Hon Iain Lees-Galloway
Equal Pay Amendment Bill
Government Bill
103—2
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Equal Pay Amendment Act 2018.
2 Commencement
This Act comes into force on the day 3 months after the date
on which it receives the Royal assent.
3 Principal
Act
This Act amends the Equal Pay Act 1972 (the principal Act).
Part 1 Amendments to principal Act
4 New Part
1 heading inserted
After section 1, insert:
Part 1 Preliminary provisions
5 Section
2 amended (Interpretation)
(1)
In section 2(1), insert in their appropriate alphabetical
order:
employment
agreement has the same meaning as in section 5 of the Employment
Relations Act 2000
equal
pay claim means a claim that an employer has breached section 2AAC(a)
pay equity
claim means a claim that an employer has breached section 2AAC(b)
pay
equity claim settlement means a settlement of a pay equity
claim that is recorded—
(a)
in a written agreement between the parties as
described in section 13N(3); or
(b)
in a determination of the Authority or the Court
as described in section 13N(1)(b)(ii)
predominantly
performed by female employees has the meaning set out in section 13C(2A)13CA(2)
(2)
In section 2(1), definition of employee,—
(a)
delete “; but does not include— ”
; and
(b)
repeal paragraphs (a), (c), and (e)(a) and (c).
(3)
In section 2(1), repeal the definitions of agricultural workers order, apprenticeship order, award, first increment date, industrial agreement, instrument, and waterfront
industry order.
(4)
In section 2(2), replace “agreement specified
in paragraph (e) of the definition of the term instrument in subsection
(1) made between an individual employee and an individual employer,
or any decision under paragraph (f) of that definition made in respect
of an individual employee, which fixes a rate of remuneration that
is special to that employee”
with “employment agreement
that fixes a rate of remuneration that is special to an employee”
.
(5)
After section 2(2), insert:
(3)
Any term or expression used but not defined in this Act
has the meaning given to it in the Employment Relations Act 2000.
6 New sections
2AAA and 2AAB inserted
After section 2, insert:
2AAA Transitional,
savings, and related provisions
The transitional, savings, and related provisions set
out in Schedule 1 have effect according to their terms.
2AAB Act
binds the Crown
This Act binds the Crown.
7 New section
2AAC and Part 2 heading inserted
Before section 2A, insert:
Part 2 Key provisions
2AAC Differentiation
in rates of remuneration prohibited
An employer must ensure that—
(a)
there is no differentiation, on the basis of
sex, between the rates of remuneration offered and afforded by the
employer to employees of the employer who perform the same, or substantially
similar, work; and
(b)
there is no differentiation, on the basis of sex, between
the rates of remuneration offered and afforded by the employer for
work that is exclusively or predominantly performed by female employees
and the rate of remuneration that would be paid to male employees
who—
(i)
have the same, or substantially similar, skills,
responsibility, and experience; and
(ii)
work under the same, or substantially similar,
conditions, and with the same, or substantially similar, degrees of
effort.
8 Section
2A amended (Unlawful discrimination)
Replace Repeal section
2A(2). with:
(2)
This section
does not apply to a pay equity claim.
9 New section
2B inserted (Choice of proceedings)
After section 2A, insert:
2B Choice
of proceedings
(1)
Where the circumstances giving rise to an unlawful discrimination
claim, an equal pay claim, or a pay equity claim by an employee are
such that the employee would also be entitled to make a complaint
under the Human Rights Act 1993, or pursue a personal grievance under
the Employment Relations Act 2000, the employee may take 1, but not
more than 1, of the following steps:
(a)
the employee may raise pursue a claim under this
Act; or
(b)
the employee may make a complaint under the
Human Rights Act 1993; or
(c)
the employee may apply to the Authority for
resolution of a personal grievance under the Employment Relations
Act 2000.
(1A)
For the purposes of subsection (1)(a), an employee pursues a claim under this Act if,—
(a)
in the case of an unlawful
discrimination claim, the employee makes a complaint under section
2A; and
(b)
in the case of an equal pay
claim, the employee commences proceedings for recovery of remuneration
under section 131 of the Employment Relations Act 2000 (as provided
for in section 13(2)); and
(c)
in the case of a pay equity
claim raised by an individual employee, the employee—
(i)
files an application with
the Authority under section
13Z(1)(d) for the Authority to fix remuneration;
or
(ii)
settles the claim in accordance
with section 13N(1)(a); or
(iii)
accepts an offer of the benefit
of the pay equity claim settlement made under section 13NB(4); and
(d)
in the case of a pay equity
claim raised by 1 or more unions, the employee—
(i)
is covered by the union-raised
claim at the time when the claimant—
(A)
files an application with
the Authority under section
13Z(1)(d) for the Authority to fix remuneration;
or
(B)
settles the claim in accordance
with section 13N(1)(a); or
(ii)
accepts an offer of the benefit
of the pay equity claim settlement made under section 13NB(2) or (5).
(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 Human Rights Commission.
(3)
If an employee raises pursues a claim under this Act, the employee may not
exercise or continue to exercise any rights in relation to the subject
matter of that claim that the employee may have under the Human Rights
Act 1993 or under the Employment Relations Act 2000.
(4)
If an employee makes a complaint referred to in 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 or under the Employment Relations Act 2000.
(5)
If an employee applies to the Authority for resolution
of a personal grievance under the Employment Relations Act 2000, the
employee may not exercise or continue to exercise any rights in relation
to the subject matter of that personal grievance that the employee
may have under this Act or under the Human Rights Act 1993.
10 Section
3 amended (Criteria to be applied)
(1)
In section 3(1), replace “Subject to the provisions
of this section, in”
with “In”
.
(2)
In section 3(1), delete “or class of work payable
under any instrument, and for the purpose of making the determinations
specified in subsection (1) of section (4)”
.
(2A)
In section 3(1)(b), replace “service”
with “experience”
.
(3)
Repeal section 3(2) and (3).
11 Sections
4 to 8 repealed
12 New
section 8A and Part 3 heading inserted
Before section 9, insert:
Part 3 Matters relating to equal pay claims
8A Application
of this Part
The provisions in this Part do not apply to—
(b)
an unlawful discrimination claim under section
2A.
13 Section
9 amended (Court may state principles for implementation of equal
pay)
In section 9, replace “for the implementation
of equal pay in accordance with the provisions of sections 3 to 8”
with “to achieve equal pay in employment agreements”
.
14 Section
10 amended (Approval by court or Employment Relations Authority of
instruments or proposed instruments)
(1)
In the heading to section 10, replace “instruments or proposed instruments”
with “employment agreements or proposed
employment agreements”
.
(2)
In section 10, replace “instrument or proposed
instrument”
with “employment agreement or proposed
employment agreement”
in each place.
(3)
In section 10, replace “proposed collective agreement”
with “proposed or existing collective agreement”
in each place.
(4)
In section 10, replace “meet the requirements
of sections 3 to 6”
with “provide for equal pay”
in each place.
(5)
In section 10, replace “meet such of the requirements
of sections 3 to 7 as are applicable”
with “provide
for equal pay”
in each place.
(6)
In section 10(1), replace “meet such of the requirements
of sections 3 to 6 as are applicable”
with “provide
for equal pay”
.
(7)
In section 10(2)(b)(ii), after “and”
, insert “, in the case of a proposed collective agreement,”
.
(8)
In section 10(4)(b)(i), replace “meet those requirements”
with “provide for equal pay”
.
(9)
Replace section 10(4)(b)(ii) with:
(ii)
in the case of an existing employment agreement,
amend it to the extent necessary to provide for equal pay, and the
employment agreement as so amended has effect accordingly.
15 Section
11 repealed (Court may make partial award)
16 Section
12 amended (Further powers of Employment Relations Authority)
(1)
Repeal section 12(a) and (b).
(2)
In section 12(d), replace “instrument”
with “employment agreement”
in each place.
17 Section
13 amended (Recovery of remuneration based on equal pay)
(2)
In section 13(2) and (3), replace “instrument”
with “employment agreement”
.
18 New
Part 4 inserted
After section 13, insert:
Part 4 Pay equity claims
13A Purpose
The purpose of this Part is to facilitate resolution of
pay equity claims, by—
(a)
setting a low threshold to raise a claim (while
recognising that entry into the pay equity claim process does not
predetermine an outcome); and
(b)
providing a simple and accessible process to
progress a pay equity claim.
13B Interpretation
()
In this Part, unless the context otherwise requires, employer means an employer in relation to
whom a pay equity claim has been raised.
In this Part, unless the context otherwise requires,—
affected
employee means an employee who performs work that is the
same as, or substantially similar to, the work performed by another
employee of the same employer, if a pay equity claim has been raised
with the employer in respect of that work (whether by an employee
or by 1 or more unions)
claimant means—
(a)
an individual employee who
raises a pay equity claim:
(b)
a union that raises a pay
equity claim on behalf of the members of that union:
(c)
multiple unions that jointly
raise a pay equity claim on behalf of the members of each union, or
that pursue a pay equity claim that is consolidated in accordance
with section 13EC
covered
by a pay equity claim settlement, in relation to an employee,
means the employee—
(a)
is the claimant who raised
the pay equity claim to which the settlement relates; or
(b)
in the case of a claim raised
by 1 or more unions, was covered by the union-raised claim at the
time that the claim was settled; or
(c)
has accepted an offer of the
benefit of the pay equity claim settlement made under section 13NB(2), (4), or (5)
covered
by a union-raised claim, in relation to an employee, means
the employee—
(a)
is covered by a claim raised
by 1 or more unions in accordance with section 13FF; and
(b)
has not opted out under section 13FH
employer means an employer in relation to whom a pay equity claim has been
raised
multi-employer
pay equity claim means a claim raised by 1 or more unions
with multiple employers (including a claim raised with multiple employers
to which section 13EA applies and a claim raised with multiple employers
that is consolidated in accordance with section 13ED)
party, in relation to a pay equity claim, means—
(b)
the employer (or each employer, in the case
of a multi-employer pay equity claim)
union—
(a)
means a union registered under
Part 4 of the Employment Relations Act 2000; and
(b)
if 2 or more unions are joint
claimants (whether because they jointly raised a pay equity claim
or subsequently consolidated their pay equity claims), means those
unions jointly.
13BA Good faith in pay
equity claim process
(1)
The duty of good faith in
section 4 of the Employment Relations Act 2000 applies to the parties
to a pay equity claim, as if references in that section to a collective
agreement were references to a pay equity claim settlement.
(2)
The duty of good faith in
section 4 of the Employment Relations Act 2000 requires the parties
to, at least,—
(a)
follow the process set out
in this Part, to resolve the pay equity claim; and
(b)
in the case of multiple employer
parties required by section
13EA to enter into a multi-employer pay equity
process agreement, use their best endeavours to enter into that agreement
in an effective and efficient manner; and
(c)
in the case of multiple union
parties required by section
13EC to consolidate their claims, use their
best endeavours to agree on how they will progress the consolidated
claim; and
(d)
use their best endeavours
to enter into an arrangement, as soon as possible after the start
of pay equity bargaining, that sets out a process for conducting the
bargaining in an effective and efficient manner; and
(e)
use their best endeavours
to settle the pay equity claim in an orderly, timely, and efficient
manner; and
(f)
recognise the role and authority
of any person chosen by each of the parties to be that person’s representative
or advocate, and not (directly or indirectly) bargain about matters
relating to the pay equity claim with the person for whom a representative
or advocate acts (unless the parties agree otherwise); and
(g)
not undermine, or do anything
that is likely to undermine, the bargaining or the authority of another
party in the bargaining.
(3)
The duty of good faith in
section 4 of the Employment Relations Act 2000, which applies to the
relationship between a union and a member of the union, also applies
to the relationship between a union and an employee who is not a member
of the union if the employee is covered by the union-raised claim.
Compare: 2000 No 24 s 32
Employee’s right to raise pay equity
claimRaising
pay equity claims
13BB Union right to represent
members
A union is entitled to raise
a pay equity claim in accordance with section 13C on behalf of
its members and to represent them in that claim.
13C Employee Unions and employees may
raise pay equity claim claims
Who may raise claim
(1)
An employee of
an employer, or a group of employees who perform the same, or substantially
similar, work for an employer, may raise a pay equity claim if that
employee or group of employees considers that the claim is arguable.
(1)
The following may raise a
pay equity claim with an employer if they consider that the claim
is arguable:
(a)
a union, on behalf of 1 or
more members of that union who perform the same or substantially similar
work for the employer:
(b)
2 or more unions, acting jointly
on behalf of the members of each union who perform the same or substantially
similar work for the employer:
(c)
an individual employee, other
than an employee who—
(i)
is covered by a union-raised
claim; or
(ii)
is barred from pursuing a
pay equity claim under section
2B; or
(iii)
is referred to in subsection (4).
(2)
A pay equity
claim is arguable if—
(a)
the claim relates
to work that is or was predominantly performed by female employees;
and
(b)
it is arguable
that the work is currently undervalued or has historically been undervalued.
(2A)
For the purposes
of this Act, work is or was predominantly
performed by female employees if it is work that is currently,
or that was historically, performed by a workforce of which approximately
60% or more members are female.
