Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698753237000.pdf (New Zealand)
Employment Relations Act 2000 Public Act Date of assent 2000 No 24 19 August 2000 1 2 3 4 4A 5 6 6A Contents Part 1 Key provisions Title Commencement Object of this Act Good faith employment relations Parties to employment relationship to deal with each other in good faith Penalty for certain breaches of duty of good faith Part 2 Preliminary provisions Interpretation Interpretation Meaning of employee Status of examples Part 3 Freedom of association Object of this Part Voluntary membership of unions Prohibition on preference Contracts, agreements, or other arrangements inconsistent with section 8 or section 9 Undue inﬂuence Part 4 Recognition and operation of unions 12 Object of this Part Note This Act is administered in the Department of Labour.
Page 14 14 15 16 18 19 23 24 24 24 25 25 25 26 1 Employment Relations Act 2000 Reprinted as at 10 September 2007 Registration of unions and related matters Application by society to register as union When society entitled to be registered as union Registration of society as union Annual return of members Cancellation of union’s registration Union’s right to represent members 18 Union entitled to represent members’ interests Access to workplaces Workplace does not include dwellinghouse Access to workplaces Conditions relating to access to workplaces When access to workplaces may be denied When access to workplaces may be denied on religious grounds Issue of certiﬁcate of exemption Penalty for certain acts in relation to entering workplace 26 Union meetings Union meetings Registrar of Unions 27 28 29 30 Registrar of Unions Registrar of Unions may seek directions of Authority Persons who have standing in proceedings relating to unions Offence to mislead Registrar Part 5 Collective bargaining 31 Object of this Part Good faith 32 33 34 Good faith in bargaining for collective agreement Duty of good faith requires parties to conclude collective agreement unless genuine reason not to Providing information in bargaining for collective agreement 35 Codes of good faith Codes of good faith 2 26 27 27 28 28 28 28 28 30 31 31 32 32 32 33 33 34 34 34 35 36 37 38 Reprinted as at 10 September 2007 Employment Relations Act 2000 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Appointment of committee to recommend codes of good faith Minister may approve code of good faith not recommended by committee Amendment and revocation of code of good faith Authority or Court may have regard to code of good faith Bargaining Who may initiate bargaining When bargaining may be initiated How bargaining initiated Employees’ attention to be drawn to initiation of bargaining When bargaining initiated One or more unions proposing to initiate bargaining with 2 or more employers for single collective agreement Terms of
 question for secret ballot When secret ballots required after employer initiates bargaining for single collective agreement When requirement for secret ballot does not apply Parties joining bargaining after it begins Consolidation of bargaining Facilitating bargaining 50A 50B 50C 50D 50E 50F 50G 50H 50I Purpose of facilitating collective bargaining Reference to Authority Grounds on which Authority may accept reference Limitation on which member of Authority may provide facilitation Process of facilitation Statements made by parties during facilitation Proposals made or positions reached during facilitation Recommendation by Authority Party must deal with Authority in good faith Determining collective agreement if breach of duty of good faith 50J Remedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining Collective agreements 51 52 Ratiﬁcation of collective agreement When collective agreement comes into force and expires 39 39 40 40 40 40 41 42 42 42 43 44 45 45 46 46 47 47 48 48 49 49 50 50 50 51 52 3 Employment Relations Act 2000 Reprinted as at 10 September 2007 Continuation of collective agreement after speciﬁed expiry date Form and content of collective agreement Deduction of union fees Application of collective agreement Application of collective agreement to subsequent parties Employee bound by only 1 collective agreement in respect of same work Employee who resigns as member of union but does not resign as employee Copy of collective agreement to be delivered to chief executive Undermining collective bargaining or collective agreement Interpretation Breach of duty of good faith to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement Breach of duty of good faith to pass on, in certain circumstances, in collective agreement provisions agreed in other collective bargaining or another collective agreement Part 6
 Individual employees’ terms and conditions of employment Object of this Part Good faith in bargaining for individual employment agreement Employee bound by applicable collective agreement may agree to additional terms and conditions of employment Employer’s obligations in respect of new employee who is not member of union Terms and conditions of employment of new employee who is not member of union Bargaining for individual employment agreement or individual terms and conditions in employment agreement Opportunity to seek advice for new employee where no collective agreement applies [Repealed] Terms and conditions of employment where no collective agreement applies 52 53 53 54 55 56 57 57 58 58 59 61 61 62 62 64 65 67 67 53 54 55 56 56A 57 58 59 59A 59B 59C 60 60A 61 62 63 63A 64 65 4 Reprinted as at 10 September 2007 Employment Relations Act 2000 65A 66 67 68 69 Deduction of union fees Fixed term employment Probationary arrangements Unfair bargaining for individual employment agreements Remedies for unfair bargaining Part 6A Continuity of employment if employees’ work affected by restructuring Subpart 1—Speciﬁed categories of employees Object of this subpart Interpretation 69A 69B 69C Meaning of contracting in, contracting out, and subsequent contracting 69D Meaning of new employer 69E Examples of contracting in, contracting out, and subsequent contracting Application of this subpart Notice of right to make election Employee bargaining for alternative arrangements Employee may elect to transfer to new employer Employment of employee who elects to transfer to new employer treated as continuous Terms and conditions of employment of transferring employee under ﬁxed term employment Agreements excluding entitlements for technical redundancy not affected 69F 69G 69H 69I 69J 69K 69L 69M New employer becomes party to collective agreement that 69N 69O binds employee electing to transfer Employee who transfers may bargain for redundancy entitlements with new employer
 Authority may investigate bargaining and determine redundancy entitlements Subpart 2—Disclosure of costs relating to transfer of employees under proposed restructuring 69OA Object of this subpart 69OB Interpretation 69OC Disclosure of employee transfer costs information 69OD Provision of employee transfer costs information by other persons 69OE Updating disclosure of employee transfer costs information 68 68 69 70 71 72 73 74 76 77 80 80 81 82 83 85 86 86 87 88 89 90 91 92 93 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 69OF Employer who is subject to Ofﬁcial Information Act 1982 69OG Subpart prevails over agreement Subpart 3—Other employees 69OH Object of this subpart 69OI Interpretation 69OJ Collective agreements and individual employment agreements must contain employee protection provision 69OK Affected employee may choose whether to transfer to new employer Subpart 4—Review of Part 69OL Review of operation of Part after 3 years Part 6B Bargaining fees 69P 69Q 69R Interpretation Bargaining fee clause does not come into force unless agreed to ﬁrst by employer and union and then by secret ballot Employer to notify employees if bargaining fee clause agreed to 69S Which employees bargaining fee clause applies to 69T Bargaining fee clause binding on employer and employee 69U Amount of bargaining fee Expiry of bargaining fee clause 69V 69W Validity of bargaining fee clause Part 7 Employment relations education leave Object of this Part Interpretation Minister to approve employment relations education Union entitled to allocate employment relations education leave Calculation of maximum number of days of employment relations education leave Union to notify employer of maximum number of days of employment relations education leave calculated Allocation of employment relations education leave calculated in respect of another employer Allocation of employment relations education leave to eligible employee 70 71 72 73 74 75 76 77 6 94 95 95 96 97 98 98
Reprinted as at 10 September 2007 Employment Relations Act 2000 78 79 Eligible employee proposing to take employment relations education leave Eligible employee taking employment relations education leave entitled to ordinary pay Part 8 Strikes and lockouts 80 Object of this Part Interpretation Meaning of strike Meaning of lockout Lawfulness of strikes and lockouts Lawful strikes and lockouts related to collective bargaining Lawful strikes and lockouts on grounds of safety or health Effect of lawful strike or lockout Unlawful strikes or lockouts Suspension of employees during strikes Suspension of striking employees Suspension of non­striking employees where work not available during strike Basis of suspension Essential services Strikes in essential services Lockouts in essential services Chief executive to ensure mediation services provided Procedure to provide public with notice before strike or lockout in certain passenger transport services Procedure to provide public with notice before strike in certain passenger transport services Procedure to provide public with notice before lockout in certain passenger transport services Penalty for breach of section 93 or section 94 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 Employer’s liability for wages during lockout 96 Employer not liable for wages during lockout 107 107 108 108 109 109 110 110 110 112 112 113 113 114 115 115 116 117 117 Performance of duties of striking or locked out employees 97 Performance of duties of striking or locked out employees 118 7 Employment Relations Act 2000 Reprinted as at 10 September 2007 Record of strikes and lockouts 98 Record of strikes and lockouts Jurisdiction of Employment Court 99 100 Jurisdiction of Court in relation to torts Jurisdiction of Court in relation to injunctions Part 8A Codes of employment practice and code of good faith for public health sector Codes of employment practice 100A Codes of employment
