“intended agreement includes part of an intended agreement

“minimum entitlements means wages or holiday pay or other money payable by the employer to the employee under the Minimum Wage Act 1983 or the Holidays Act 2003

“relevant Acts—

• “(a) in sections 223A and 223B, means the Acts specified in section 223(1):

• “(b) in sections 223D to 223F, means the Acts specified in section 223(1), except Part 5 of this Act”.

“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).”

• “(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”.

• “(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.”

“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 the 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.

  “(2A) 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).

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

  “(4) Before bringing an action under subsection (3), 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.

  “(5) 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.”

• “(4) An employer who fails to comply with this section is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.”

“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.”

“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.”

“134A Penalty for obstructing or delaying Authority investigation

• “(1) Every person is liable to a penalty under this Act who, without sufficient cause, obstructs or delays an Authority investigation, including failing to attend as a party before an Authority investigation (if required).

  “(2) The power to award a penalty under subsection (1) may be exercised by the Authority—

  • “(a) of its own motion; or

  • “(b) on the application of any party to the investigation.”

• “(4B) In determining whether to give judgment for a penalty, and the amount of that penalty, the Authority or the court must consider whether the person against whom the penalty is sought has previously failed to comply with an improvement notice issued under section 223D.”

• “(iiia) an enforceable undertaking that section 223C(1) provides may be enforced by compliance order; or

• “(iiib) an improvement notice that section 223D(5) provides may be enforced by compliance order; or”.

• “(iii) in the case of sections 223C, 223D(5), and 225(4)(c), a Labour Inspector.”

• “(ac) may assist the parties to resolve a problem at an early stage, including, at the request of a party, discussing the problem with that party without any representative of that party being present; and”.

“148A Minimum entitlements

• “(1) Minimum entitlements may be the subject of—

  • “(a) mediation under this Part; and

  • “(b) agreed terms of settlement under section 149(1).

  “(2) Despite subsection (1), a person who is employed or engaged by the chief executive to provide mediation services and who holds a general authority to sign agreed terms of settlement under section 149(1) must not sign agreed terms of settlement in which a party agrees to forgo all, or part, of the party's minimum entitlements.”

• “(3A) For the purposes of subsection (3), a minor aged 16 years or over may be a party to agreed terms of settlement, and be bound by that settlement, as if the minor were a person of full age and capacity.”

“149A Recommendation to parties

• “(1) The parties to a problem may agree in writing—

  • “(a) to confer the power to make a written recommendation in relation to the matters in issue on a person employed or engaged by the chief executive to provide mediation services; and

  • “(b) on the date on which that person's recommendation will become final, unless the parties do not accept the recommendation.

  “(2) The person on whom the power is conferred must, before making and signing a recommendation under that power,—

  • “(a) explain to the parties the effect of subsections (4) and (5); and

  • “(b) be satisfied that, knowing the effect of those subsections, the parties affirm their agreement.

  “(3) Where, following the affirmation referred to in subsection (2) of an agreement made under subsection (1), a recommendation is made and signed by the person empowered to do so, a party has until the date agreed under subsection (1)(b) to give written notice to the person who made the recommendation that the party does not accept the recommendation.

  “(4) If a party gives notice under subsection (3) that the party does not accept the recommendation,—

  • “(a) further mediation services may be provided in order to attempt to resolve the problem; and

  • “(b) either party to the problem may request those services be provided by a person other than the person who made the recommendation.

  “(5) If a party does not give notice under subsection (3),—

  • “(a) the recommendation becomes final and binding on, and enforceable by, the parties; and

  • “(b) a party may not seek to bring that recommendation before the Authority or the court, whether by action, appeal, application for review, or otherwise, except for enforcement purposes.”

“151 Enforcement of terms of settlement agreed or authorised

• “(1) This section applies to—

  • “(a) any agreed terms of settlement that are enforceable by the parties under section 149(3):

  • “(b) any recommendation that is enforceable by the parties under section 149A(5):

  • “(c) any decision that is enforceable by the parties under section 150(3).

  “(2) A matter referred to in subsection (1) may be enforced—

  • “(a) by compliance order under section 137; or

  • “(b) in the case of a monetary settlement, in 1 of the following ways:

    • “(i) by compliance order under section 137:

    • “(ii) by using, as if the settlement, recommendation, or decision were an order enforceable under section 141, the procedure applicable under section 141.”

• “(3) The Authority must act as it thinks fit in equity and good conscience, but may not do anything that is inconsistent with—

  • “(a) this Act; or

  • “(b) any regulations made under this Act; or

  • “(c) the relevant employment agreement.”