(3)
In deciding whether
it is arguable that work is currently undervalued or has historically
been undervalued, consideration may be given to any relevant factor,
including the following:
(a)
the origins and
history of the work, including the manner in which wages have been
set:
(b)
any social, cultural,
or historical factors:
(c)
characterisation
of the work as women’s work:
(d)
that the nature
of the work requires an employee to use skills or qualities that have
been—
(i)
generally associated
with women; and
(ii)
regarded as
not requiring monetary compensation:
(e)
any sex-based
systemic undervaluation of the work as a result of the following factors:
(i)
a dominant source
of funding across the relevant market, industry, sector, or occupation:
(ii)
a lack of effective
bargaining in the relevant market, industry, sector, or occupation:
(iii)
occupational
segregation or occupational segmentation in respect of the work:
(iv)
the failure
by the parties to properly assess or consider the remuneration that
should have been paid to properly account for the nature of the work,
the levels of responsibility associated with the work, the conditions
under which the work is performed, and the degree of effort required
to perform the work:
(v)
any other feature
of the relevant market, industry, sector, or occupation.
Who may not raise
claim
(2)
A union may not raise a pay
equity claim with an employer if no employee of the employer who performs
the work to which the claim relates is a member of the union.
(3)
Subsection (2) does not
limit a union’s right to jointly raise a multi-employer pay equity
claim with another union, or to consolidate a claim raised with multiple
employers in accordance with section 13ED, provided each employer with
whom the multi-employer claim is raised employs at least 1 employee
who—
(a)
performs the work to which
the claim relates; and
(b)
is a member of 1 of the unions
that jointly raise the claim.
(3A)
Despite subsection (1), a union
may not raise a multi-employer pay equity claim with employers in
respect of work performed by members of the union if—
(a)
1 or more of the employers
are already parties to a pay equity claim raised by another union
or unions in respect of the same or substantially similar work; and
(b)
1 or more of the employers
are not.
(3B)
A union that is prevented
from raising a multi-employer pay equity claim by subsection (3A) may raise
2 separate claims in respect of the work, as follows:
(a)
the union may raise a claim
with the employer or employers who are already parties to a union-raised
pay equity claim (in which case section 13EC applies); and
(b)
the union may raise a separate
claim with the employer or employers who are not already parties to
a union-raised pay equity claim (in which case section 13ED(3)(b) applies).
(4)
If work An employee who is covered by a pay equity claim settlement, may not raise a pay equity claim in respect
of the work to which the settlement relates (unless the Authority
or court determines otherwise in accordance with section 13Z(4)).
(a)
an employee who
was a party to that pay equity claim settlement, or who accepts an
offer of the benefit of that settlement,—
(i)
may not (unless the Authority or court determines
otherwise in accordance with section 13Z(4)) raise a pay equity claim
in respect of that work; and
(ii)
may not make a complaint under the Human Rights
Act 1993 of a kind that could have been raised as a pay equity claim
in respect of that work but for subparagraph (i); and
(iii)
may not apply to the Authority under the Employment
Relations Act 2000 for resolution of a personal grievance of a kind
that could have been raised as a pay equity claim in respect of that
work but for subparagraph
(i):
(b)
an employee who
was offered, but did not accept, the benefit of that settlement—
(i)
may not (unless
the Authority or court determines otherwise in accordance with section 13Z(4)) raise a pay equity claim in respect of that work; but
(ii)
may—
(A)
make a complaint
under the Human Rights Act 1993; or
(B)
apply to the
Authority for resolution of a personal grievance under the Employment
Relations Act 2000.
(5)
In subsection (4), an employee is offered the benefit of a settlement, if that employee
is offered—
(a)
the same terms
and conditions of employment, including remuneration, as other employees
who are parties to the settlement; and
(b)
the same offer
of remuneration for past work, if remuneration for past work is included
in the settlement and if the employee would have qualified for that
offer had the employee been a party to the claim.
(6)
Subsections (4) and (5)Subsection (4) override subsections (1)
to (3).—
(a)
does not apply to a pay equity
claim settlement that has been cancelled by the Authority under section 13NAAB(1)(b):
(b)
overrides subsection (1).
13CA Meaning of arguable
(1)
A pay equity claim is arguable if—
(a)
the claim relates to work that is or was predominantly
performed by female employees; and
(b)
it is arguable that the work is currently undervalued
or has historically been undervalued.
(2)
For the purposes of this Act, work is or was predominantly performed by female employees if it is work
that is currently, or that was historically, performed by a workforce
of which approximately 60% or more members are female.
(3)
In deciding whether it is arguable that work is currently
undervalued or has historically been undervalued, consideration may
be given to any relevant factor, including the following:
(a)
the origins and history of the work, including
the manner in which wages have been set:
(b)
any social, cultural, or historical factors:
(c)
characterisation of the work as women’s work:
(d)
that the nature of the work requires an employee
to use skills or qualities that have been—
(i)
generally associated with women; and
(ii)
regarded as not requiring monetary compensation:
(e)
any sex-based systemic undervaluation of the
work as a result of any of the following factors:
(i)
a dominant source of funding across the relevant
market, industry, sector, or occupation:
(ii)
a lack of effective bargaining in the relevant
market, industry, sector, or occupation:
(iii)
occupational segregation or occupational segmentation
in respect of the work:
(iv)
the failure by the parties to properly assess
or consider the remuneration that should have been paid to properly
account for the nature of the work, the levels of responsibility associated
with the work, the conditions under which the work is performed, and
the degree of effort required to perform the work:
(v)
any other feature of the relevant market, industry,
sector, or occupation.
Process to raise pay equity claim
13D Requirements
relating to all pay equity claims
A Every pay
equity claim must—
(b)
state that it is a pay equity claim made under the Equal Pay Act 1972; and this Act.
(c)
state—
(i)
the employee’s
name and address for service; and
(ii)
the date on
which the claim is made; and
(iii)
the employee’s
occupation, position, and a brief description of the work performed
by the employee; and
(iv)
if the employee
has authorised a union or any other representative to act on the employee’s
behalf in respect of the claim, the name and address for service of
that representative (see sections
18(3) and 236(3) of the Employment Relations Act 2000); and
(v)
whether the employee—
(A)
consents to their
name and address for service being shared with the employer’s other
employees who perform work that is the same as, or substantially similar
to, the work performed by the claimant; or
(B)
requests that
their name and address for service be kept confidential (see sections 13E(4) and 13H(4)).
(d)
briefly set out
the elements required for an arguable pay equity claim (see section 13C(2)), and the information that
the employee relies on in support of those elements.
Compare: 1990 No 57 s 5J; 2000 No 24 s 69AAC
13DA Requirements for
claim raised by individual employee
A pay equity claim raised
by an individual employee must—
(a)
state—
(i)
the employee’s name and address for service;
and
(ii)
the date on which the claim is made; and
(iii)
the employee’s occupation, position, and a
brief description of the work performed by the employee; and
(iv)
if the employee has authorised a representative
to act on the employee’s behalf in respect of the claim, the name
and address for service of that representative (see sections 18(3) and 236(3) of the Employment Relations
Act 2000); and
(b)
briefly set out the information that the employee
relies on in support of the elements required for an arguable pay
equity claim under section
13CA.
13DB Requirements for
claim raised by union or unions
(1)
A pay equity claim raised
by a union or unions—
(a)
must—
(i)
state the name and address for service of the
union, or for each of the unions if more than 1 are acting jointly;
and
(ii)
state the date on which the claim is made;
and
(iii)
include a brief description of the work performed
by the employees to be covered by the union-raised claim; and
(b)
must briefly set out the information that the
claimant relies on in support of the elements required for an arguable
pay equity claim under section
13CA; and
(c)
in the case of a claim raised
with multiple employers, must include a notice to each of the employers
of their obligations under section 13EA to enter a multi-employer pay
equity process agreement with the other employers with whom the claim
is raised.
(2)
A union that raises a pay
equity claim with an employer is not required to name the employees
who perform the work to which the claim relates.
(3)
A pay equity claim raised
by 1 or more unions with multiple employers must also include—
(a)
the name of each employer
with whom the claim is raised; and
(b)
a brief explanation of how
the work performed by the employees covered by the union-raised claim
is considered to be the same or substantially similar.
13E Employer
must notify certain
other employees acknowledge receipt of pay equity claim and notify unions
(1)
An employer who receives a pay equity claim from an employee (the claimant) a claimant must—, no later than 5 working days after receiving
the claim,—
(a)
acknowledge receipt of the claim by giving a
notice of receipt to the claimant not later than 5 working days after
receiving it; and
(b)
give notice of the claim to
every union (other than the claimant, if the claimant is a union)
to which 1 or more of the employer’s employees belong that represents
persons who perform work that is the same as, or substantially similar
to, the work to which the claim relates.
(b)
give notice of
the claim to the persons referred to in subsection (2) as soon as
is reasonably practicable and not later than 20 working days after
receiving it.
(2)
A notice to a union under subsection (1)(b) must—
(a)
be given in writing and expressed
in plain language; and
(b)
have attached to it a copy
of the pay equity claim.
(3)
If the claimant is an individual
employee, the notice to a union under subsection (1)(b), and the
attached copy of the pay equity claim, must not include the claimant’s
name, their contact details, or any other information that identifies
the claimant, unless the claimant has given written permission for
those details to be shared.
(2)
The persons are
all of the employer’s other employees who perform work that is the
same as, or substantially similar to, the work performed by the claimant
(the affected employees).
(3)
The notice must—
(b)
state that a
pay equity claim has been made by an employee who performs work that
is the same as, or substantially similar to, the work performed by
the affected employees; and
(c)
provide information
about the steps that affected employees may take to join the claim
or raise their own pay equity claim.
(4)
The notice must
not identify the claimant if the claimant has requested that their
name be kept confidential.
(6)
Subsection (1)(b) does not
apply in respect of an affected employee if—
(a)
the employer
has given notice to that employee of another claim that relates to
the same, or substantially similar, work; and
(b)
that other claim
has not been rejected or settled; and
(c)
the claimant’s
claim is to be consolidated under section 13H with an existing
claim and the requirements of section 13H are complied with (which requires
that a joinder notice be provided to the claimant, information about
the claimant be provided to other claimants (unless confidentiality
is requested), and information about other claimants be provided to
the claimant).
(7)
Despite subsection (1)(b), the employer may, by notice to the claimant, extend the time limit
for notifying affected employees if the employer has genuine reasons,
based on reasonable grounds, for requiring the extension.
(8)
A notice extending
the time limit must—
(a)
be given as soon
as is reasonably practicable and not later than 20 working days after
the employer receives the claim; and
(b)
specify the extended
date by which the employer will notify affected employees of the claim;
and
(c)
set out the reasons
and grounds for requiring the extension.
Claims
involving multiple employers
13EA Union-raised claims
raised with multiple employers: employers must enter into pay equity
process agreement
(1)
This section applies if—
(a)
1 union has raised a pay equity
claim with 2 or more employers in respect of employees who are members
of that union and who perform the same, or substantially similar,
work; or
(b)
2 or more unions have jointly
raised a pay equity claim with 2 or more employers in respect of employees
who are members of any of those unions and who perform the same, or
substantially similar, work.
(2)
Each employer who receives
a pay equity claim raised by a union or unions with multiple employers
must enter into a single multi-employer pay equity process agreement
for the purposes of deciding whether the claim is arguable and for
the purposes of the pay equity bargaining process.
(3)
The multi-employer pay equity
process agreement must set out—
(a)
whether there will be 1 or
more representatives for the employers and who that representative
or those representatives will be; and
(b)
how decisions relating to
the claim will be made.
(4)
If the employers cannot agree
on a multi-employer pay equity process agreement, any of them may
apply to the Authority for a direction.
13EB Opting out of multi-employer
pay equity claim
Employers may individually
opt out
(1)
An employer may opt out of
a multi-employer pay equity claim by giving notice to all other parties
only if the employer has genuine reasons, based on reasonable grounds,
to do so.
(2)
If an employer opts out of
a multi-employer pay equity claim, the claim in respect of that employer
must be progressed as a separate claim.
Unions may jointly
opt out of claim raised with individual employer
(3)
Subsection (4) applies if
2 or more unions have jointly raised a claim with an employer, or
have consolidated their claims raised with an employer (as required
by section 13EC), and the claim raised with the employer is part of
a multi-employer pay equity claim.
(4)
The unions may opt out of
the multi-employer pay equity claim raised with the employer by giving
notice to all other parties only if—
(a)
the unions have genuine reasons,
based on reasonable grounds, to do so; and
(5)
If 2 or more unions jointly
opt out of a multi-employer pay equity claim in respect of an employer
under subsection (4), the unions’ joint claim in respect of that employer
must be progressed as a separate claim.
Single union may opt
out of claim raised with individual employer
(6)
A union may opt out of a multi-employer
pay equity claim in respect of an employer only if—
(a)
the union has genuine reasons,
based on reasonable grounds, to do so; and
(b)
the union is the only union
that has raised a claim with that employer in respect of the work
to which the claim relates.
(7)
If a union opts out of a multi-employer
pay equity claim in respect of an employer under subsection (6), the union’s
claim in respect of that employer must be progressed as a separate
claim.
Notice of opting out
(8)
A notice opting out of a multi-employer
pay equity claim may be given by an employer under subclause (1), by unions
jointly under subclause (4), or by a single union under subclause (6), at any time
before the claim is settled.
(9)
A notice opting out of a multi-employer
pay equity claim must be given in writing and must state the party’s
genuine reasons for opting out and the reasonable grounds on which
those reasons are based.
Consolidation
of claims
13EC Multiple union claims
raised with single employer: unions must consolidate
(1)
This section applies if a
union raises (or multiple unions jointly raise) a pay equity claim
with an employer (the first claim) and, before that claim is settled, another union raises a pay equity
claim (the subsequent claim) with
the same employer in respect of work that is the same as, or substantially
similar to, the work to which the first claim relates.
(2)
The unions must consolidate
the claims.
(3)
The employer must, within
5 working days of receiving the subsequent claim, give notice to each
union that has raised a claim with the employer of the requirement
to consolidate.