 practice 100B Amendment and revocation of code of practice 100C Authority or Court may have regard to code of practice Code of good faith for public health sector 100D Code of good faith for public health sector 100E Amendments to or replacement of code of good faith for public health sector Part 9 Personal grievances, disputes, and enforcement 101 Object of this Part Object Personal grievances Employee may pursue personal grievance under this Act 102 103 Personal grievance 103A Test of justiﬁcation 104 105 Discrimination Prohibited grounds of discrimination for purposes of section 104 Exceptions in relation to discrimination Deﬁnition of involvement in activities of union for purposes of section 104 Sexual harassment Racial harassment Duress Deﬁnitions relating to personal grievances Choice of procedures Personal grievance provisions only way to challenge dismissal Raising personal grievance Reprinted as at 10 September 2007 Employment Relations Act 2000 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 Further provision regarding exceptional circumstances under section 114 Special provision where sexual harassment alleged Sexual or racial harassment by person other than employer Sexual or racial harassment after steps not taken to prevent repetition Presumption in discrimination cases Statement of reasons for dismissal Statements privileged Nature of personal grievance may be found to be of different type from that alleged Remedies in relation to personal grievances Remedies Remedy reduced if contributing behaviour by employee Reinstatement to be primary remedy Provisions applying if reinstatement ordered Authority may order interim reinstatement Reimbursement Disputes Person bound by, or party to, employment agreement may pursue dispute under this Act Recovery of wages 130 Wages and time record 131 132 Arrears Failure to
 keep or produce records Penalties 133 134 135 136 Jurisdiction concerning penalties Penalties for breach of employment agreement Recovery of penalties Application of penalties recovered Compliance orders 137 138 Power of Authority to order compliance Further provisions relating to compliance order by Authority Power of Court to order compliance 139 140 Further provisions relating to compliance order by Court 140A Compliance order in relation to disclosure of employee transfer costs information 134 134 134 135 136 136 136 137 137 138 138 139 139 140 140 141 142 142 143 143 143 145 145 147 148 148 149 9 Employment Relations Act 2000 Reprinted as at 10 September 2007 141 Enforcement of order Enforcement of order Limitation period for actions other than personal grievances 142 Limitation period for actions other than personal grievances 143 Object of this Part Part 10 Institutions Mediation services Provision of mediation services Access to mediation services Procedure in relation to mediation services Conﬁdentiality Settlements Decision by authority of parties 144 Mediation services 144A Dispute resolution services 145 146 147 148 149 150 150A Payment on resolution of problem 151 152 Mediation services not to be questioned as being Enforcement of terms of settlement agreed or authorised inappropriate Independence of mediation personnel Other mediation services Arbitration Employment Relations Authority Employment Relations Authority Role of Authority Lodging of applications Duty of Authority to consider mediation Powers of Authority Jurisdiction Application of law relating to contracts Restriction on Authority’s power in relation to collective agreements Application to individual employment agreements of law relating to contracts Other provisions relating to investigations of Authority 165 166 Membership of Authority 166
159 160 161 161 161 161 162 162 163 163 166 166 166 167 167 Reprinted as at 10 September 2007 Employment Relations Act 2000 Appointment of members Oath of ofﬁce Term of ofﬁce Vacation of ofﬁce Salaries and allowances Temporary appointments Procedure Determinations Seal of Authority Protection of members of Authority, etc Referral of question of law Removal to Court Challenges to determinations of Authority 167 168 169 170 171 172 173 174 175 176 177 178 179 179A Limitation on challenges to certain determinations of Authority Election not to operate as stay Report in relation to good faith Hearings Decision Restriction on review Staff of Authority Employment Court Employment Court Jurisdiction of Court Role in relation to jurisdiction Equity and good conscience Application of other provisions Other provisions relating to proceedings of Court Application to collective agreements of law relating to contracts Proceedings not to be questioned Application for review 193 194 194A Application for review by certain employees 195 196 197 198 199 Non­attendance or refusal to co­operate Contempt of Court or Authority Constitution of Court Registrar and ofﬁcers of Court Seal of Court 200 Appointment of Judges Judges of the Court Employment Relations Act 2000 Reprinted as at 10 September 2007 200A Judges act on full­time basis but may be authorised to act 185 part­time Seniority Senior Judge to act as Chief Judge in certain circumstances Judges to have immunities of High Court Judges Protection of Judges against removal from ofﬁce Age of retirement Salaries and allowances of Judges Appointment of temporary Judges Sittings Full Court Quorum and decision of Court Statement of case for Court of Appeal Court may make rules 201 202 203 204 205 206 207 208 209 210 211 212 213 Review of proceedings before Court Review of proceedings
 Appeals Appeals on question of law 214 214A Appeals to Supreme Court on question of law in 215 exceptional circumstances Court of Appeal may refer appeals back for reconsideration Special provision in respect of appeals 186 187 187 187 188 188 189 190 190 190 191 191 192 192 193 194 216 Obligation to have regard to special jurisdiction of Court 194 Other appeals Appeal to Court of Appeal against conviction or order or sentence in respect of contempt of Court Appeal to Court of Appeal in respect of order on application for review Miscellaneous provisions Validation of informal proceedings, etc Documents under seal and certain signatures to be judicially noticed Joinder, waiver, and extension of time Application of Ofﬁcial Information Act 1982 195 195 195 196 196 197 217 218 219 220 221 222 12 Reprinted as at 10 September 2007 Employment Relations Act 2000 223 Labour Inspectors Part 11 General provisions Labour Inspectors Demand notices Demand notice Objections to demand notice Authority to determine objection 224 225 226 227 Withdrawal of demand notice Actions to recover wages or holiday pay, etc 228 Actions by Labour Inspector Powers 229 230 231 232 233 234 235 Powers of Labour Inspectors Entry of dwellinghouses Entry warrant Compilation of wages and time record Obligations of Labour Inspectors Circumstances in which ofﬁcers, directors, or agents of company liable for minimum wages and holiday pay Obstruction 236 Representation Representation Miscellaneous provisions Regulations 237 237A Amendments to Schedule 1A 238 239 240 241 No contracting out New Schedule 3 substituted in Police Act 1958 Consequential amendments Repeals Transitional provisions 242 243 244 245 246 Enforcement of existing individual employment contracts Enforcement of existing collective employment contracts Existing collective employment contracts and collective bargaining Existing procedures in relation to disputes and personal grievances Expiration of existing collective employment
 contracts 197 197 198 199 199 200 200 202 202 202 203 204 205 206 207 207 208 208 208 208 209 209 209 209 210 13 s 1 247 248 249 250 251 252 253 Employment Relations Act 2000 Reprinted as at 10 September 2007 Existing proceedings Existing causes of action Employment Tribunal Exercise of powers of Employment Tribunal after 31 January 2001 Exercise of powers of Authority before close of 31 January 2001 Exercise by Authority of powers of Tribunal after 31 January 2001 Existing appointments Schedule 1 Essential services Schedule 1A Employees to whom subpart 1 of Part 6A applies Schedule 1B Code of good faith for public health sector Schedule 2 Provisions having effect in relation to Employment Relations Authority Schedule 3 Provisions having effect in relation to Employment Court Schedule 4 New Schedule 3 of Police Act 1958 Schedule 5 Enactments amended Schedule 6 Enactments repealed 211 211 212 212 213 214 214 215 217 218 229 234 241 249 282 The Parliament of New Zealand enacts as follows: Title This Act is the Employment Relations Act 2000.
Commencement This Act comes into force on 2 October 2000.
1 2 14 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 1 s 3 Part 1 Key provisions 3 Object of this Act The object of this Act is— (a) to build productive employment relationships through the promotion of good faith in all aspects of the em­ ployment environment and of the employment relation­ ship— (i) by recognising that employment relationships must be built not only on the implied mutual obligations of trust and conﬁdence, but also on a legislative requirement for good faith behaviour; and by acknowledging and addressing the inherent inequality of power in employment relationships; and by promoting collective bargaining; and by protecting the integrity of individual choice; and by promoting mediation as the primary problem­ solving mechanism; and by reducing the need for judicial intervention; and (ii) (iii) (iv) (v) (vi) (b) to promote observance in New Zealand of the principles underlying International Labour Organisation Conven­ tion 87 on Freedom of Association, and Convention 98 on the Right to Organise and Bargain Collectively.
Paragraph (a) was amended, as from 1 December 2004, by section 4(1) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by substituting the words “good faith” for the words “mutual trust and conﬁdence”.