• “(iv) will be otherwise impractical or inappropriate in the circumstances; and”.

• “(1A) If the matter before the Authority was brought by a Labour Inspector and relates to an employee's minimum entitlements, the Authority must, before giving a direction under subsection (1)(b) or (c), consider whether it is appropriate to direct that mediation or further mediation be used in order to prevent the matter being resolved in a manner that involves a reduction of those minimum entitlements.”

“159A Duty of Authority to prioritise previously mediated matters

• “(1) This section applies if a matter comes before the Authority for investigation and determination and an attempt has been made to resolve the matter by mediation.

  “(2) The Authority must give priority to investigating and determining the matter referred to in subsection (1) over any other matters in which mediation has not been used unless the Authority considers that providing mediation services would be inappropriate having regard to section 159(1) or (1A).”

• “(2A) The Authority must allow cross-examination of a party or a person to the extent that is consistent with subsection (2).”

• “(4) The Authority may not make a freezing order or search order as provided for in the High Court Rules.”

“166A Role of Chief of Authority

• “(1) In addition to deciding matters as a member of the Authority, the Chief of the Authority is responsible for—

  • “(a) making any arrangements that are practicable to ensure that the members of the Authority discharge their functions—

    • “(i) in an orderly and expeditious way; and

    • “(ii) in a way that meets the objects of this Act; and

  • “(b) directing the education, training, and professional development of members of the Authority.

  “(2) Without limiting subsection (1), the Chief of the Authority may—

  • “(a) issue instructions (not inconsistent with this Act or regulations made under it) that outline expectations in respect of the process, timeliness, or any other matter relating to the hearing and determination of matters before the Authority; and

  • “(b) require particular members of the Authority to investigate particular matters.

  “(3) For the purposes of section 169(3), the Chief of the Authority may provide a report to the Minister in respect of any member of the Authority in regard to the member's adherence to and compliance with any instructions issued under subsection (2)(a).”

• “(3) Before recommending the reappointment of a member of the Authority under section 167, the Minister must, if the Chief of the Authority has provided a report in respect of the member under section 166A(3), consider that report.”

“173 Procedure

• “(1) The Authority, in exercising its powers and performing its functions, must—

  • “(a) comply with the principles of natural justice; and

  • “(b) act in a manner that is reasonable, having regard to its investigative role.

  “(3) The Authority may exercise its powers under section 160 in the absence of 1 or more of the parties.

  “(4) However, if the Authority acts under subsection (3), the Authority must provide an absent party with—

  • “(a) any material it receives that is relevant to the case of the absent party; and

  • “(b) an opportunity to comment on the material before the Authority takes it into account.

  “(5) To avoid doubt, subsections (3) and (4) do not limit the powers of the Authority to make ex parte orders (except a freezing order or search order as provided for in the High Court Rules).

  “(6) The Authority may meet with the parties at the times and places fixed by a member of the Authority or an officer of the Authority.

  “(7) Meetings of the Authority may be adjourned from time to time and from place to place by a member of the Authority or an officer of the Authority designated for the purpose by the chief executive, whether at any meeting or at any time before the time fixed for the meeting.

“173A Recommendation to parties

• “(1) The parties to an employment relationship problem may agree in writing—

  • “(a) to confer the power to make a written recommendation in relation to the matters in issue on a member of the Authority; and

  • “(b) on the date on which the member's recommendation will become final, unless the parties do not accept the recommendation.

  “(2) The member must, before making and signing a recommendation under that power,—

  • “(a) explain to the parties the effect of subsections (4) and (5); and

  • “(b) be satisfied that, knowing the effect of those subsections, the parties affirm their agreement.

  “(3) Where, following the affirmation referred to in subsection (2) of an agreement made under subsection (1), a recommendation is made and signed by the member empowered to do so, a party has until the date agreed under subsection (1)(b) to give written notice to the member who made the recommendation that the party does not accept the recommendation.

  “(4) If a party gives notice under subsection (3) that the party does not accept the recommendation,—

  • “(a) the Authority must continue to investigate and determine the matter; and

  • “(b) either party to the problem may request that the matter be further investigated and determined by a member other than the member who made the recommendation.

  “(5) If a party does not give notice under subsection (3), the recommendation becomes final and must be treated as the Authority's determination of the matter.

  “(6) However, a recommendation under subsection (5) need not comply with section 174(a) (which relates to the content of a determination made by the Authority).”

• “(1) The Authority may, on its own motion or on the application of a party to a matter, order the removal of the matter, or any part of it, to the court to hear and determine the matter without the Authority investigating it.”