(4)
If the unions cannot agree
on how the consolidated claim will be progressed, any of them may
apply to the Authority for a direction.
13ED Consolidation of
claim raised with additional or new employer with existing union-raised
claim
(1)
This section applies if 1
or more unions have raised a pay equity claim with 1 or more employers
who have decided that the claim is arguable (an existing claim).
(2)
If the union or unions that
raised the existing claim subsequently raise a claim with another
employer that relates to work that is the same as, or substantially
similar to, the work covered by the existing claim and the other employer
decides that the claim is arguable (an additional
employer), the claim raised with the additional employer
may be consolidated with the existing claim only if the additional
employer and all of the parties to the existing claim consent.
(3)
If 1 or more other unions
subsequently raise a pay equity claim with 1 or more employers that
relates to work that is the same as, or substantially similar to,
the work covered by the existing claim (a new claim), and—
(a)
if the new claim is raised
with 1 or more employers who are already parties to the existing claim, section 13EC applies
and requires the unions to consolidate the existing claim and the
new claim:
(b)
if the new claim is raised
with 1 or more employers who are not parties to the existing claim,
and who decide that the claim is arguable (a new employer), the claim raised with the new employer
may be consolidated with the existing claim only if the union that
raised the new claim, the new employer, and all parties to the existing
claim consent.
(4)
If the consent of all parties
is not obtained to consolidate a claim raised with an additional employer
or a new employer with an existing claim as required by subsection (2) or (3)(b), the union must progress the claim raised with the additional employer
or the new employer separately.
13EE Process to request
consent to consolidate
(1)
This section applies to a
request to consolidate a claim raised by a union with an additional
employer (see section 13ED(2)) or a new
employer (see section 13ED(3)(b)) with
an existing pay equity claim.
(2)
A request to consolidate may
be made by—
(a)
a union who raised either
of the claims; or
(b)
an employer with whom either
of the claims is raised.
(3)
A request to consolidate may
be made at any time before the first of the claims is settled.
(4)
A request to consolidate must
be made in writing and must include—
(a)
a brief description of the
work performed by the employees who are covered by each of the claims;
and
(b)
a brief explanation of how
the work performed by the employees who are covered by each of the
claims is considered to be the same or substantially similar.
13EF Effect of consolidation
(1)
This section applies if—
(a)
multiple union claims raised
with single employer are consolidated as required by section 13EC; or
(b)
all parties consent to a request
under section 13EE for consolidation of an existing claim with a claim
raised by a union with an additional employer or a new employer.
(2)
The parties to each of the
claims that are to be consolidated must carry out the assessment required
by section 13L.
(3)
The parties to each of the
claims that are to be consolidated must identify appropriate comparators
as required by section 13M.
Employers’
obligations to give notice of arguable claims
13F Employer
must form view as to whether pay equity claim is arguable
(1)
An employer who receives a pay equity claim must, as soon
as is reasonably practicable and not later than 45 working days after
receiving it, decide whether, in the employer’s view, the pay equity
claim is arguable. (See section 13FC for how this applies to multi-employer
pay equity claims.)
(1A)
An employer must act in a
manner that is consistent with the purpose of this Part (to set a
low threshold for raising a claim) by taking a light-touch approach
when making the decision required under subsection (1).
(2)
An employer’s decision that a pay equity claim is arguable
does not mean that—
(a)
the employer agrees that there is a pay equity
issue; or
(b)
there will be a pay equity claim settlement
as a result of following the pay equity claim process.
(3)
The employer must give notice
of the employer’s decision to the claimant in accordance with section 13FB—
(a)
as soon as is reasonably practicable,
and not later than 45 working days after receiving the claim; or
(b)
by a later date specified
in a notice under section
13FA extending the time limit.
(3)
The employer
must notify the employee who made the claim of the employer’s decision
under subsection (1) as soon as is reasonably practicable, and not later
than 45 working days after receiving the claim.
(3A)
Despite subsections (1) and (3), the employer may, by notice to the employee who made the claim,
extend the time limit for making and notifying the employer’s decision
as to whether the pay equity claim is arguable, if the employer has
genuine reasons, based on reasonable grounds, for requiring the
extension.
(3B)
A notice extending
the time limit must—
(a)
be given as soon
as is reasonably practicable and not later than 45 working days after
the employer receives the claim; and
(b)
specify the extended
date by which the employer will notify the employee of the employer’s
decision; and
(c)
set out the reasons
and grounds for requiring the extension.
(3C)
The employer is deemed to have accepted that a pay equity
claim is arguable if the employer fails to give notice to the employee under subsection (3) claimant under section 13FB—
(a)
within 45 working days of receiving the claim;
or
(b)
by the date specified in a notice under subsection (3A)section 13FA extending the time limit.
(3D)
If the employer
decides that the claim is arguable, or is deemed to have accepted
that the claim is arguable,—
(a)
the employer
must provide the employee with a notice containing information about
the pay equity bargaining process under sections 13H to 13ZD; and
(b)
the employer
and the employee must enter into the pay equity bargaining process.
(4)
If the employer
decides that the claim is not arguable, the notice under subsection (3) must—
(a)
set out the reasons
for the employer’s decision; and
(b)
provide an explanation
of the steps that the employee may take to challenge the employer’s
decision, including advice that—
(i)
the employee
may seek further details of the reasons for the employer’s decision:
(ii)
the employee
may refer the question of whether the claim is arguable to mediation
under section 13P:
(iii)
the parties
may refer the question of whether the claim is arguable to the Authority
for facilitation under sections
13Q to 13Y, if the employer agrees and if
one or both of the grounds in section 13S(2) exists:
(iv)
the employee
may apply to the Authority under section 13Z for a determination as to whether
the pay equity claim is arguable and that, if the employee does so,
the Authority will first consider whether an attempt has been made
to resolve the question by facilitation or mediation.
Compare: 1990 No 57 s 5I; 2000 No 24 s 69AAE
13FA Notice extending
time limit for employer’s decision as to whether claim arguable
(1)
Despite section
13F, an employer may, by notice to the claimant,
extend the time limit for making and notifying the employer’s decision
as to whether a pay equity claim is arguable if the employer has reasonable
grounds for requiring the extension.
(2)
A notice extending the time limit must—
(a)
be given as soon as is reasonably practicable
and not later than 45 working days after the employer receives the
claim; and
(b)
specify the extended date by which the employer
will notify the claimant of the employer’s decision; and
(c)
set out the grounds for requiring the extension.
(3)
A notice extending the time
limit must not extend the time limit by more than—
(a)
20 working days in the case
of a claim raised with a single employer; or
(b)
80 working days in the case
of a claim raised with multiple employers, unless all parties agree
to a longer extension.
13FB Employer’s obligations
after deciding whether claim is arguable
(1)
This section applies to an
employer who makes the decision required by section 13F(1) or who is
deemed by section 13F(3C) to have accepted that pay equity claim is arguable.
(2)
An employer who decides that the claim is arguable must—
(a)
give notice to the claimant advising that the
employer has decided that the claim is arguable; and
(b)
provide information to the
claimant about the pay equity bargaining process under sections 13K to 13ZD; and
(c)
enter into the pay equity bargaining process
with the claimant.
(3)
An employer who decides that the claim is not arguable
must give notice to the claimant that—
(a)
sets out the reasons for the employer’s decision;
and
(b)
explains the steps that the claimant may take
to challenge the employer’s decision, including advice that—
(i)
the claimant may seek further details of the
reasons for the employer’s decision:
(ii)
the claimant may refer the question of whether
the claim is arguable to mediation under section 13P:
(iii)
the parties may refer the question of whether
the claim is arguable to the Authority for facilitation under sections 13Q to 13Y if the all of the parties agree and if 1 or both of the grounds
in section 13S(2) exist:
(iv)
the claimant may apply to the Authority under section 13Z for
a determination as to whether the pay equity claim is arguable and
that, if the claimant does so, the Authority will first consider whether
an attempt has been made to resolve the question by facilitation or
mediation.
(4)
An employer must, as soon
as is practicable after becoming aware that they have been deemed
to have accepted that a pay equity claim is arguable under section 13F(3C),—
(a)
give notice to the claimant advising that the
employer is deemed to have accepted that the pay equity claim is arguable
under section 13F(3C); and
(b)
provide information to the
claimant about the pay equity bargaining process under sections 13K to 13ZD; and
(c)
enter into the pay equity bargaining process
with the claimant.
13FC Deciding if multi-employer
pay equity claim is arguable
Sections 13F to 13FB and 13FE apply to employers who have entered a multi-employer pay equity
process agreement in accordance with section 13EA as follows:
(a)
the employers must make a
joint decision under section
13F(1) as to whether the claim is arguable
and must give joint notice of that decision to the claimant under section 13FB(2)(a) or (3) (as applicable):
(b)
the employers may give joint
notice to the claimant under section 13FA extending the time limit:
(c)
if the employers decide the
claim is arguable, or are deemed to have decided the claim is arguable,—
(i)
each employer must individually
give notice to affected employees as required by section 13FE; and
(ii)
the employers must jointly
enter into the pay equity bargaining process in accordance with the
multi-employer pay equity process agreement.
13FD Employer must give
notice of first arguable pay equity claim raised by individual employee
(1)
If an employer decides that
a pay equity claim raised by an individual employee in respect of
work performed by the employee is arguable, the employer must give
notice of that claim to each affected employee.
(2)
Subsection (1) does not
apply if a pay equity claim has already been raised with the employer
in respect of work that is the same as, or substantially similar to,
the work performed by the individual employee.
(3)
A notice to affected employees
under subsection (1) must—
(a)
contain the information set
out in Part 1 of Schedule
2; and
(b)
state the date on which it
is given; and
(c)
be given in writing and expressed
in plain language; and
(d)
be given as soon as is reasonably
practicable and not later than 20 working days after the date on which
the employer decides that the claim is arguable.
(4)
Despite subsection (3)(c), the employer
may, by notice to the claimant, extend the time limit for notifying
affected employees if the employer has reasonable grounds for requiring
the extension.
(5)
A notice extending the time
limit must not extend the time limit by more than 25 working days,
and must—
(a)
be given as soon as is reasonably
practicable and not later than 20 working days after the date on which
the employer decides that the claim is arguable; and
(b)
specify the extended date
by which the employer will notify affected employees of the claim;
and
(c)
set out the grounds for requiring
the extension.
13FE Employer must give
notice of first arguable pay equity claim raised by union
(1)
If an employer decides that
a pay equity claim raised by 1 or more unions in respect of work performed
by 1 or more of the employer’s employees is arguable, the employer
must give notice of that claim to each affected employee.
(2)
Subsection (1) does not
apply to a subsequent claim raised by another union to which section 13EC applies.
(3)
A notice to affected employees
under subsection (1) must—
(a)
contain the information set
out in Part 2 of Schedule
2; and
(b)
state the date on which it
is given; and
(c)
be given in writing and expressed
in plain language; and
(d)
be given as soon as is reasonably
practicable and not later than 20 working days after the date on which
the employer decides that the claim is arguable.
(4)
Despite subsection (3)(d), the employer
may, by notice to the claimant, extend the time limit for notifying
affected employees if the employer has reasonable grounds for requiring
the extension.
(5)
A notice extending the time
limit must not extend the time limit by more than 25 working days,
and must—
(a)
be given as soon as is reasonably
practicable and not later than 20 working days after the date on which
the employer decides that the claim is arguable; and
(b)
specify the extended date
by which the employer will notify affected employees of the claim;
and
(c)
set out the grounds for requiring
the extension.
Affected
employees automatically covered by union claims
13FF Affected employees
automatically covered by union claims
(1)
If a union raises a pay equity
claim with an employer, every employee of the employer who performs
work that is the same as, or substantially similar to, the work to
which the claim relates is covered by the union-raised claim on and
from the date specified in subsection (2).
(2)
The date is:
(a)
the date on which the claim
is raised, if the employee is employed by the employer and is a member
of the union on that date; or
(b)
the date on which the employee
is notified of the claim under section 13FE(1) or 13FJ(2), in any other
case.
(3)
Subsection (1) does not
apply to an employee who—
(a)
is barred from raising a pay
equity claim under section
2B; or
(b)
has already, before receiving
notice of the claim raised by the union,—
(i)
raised or settled a pay equity
claim with the employer in respect of the work to which the union
claim relates; or
(ii)
accepted an offer of the benefit
of a pay equity settlement from the employer in respect of the work
to which the union claim relates under section 13NB(2), (4), or (5).
(4)
This section overrides section
236(1) and (3) of the Employment Relations Act 2000.
13FG Union may not require
fees from non-members
(1)
A union may not require an
employee who is not a member of the union, but who is covered by a
union-raised claim, to pay a fee to the union to be covered by the
union-raised claim or to have the benefit of the settlement of the
claim offered to them.
(2)
Subsection (1) does not
prevent a union from requesting a voluntary contribution towards the
costs of bargaining a pay equity claim from an employee who is not
a member of the union and who is covered by the union-raised claim.
13FH Employees may opt
out of pay equity claim raised by union
(1)
An employee who is covered
by a union-raised claim and is not a member of the union (or of any
of the unions) that raised the claim may opt out by giving notice
in writing—
(a)
to the employee’s employer
within 20 working days after the date of the notice under section 13FE(1) or 13FJ(2) (as applicable); or
(b)
to both the employee’s employer
and the claimant after that time.
(2)
A notice opting out must be
given before the earlier of—
(a)
the final date for voting
on a proposed pay equity claim settlement (see section 13MA(4)(c)(ii)); and
(b)
the day before the date on
which the claimant applies to the Authority for a determination under section 13Z(1)(d) that fixes remuneration.