See sec­ tion 73 of that Act for the transitional provisions.

Paragraph (a)(i) was substituted, as from 1 December 2004, by section 4(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Paragraph (a)(ii) was amended, as from 1 December 2004, by section 4(3) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by omitting the word “bargaining”.

See section 73 of that Act for the transitional provisions.
15 Part 1 s 4 Employment Relations Act 2000 Reprinted as at 10 September 2007 Good faith employment relations 4 (1) Parties to employment relationship to deal with each other in good faith The parties to an employment relationship speciﬁed in subsec­ tion (2)— (a) must deal with each other in good faith; and (b) without limiting paragraph (a), must not, whether di­ rectly or indirectly, do anything— (i) (ii) to mislead or deceive each other; or that is likely to mislead or deceive each other.
(1A) The duty of good faith in subsection (1)— (a) (b) (c) is wider in scope than the implied mutual obligations of trust and conﬁdence; and requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the par­ ties are, among other things, responsive and commu­ nicative; and without limiting paragraph (b), requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of 1 or more of his or her employees to provide to the employees affected— (i) access to information, relevant to the continu­ ation of the employees’ employment, about the decision; and an opportunity to comment on the information to their employer before the decision is made.
(ii) (1B) Subsection (1A)(c) does not require an employer to provide access to conﬁdential information if there is good reason to maintain the conﬁdentiality of the information.

(a) (1C) For the purpose of subsection (1B), good reason includes— complying with statutory requirements to maintain con­ ﬁdentiality: protecting the privacy of natural persons: protecting the commercial position of an employer from being unreasonably prejudiced.
(b) (c) (2) The employment relationships are those between— 16 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 1 s 4 (a) (b) (c) (d) (e) (f) (g) (h) an employer and an employee employed by the em­ ployer: a union and an employer: a union and a member of the union: a union and another union that are parties bargaining for the same collective agreement: a union and another union that are parties to the same collective agreement: a union and a member of another union where both unions are bargaining for the same collective agree­ ment: a union and a member of another union where both unions are parties to the same collective agreement: an employer and another employer where both employ­ ers are bargaining for the same collective agreement.
(3) (4) Subsection (1) does not prevent a party to an employment rela­ tionship communicating to another person a statement of fact or of opinion reasonably held about an employer’s business or a union’s affairs.
The duty of good faith in subsection (1) applies to the follow­ ing matters: (a) bargaining for a collective agreement or for a variation of a collective agreement, including matters relating to the initiation of the bargaining: any matter arising under or in relation to a collective agreement while the agreement is in force: (b) (c) (bb) (ba) bargaining for an individual employment agreement or for a variation of an individual employment agreement: any matter arising under or in relation to an individual employment agreement while the agreement is in force: consultation (whether or not under a collective agree­ ment) between an employer and its employees, includ­ ing any union representing the employees, about the employees’ collective employment interests, including the effect on employees of changes to the employer’s business: a proposal by an employer that might impact on the employer’s employees, including a proposal to contract (d) 17 Part 1 s 4A Employment Relations Act 2000 Reprinted as at 10 September 2007 out work otherwise done by the employees or to sell or transfer all or part of the employer’s business: (5) (6) (e) making employees redundant: (f) (g) access to a workplace by a representative of a union: communications or contacts between a union and an employer relating to any secret ballots held for the pur­ poses of bargaining for a collective agreement.
The matters speciﬁed in subsection (4) are examples and do not limit subsection (1).

It is a breach of subsection (1) for an employer to advise, or to do anything with the intention of inducing, an employee— (a) not to be involved in bargaining for a collective agree­ ment; or not to be covered by a collective agreement.