“178A Challenge in respect of dismissal of frivolous or vexatious proceedings

• “(1) A party to a matter before the Authority that was dismissed because the Authority determined it was frivolous or vexatious under clause 12A of Schedule 2 may challenge that determination in the court.

  “(2) A challenge under this section must be made in the prescribed manner within 28 days after the date that the matter is dismissed by the Authority.

  “(3) The court must determine whether it considers the matter to be frivolous or vexatious.

  “(4) If the court does not determine that the matter is frivolous or vexatious, it must order the Authority to investigate and determine the matter.”

• “(3) In addition to the powers described in subsection (1), the court has the same powers of the High Court to make a freezing order and a search order as provided for in the High Court Rules.”

“223A Functions of Labour Inspector

• The functions of a Labour Inspector include—

  • “(a) determining whether the provisions of the relevant Acts have been complied with; and

  • “(b) taking all reasonable steps to ensure that the relevant Acts are complied with; and

  • “(c) supporting employers, employees, and other persons in complying with the relevant Acts by providing information and education; and

  • “(d) preventing non-compliance with the relevant Acts by assisting employers to implement systems and practices that comply with the provisions of the relevant Acts; and

  • “(e) providing any other services that assist employers and employees to resolve, promptly and effectively, employment relationship problems arising under the relevant Acts.

“Enforceable undertakings

“223B Enforceable undertakings

• “(1) A Labour Inspector and an employer may agree in writing that the employer will undertake by a specified date (an enforceable undertaking) to—

  • “(a) rectify the breach of any provision of the relevant Acts; or

  • “(b) pay money owed to an employee under a provision of the relevant Acts; or

  • “(c) take any other action that the Labour Inspector determines is appropriate having regard to the nature of the breach of the provision of the relevant Act.

  “(2) The employer may withdraw or vary an enforceable undertaking agreed under subsection (1) at any time, but only with the consent of the Labour Inspector.

“223C Enforcement of undertakings

• “(1) An enforceable undertaking may be enforced by the Authority making a compliance order under section 137.

  “(2) An employer who fails to comply with an enforceable undertaking that remains in force is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.

  “(3) If the enforceable undertaking relates to a monetary settlement, the enforceable undertaking may be enforced by using, as if the undertaking were an order enforceable under section 141, the procedure applicable under section 141.

“Improvement notices

“223D Labour Inspector may issue improvement notice

• “(1) A Labour Inspector who believes on reasonable grounds that any employer is failing, or has failed, to comply with any provision of the relevant Acts may issue the employer with an improvement notice that requires the employer to comply with the provision.

  “(2) An improvement notice issued under subsection (1) must state—

  • “(a) the provision that the Labour Inspector reasonably believes that the employer is failing, or has failed, to comply with; and

  • “(b) the Labour Inspector's reasons for believing that the employer is failing, or has failed, to comply with the provision; and

  • “(c) the nature and extent of the employer's failure to comply with the provision; and

  • “(d) the steps that the employer could take to comply with the provision; and

  • “(e) the date before which the employer must comply with the provision.

  “(3) An improvement notice may state the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).

  “(4) An improvement notice may be issued—

  • “(a) by giving it to the employer concerned; or

  • “(b) if the employer does not accept the improvement notice, by leaving it in the employer’s presence and drawing the employer’s attention to it.

  “(4A) An improvement notice may not be issued in the period commencing on 17 December and ending with the close of 8 January in the following year.

  “(5) An improvement notice may be enforced by the making by the Authority of a compliance order under section 137.

“223E Objection to improvement notice

• “(1) An employer may, within 28 days after the improvement notice is issued to the employer, lodge with the Authority an objection to the notice.

  “(2) The function of the Authority in respect of an objection is to determine—

  • “(a) whether the employer is failing, or has failed, to comply with the specified provision of the relevant Acts; and

  • “(b) the nature and extent of the employer's failure to comply with the provision; and

  • “(c) the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).

  “(3) The Authority may confirm, vary, or rescind the improvement notice as the Authority thinks fit.

“223F Penalty

• “(1) An employer who fails to comply with an improvement notice issued under section 223D is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.

  “(2) If subsection (1) applies, a Labour Inspector may not also bring an action seeking a penalty in respect of the same matter under any of the relevant Acts.

“223G Withdrawal of improvement notice

• An improvement notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of an improvement notice does not prevent another improvement notice being served in relation to the same matter.”

• “(2) If a Labour Inspector commences an action under subsection (1), the Labour Inspector must not issue an improvement notice under section 223D or serve a demand notice under section 224 in respect of the same wages or holiday pay or other money.”