(3)
An employee who is a member
of the union may not opt out of a claim raised by the union with the
employee’s employer while remaining a member of the union (but may
cancel membership of the union and then opt out).
13FI Employer must notify
union of employees covered by union-raised claim
(1)
This section applies if—
(a)
1 or more unions raise a pay
equity claim with an employer; and
(b)
1 or more employees are covered
by the union-raised claim and do not opt out under section 13FH within 20 working
days after the date of the notice under section 13FE(1).
(2)
The employer must provide
the union or unions with the following information about each employee
who is covered by the union-raised claim:
(b)
the employee’s contact details
for the provision of written information.
(3)
The employer must provide
the information in subsection
(2) to the union or unions as soon as is reasonably
practicable after the date that is 20 working days after the date
of the notice under section
13FE(1).
13FJ New employees covered
by union-raised claim
(1)
This section applies if—
(a)
1 or more unions raise a pay
equity claim with an employer; and
(b)
the claim has not been settled;
and
(c)
a person (the new employee) is employed to perform work
that is the same as, or substantially similar to, the work that is
the subject of the pay equity claim.
(2)
The employer must give notice
of the pay equity claim to the new employee as soon as practicable
and no later than 20 working days after the new employee commences
employment.
(3)
The notice must—
(a)
contain the information set
out in Part 2 of Schedule
2; and
(b)
state the date on which it
is given; and
(c)
be given in writing and expressed
in plain language.
(4)
If the new employee does not
opt out by giving the employer notice in writing under section 13FH within
20 working days of the date of the notice under subsection (2), the employer
must give notice to the union or unions of the name of the new employee
and the employee’s contact details for the provision of written information.
Pay equity bargaining process
13G Process
applies to arguable claims
Sections 13H 13K to 13ZD apply to a pay equity claim if—
(a)
the employer decides, or is deemed to have accepted,
that the claim is arguable; or
(b)
the Authority or the court determines that the
claim is arguable.
13H Consolidation
of claims by multiple employees
(1)
If, before settling
a pay equity claim, the employer receives 1 or more other claims that
relate to the same, or substantially similar, work, the employer must—
(a)
treat all claims
as 1 joint claim for the purposes of this Act, unless the employer
has genuine reasons, based on reasonable grounds, for not treating
the claims as a joint claim; and
(b)
notify all claimants
as to whether their claims will be dealt with jointly or separately.
Joinder notice
(2)
A notice that
a claimant’s claim will be dealt with jointly (a joinder notice) must—
(a)
include advice
that, unless the claimant requests confidentiality, the information
in respect of the claimant set out in subsection (3) will be provided
to all other claimants; and
(b)
specify a reasonable
date by which a request for confidentiality under paragraph (a) must be received
by the employer.
(3)
If the employer
decides to treat a number of claims jointly, the employer must provide
to every claimant, as and when each new claim is added to the consolidated
claim, the following information in respect of every other claimant:
(a)
the claimant’s
name and address for service; or
(b)
in the case of
a claimant who has notified the employer of a representative under section 13D(1)(c)(iv),—
(ii)
the name of
the claimant’s representative; and
(iii)
the address
for service of the claimant’s representative.
(4)
Despite subsection (3), if a claimant has requested that their name be kept confidential
the employer—
(a)
must not provide
the information referred to in subsection (3)(a) and (b)(i) to the other
claimants; but
(b)
must advise the
other claimants that a new claim has been joined and, if the claimant
has notified the employer that the employee has a representative under section 13D(1)(c)(iv), provide details of the name and address for service of the claimant’s
representative; and
(c)
must keep the
claimant, or the claimant’s representative, informed of all significant
issues arising and steps taken in respect of the joint claim.
Process for consolidated
claims
(6)
Claimants who
have been notified that their claim will be dealt with jointly must
seek to reach an agreement as to how the consolidated claim will be
progressed, including—
(a)
whether there
will be 1 or more representatives for the claimants, and who that
representative or those representatives will be; and
(b)
how decisions
relating to the claim will be made.
(7)
If the claimants
cannot agree on how the consolidated claim will be progressed, any
of them may apply to the Authority for a direction.
(8)
The Authority
may give any of the following directions that it considers appropriate:
(a)
a direction as
to representation of the claimants:
(b)
a direction as
to how decisions relating to the claim must be made:
(c)
any related direction
that it considers useful to foster the efficient and just resolution
of the claims.
13I Consolidation
of claims against multiple employers
Consolidation of
claims by multiple employers
(1)
If 2 or more
employers receive pay equity claims made by employees who perform
the same, or substantially similar, work, the employers may agree
to consolidate those claims for the purposes of the pay equity bargaining
process.
Process for consolidated
claims
(2)
An employer’s
agreement to consolidate pay equity claims must include provisions
that set out—
(a)
whether there
will be 1 or more representatives for the employers and who that representative
or those representatives will be; and
(b)
how decisions
relating to the claim will be made.
(3)
If 2 or more
employers decide to consolidate pay equity claims for the purposes
of the pay equity bargaining process, each employer must provide to
each employee who has made a claim against that employer—
(a)
the name of every
other employer that is a party to the consolidated claim; and
(b)
the name and
address for service of the nominated representative of each employer.
(4)
At the conclusion
of the pay equity bargaining process in respect of a consolidated
pay equity claim, each employer must enter into a separate pay equity
claim settlement with its employees who were parties to the claim.
13J Good faith in
pay equity bargaining process
1
The duty of good
faith in section 4 of the Employment Relations Act 2000 requires the
parties to, at least,—
(a)
follow the process
set out in this section, and in sections 13K to 13ZD, to resolve the pay
equity claim; and
(b)
use their best
endeavours to enter into an arrangement, as soon as possible after
the start of pay equity bargaining, that sets out a process for conducting
the bargaining in an effective and efficient manner; and
(c)
use their best
endeavours to settle the pay equity claim in an orderly, timely, and
efficient manner; and
(d)
recognise the
role and authority of any person chosen by each of the parties to
be that person’s representative or advocate, and not (directly or
indirectly) bargain about matters relating to the pay equity claim
with the person for whom a representative or advocate acts (unless
the parties agree otherwise); and
(e)
not undermine,
or do anything that is likely to undermine, the bargaining or the
authority of another party in the bargaining.
Compare: 2000 No 24 s 32
13K Duty
to provide information
(1)
The parties to a pay equity claim must provide to each
other, on request, information that is reasonably necessary to support
or substantiate claims or responses to claims made for the purposes
of the bargaining.
(2)
A request by a party to another party for information
must—
(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
must be provided.
(3)
A party who receives an information request may provide
the information to an independent reviewer, instead of to the requesting
party, if the party reasonably considers that the information requested
should be treated as confidential information.
(4)
If information is provided to an independent reviewer,
section 34(4) to (9) of the Employment Relations Act 2000 applies
as if references in those
provisions to the union and employer were references
to the parties.
Compare: 2000 No 24 s 34
13L Matters
to be assessed
(1)
The parties to a pay equity claim must determine whether
the employee’s work is currently undervalued by assessing—
(a)
the nature of the work to which the claim relates,
and the nature of comparators, including, in each case, the following:
(ii)
the responsibilities imposed:
(iv)
the terms and
conditions of employment:
(v)
the degree of effort required to perform the
work:
(vi)
the level of experience required to perform
the work:
(vii)
any other relevant work features; and
(aa)
terms and conditions of employment
(other than remuneration) of the persons who perform the work to which
the claim relates; and
(ab)
terms and conditions of employment
(other than remuneration) of persons who perform comparable work;
and
(b)
the remuneration that is paid to the persons
who perform the work to which the claim relates; and
(c)
the remuneration that is paid to persons who
perform comparable work; and
(d)
any other matters prescribed by regulations
made under section 19 for the purpose of this section.
(1A)
Despite subsection (1), the parties to a pay equity claim may enter a written agreement
that sets out an alternative process that they will use and that they
agree is suitable and sufficient to settle the claim.
(1B)
If the parties
enter a written agreement under subsection (1A), they must follow the alternative
process specified in that agreement to assess the claim, and subsection (1) and section 13M do not apply (except to the extent set out in the written
agreement).
(2)
In making the assessments required by subsection (1), or required by an alternative process
specified in an agreement under subsection (1A), the parties—
(a)
must consider matters objectively and without
assumptions based on sex (and prevailing views as to the value of
work must not be assumed to be free of assumptions based on sex);
and
(b)
must recognise the importance of skills, responsibilities,
effort, and conditions that are or have been commonly overlooked or
undervalued in female-dominated work (for example, social and communication
skills, taking responsibility for the well-being of others, cultural
knowledge, and sensitivity); and
(c)
may must consider the list of factors at in section 13C(3)13CA(3).
13M Identifying
appropriate comparators
(1)
For the purpose of identifying 1 or more appropriate comparators
against which to assess a pay equity claim as required by section 13L, comparable work may include any of the following:
(a)
work performed by male comparators that is the
same as, or substantially similar to, the work to which the claim
relates:
(b)
work performed by male comparators that is different
to the work to which the claim relates, if the comparators’ work involves
1 or more of the following:
(i)
skills and experience that are the same as,
or substantially similar to, those required to perform the work to
which the claim relates:
(ii)
responsibilities that are the same as, or substantially
similar to, those involved in the work to which the claim relates:
(iii)
working conditions that are same as, or substantially
similar to, those involved in the work to which the claim relates:
(iv)
degrees of effort that are the same as, or
substantially similar to, those involved in the work to which the
claim relates:
(c)
work performed by any other comparators that
the parties or the Authority or court considers useful and relevant,
including comparators who perform work that has previously been the
subject of a pay equity claim settlement.
(2)
Despite subsection
(1), work performed by a male comparator may
not be selected for the purposes of assessing a pay equity claim under section 13L(1) if there are reasonable grounds to believe that the work performed
by that male comparator—
(a)
has been historically undervalued for 1 or more
of the reasons set out in section 13C(3)(a)
to (d)13CA(3)(a)
to (d); and
(b)
continues to be undervalued for the reasons
set out in section 13C(3)(e)13CA(3)(e).
(3)
When identifying appropriate comparators against which
to assess a pay equity claim, the parties must take into account any
matters prescribed by regulations made under section 19 for the purpose
of this section.
Settling pay equity claim
13MA Requirement for
union to obtain mandate before settling pay equity claim
(1)
This section applies to—
(a)
a union that is the claimant
in a pay equity claim; and
(b)
each employee who is covered
by the union-raised claim (proposed settlement
employee).
(2)
The union must establish a
process for proposed settlement employees to vote on whether to approve
or decline a proposed pay equity claim settlement.
(3)
The union must, before the
process begins, give notice of the process to—
(a)
the proposed settlement employees;
and
(b)
the employer or employers
who are parties to the claim.
(4)
The process must ensure that—
(a)
each proposed settlement employee
is entitled to vote and all votes have equal weight; and
(b)
each proposed settlement employee
is provided with a copy of a proposed pay equity claim settlement
within a reasonable time before voting starts; and
(c)
each proposed settlement employee
is given reasonable notice—
(i)
that they are entitled to
vote; and
(ii)
of the final date by which
their vote must be cast; and
(iii)
of the method by which votes
may be cast; and
(iv)
that, if the proposed pay
equity claim settlement is approved, the union must sign it; and
(v)
of the consequences of the
union entering into the settlement (including that the employee’s
employment contract will be varied and the employee will lose the
ability to bring their own claim relating to pay equity); and
(vi)
that the final date by which
their vote must be cast is also the final date on which employees
who are not members of the union may opt out under section 13FH.
(5)
A union may not enter into
a pay equity claim settlement unless—
(a)
a vote has been taken in accordance
with the process established under subsection (2); and
(b)
a simple majority of those
proposed settlement employees who voted, voted in favour of approving
the proposed pay equity claim settlement.
13MB Application of section
63A of Employment Relations Act 2000 to pay equity bargaining
(1)
The obligations in section
63A of the Employment Relations Act 2000 apply to pay equity bargaining
only if—
(a)
an employer is bargaining
for settlement of a pay equity claim raised by an individual employee;
or
(b)
an employer offers the benefit
of a pay equity claim settlement to an individual employee under section 13NB(2), (4), or (5).
(2)
If subsection (1) applies,
the obligations in section 63A of the Employment Relations Act 2000
apply as if references in that section to an intended agreement were
references to a proposed pay equity claim settlement.
13N Settling
pay equity claim
(1)
A pay equity claim is settled—
(a)
when—
(i)
terms and conditions of employment, including remuneration, are remuneration is determined that the parties agree do does not differentiate between
male and female employees in the manner set out in section 2AAC(b); and
(ii)
a process is agreed to review the employee’s terms and conditions of employment,
including remuneration, remuneration to ensure
that pay equity is maintained, including the agreed frequency of reviews;
and
(iii)
those matters are recorded in writing in accordance
with subsection (3); or
(b)
when the Authority or the court—
(i)
determines that an employee’s terms and conditions of employment,
including remuneration, do remuneration does not differentiate
between male and female employees in the manner set out in section 2AAC(b); or
(ii)
issues a determination that,—
(A)
if
the parties have agreed a review process but have not agreed remuneration, fixes terms and conditions
of employment, including remuneration, that do remuneration that does not
differentiate between male and female employees in the manner set
out in section 2AAC(b); and or
(B)
if the parties have agreed remuneration but have not agreed a review process, specifies a process to review those terms and conditions, including
remuneration, that remuneration to ensure that pay equity is maintained,
including the frequency of reviews.; or
(C)
fixes remuneration that does
not differentiate between male and female employees in the manner
set out in section 2AAC(b) and specifies a process to review that remuneration
to ensure that pay equity is maintained, including the frequency
of reviews.