(b) Subsections (1A) to (1C) were inserted, as from 1 December 2004, by section 5(1) Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Subsection (4)(ba) and (bb) was inserted, as from 1 December 2004, by section 5(2) Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Subsection (6) was inserted, as from 1 December 2004, by section 5(3) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
4A Penalty for certain breaches of duty of good faith A party to an employment relationship who fails to comply with the duty of good faith in section 4(1) is liable to a penalty under this Act if— (a) (b) the failure was deliberate, serious, and sustained; or the failure was intended to undermine— (i) bargaining for an individual employment agree­ ment or a collective agreement; or an individual employment agreement or a col­ lective agreement; or an employment relationship; or (iii) (c) the failure was a breach of section 59B or section 59C.
Section 4A was inserted, as from 1 December 2004, by section 6 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
(ii) 18 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 2 s 5 Part 2 Preliminary provisions Interpretation 5 Interpretation In this Act, unless the context otherwise requires,— applicable collective agreement means the collective agree­ ment that is binding on the relevant union and employer, at the relevant point in time in relation to an employee of the employer who is a member of the union Authority means the Employment Relations Authority estab­ lished by section 156 bargaining, in relation to bargaining for a collective agree­ ment,— (a) means all the interactions between the parties to the bar­ (b) gaining that relate to the bargaining; and includes— (i) (ii) negotiations that relate to the bargaining; and communications or correspondence (between or on behalf of the parties before, during, or after negotiations) that relate to the bargaining chief executive means the chief executive of the Department Chief Judge means the Chief Judge of the Court Chief of the Authority means the Chief of the Authority who holds ofﬁce under section 166(1)(a) collective agreement means an agreement that is binding on— (a) (b) (c) compliance order means an order made by the Authority or the Court under section 137 or section 139 Court means the Employment Court constituted under this Act coverage clause,— (a) 1 or more unions; and 1 or more employers; and 2 or more employees in relation to a collective agreement,— (i) means a provision in the agreement that speciﬁes the work that the agreement covers, whether by 19 Part 2 s 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 (ii) reference to the work or type of work or employ­ ees or types of employees; and includes a provision in the agreement that refers to named employees, or to the work or type of work done by named employees, to whom the collective agreement applies: (b) in relation to a notice initiating bargaining for a collect­ ive agreement, means a provision in the notice speci­ fying the work that the agreement is intended to cover, whether by reference to the work or type of work or em­ ployees or types of employees coverage clause: paragraph (a) of this deﬁnition was substituted, as from 1 De­ cember 2004, by section 7(1) Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.
demand notice means a demand notice issued under section 224(1) Department, in any provision of this Act, means the depart­ ment of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of that provision dispute means a dispute about the interpretation, application, or operation of an employment agreement dwellinghouse— (a) means any building or any part of a building to the ex­ (b) tent that it is occupied as a residence; and in relation to a homeworker who works in a building that is not wholly occupied as a residence, excludes any part of the building not occupied as a residence dwellinghouse: this deﬁnition was substituted, as from 1 December 2004, by section 7(2) Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.
employee is deﬁned in section 6 employer means a person employing any employee or em­ ployees; and includes a person engaging or employing a home­ worker employment agreement— (a) means a contract of service; and (b) includes a contract for services between an employer and a homeworker; and 20 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 2 s 5 (c) (iii) includes an employee’s terms and conditions of em­ ployment in— (i) (ii) a collective agreement; or a collective agreement together with any addi­ tional terms and conditions of employment; or an individual employment agreement employment relationship means any of the employment re­ lationships speciﬁed in section 4(2) employment relationship problem includes a personal grievance, a dispute, and any other problem relating to or aris­ ing out of an employment relationship, but does not include any problem with the ﬁxing of new terms and conditions of employment essential service means a service speciﬁed in Schedule 1 homeworker— (a) means a person who is engaged, employed, or con­ tracted by any other person (in the course of that other person’s trade or business) to do work for that other person in a dwellinghouse (not being work on that dwellinghouse or ﬁxtures, ﬁttings, or furniture in it); and includes a person who is in substance so engaged, em­ ployed, or contracted even though the form of the con­ tract between the parties is technically that of vendor and purchaser (b) homeworker: this deﬁnition was amended, as from 1 July 2002, by section 6 Parental Leave and Employment Protection (Paid Parental Leave) Amend­ ment Act 2002 (2002 No 7) by inserting the words “and, for the purposes of this deﬁnition, the deﬁnition of dwellinghouse does not apply”.
homeworker: this deﬁnition was amended, as from 1 December 2004, by sec­ tion 7(3) Employment Relations Amendment Act (No 2) 2004 (2004 No 86) by omitting the words “and, for the purposes of this deﬁnition, the deﬁnition of dwellinghouse does not apply”.

See section 73 of that Act for the transitional provisions.
individual employment agreement means an employment agreement entered into by 1 employer and 1 employee who is not bound by a collective agreement that binds the employer Judge means a Judge of the Court; and includes a temporary Judge 21 Part 2 s 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Labour Inspector means an employee of the Department des­ ignated under section 223 to be a Labour Inspector lockout has the meaning given to it by section 82 mediation includes mediation services provided under section 144 by the chief executive, and any other mediation services that are provided (whether by the chief executive or any other person) to help resolve employment relationship problems mediation services means the mediation services provided, under section 144, by the chief executive member of the Authority means a member of the Authority who holds ofﬁce under section 166(1); and includes a tempo­ rary member who holds ofﬁce under section 172 Minister, in any provision of this Act, means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being respon­ sible for the administration of that provision person intending to work means a person who has been of­ fered, and accepted, work as an employee; and intended work has a corresponding meaning personal grievance or grievance has the meaning given to it by section 103 prescribed means prescribed by regulations made under this Act Registrar of the Court means any employee of the Depart­ ment designated under section 198 to act as the Registrar of the Court Registrar of Unions means the employee of the Department appointed under section 27 to be the Registrar of Unions strike has the meaning given to it by section 81 union means a union registered under Part 4 wages and time record means a wages and time record kept pursuant to section 130 workplace means a place where an employee works from time to time; and includes a place where an employee goes to do work.
22 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 2 s 6 6 (1) (2) (3) (4) (5) (6) Meaning of employee In this Act, unless the context otherwise requires, employee— (a) means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and includes— (i) (ii) excludes a volunteer who— (i) a homeworker; or a person intending to work; but (b) (c) does not expect to be rewarded for work to be performed as a volunteer; and receives no reward for work performed as a vol­ unteer.
(ii) In deciding for the purposes of subsection (1)(a) whether a per­ son is employed by another person under a contract of service, the Court or the Authority (as the case may be) must determine the real nature of the relationship between them.
For the purposes of subsection (2), the Court or the Author­ ity— (a) must consider all relevant matters, including any mat­ ters that indicate the intention of the persons; and is not to treat as a determining matter any statement by the persons that describes the nature of their relation­ ship.

