collective agreement to include any collective agreement binding an employee and a primary employer under new section 56(1)(c) and inserts two new definitions of primary employer and secondary employer.

Clause 5 inserts in section 56 a new subsection (1)(c) to provide that employees of a primary employer may in certain circumstances be bound by a collective agreement to which the secondary employer is a party.

Clause 6 inserts a new section 102A to provide that in certain circumstances an employee of a primary employer may, with the leave of the Authority or court, join a secondary employer to a personal grievance.

1 Title

This Act is the Employment Relations (Triangular Employment) Amendment Act 2018.

2 Commencement

This Act comes into force on the day after the date on which it receives the Royal assent.

3 Principal Act

This Act amends the Employment Relations Act 2000 (the principal Act).

4 Section 5 amended (Interpretation)

(1)

In section 5, in the definition of applicable collective agreement, after “member of the union”, insert “and includes any collective agreement binding an employee and a primary employer under section 56(1)(c).

(2)

In section 5, insert, in their appropriate alphabetical order:

primary employer, for the purposes of sections 56(1)(c) and 102A, means any person who employs a person to do any work for hire or reward under a contract of service

secondary employer, for the purposes of sections 56(1)(c) and 102A, means any person who enters into any contract or other arrangement with a primary employer whereby the employee of that primary employer performs work for the benefit of that person and where that person exercises or is entitled to exercise control or direction over the employee equivalent or substantially equivalent to that which would normally be expected of an employer

5 Section 56 amended (Application of collective agreement)

In section 56(1), after paragraph (b), insert “and;” and also insert:

(c)

the employees of any primary employer in respect of the primary employer where—

(i)

those employees are performing work for a secondary employer where that work is within the coverage clause of any collective agreement to which the secondary employer is a party; and

(ii)

those employees are a member of the union party to that collective agreement; and

(iii)

those employees are not bound by any other collective agreement to which the primary employer is a party.

6 New section 102A inserted (Joinder of parties to personal grievance)

After section 102, insert:

102A Joinder of parties to personal grievance

(1)

Where an employee employed by a primary employer raises a personal grievance against that employer the employee may, if the grievance has also been raised with any secondary employer of that employee, apply to the Authority or court to join that secondary employer to the grievance.

(2)

For the subsequent determination of a personal grievance the actions of any secondary employer are deemed to be the actions of the primary employer.

(3)

Any secondary employer joined under this section is jointly liable with the primary employer for any remedies awarded to the employee unless the Authority or court makes an order determining the proportion of any award to be made by each party.

(4)

The Authority or court must grant leave if—

(a)

the actions of the secondary employer have resulted in or contributed to the grounds of a personal grievance as defined in section 103; and

(b)

it considers it just to do so.