(2)
An A pay equity claim settlement
may also include terms and conditions of employment other than remuneration,
if the parties agree, but an employer may not reduce
any terms and conditions of employment of an employee who has raised or joined a pay equity
claim or who is covered by
a union-raised claim for the purpose of settling that
claim.
(3)
A pay equity claim settlement agreed between the parties
must—
(b)
state—
(i)
that it is a pay equity claim settlement for
the purposes of this Act; and
(ii)
the name of the employer; and
(iii)
the name of the employee claimant to whom the settlement
relates; and
(iv)
the employee’s occupation and positionin the case of a settlement of a union-raised
pay equity claim, a description of the work to which the settlement
relates; and
(iva)
in the case of a pay equity
claim settlement with an individual employee, the employee’s occupation
and position; and
(v)
the terms and conditions of employment, including remuneration, remuneration that the parties agree do does not differentiate between male and female employees in the manner
set out in section 2AAC(b); and
(va)
terms and conditions of employment
other than remuneration that the parties have agreed to include (if
any); and
(vi)
the process for reviewing those terms and conditions, including
remuneration, that remuneration (which may include requirements to reconsider
the matters set out in sections
13CA(3) (undervaluation factors), 13L (assessment
of the work), and 13M (assessment of comparators) if the parties agree) to ensure that pay equity is maintained; and
(vii)
the frequency of those reviews, which must
be aligned with any
applicable collective bargaining rounds; and—
(A)
aligned with any applicable
collective bargaining rounds; or
(B)
if no collective bargaining
round applies, at least every 3 years; and
(c)
include a summary of the method used to assess
the pay equity claim and a description of the comparators, if any, that were
considered by the parties.
(4)
Settlement of a multi-employer
pay equity claim must be recorded in a single multi-employer pay equity
claim settlement that is signed by each union and each employer who
is a party to the claim at the time of the settlement.
(5)
Settlement of a pay equity claim
raised by multiple unions with a single employer must be recorded
in a single pay equity claim settlement that is signed by the employer
and by each union that is a party to the claim at the time of the
settlement.
(4)
If the requirements
of subsections (2) and (3) are met, a settlement agreement is a pay equity claim
settlement for the purposes of this Act (regardless of whether the
parties followed the processes set out in this Act to reach that settlement).
13NAAA Unfair bargaining
for pay equity claim settlement
(1)
Bargaining for a pay equity
claim settlement is unfair if—
(a)
the pay equity claim was raised
by an individual employee (not by a union); and
(b)
1 or more of paragraphs (a) to (d) of subsection (2) apply to the employee; and
(c)
the employer, or the employer’s
representative,—
(i)
knows of the circumstances
described in the paragraph or paragraphs that apply to the employee;
or
(ii)
ought to know of the circumstances
in the paragraph or paragraphs that apply to the employee because
the employer or the employer’s representative is aware of facts or
other circumstances from which it can be reasonably inferred that
the paragraph or paragraphs apply to the employee.
(2)
The circumstances are that
the employee, at the time of bargaining for or entering into the pay
equity claim settlement,—
(a)
is unable to understand adequately
the provisions or implications of the settlement by reason of diminished
capacity due (for example) to—
(iii)
mental or educational disability;
or
(iv)
a disability relating to communication;
or
(b)
reasonably relies on the skill,
care, or advice of the employer or a person acting on the employer’s
behalf; or
(c)
is induced to enter into the
settlement by oppressive means, undue influence, or duress; or
(d)
had not been given a reasonable
opportunity to seek independent advice about the agreement.
(3)
In this section, pay equity claim settlement includes a term
or condition of a pay equity claim settlement.
(4)
Except as provided in this
section, an employee must not challenge or question a pay equity claim
settlement on the ground that it is unfair or unconscionable.
Compare: 2000 No 24 s 68
13NAAB Remedies for unfair
bargaining
(1)
If an employer or employer’s
representative is found to have bargained unfairly under section 13NAAA, the Authority may do 1 or more of the following things:
(a)
make an order that the employer
pay to the employee such sum, by way of compensation, as the Authority
thinks fit:
(b)
make an order cancelling or
varying the pay equity claim settlement:
(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 of the Employment Relations Act 2000 have been met, and that section
applies accordingly with all necessary modifications.
Compare: 2000 No 24 s 69
13NA Copy
of pay equity claim settlement to be delivered to chief executive
(1)
This section applies if a pay equity claim settlement
is reached (whether that settlement is reached by the parties recording
an agreement in writing as described in section 13N(3) or by the
Authority or the court making a determination described in section 13N(1)(b)(ii)).
(2)
An Each employer
who is a party to the a pay equity
claim settlement must ensure that, as soon as practicable after the
settlement is reached, a copy of the settlement agreement or determination
(as applicable) is delivered to the chief executive of the department
of State that is responsible for the administration of this Act.
(3)
The copy of the settlement delivered to the chief executive
must include any document referred to, or incorporated by reference,
in the settlement, unless the document is publicly available.
(4)
Nothing in the
Official Information Act 1982 applies to copies of pay equity claim
settlements delivered to the chief executive under subsection (1).
(5)
The information contained in the copies of pay equity
claim settlements delivered to the chief executive under subsection (1) must be used only forsubsection (2) may not be
used by the chief executive for purposes other than statistical or analytical purposes.
13NB Offers of benefit
of pay equity claim settlement to other employees
(1)
In this section, offered the benefit of a settlement, in
the case of an employee, means that the employee is—
(a)
offered the same remuneration
(and other terms and conditions of employment included in the settlement,
if any) as the other employee or employees who are covered by the
pay equity claim settlement; and
(b)
offered the same offer of
remuneration for past work, if remuneration for past work is included
in the settlement, and if the employee would qualify for that offer;
and
(c)
advised that acceptance of
the offer will have the effect that the employee is barred from raising
a claim in relation to pay equity in accordance with sections 2B and 13C(4).
Existing employees
(2)
An employer who is a party
to a pay equity claim settlement with a union must offer the benefit
of that settlement to each employee of the employer who, on the date
of the settlement,—
(a)
is employed to perform the
same, or substantially similar, work as the work to which the pay
equity claim settlement relates; and
(b)
is not covered by the union-raised
claim; and
(c)
is not barred from raising
a pay equity claim under section
2B; and
(d)
has not already—
(i)
settled a pay equity claim
with the employer in respect of the work to which the union claim
relates; or
(ii)
accepted an offer of the benefit
of a pay equity settlement from the employer in respect of the work
to which the union claim relates.
(3)
The offer of the benefit of
the settlement under subsection
(2) must be made as soon as is reasonably
practicable after the date of the settlement of the union-raised claim.
(4)
An employer who is a party
to a pay equity claim settlement with an individual employee may offer
the benefit of that settlement to 1 or more other employees who, on
the date of the settlement,—
(a)
are employed to perform the
same, or substantially similar, work as the work to which the pay
equity claim settlement relates; and
(b)
are not barred from raising
a pay equity claim under section
2B; and
(c)
have not already—
(i)
settled a pay equity claim
with the employer in respect of the work to which the claim relates;
or
(ii)
accepted an offer of the benefit
of a pay equity settlement from the employer in respect of the work
to which the claim relates.
New employees
(5)
An employer who is a party
to a pay equity claim settlement with a union must offer the benefit
of that settlement to each new employee who, after the date of the
settlement, is employed to perform the same, or substantially similar,
work as the work to which the pay equity claim settlement relates.
(6)
The offer of the benefit of
the settlement under subsection
(5) must be made at the same time as the offer
of employment.
(7)
An employer who is a party
to a pay equity claim settlement with an individual employee, may
offer the same remuneration and other terms and conditions of employment
agreed in that settlement to a new employee, but that offer is not
an offer of the benefit of a settlement for the purposes of this Act.
General
(8)
Nothing in this section prevents
an employer and an employee from agreeing to a term or condition of
employment in an employment agreement that is more favourable to the
employee than the terms and conditions of employment in a pay equity
claim settlement.
13NC Effect of pay equity
claim settlement on employment agreements
(1)
A pay equity claim settlement
binds—
(a)
every employer who was a party
to the claim; and
(b)
every employee who is covered
by the pay equity claim settlement.
(2)
The employment agreement (whether
individual or collective) of an employee who is covered by a pay equity
claim settlement is deemed to be varied to—
(a)
require the employer to pay
the employee the remuneration agreed in the pay equity claim settlement,
if that remuneration exceeds the amount specified in the employment
agreement before the variation required by this section; and
(b)
include any other terms or
conditions that are included in the pay equity claim settlement and
that are more favourable to the employee than the terms and conditions
of employment in the employee’s employment agreement before the variation
required by this section.
(3)
The variation referred to
in subsection (2) is effective from—
(a)
the date of the pay equity
claim settlement; or
(b)
in the case of an employee
who accepts an offer of the benefit of the pay equity claim settlement,
the date on which the employee accepts that offer.
(4)
A pay equity claim settlement
that contains a term or condition that excludes, restricts, or reduces
an employee’s entitlements under the employee’s employment agreement
has no effect to the extent that it does so.
(5)
Nothing in this Act prevents
an employer and an employee from agreeing to a term or condition of
employment in an employment agreement that is more favourable to the
employee than the terms and conditions of employment in a pay equity
claim settlement.
13O Relationship
between pay equity claims and collective bargaining
(1)
The entry into a collective agreement in accordance with the collective bargaining
provisions of the Employment Relations Act 2000 by an
employer and a union does not settle or extinguish an unsettled pay
equity claim between
that employer and 1 or more of the employer’s employeesto which the employer is
a party.
(2)
The existence of an unsettled pay equity claim between
an employer and an employee, or of an uncompleted review of a pay
equity claim settlement, is not a genuine reason for failing to conclude
collective bargaining between that employer and a union representing
the employer’s employees for
the purposes of section 33 of the Employment Relations Act 2000.
Mediation
13P Parties
may refer issues to mediation
(1)
Any party to a pay equity claim may refer any 1 or more
issues relating to that claim to mediation services provided under
Part 10 of the Employment Relations Act 2000.
(2)
Issues that may be referred to mediation services include,
but are not limited to, the following:
(a)
a dispute as to whether the pay equity claim
is arguable (see section 13C(2)13CA):
(b)
a dispute as
to whether an employee’s claim relates to work that is the same as,
or substantially similar to, work performed by another claimant for
the purposes of consolidating those employees’ claims under section 13H or 13I:
(b)
a dispute as to whether an
employee’s work is the same as, or substantially similar to, work
that is the subject of a pay equity claim raised by a union with the
employee’s employer, for the purposes of determining whether or not
the employee is, or is to be, covered by the union-raised claim:
(c)
a dispute as to whether work performed by others
is comparable work for the purposes of the assessment required by section 13L:
(d)
a dispute as to whether proposed terms and conditions of employment,
including remuneration, no longer differentiate remuneration no longer differentiates between male and female employees in the manner set out in section 2AAC(b) for the purposes of settling a pay equity claim.:
(e)
a dispute as to whether exceptional
circumstances exist for the purposes of section 13Z(4)(b) (which
relates to an application for a determination that a pay equity claim
may be raised that would otherwise be barred by section 13C(4)).
(3)
If an issue relating to a pay equity claim is referred
to mediation services, sections 145 to 154 of the Employment Relations
Act 2000 apply, with all necessary modifications.
Facilitation
13Q Purpose of facilitating pay equity claim
(1)
The purpose
of sections 13R to 13Y is to provide a process that enables 1 or more parties
to a pay equity claim who are having difficulties in resolving that
claim to seek the assistance of the Authority in resolving the difficulties.
(2)
Sections 13R to 13Y 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.
Compare: 2000 No 24 s 50A
13R Reference to Authority
(1)
Any party
to a pay equity claim may refer any 1 or more issues relating to that
claim to the Authority for facilitation to assist in resolving the
claim.
(2)
Issues that may be referred to the Authority include,
but are not limited to, the following:
(b)
a dispute as
to whether an employee’s claim relates to work that is the same as,
or substantially similar to, work performed by another claimant for
the purposes of consolidating those employees’ claims under section 13H or 13I:
(b)
a dispute as to whether an
employee’s work is the same as, or substantially similar to, work
that is the subject of a pay equity claim raised by a union with the
employee’s employer, for the purposes of determining whether or not
the employee is, or is to be, covered by the union-raised claim:
(c)
a dispute as to whether work performed by others
is comparable work for the purposes of the assessment required by section 13L:
(d)
a dispute as to whether proposed terms and conditions of employment,
including remuneration, no longer differentiate remuneration no longer differentiates between male and female employees in the manner set out in section 2AAC(b) for the purposes of settling a pay equity claim.
(2A)
Despite subsections
(1) and (2), a dispute as to whether a pay equity
claim is arguable the following disputes may
only be referred to the Authority for facilitation if all of the parties
to the claim agree to do so.:
(a)
a dispute as to whether a
pay equity claim is arguable:
(b)
a dispute as to whether exceptional
circumstances exist for the purposes of section 13Z(4)(b) (which
relates to an application for a determination that a pay equity claim
may be raised that would otherwise be barred by section 13C(4)).
(3)
A reference
for facilitation must be made on 1 or both of the grounds specified
in section 13S(2).
Compare: 2000 No 24 s 50B
13S When Authority may accept reference
(1)
The Authority
must not accept a reference for facilitation unless—
(a)
the Authority is satisfied that facilitation
may be useful to resolve the issue referred; and
(b)
1 or both of the grounds in subsection (2) exist.