(b) Subsections (2) and (3) do not limit or affect the Real Estate Agents Act 1976 or the Sharemilking Agreements Act 1937.
The Court may, on the application of a union, a Labour In­ spector, or 1 or more other persons, by order declare whether the person or persons named in the application are— (a) (b) employees under this Act; or employees or workers within the meaning of any of the Acts speciﬁed in section 223(1).
The Court must not make an order under subsection (5) in relation to a person unless— (a) the person— (i) (ii) is the applicant; or has consented in writing to another person apply­ ing for the order; and 23 Part 2 s 6A Employment Relations Act 2000 Reprinted as at 10 September 2007 (b) the other person who is alleged to be the employer of the person is a party to the application or has an opportunity to be heard on the application.
6A Status of examples (1) In this Act, an example is only illustrative of the provision it relates to and does not limit the provision.

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

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

Section 6A was inserted, as from 14 September 2006, by section 5 Employment Relations Amendment Act 2006 (2006 No 41).

See section 11 of that Act as to the transitional provisions.
Part 3 Freedom of association Object of this Part The object of this Part is to establish that— (a) employees have the freedom to choose whether or not to form a union or be members of a union for the purpose of advancing their collective employment interests; and (b) No person may, in relation to employment issues, confer any preference or apply any undue inﬂuence, directly or indirectly, on another person because the other person is or is not a member of a union.
Compare: 1991 No 22 s 5 Voluntary membership of unions A contract, agreement, or other arrangement between persons must not require a person— (a) to become or remain a member of a union or a particular union; or to cease to be a member of a union or a particular union; or not to become a member of a union or a particular union.
(b) (c) Compare: 1991 No 22 s 6 (2) (3) 7 8 24 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 3 s 11 Prohibition on preference 9 (1) A contract, agreement, or other arrangement between persons must not confer on a person, because the person is or is not a member of a union or a particular union,— (a) any preference in obtaining or retaining employment; or any preference in relation to terms or conditions of em­ ployment (including conditions relating to redundancy) or fringe beneﬁts or opportunities for training, promo­ tion, or transfer.
(b) (2) (3) 10 Subsection (1) is not breached simply because an employee’s employment agreement or terms and conditions of employ­ ment are different from those of another employee employed by the same employer.

To avoid doubt, this Act does not prevent a collective agree­ ment containing a term or condition that is intended to recog­ nise the beneﬁts— (a) (b) of a collective agreement: arising out of the relationship on which a collective agreement is based.
Compare: 1991 No 22 s 7 Subsection (3) was inserted, as from 1 December 2004, by section 8 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Contracts, agreements, or other arrangements inconsistent with section 8 or section 9 A contract, agreement, or other arrangement has no force or effect to the extent that it is inconsistent with section 8 or sec­ tion 9.
Undue inﬂuence 11 (1) A person must not exert undue inﬂuence, directly or indirectly, on another person with the intention of inducing the other per­ son— (a) to become or remain a member of a union or a particular union; or to cease to be a member of a union or a particular union; or (b) 25 Part 4 s 12 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) (d) (e) not to become a member of a union or a particular union; or in the case of an individual who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or to resign from or leave any employment on account of the fact that the other person is or, as the case may be, is not a member of a union or of a particular union.
(2) Every person who contravenes subsection (1) is liable to a penalty under this Act imposed by the Authority.
Compare: 1991 No 22 s 8 Part 4 Recognition and operation of unions 12 Object of this Part The object of this Part is— (a) (b) (c) (d) to recognise the role of unions in promoting their mem­ bers’ collective employment interests; and to provide for the registration of unions that are account­ able to their members; and to confer on registered unions the right to represent their members in collective bargaining; and to provide representatives of registered unions with rea­ sonable access to workplaces for purposes related to employment and union business.
Registration of unions and related matters Application by society to register as union 13 (1) A society that is entitled to be registered as a union may apply to the Registrar of Unions to be registered as a union under this Act.
(2) An application must be made in the prescribed manner and must be accompanied by— (a) a copy of the society’s certiﬁcate of incorporation under the Incorporated Societies Act 1908; and a copy of the society’s rules as registered under that Act; and (b) 26 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 4 s 15 (c) a statutory declaration made by an ofﬁcer of the society setting out the reasons why the society is entitled to be registered as a union.
14 When society entitled to be registered as union (1) A society is entitled to be registered as a union if— (a) (b) (c) (d) the object or, if the society has more than 1 object, an object of the society is to promote its members’ collect­ ive employment interests; and the society is incorporated under the Incorporated Societies Act 1908; and the society’s rules are— (i) (ii) (iii) not unreasonable; and democratic; and not unfairly discriminatory or unfairly prejudi­ cial; and not contrary to law; and (iv) the society is independent of, and is constituted and op­ erates at arm’s length from, any employer.
In deciding whether a society is entitled to be registered as a union, the Registrar of Unions may rely on the statutory dec­ laration made under section 13(2)(c).

Registration of society as union The Registrar of Unions must register a society as a union if the society— (a) applies, in accordance with section 13, to be registered as a union; and is entitled to be registered as a union.
(b) Immediately after registering a union, the Registrar of Unions must give a certiﬁcate of registration in the prescribed form to the union.

The certiﬁcate of registration is conclusive evidence that— (a) all the requirements of this Act relating to the registra­ tion of the union have been complied with; and on and from the date of registration stated in the certiﬁ­ cate, the union is registered as a union under this Act.
(b) (2) 15 (1) (2) (3) 27 Part 4 s 16 Employment Relations Act 2000 Reprinted as at 10 September 2007 16 17 (1) (2) Annual return of members A union must deliver to the Registrar of Unions, not later than 1 June in each calendar year, an annual return of members, stating how many members it had as at 1 March in that year.
Cancellation of union’s registration The Registrar of Unions may cancel the registration of a union under this Act, but only if— (a) the union applies to the Registrar of Unions to cancel its registration; or the Authority makes an order directing the Registrar of Unions to cancel the union’s registration.

(b) The Authority may make an order for the purposes of subsec­ tion (1)(b) only if the union has ceased to comply with section 14(1).
Union’s right to represent members Union entitled to represent members’ interests 18 (1) A union is entitled to represent its members in relation to any matter involving their collective interests as employees.

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

(2) (3) A union may represent an employee in relation to the em­ ployee’s individual rights as an employee only if the union has an authority from the employee to do so given under section 236.
Access to workplaces 19 Workplace does not include dwellinghouse For the purposes of sections 20 to 25, workplace does not include a dwellinghouse.

Access to workplaces 20 (1) A representative of a union is entitled, in accordance with this section and section 21, to enter a workplace— (a) for purposes related to the employment of its members; or 28 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 4 s 20 (2) (3) (c) (d) for purposes related to the union’s business; or both.
(b) (c) The purposes related to the employment of a union’s members include— (a) (b) to participate in bargaining for a collective agreement: to deal with matters concerning the health and safety of union members: to monitor compliance with the operation of a collective agreement: to monitor compliance with this Act and other Acts dealing with employment­related rights in relation to union members: with the authority of an employee, to deal with matters relating to an individual employment agreement or a proposed individual employment agreement or an indi­ vidual employee’s terms and conditions of employment or an individual employee’s proposed terms and condi­ tions of employment: to seek compliance with relevant requirements in any case where non­compliance is detected.
The purposes related to a union’s business include— to discuss union business with union members: (a) to seek to recruit employees as union members: (b) to provide information on the union and union member­ (c) ship to any employee on the premises.
(e) (f) (4) A discussion in a workplace between an employee and a rep­ resentative of a union, who is entitled under this section and section 21 to enter the workplace for the purpose of the dis­ cussion,— (a) must not exceed a reasonable duration; and (b) is not to be treated as a union meeting for the purposes of section 26.

(5) An employer must not deduct from an employee’s wages any amount in respect of the time the employee is engaged in a discussion referred to in subsection (4).
Compare: 1991 No 22 ss 13, 14(1) Subsections (4) and (5) were inserted, as from 1 December 2004, by section 9 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See sec­ tion 73 of that Act for the transitional provisions.
29 Part 4 s 21 Employment Relations Act 2000 Reprinted as at 10 September 2007 Conditions relating to access to workplaces 21 (1) A representative of a union may enter a workplace— (a) (b) for a purpose speciﬁed in section 20(2) if the represen­ tative believes, on reasonable grounds, that a member of the union, to whom the purpose of the entry relates, is working or normally works in the workplace: for a purpose speciﬁed in section 20(3) if the represen­ tative believes, on reasonable grounds, that the union’s membership rule covers an employee who is working or normally works in the workplace.
(2) A representative of a union exercising the right to enter a work­ place— (a) may do so only at reasonable times during any period when any employee is employed to work in the work­ place; and (b) must do so in a reasonable way, having regard to normal business operations in the workplace; and (c) must comply with any existing reasonable procedures and requirements applying in respect of the workplace that relate to— (i) (ii) safety or health; or security.
(3) A representative of a union exercising the right to enter a work­ place must, at the time of the initial entry and, if requested by the employer or a representative of the employer or by a per­ son in control of the workplace, at any time after entering the workplace,— (a) (b) give the purpose of the entry; and produce— (i) (ii) evidence of his or her identity; and evidence of his or her authority to represent the union concerned.
If a representative of a union exercises the right to enter a workplace and is unable, despite reasonable efforts, to ﬁnd the employer or a representative of the employer or the person in control of the workplace, the representative must leave in a prominent place in the workplace a written statement of— (a) (b) the identity of the person who entered the premises; and the union the person is a representative of; and (4) 30 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 4 s 23 (c) (d) the date and time of entry; and the purpose or purposes of the entry.
(5) Nothing in subsections (1) to (4) allows an employer to unrea­ sonably deny a representative of a union access to a workplace.

Compare: 1991 No 22 s 14(2)­(4) 22 When access to workplaces may be denied (1) A representative of a union may be denied access to a work­ place if entry to the premises or any part of the premises might prejudice— (a) (b) the security or defence of New Zealand; or the investigation or detection of offences.
(2) A certiﬁcate given in accordance with subsection (3) is con­ clusive evidence that grounds exist under subsection (1) for denying entry to the premises or part of the premises.
(3) A certiﬁcate is given in accordance with this subsection if— it is given by the Attorney­General; and it certiﬁes, in respect of the premises or part of the premises concerned, that permitting entry under section 20 might prejudice— (i) (ii) the security or defence of New Zealand; or the investigation or detection of offences.
(a) (b) Compare: 1991 No 22 s 15 23 When access to workplaces may be denied on religious grounds A representative of a union may be denied access to a work­ place if— (a) all the employees employed in the workplace are em­ ployed by an employer who holds a current certiﬁcate of exemption issued under section 24; and none of the employees employed in the workplace is a member of a union; and there are no more than 20 employees employed to work in the workplace.
(b) (c) 31 Part 4 s 24 Employment Relations Act 2000 Reprinted as at 10 September 2007 24 (1) (2) 25 Issue of certiﬁcate of exemption The chief executive may, for the purposes of section 23, issue a certiﬁcate of exemption to an employer who is an individual if the chief executive is satisﬁed that the employer is a practis­ ing member of a religious society or order whose doctrines or beliefs preclude membership of any organisation or body other than the religious society or order of which the employer is a member.
The chief executive may revoke a certiﬁcate of exemption if— (a) (b) (c) the employer to whom it has been issued agrees; or it was issued in error; or the chief executive is satisﬁed that the employer has ceased to be a person eligible to be issued with the cer­ tiﬁcate.
Penalty for certain acts in relation to entering workplace Every person is liable to a penalty, imposed by the Authority, who, without lawful excuse,— (a) refuses to allow a representative of a union to enter a workplace; or obstructs a representative of a union in entering a work­ place or in doing anything reasonably necessary for or incidental to the purpose for entering the workplace; or wilfully fails to comply with section 21.
(b) (c) Compare: 1991 No 22 s 14(5) Union meetings Union meetings 26 (1) An employer must allow every union member employed by the employer to attend— (a) (b) at least 1 union meeting (of a maximum of 2 hours’ duration) in the calendar year 2000; and at least 2 union meetings (each of a maximum of 2 hours’ duration) in each calendar year after the calen­ dar year 2000.

The union must give the employer at least 14 days’ notice of the date and time of any union meeting to which subsection (1) applies.
(2) 32 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 4 s 28 (3) The union must make such arrangements with the employer as may be necessary to ensure that the employer’s business is maintained during any union meeting to which subsection (1) applies, including, where appropriate, an arrangement for sufﬁcient union members to remain available during the meet­ ing to enable the employer’s operations to continue.
(4) Work must resume as soon as practicable after the meeting, but the employer is not obliged to pay any union member for a period longer than 2 hours in respect of any meeting.

(5) An employer must allow a union member employed by the employer to attend a union meeting under subsection (1) on ordinary pay to the extent that the employee would otherwise be working for the employer during the meeting.
For the purposes of subsection (5), the union must— (a) supply to the employer a list of members who attended the union meeting; and advise the employer of the duration of the meeting.

(b) Every employer who fails to allow a union member to attend a union meeting in accordance with this section is liable to a penalty imposed by the Authority.
Compare: 1987 No 77 s 57 (6) Registrar of Unions Registrar of Unions The chief executive may appoint an employee of the Depart­ ment to be the Registrar of Unions, and may appoint another employee of the Department to be the Deputy Registrar of Unions.

(2) An employee appointed under subsection (1) may also hold (3) 28 (1) any other ofﬁce or position in the Department.
Subject to the control and direction of the Registrar of Unions, the Deputy Registrar of Unions has and may exercise all the powers, duties, and functions of the Registrar.