(2)
The grounds are—
(a)
that a party
has failed to comply with the duty of good faith in section 4 of the
Employment Relations Act 2000 and the failure—
(i)
was serious
and sustained; and
(ii)
has undermined
the progress of the pay equity claim:
(b)
that sufficient efforts (including mediation)
have failed to resolve an issue relating to the claim.
(3)
The Authority
must not accept a reference for facilitation in relation to a pay
equity claim for which the Authority has already acted as a facilitator
unless—
(a)
the earlier
facilitation related only to the issue of whether the claim is arguable
and the subsequent reference relates to the pay equity bargaining
process; or
(b)
the circumstances relating to the pay equity
claim have changed; or
(c)
the bargaining
since the previous facilitation has been protracted.
Compare: 2000 No 24 s 50C
13T Limitation on which member of Authority may provide
facilitation
A member of the Authority who facilitates resolution of
an issue relating to a pay equity claim must not be the member of
the Authority who accepted the reference for facilitation.
Compare: 2000 No 24 s 50D
13U Process of facilitation
(1)
The process
to be followed during facilitation—
(a)
must be conducted
in private; and
(b)
is otherwise
determined by the Authority.
(2)
During facilitation,
any pay equity bargaining in respect of the claim to which the facilitation
relates 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 were inappropriate; or
(b)
that the manner
in which the facilitation was provided was inappropriate.
Compare: 2000 No 24 s 50E
13V 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 or under the Employment
Relations Act 2000.
(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.
Compare: 2000 No 24 s 50F
13W Proposals made or positions reached during facilitation
(1)
A proposal
made by a party or a position reached by parties to a pay equity claim
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.
Compare: 2000 No 24 s 50G
13X Recommendation by Authority
(1)
While assisting
parties to resolve an issue related to a pay equity claim, the Authority
may make a recommendation about any matter that relates to the pay
equity claim, including, but not limited to, recommendations as to
the following:
(a)
whether the pay equity claim is arguable:
(b)
the process
the parties should follow to reach agreement:
(c)
terms and conditions of employment,
including remuneration, remuneration that would
no longer differentiate between male and female employees in the manner
set out in section 2AAC(b).
(2)
The Authority
may give public notice of a recommendation in any manner that 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 it.
Compare: 2000 No 24 s 50H
13Y Parties must deal with Authority in good faith
During facilitation,
the parties must deal with the Authority in good faith.
Compare: 2000 No 24 s 50I
Determination by Authority
13Z Parties
may apply for determination by Authority
(1)
A party to a pay equity claim may apply to the Authority
for determination of any matter that relates to the pay equity claim,
including, but not limited to, the following:
(a)
a determination as to whether the pay equity
claim is arguable (see section 13C(2)13CA):
(b)
a determination
as to whether an employee’s claim relates to work that is the same
as, or substantially similar to, work performed by another claimant
for the purposes of consolidating those employees’ claims under section 13H or 13I:
(b)
a determination as to whether
an employee’s work is the same as, or substantially similar to, work
that is the subject of a pay equity claim raised by a union with the
employee’s employer, for the purposes of determining whether or not
the employee is, or is to be, covered by the union-raised claim:
(c)
a determination as to whether the work to which
the claim relates is currently undervalued:
(d)
a determination that—
(i)
fixes terms and conditions of employment,
including remuneration, that do remuneration that does not
differentiate between male and female employees in the manner set
out in section 2AAC(b); and
(ii)
specifies a process to review those terms and conditions, including
remuneration, that remuneration to ensure that pay equity is maintained,
including the frequency of reviews.
(2)
Where an application is made under subsection (1), the Authority—
(a)
must first consider whether an attempt has been
made to resolve the difficulties by the use of—
(i)
mediation or further mediation under section 13P;
or
(ii)
facilitation under sections 13R to 13Y; and
(b)
may direct the parties to try to resolve the
difficulties by mediation or further mediation; and
(c)
may, if 1 or both of the grounds in section 13S(2) exist, may 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.
(2A)
If an application
for a determination relates to whether a pay equity claim is arguable, subsection (2)(c) does not apply.
(2A)
Subsection (2)(c) does not
apply to an application for a determination that relates to—
(a)
whether a pay equity claim
is arguable; or
(b)
whether exceptional circumstances
exist for the purposes of subsection (4)(b).
(3)
If an application for a determination relates to whether
the work to which the claim relates is currently undervalued,
the Authority or the court may take into account the list of factors
set out in section 13C(3)sections 13CA(3) and 13L.
(4)
If an application for a determination relates to whether
a claim may be raised despite section 13C(4), the Authority or the court
must make its determination—
(a)
having regard to the existing pay equity claim
settlement to which
the employer is a party that covers the employee; and
(b)
only if it is satisfied that there are exceptional
circumstances.
Compare: 2000 No 24 s 50K
13ZAAA Union must notify
employees covered by union-raised claim before applying for determination
by Authority
(1)
Before a union applies to
the Authority for a determination under section 13Z(1)(d) that fixes
remuneration, the union must notify each employee who is covered by
the union-raised claim.
(2)
The notice must—
(a)
specify the date on which
the union proposes to file the application for a determination; and
(b)
advise the employee—
(i)
of the consequences of the
Authority making a determination fixing remuneration (including that
the employee’s employment agreement will be varied and the employee
will lose the right to bring their own claim relating to pay equity);
and
(ii)
that the day before the date
on which the union proposes to file the application for a determination
is the final date on which the employee may opt out under section 13FH.
(3)
The notice must be given a
reasonable time before the date on which the union proposes to file
the application.
13ZA If
Authority or court determines pay equity claim is arguable
If the Authority or the court determines that a pay equity
claim is arguable, the parties must enter into the pay equity bargaining
process in accordance with sections 13H 13FB to 13ZD.
13ZB Process
on application to fix terms and conditions remuneration
(1)
If the Authority receives an application under section 13Z(1)(d) to fix terms and
conditions of employment, remuneration and the parties
have not previously tried to resolve the difficulties by mediation
or further mediation, the Authority must—
(a)
direct the parties to try to resolve the difficulties
by mediation or further mediation; or
(b)
recommend another process that the parties must
follow to try to resolve the difficulties.
(2)
The Authority may accept an application for a determination
that fixes terms and
conditions of employment remuneration only if—
(a)
the parties have first tried to resolve the
difficulties by mediation, or by any other process recommended by
the Authority; and
(b)
the Authority is satisfied that all other reasonable alternatives
for settling the pay equity claim have been exhausted.—
(i)
all other reasonable alternatives
for settling the pay equity claim have been exhausted; or
(ii)
a reasonable period has elapsed
within which the parties have used their best endeavours to identify
and use reasonable alternatives to settle the pay equity claim.
13ZBA Limitation on challenge
to determination of Authority fixing remuneration
(1)
This section applies to an
application for a determination of the Authority that fixes remuneration
under section 13Z(1)(d)(i).
(2)
A party may not elect, under section 179(1) of the Employment Relations Act 2000, to have the matter heard by the court, unless the matter is whether
there are grounds under section
13ZB(2) for the Authority to accept the application.
13ZC Determination
may provide for recovery of remuneration for past work
(1)
A determination by the Authority fixing terms and conditions of employment remuneration may also provide for recovery of an amount of remuneration that
relates to work performed before the date of the determination (past work).
(2)
When deciding whether to provide for recovery of an amount
of remuneration for past work, and the amount to provide, the Authority
or the court must take into account the following factors:
(a)
the conduct of the parties; and
(b)
the ability of the employer to pay; and
(c)
the nature and extent of resources (for example,
information and advice) available to the employer and the employeeclaimant in respect of the
claim; and
(d)
any other factors the Authority or the court
considers appropriate.
(3)
See section 13ZD for the periods
for which remuneration for past work can be recovered.
13ZD Limitation
periods for recovery of remuneration for past work
(1)
A determination may provide for recovery of an amount
of remuneration that relates to work performed in the period—
(a)
beginning on the applicable start date for the
claim to which the determination relates; and
(b)
ending on the date of the determination.
(2)
However, no determination may provide for recovery of
an amount of remuneration that relates to a period that is longer
than 6 years.
(3)
The applicable start date for a claim is as follows:
| When claim raised or notified | | Applicable start date |
|---|
| Existing
pay equity claim as defined in Schedule 1, clause 1(1) (whether raised anew
in accordance with clause
2(1A)(a) or progressed under clause 3 of that schedule) | | The earlier of— (a) the date on which the existing pay equity claim
was notified to the employer; and (b) the date on which the proceedings discontinued
under Schedule 1, clause 2(1) were commenced |
| Claim
raised on or after the date on which this section comes into force,
but no more than 5 years after the date on which this section comes
into force | | The
date on which the claim is raised |
| Claim raised
more than 5 years after the date on which this section comes into
force | | The date that
is 5 years after the date on which this section comes into force |
(4)
In this section, a claim is notified on the date on which the employee gives the employer notice in writing
that the employee is making a claim to the effect that the employer
has failed to ensure that there is no differentiation between the
rates of remuneration offered and afforded by the employer for work
that is exclusively or predominantly performed by female employees
and the rate of remuneration that would be paid to male employees
who—
(a)
have the same, or substantially similar, skills,
responsibility, and experience; and
(b)
work under the same, or substantially similar,
conditions, and with the same, or substantially similar, degrees of
effort.
Example 1
Employee A notifies their employer of a pay equity claim
as set out in subsection (4) on 28 October 2018 (before the commencement of this
section). After the commencement of this section, Employee A raises
a pay equity claim by following the processes set out in Part 4 (see Schedule 1, clause 2(1A)(a)). A determination
of Employee A’s claim may provide for recovery of an amount of remuneration
for the period that runs back from the date of determination to 28
October 2018 (but with a maximum of 6 years).
Example 2
Employee B formally files an application in respect of
a pay equity claim with the Authority on 1 February 2019 (before the
commencement of this section), without having first notified Employee
B’s employer of the claim. That claim remains unresolved on the date
of commencement of this section, and it is discontinued under Schedule 1, clause 2. Two weeks later, Employee B raises a new pay equity claim by following
the processes set out in Part
4 (see Schedule 1, clause 2(1A)(a)). A determination of the new pay equity claim raised
under Part 4 may provide for recovery of an amount of remuneration for the period
that runs back from the date of the determination to 1 February 2019
(but with a maximum of 6 years).
Example 3
Employee Union C raises
a claim 2 months after the commencement of this section, and that
claim is resolved by a determination made 2 years later. That determination
may provide for recovery of an amount of remuneration that relates
to the 2-year period that runs back from the date of determination
to the date on which the claim was raised.
Example 4
Employee D raises a claim 4 years and 11 months after
the commencement of this section, and that claim is resolved by a
determination made 2 years later. That determination may provide for
recovery of an amount of remuneration that relates to the 2-year period
that runs back from the date of determination to the date on which
the claim was raised.
Example 5
Employee E raises a claim 6 years after the commencement
of this section, and that claim is resolved by a determination made
2 years later. That determination may provide for recovery of an amount
of remuneration that relates to the 3-year period that runs back from
the date of determination to the date that is 5 years after the date of commencement
of this section.
Example 6
Employee Union F raises
a claim 11 years after the commencement of this section, and that
claim is resolved by a determination made 1 year later. That determination
may provide for recovery of an amount of remuneration that relates
to the 6-year period that runs back from the date of determination
(being the maximum period allowed under subsection (2)).
(5)
The examples in subsection (4) are only illustrative and
do not limit subsections (1)
to (3).
Obligation on employers to keep
pay equity records
13ZE Pay
equity records
Every employer who has received 1 or more pay equity claims
must keep a record showing—
(a)
every pay equity claim lodged by an employee a claimant; and
(b)
in relation to each pay equity claim,—
(i)
the employer’s decision as to whether the claim
is arguable and the consequent notice to the employee claimant; and
(ii)
the outcomes of any pay equity bargaining;
and
(iii)
all notifications to affected employees under section 13E 13FE; and
(iv)
any recommendation by the Authority during
facilitation.
Pay equity claims by employees ofin education service
13ZF Pay
equity claims by employees ofin education service
Employees other than employees of tertiary education
institutions
(1)
For the purposes of a pay equity claim by 1 or more employees ofin the education service
(other than employees of a tertiary education institution), or by a union representing those employees,
(an education service claimant), the StatePublic Services Commissioner—
(a)
must be treated as the employer; and
(b)
has the same rights, duties, and obligations
under this Act as the Commissioner would have if the Commissioner
were the employer.
(2)
If the Commissioner decides that a pay equity claim by 1 or more employees referred to in subsection (1) an education
service claimant is arguable, or if the Authority or
the court determines that such a claim is arguable, the Commissioner
must enter into the pay equity bargaining process described in sections 13H 13K to 13ZD—
(a)
with the employee or employees or their representative
or representatives education service claimant; and
(b)
in consultation with—
(i)
the chief executive of the Ministry of Education;
and
(ii)
representatives of the employer or employers
who will be bound by the pay equity claim settlement agreement (which
representatives must be employers, or organisations of employers,
of persons employed in the education service).
(3)
Every pay equity claim settlement agreement entered into
between the Commissioner and 1 or more employees in the education
service an
education service claimant is binding on the employer
or employers of those
employees the persons whose work is covered by the agreement.
(4)
An employer who is bound by a pay equity claim settlement
agreement under subsection
(3) has the rights, obligations, and duties
that the employer would have, in respect of that pay equity claim
settlement agreement, if that employer were a party to that agreement.
Employees of tertiary education institutions
(5)
For the purposes of a pay equity claim by 1 or more employees
of a tertiary education institution or by a union representing those employees, the chief executive of the tertiary education institution is responsible
(either individually or jointly through an organisation of employers
of persons employed in tertiary education institutions) for determining
whether the claim is arguable and, if so, entering into the pay equity
bargaining process described in sections 13H 13K to 13ZD.