Registrar of Unions may seek directions of Authority The Registrar of Unions may apply to the Authority for direc­ tions relating to the exercise of his or her powers, duties, or functions under this Part.
33 (7) 27 (1) Part 4 s 29 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) An application must be served on all persons who, in the Registrar’s opinion, are interested in the application.
Persons who have standing in proceedings relating to unions The following persons have standing to commence or be a party to or be heard on matters within the Authority’s juris­ diction that relate to a union under this Part: (a) (b) (c) (d) (e) the union: a member of the union: another union with a direct interest in the proceedings: the Registrar of Unions: an employer who is directly affected by the existence of the union or its activities: with the leave of the Authority, any other person.
(f) Offence to mislead Registrar Every person commits an offence and is liable on conviction by the Court to a ﬁne not exceeding $5,000 who does or says anything, or omits to do or say anything, with the intention of misleading or attempting to mislead the Registrar of Unions.
Part 5 Collective bargaining Object of this Part The object of this Part is— (a) to provide the core requirements of the duty of good faith in relation to collective bargaining; and to provide that the duty of good faith in section 4 re­ quires parties bargaining for a collective agreement to conclude a collective agreement unless there is a gen­ uine reason, based on reasonable grounds, not to; and to provide for 1 or more codes of good faith to assist the parties to understand what good faith means in collect­ ive bargaining; and to recognise the view of parties to collective bargaining as to what constitutes good faith; and to promote orderly collective bargaining; and (aa) (b) (c) (d) 29 30 31 34 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 32 (e) to ensure that employees conﬁrm proposed collective bargaining for a multi­party collective agreement.
Paragraph (aa) was inserted, as from 1 December 2004, by section 10 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Good faith 32 (1) Good faith in bargaining for collective agreement The duty of good faith in section 4 requires a union and an employer bargaining for a collective agreement to do, at least, the following things: (a) the union and the employer must use their best endeav­ ours to enter into an arrangement, as soon as possible after the initiation of bargaining, that sets out a process for conducting the bargaining in an effective and efﬁ­ cient manner; and the union and the employer must meet each other, from time to time, for the purposes of the bargaining; and the union and employer must consider and respond to proposals made by each other; and even though the union and the employer have come to a standstill or reached a deadlock about a matter, they must continue to bargain (including doing the things speciﬁed in paragraphs (b) and (c)) about any other mat­ ters on which they have not reached agreement; and the union and the employer— (i) must recognise the role and authority of any per­ son chosen by each to be its representative or ad­ vocate; and (ii) must not (whether directly or indirectly) bargain about matters relating to terms and conditions of employment with persons whom the representa­ tive or advocate are acting for, unless the union and employer agree otherwise; and (iii) must not undermine or do anything that is likely to undermine the bargaining or the authority of the other in the bargaining; and the union and employer must provide to each other, on request and in accordance with section 34, information 35 (b) (c) (ca) (d) (e) Part 5 s 33 Employment Relations Act 2000 Reprinted as at 10 September 2007 that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes of the bargaining.
Subsection (1)(b) does not require a union and an employer to continue to meet each other about proposals that have been considered and responded to.
The matters that are relevant to whether a union and an em­ ployer bargaining for a collective agreement are dealing with each other in good faith include— (a) the provisions of a code of good faith that are relevant to the circumstances of the union and the employer; and the provisions of any agreement about good faith en­ tered into by the union and the employer; and the proportion of the employer’s employees who are members of the union and to whom the bargaining re­ lates; and any other matter considered relevant, including back­ ground circumstances and the circumstances of the union and the employer.
(b) (c) (d) For the purposes of subsection (3)(d), circumstances, in rela­ tion to a union and an employer, include— (a) the operational environment of the union and the em­ ployer; and (b) the resources available to the union and the employer.

This section does not limit the application of the duty of good faith in section 4 in relation to bargaining for a collective agreement.
Paragraph (1)(ca) was inserted, as from 1 December 2004, by section 11 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Duty of good faith requires parties to conclude collective agreement unless genuine reason not to The duty of good faith in section 4 requires a union and an employer bargaining for a collective agreement to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to.
For the purposes of subsection (1), genuine reason does not include— (2) (3) (4) (5) 33 (1) (2) 36 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 34 (a) (b) opposition or objection in principle to bargaining for, or being a party to, a collective agreement; or disagreement about including in a collective agreement a bargaining fee clause under Part 6B.

Section 33 was substituted, as from 1 December 2004, by section 12 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

34 Providing information in bargaining for collective agreement (1) This section applies for the purposes of section 32(1)(e).
(2) A request by a union or an employer to the other for informa­ tion must— (a) (b) be in writing; and specify the nature of the information requested in suf­ ﬁcient detail to enable the information to be identiﬁed; and 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 specify a reasonable time within which the information is to be provided.
(c) (d) (3) A union or an employer must provide the information re­ quested— (a) (b) direct to the other; or to an independent reviewer if the union or employer providing the information reasonably considers that it should be treated as conﬁdential information.

(4) A person must not act as an independent reviewer unless ap­ pointed by mutual agreement of the union and employer.
(5) As soon as practicable after receiving information under sub­ section (3), an independent reviewer must— (a) decide whether and, if so, to what extent the information should be treated as conﬁdential; and advise the union and employer concerned of the deci­ sion.
(b) (6) If an independent reviewer decides that the information should be treated as conﬁdential, the independent reviewer must— 37 Part 5 s 35 Employment Relations Act 2000 Reprinted as at 10 September 2007 (a) (b) (c) decide whether and, if so, to what extent the information supports or substantiates the claim or the response to a claim in respect of which the information is requested; and advise the union and employer concerned of the deci­ sion in a way that maintains the conﬁdentiality of the information; and answer any questions from the union or employer that requested the information, in a way that maintains the conﬁdentiality of the information.
(7) Unless the union and employer otherwise agree, information provided under subsection (3) and advice and answers pro­ vided under subsections (5) and (6)— (a) must be used only for the purposes of the bargaining concerned; and (b) must be treated as conﬁdential by the persons conduct­ ing the bargaining concerned; and (c) must not be disclosed by those persons to anyone else, including persons who would be bound by the collective agreement being bargained for.
This section does not limit or affect the Privacy Act 1993.

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

Codes of good faith Codes of good faith The Minister may, by notice in the Gazette,— (a) approve 1 or more codes of good faith recommended by the committee appointed under section 36: approve 1 or more codes of good faith if section 37 ap­ plies.
(b) The notice in the Gazette may, instead of setting out the code of good faith being approved, provide sufﬁcient information to identify the code, specify the date on which it comes into force, and state where copies of the code may be obtained.
35 (1) (2) 38 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 37 (3) 36 (1) (2) (3) (4) (5) The purpose of a code of good faith is to provide guidance about the application of the duty of good faith in section 4 in relation to collective bargaining— (a) (b) (c) generally; or in relation to particular types of situations; or in relation to particular parts or areas of the employment environment.
Appointment of committee to recommend codes of good faith The Minister may appoint a committee for the purpose of rec­ ommending to the Minister 1 or more codes of good faith.

The membership of the committee must comprise— (a) (b) at least 1 person who represents unions; and at least 1 person who represents employers’ organisa­ tions; and (c) such other persons as the Minister thinks ﬁt to appoint.

The Minister must appoint the same number of persons under both subsection (2)(a) and subsection (2)(b).
The chairperson of the committee is the member appointed by the Minister to be the chairperson.