(6)
Before entering into a pay equity claim settlement, the
chief executive of a tertiary education institution, or an organisation
of employers of persons employed in tertiary education institutions,
must consult with the StatePublic Services Commissioner.
Interpretation
(7)
In this section,—
education
service has the same meaning as in section 2 of the State Sector Act 1988section 10(4) of the Education and Training Act
2020
StatePublic Services Commissioner or Commissioner means the StatePublic Services Commissioner
appointed under section
3 of the State Sector Act 1988section 40 of the Public Service Act 2020
tertiary
education institution means an institution within the meaning
of section 159(1) of
the Education Act 1989 section 10 of the Education and Training Act 2020.
Compare: 1988 No 20 s 74
19 Section
14 repealed (Procedure and jurisdiction of Employment Relations Authority)
20 New
section 14A and Part 5 heading inserted
Before section 15, insert:
Part 5 General provisions
Notices, penalties, and enforcement
14A Notices
(1)
A notice under this Act that is required to be given to an employee a claimant must,—
(a)
if the claimant is an employee who has authorised a union or any other representative to act on the employee’s behalf in respect of the
claim, be given to that representative at the address for service
of the representative; or
(b)
if the claimant is an employee who has not authorised a
representative to act on the employee’s behalf in respect of the claim,
be—
(i)
delivered to the employee in person; or
(ii)
sent to the employee by any form of electronic
communication that is ordinarily used for formal communications; or
(iii)
notified to the employee in any manner specified
in the employee’s employment agreement.; or
(c)
if the claimant is a union,
be given to the union at the union’s address for service.
(2)
A notice under this Act that is required to be given to
an employee’s employer must be—
(a)
delivered in person to the employee’s employer;
or
(b)
sent to the employee’s employer by any form
of electronic communication that is ordinarily used for formal communications;
or
(c)
notified to the employer in any manner specified
in the employee’s employment agreement.
21 Section
15 replaced (When dismissal or reduction of employee an offence)
Replace section 15 with:
15 Claimant
employee must not be treated adversely
(1)
An employer must not treat adversely any employee who
raises or joins is covered by a claim under this Act (including
an employee who is covered by a union-raised claim).
(2)
In this section, an employer treats an employee adversely
if the employer—
(a)
refuses or omits to offer or provide to that
employee the same terms and conditions of employment (including the
same remuneration, conditions of work, fringe benefits, or opportunities
for training, promotion, and transfer) as are offered or provided
to 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.
(3)
An employee may raise a claim against the employee’s employer
or former employer for a contravention of subsection (1).
(4)
A claim referred to in subsection (3) is to be
treated as a personal grievance under section 103(1) of the Employment
Relations Act 2000 and, if an employer alleges that any of the actions
described in subsection (2) were not related to the employee’s raising of a claim
but were justifiable on other grounds, section 103A of that Act applies
and the employer must establish that the employer’s actions were justifiable.
(5)
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.
Compare: 1990 No 57 s 5K; 2000 No 24 s 67F
22 Sections
16 to 17A repealed
Repeal sections 16 to 17A.
23 Section
18 replaced (Offences)
Replace section 18 with:
18 Penalty
for non-compliance
(1)
A person who fails to comply with a provision listed in subsection (2), and every person who is involved in the failure to comply, is liable,—
(a)
if the person is an individual, to a penalty
not exceeding $10,000:
(b)
if the person is a company or another body corporate,
to a penalty not exceeding $20,000.
(2)
The provisions are as follows:
(a)
section
2AAC(a) (which imposes a duty on employers
to not differentiate on the basis of sex in the remuneration paid
to employees who perform the same, or substantially similar, work):
(b)
section 2A (which relates to unlawful discrimination):
(c)
section 13F(5)(b)13FB(2)(c) or 13ZA (which imposes a duty on an employer who decides that a pay equity claim
is arguable to enter into pay equity bargaining if the employer decides or the Authority
or court determines that a pay equity claim is arguable):
(d)
section 13J13BA (which imposes a duty to deal with the Authority on parties to deal with one another in good faith during the pay equity bargaining claim process):
(e)
section
13ZE (which imposes a duty on employers to
keep records relating to pay equity claims).
(2AAA)
The penalties specified in subsection (1) also apply
to—
(a)
an employer who, knowingly or recklessly,—
(i)
fails to comply with the duty
under section 13FE to notify affected employees of a union-raised pay
equity claim that the employer has decided is arguable; or
(ii)
provides misleading information
in a notice given under section
13FE; and
(b)
a union that knowingly or recklessly fails to
comply with the requirements of section 13MA(3).
(2A)
Any action for the recovery of a penalty may be brought,—
(a)
in the case of a breach described in subsection (2)(a) or (b), by the employee
in relation to whom the breach is alleged to have taken place, or
by a Labour Inspector; or—
(i)
by the employee in relation
to whom the breach is alleged to have taken place; or
(ii)
by a Labour Inspector; or
(aa)
in the case of a breach described
in subsection (2)(d), by any person in relation to whom the breach is alleged
to have taken place; or
(b)
in the case of a breach described in subsection (2)(c) to (e)subsection (2)(c), (2)(e),
or (2AAA), by an employee who
is a claimant in, or who
is covered by, the relevant pay equity claim.
(3)
For the purposes of subsection (1), a person is involved in a
failure to comply if the person would be treated as a person involved
in a breach within the meaning of section 142W of the Employment Relations
Act 2000.
18A Proceedings
by Labour Inspector or employee concerned for penalty
(1)
An Inspector and the employee concerned are the only persons
who may bring an action in the Authority against an employer to recover
a penalty under section 18.
(2)
However, only a Labour Inspector may bring an action in
the Authority against a person involved in a failure to comply in
order to recover a penalty under section 18.
(3)
A claim for 2 or more penalties against the same employer
may be joined in the same action.
(4)
A claim for a penalty may be heard in conjunction with
any other claim under this Act.
(4A)
In determining whether to give judgment for a penalty,
and the amount of that penalty, the Authority must consider whether
the person against whom the penalty is sought has previously failed
to comply with an improvement notice issued under section 223D of
the Employment Relations Act 2000.
(5)
After hearing an action for recovery of a penalty, the
Authority may—
(a)
give judgment for the amount claimed; or
(b)
give judgment for an amount that is less than
the amount claimed; or
(6)
The Authority may order payment of a penalty by instalments,
but only if the financial position of the person paying the penalty
requires it.
(7)
An action for the recovery of a penalty must be commenced
within 12 months after the earlier of when the cause of action became
known, or should reasonably have become known, to the Labour Inspector
or employee concerned.
(8)
A penalty that is recovered must be paid,—
(a)
if, and to the extent, ordered by the Authority,
to any person the Authority specifies; or
(b)
in any other case, into court and then into
a Crown Bank Account.
Compare: 2003 No 129 s 76; 2000 No 24 s 135
Powers of Inspectors and procedure
and jurisdiction of Employment Relations Authority and Employment
Court
18B Powers of Inspectors
For the purposes
of this Act, every Inspector has, in addition to any powers conferred
by this Act, all the powers that the Inspector has under the Employment Relations Act 2000.
18C Procedure and jurisdiction of Employment Relations
Authority and Employment Court
In performing its functions under this Act, or in respect
of any breach of this Act,—
(a)
the Employment Relations Authority has all the
powers and functions it has under the Employment Relations Act 2000; and
(b)
the Employment Court has all the powers and
functions it has under the Employment Relations Act 2000.
Regulations
24 Section
19 amended (Regulations)
(1)
In section 19, after “administration”
, insert “, including regulations for the following purposes:”
, and insert:
(a)
prescribing matters that must be taken into
account when assessing a pay equity claim; and
(b)
prescribing matters that must be taken into
account when identifying comparable work under section 13M.
(2)
Regulations may not be made
under this section that require the comparators against which a pay
equity claim is to be assessed to be ranked or weighted.
25 New Schedule 1 Schedules 1 and 2 inserted
Insert the Schedule 1Schedules 1 and 2 set out in Schedule 1 of this Act as the first schedule and second schedules to
appear after the last section of the principal Act.
Part 2 Related amendments and repeals
Amendments to Employment Relations
Act 2000
26 Related
amendments to Employment Relations Act 2000
Sections 27 to
29 amend the Employment Relations Act 2000.
27 Section
100A amended (Codes of employment practice)
(1)
In section 100A(4), replace “this Act”
with “any of the Acts specified in section 223(1) or any
regulations made under those Acts”
.
(2)
After section 100A(4), insert:
(5)
A code of employment practice approved under this section
is not a legislative instrument but is a disallowable instrument for
the purposes of the Legislation Act 2012 and must be presented to
the House of Representatives under section 41 of that Act.
28 Section
100C replaced (Authority or court may have regard to code of practice)
Replace section 100C with:
100C Authority
or court may have regard to code of employment practice
(1)
A code of employment practice is admissible in any civil
or criminal proceedings as evidence of whether the enactment to which
it relates has been complied with.
(2)
The Authority or a court may—
(a)
have regard to the code as evidence of compliance
with the provisions of the enactment to which it relates; and
(b)
rely on the code in determining what is required
to comply with those provisions.
Compare: 2015 No 70 s 226
Amendments
to Public Service Act 2020
28A Related amendments
to Public Service Act 2020
Sections 28B to 28D amend
the Public Service Act 2020.
28B Sections 80 to 82
replaced
Replace sections 80 to 82
with:
80 Interpretation
In sections 81 to 82B,—
facilitation
of bargaining means facilitation of bargaining under sections 13Q to 13Y of the Equal Pay Act 1972
pay equity
claim means a pay equity claim within the meaning of section
2(1) of the Equal Pay Act 1972 that is raised with the chief executive
of a department or, as the case may be, the board of an interdepartmental
venture as employer
pay equity
claim settlement has the same meaning as in section 2(1)
of the Equal Pay Act 1972.
81 Pay equity claims
(1)
The Commissioner is responsible
for dealing with a pay equity claim as if the Commissioner were the
employer.
(2)
When a pay equity claim is
raised with the chief executive of a department or the board of a
interdepartmental venture, the chief executive or board must, as soon
as practicable, give notice in writing of the pay equity claim to
the Commissioner.
(3)
The Commissioner’s responsibility
under subsection (1)—
(a)
includes, without limiting
that subsection, responsibility for acknowledging receipt of and giving
notice of the claim, forming a view on whether the claim is arguable,
conducting the pay equity bargaining process, and settling a pay equity
claim; but
(b)
does not include responsibility
for the following, unless the Commissioner thinks it appropriate to
continue the Commissioner’s responsibility during that time:
(i)
attendance in mediation under
the Employment Relations Act 2000 in relation to the claim or any
aspect of the claim; or
(ii)
participation in any facilitation
of bargaining or participation in relation to any application lodged
in the Employment Relations Authority or filed in a tribunal or a
court in relation to the claim or any aspect of the claim.
(4)
The Commissioner’s responsibility
under this section arises in relation to a pay equity claim—
(a)
on the date on which the Commissioner
receives notice under subsection
(2); or
(b)
on any later date that the
Commissioner notifies to the chief executive or board.
(5)
Subsection (3) is subject
to subsection (4).
82 Application of section
13EA of Equal Pay Act 1972 where more than 1 department or interdepartmental
venture involved in pay equity claim
(1)
In relation to the requirements
under section 13EA of the Equal Pay Act 1972,—
(a)
if a pay equity claim involves
more than 1 department or interdepartmental venture but there are
no other employers involved in the claim, the Commissioner is not
required (and the departments or interdepartmental ventures involved
in the claim are not required) to enter into a multi-employer pay
equity process agreement:
(b)
if a pay equity claim involves
more than 1 department or interdepartmental venture and there are
also other employers involved in the claim, the Commissioner must
enter into a multi-employer pay equity process agreement in the Commissioner’s
name (and the departments and interdepartmental ventures involved
are not required to enter into the agreement).
(2)
If the Commissioner has delegated
the powers to negotiate a pay equity claim to any chief executive
of a department or board of an interdepartmental venture involved
in the claim,—
(a)
subsection (1) does not
apply; and
(b)
the requirements in section 13EA of
the Equal Pay Act 1972 apply to the department or interdepartmental
venture.
82A Commissioner to enter
negotiations in consultation with affected department or interdepartmental
venture
When the Commissioner enters
into the pay equity bargaining process under sections 13K to 13ZD of
the Equal Pay Act 1972, the Commissioner must do so in consultation
with the chief executive or board of each affected department or inter-departmental
venture.
82B Pay equity settlement
binding on chief executive or board affected
(1)
Every pay equity claim settlement
agreement entered into between the Commissioner and 1 or more unions
or between the Commissioner and 1 or more employees of the public
service is binding on the chief executive of each department and the
board of each inter-departmental venture in which any of the employees
are employed.
(2)
A chief executive of a department
who, or board of an inter-departmental venture that, is bound by a
pay equity claim settlement agreement under subsection (1) has the rights,
functions, and obligations that the chief executive or board would
have, in respect of that pay equity claim settlement, if that chief
executive or board were a party to that settlement.
(3)
Responsibility for giving effect to any pay equity claim
settlement between the Commissioner and 1 or more public service employees
lies with the chief executive of each department and the board of
each interdepartmental venture in which any of the employees are employed.
28C Section 83 amended
(Delegation of Commissioner’s function and powers to negotiate pay
equity claim)
In section 83, replace “80”
with “80 and 82”
.
28D Section 76 amended
(Personal grievances and disputes)
In section 76, replace “80
to 82” with “80 to 82B”.
Consequential
amendments to Employment Relations Act 2000
29 Consequential
amendments to Employment Relations Act 2000
Amend the Employment Relations Act 2000 as set out in Schedule 2.
Repeal
30 Repeal
of Government Service Equal Pay Act 1960
The Government Service Equal Pay Act 1960 (1960 No 117)
is repealed.
Schedule 1 New Schedule
1 Schedules
1 and 2 inserted
s 25
Schedule 1 Transitional, savings, and related provisions
s 2AAA
Part 1 Provisions relating to Equal Pay Amendment Act 2018
1 Interpretation
(1)
In this Part,—
amendment
Act means the Equal Pay Amendment Act 2018
existing
equal pay claim means a claim that—
(a)
is to the effect that an employer has differentiated,
on the basis of sex, between the rates of remuneration offered and
afforded by the employer to employees of the employer who perform
the same, or substantially similar, work; and
(b)
was formally commenced by lodging an application
to the Authority or a court before the date on which the amendment
Act came into force, but not determined by the Authority or court
before that date
existing
pay equity claim means a claim, whether under this Act
or under the Government Service Equal Pay Act 1960, that—
(a)
is to the effect that an employer has failed
to ensure that there is no differentiation on the basis of sex between
the rates of remuneration offered and afforded by the employer for
work that is exclusively or predominantly performed by female employees
and the rate of remuneration that would be paid to male employees
who—
(i)
have the same, or substantially similar, skills,
responsibility, and service; and
(ii)
work under the same, or substantially similar,
conditions, and with the same, or substantially similar, degrees of
effort; and
(b)
either—
(i)
was formally commenced by lodging an application
to the Authority or a court before the date on which the amendment
Act came into force, but not determined by the Authority or court
before that date; or
(ii)
was notified by an employee to an employer
before the date on which the amendment Act came into force, but not
formally commenced by application to the Authority or a court before
that date
existing
unlawful discrimination claim means a claim—
(a)
under section 2A of the principal Act that does
not fall within the definition of an existing pay equity claim or
an existing equal pay claim; and
(b)
that was formally commenced by lodging an application
to the Authority or a court before the date on which the amendment
Act came into force, but not determined by the Authority or court
before that date.
(2)
In this Part, a claim is notified by an employee to an employer on the date on which the employee gives the employer notice in writing
that the employee is making a claim to the effect that the employer
has failed to ensure that there is no differentiation on the basis of sex between
the rates of remuneration offered and afforded by the employer for
work that is exclusively or predominantly performed by female employees
and the rate of remuneration that would be paid to male employees
who—
(a)
have the same, or substantially similar, skills,
responsibility, and service; and
(b)
work under the same, or substantially similar,
conditions, and with the same, or substantially similar, degrees of
effort.
2 Existing
pay equity claims must transition to Part 4 process
(1)
Every existing pay equity claim that was formally commenced
by lodging an application with the Authority or a court before the
date on which the amendment Act came into force is discontinued, unless the Authority or court had begun
hearing the claim before that date.
(1A)
An employee who has an existing pay equity claim (whether
formally commenced and discontinued under subclause (1), or notified
to the employee’s employer but not formally commenced) may—
(a)
raise a new claim under Part 4 of this Act, by following
the processes set out in that Part; or
(b)
resolve the existing pay equity claim by following
a pay equity bargaining process as required by a written pay equity
bargaining agreement in accordance with clause 3.
3 Claims
to which existing written pay equity bargaining agreement applies
(1)
This clause applies to an existing pay equity claim if,
before the date on which the amendment Act camecomes into force, the parties
signed a written agreement that states that the parties agree that
the pay equity claim is arguable, and—
(a)
requires them to undertake a pay equity bargaining
process that includes an assessment of the matters set out in section 13L based
on comparators identified in accordance with section 13M; or
(b)
specifies a pay equity bargaining process that
the parties will use and that they agree is suitable and sufficient
to settle the claim.
(2)
If this clause applies,—
(a)
a pay equity claim is deemed to have been made
in accordance with the requirements of section 13D; and either section 13DA or 13DB (as
applicable); and
(b)
the employer is deemed to have complied with
the requirement in section
13E(1)(a); and
(ba)
the employer must give notice
of the claim to every union to which 1 or more of the employer’s employees
belong that represents persons who perform work that is the same as,
or substantially similar to, the work to which the claim relates,
as soon as is reasonably practicable and no later than 5 working days
after the date on which the amendment Act comes into force; and
(c)
if the employer has not already done so, the employer
must give notice of the claim to other all affected employees (as required by section 13E(1)(b)) in accordance with section 13FD or 13FE (as applicable) as soon as is reasonably practicable
and not later than 20 working days after the date on which the amendment
Act came comes into
force or a later date in
accordance with an extension notified under section 13FD(4) or 13FE(4); and
(d)
the employer is deemed to have decided that
the claim is arguable in accordance with the requirement in section 13F;
and
(e)
sections 13H 13BA, 13BB, 13EA to 13EF, 13FF to 13FJ,
and 13K to 13ZD apply accordingly.
(2A)
The requirement in subclause (2)(c) to notify all affected employees of the claim applies irrespective
of any prior notification of the claim that the employer may have
given to affected employees.
(3)
Any pay equity bargaining that took place before the amendment
Act came into force may be taken into account for the purposes of sections 13S(2)(b), 13Z(2), and 13ZB(2)(b).
4 Appeals
(1)
This clause applies to an application—
(a)
that is an existing pay equity claim that was
formally commenced in the
Authority or the court before the date on which the
amendment Act came into force; and
(b)
in relation to which the Authority, or the court
in which the application was commenced, had started to hear the claim or had made a determination on the application before the date on which
the amendment Act came into force.
(2)
Any appeal against, or challenge to the determination
must be determined in accordance with the provisions of this Act as
if it had not been amended by the amendment Act, or the provisions
of the Government Service Equal Pay Act 1960 as if it had not been
repealed by the amendment Act (as applicable).
5 Existing
Equal Pay Act 1972 claim settlements
Section 13C(4) applies to the followingThe following are to be treated as a pay
equity claim settlement for the purpose of section 13C(4):
(a)
a written settlement agreement entered into
between 1 or more employers and 1 or more employees or a union representing 1 or more employees before the date on which the amendment Act came into force, if the
process undertaken by the parties to reach that settlement involved—
(i)
an assessment of the matters set out in section 13L based
on comparators identified in accordance with section 13M; or
(ii)
a pay equity bargaining process that the parties
agreed in writing was suitable and sufficient to settle the claim:
(b)
a claim settled under the Care and Support Workers
(Pay Equity) Settlement Act 2017:
(c)
the settlement of the claim
raised by the New Zealand Educational Institute Te Riu Roa Incorporated
and others with the Chief Executive of the Ministry of Education in
respect of support workers, recorded in the Education Support Workers,
Behaviour Support Workers and Communication Support Workers Pay Equity
Settlement Agreement dated 1 July 2018:
(d)
the settlement of the claim
raised by the New Zealand Educational Institute Te Riu Roa Incorporated
with the Secretary for Education in respect of teacher aides, recorded
in the Teacher Aide Pay Equity Settlement Agreement dated 12 February
2020.
6 Effect
of amendment Act on other existing claims
An existing equal pay claim or existing unlawful discrimination
claim must be determined in accordance with the provisions of this
Act as if it had not been amended by the amendment Act.
Schedule 2 Content of notice to affected
employees of pay equity claim
s 13FD(3)(a),
13FE(3)(a), 13FJ(3)
Part 1 Claim raised by individual employee
A notice to an affected employee
under section 13FD(1) (which relates to a claim raised by an individual employee)
must include the following:
1.
A statement that a pay equity
claim has been raised by a claimant in respect of work that is the
same as, or substantially similar to, the work performed by the affected
employee.
2.
An explanation of the steps
that the affected employee may take to raise their own pay equity
claim.
3.
A statement that—
(a)
if the employer settles the
claim with the claimant, the employer may offer the benefit of the
settlement to the affected employee; and
(b)
if the employee accepts an
offer of the benefit of the settlement, they will be barred from raising
their own claim (see sections 2B and 13C(4)); and
(c)
if the employee declines the
offer of the benefit of the settlement, they will retain the right
to raise their own claim.
Part 2 Claim raised by union or unions
A notice to an affected employee
under section 13FE(1) (which relates to a claim raised by 1 or more unions)
must include the following:
1.
A statement that a pay equity claim has been
raised by the union or unions in respect of work that is the same
as, or substantially similar to, the work performed by the affected
employee.
2.
A statement that the employee
is covered by the union-raised claim, even if the employee is not
a union member, unless,—
(a)
before receiving the notice,
the employee had already raised or settled a pay equity claim with
the employer, or accepted an offer of the benefit of a pay equity
settlement from the employer, in respect of the work; or
(b)
the employee is barred from
raising a pay equity claim under section 2B; or
(c)
the employee opts out, by
giving notice in writing under section 13FH.
3.
A statement that, if the employee
does not opt out of the union-raised claim within 20 working days
after the date of the notice, the employer will provide the employee’s
name and contact details for the provision of written information
to the union or unions.
4.
The date before which the
employee must give notice opting out in order to prevent their name
and contact details for the provision of written information being
provided to the union or unions.
5.
Advice about opting out of
the union-raised claim, including,—
(a)
if the employee is not a member
of the union, or 1 of the unions, how to opt out; and
(b)
if the employee is a member
of the union, or 1 of the unions, that it is not possible to opt out
without first cancelling membership of the union.
6.
A statement that employees
who are not members of a union that has raised the claim are not required
to pay fees to the union to be covered by the union-raised claim or
to have the benefit of a settlement of the claim offered to them.
7.
An explanation of the consequences
of being covered by the union-raised claim, including that, if the
claim is settled,—
(a)
the settlement of the claim
will apply to the employee and may result in a change to their terms
and conditions of employment; and
(b)
the employee will be barred
from raising their own claim (see sections 2B and 13C(4)).
8.
A statement that if the employee
has raised a claim with the employer and that claim that has not been
settled, the employee may—
(a)
withdraw the claim by giving
notice in writing to the employer; and
(b)
join the union-raised claim
by giving notice in writing to the union or unions that raised the
claim.
9.
A statement that, if the employee
wants to raise their own pay equity claim, the employee must opt out
of the union-raised claim before—
(a)
the claimant files an application
with the Authority under section
13Z(1)(d) for the Authority to fix remuneration;
or
(b)
the final date for voting
on a proposed pay equity claim settlement under section 13MA(4)(c)(ii).
10.
A statement that if the employee
opts out of the union-raised claim, the employee must be offered the
benefit of a settlement of that claim and,—
(a)
if the employee accepts the
offer of the benefit of the settlement, they will be barred from raising
their own claim (see sections 2B and 13C(4)):
(b)
if the employee declines the
offer of the benefit of the settlement, they will retain the right
to raise their own claim.
11.
An explanation of the steps
that the affected employee may take to raise their own pay equity
claim.
12.
A recommendation that the
employee seek independent legal advice.
Schedule 2 Consequential amendments to Employment Relations Act 2000
s 29
Section
4
After section 4(4)(e), insert:
(ea)
making pay equity claims, responding to pay
equity claims, and participating in the pay equity claim resolution
process under Part 4 of the Equal Pay Act 1972:
Section
4A
Replace section 4A(b) with:
(b)
the failure was intended to—
(i)
undermine bargaining for an individual employment
agreement or a collective agreement; or
(ii)
undermine an individual employment agreement
or a collective agreement; or
(iii)
undermine an employment relationship; or
(iv)
undermine the pay equity claim resolution process
under Part 4 of the Equal Pay Act 1972; or
Section
5
In section 5, definition of employment standards, replace paragraph (b)
with:
(b)
the requirements of section 2AAC(a) and 2A of
the Equal Pay Act 1972:
Section
33
After section 33(2)(b), insert:
(c)
the existence of an unsettled pay equity claim under the Equal Pay Act 1972 between an employer and 1 or more employeesa claimant under the Equal Pay Act 1972; or
(d)
the existence of a requirement to review a pay
equity claim settlement under the Equal Pay Act 1972.
Section
50F
Replace section 50F(1) with:
(1)
A statement made by a party for the purposes of facilitation
is not admissible against the party in proceedings under this Act
or under the Equal Pay Act 1972.
Section
137
After section 137(1)(a)(iiib), insert:
(iiic)
any terms of a pay equity claim settlement
under section 13N of the Equal Pay Act 1972; or
Section
161
After section 161(1)(m)(iia), insert:
(iib)
under section 18 of the Equal Pay Act 1972:
After section 161(1)(qc), insert:
(qd)
all matters arising under the Equal Pay Act
1972 and, in particular,—
(i)
determining equal pay claims and discriminatory treatmentunlawful discrimination claims:
(ii)
determining disputes as to whether a pay equity
claim is arguable:
(iii)
determining disputes as to whether work is
comparable work for the purpose of assessing a pay equity claim:
(iv)
determining disputes as to whether the claimant’s work
is in fact undervalued:
(v)
fixing terms and conditions, including remuneration, remuneration that is consistent with pay equity under that Act:
(va)
determining whether the terms
and conditions of employment in an employee’s employment agreement
are more or less favourable than the terms and conditions of employment
in a pay equity claim settlement for the purposes of section 13NC of that Act:
(vi)
determining whether to provide for recovery
of an amount of remuneration for past work, and the amount to provide,
under section 13ZC of that Act:
(vii)
determining the applicable start date for
the purposes of section 13ZD of that Act:
In section 161(2), replace “and (f)”
with “(f), and (qd)”
.