Subject to any directions given to it by the Minister, the com­ mittee may determine its own procedure.
37 Minister may approve code of good faith not (1) (2) (3) recommended by committee The Minister may approve a code of good faith under section 35(1)(b) if— (a) the committee has not recommended a code of good faith within a time speciﬁed by the Minister; or the Minister declines to approve a code of good faith recommended by the committee.
(b) Before the Minister approves a code of good faith under sec­ tion 35(1)(b), the Minister may consult such persons and or­ ganisations as the Minister thinks appropriate.

If the Minister declines to approve a code of good faith recom­ mended by the committee, the Minister must notify the com­ mittee— 39 Part 5 s 38 Employment Relations Act 2000 Reprinted as at 10 September 2007 (a) (b) that the Minister has declined to approve the code; and of the reasons for declining to approve the code.
38 39 Amendment and revocation of code of good faith A code of good faith may be amended or revoked in the same manner as the code is approved.
Authority or Court may have regard to code of good faith The Authority or Court may, in determining whether or not a union and an employer have dealt with each other in good faith in bargaining for a collective agreement, have regard to a code of good faith approved under section 35 that— (a) (b) was in force at the relevant time; and in the form in which it was then in force, related to the circumstances before the Authority or the Court.
Bargaining 40 Who may initiate bargaining (1) Bargaining for a collective agreement may be initiated by— 1 or more unions with 1 or more employers; or (a) 1 or more employers with 1 or more unions.

(b) (2) However, bargaining for a collective agreement may not be initiated by an employer (whether alone or with other employ­ ers) unless the coverage clause will cover work (whether in whole or in part) that is or was covered by another collective agreement to which the employer is or was a party.
41 When bargaining may be initiated (1) If there is no applicable collective agreement in force between a union and an employer, the union or the employer may ini­ tiate bargaining with the other at any time.

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


If there is an applicable collective agreement in force,— (a) a union must not initiate bargaining earlier than 60 days before the date on which the collective agreement ex­ pires: (2) (3) 40 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 42 (b) an employer must not initiate bargaining earlier than 40 days before the date on which the collective agreement expires.
(4) However, if there is more than 1 applicable collective agree­ ment in force that binds 1 or more unions or 1 or more em­ ployers or both that are intended to be parties to the bargain­ ing, then— (a) (b) a union must not initiate bargaining before the later of the following dates: (i) the date that is 120 days before the date on which the last applicable collective agreement expires: the date that is 60 days before the date on which the ﬁrst applicable collective agreement expires: an employer must not initiate bargaining before the later of the following dates: (i) (ii) (ii) the date that is 100 days before the date on which the last applicable collective agreement expires: the date that is 40 days before the date on which the ﬁrst applicable collective agreement expires.
For the purposes of this section, an applicable collective agree­ ment is in force between a union and an employer if the agree­ ment binds employees whose work is intended to come within the coverage clause in the collective agreement being bar­ gained for.
Subsection (4) was amended, as from 1 December 2004, by section 13 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86) by substituting the words “1 or more unions or 1 or more employers” for the words “more than 1 union or more than 1 employer”.

See section 73 of that Act for the transitional provisions.
(5) How bargaining initiated 42 (1) A union or employer initiates bargaining for a collective agree­ ment by giving to the intended party or parties to the agreement a notice that complies with subsection (2).
(2) A notice complies with this subsection if— (a) (b) it is in writing and signed by the union or the employer giving the notice or its duly authorised representative; and it identiﬁes each of the intended parties to the collective agreement; and 41 Part 5 s 43 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) it identiﬁes the intended coverage of the collective agreement.
43 Employees’ attention to be drawn to initiation of bargaining An employer that initiates bargaining or that receives a notice initiating bargaining for a collective agreement must, as soon as possible but not later than 10 days after initiating the bar­ gaining or receiving the notice, draw the existence and cover­ age of the bargaining, and the intended parties to it, to the at­ tention of all employees (whether or not members of a union concerned) whose work would be covered by the intended coverage clause if the collective agreement were entered into.
44 When bargaining initiated (1) Bargaining for a collective agreement is initiated,— (a) if only 1 notice is required under section 42, on the day on which the notice is given: if more than 1 notice is required under section 42, on the day on which the last notice is given.

(b) Consolidated bargaining for a single collective agreement under section 50 is initiated on the day by which all the unions concerned agree to the request from the employer to consolidate bargaining initiated by the unions.
(b) One or more unions proposing to initiate bargaining with 2 or more employers for single collective agreement This section applies to— (a) 1 union proposing to initiate bargaining with 2 or more employers for a single collective agreement: 2 or more unions proposing to initiate bargaining with 1 or more employers for a single collective agreement.
Before bargaining for the single collective agreement is ini­ tiated under section 42, the union or each union (as the case may require) must hold, in accordance with its rules, separate secret ballots of its members employed by each employer in­ tended to be a party to the bargaining.
(2) 45 (1) (2) 42 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 46 (3) A secret ballot may be held only if the members of the union employed by the employer are— (a) (b) not covered by an applicable collective agreement that is in force; or covered by an applicable collective agreement that is in force and the secret ballot is held not earlier than 60 days before the time within which bargaining may be initiated by the union under section 41.
(4) (5) (6) 46 The result of a secret ballot of members of the union em­ ployed by an employer is determined by a simple majority of the members who are entitled to vote and who do vote.
If, at the conclusion of the secret ballots, 2 or more secret bal­ lots have resulted in a decision in favour of bargaining for a single collective agreement, then the union proposing to ini­ tiate bargaining for a single collective agreement may initiate bargaining by giving a notice in accordance with section 42 to each employer in respect of which a secret ballot has resulted in a decision in favour of bargaining for a single collective agreement.
The notice must include the following additional information in respect of each employer whose employees voted in a secret ballot: (a) (b) the name of the employer; and the number of the employer’s employees who are mem­ bers of the union; and the number of those members who voted; and the number of those members who voted in favour of bargaining for a single collective agreement.
(c) (d) Terms of question for secret ballot The question to be voted on in a secret ballot for the purposes of section 45 is— (a) whether the member is in favour of bargaining for a sin­ gle collective agreement, irrespective of the employers or unions concerned; or (b) whether the member is in favour of bargaining for a single collective agreement with named employers or unions; or 43 Part 5 s 47 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) whether the member is in favour of bargaining for a sin­ gle collective agreement except with 1 or more named employers or unions.
47 When secret ballots required after employer initiates (1) bargaining for single collective agreement This section applies to— (a) (b) 2 or more unions in relation to which 1 employer has initiated bargaining for a single collective agreement: 1 or more unions in relation to which 2 or more em­ ployers have initiated bargaining for a single collective agreement.
(2) A union to which subsection (1)(a) applies must hold a secret ballot of its members employed by the employer if the union considers that a majority of its members employed by the em­ ployer would disagree with bargaining for a single collective agreement.
(3) A union to which subsection (1)(b) applies must hold a se­ cret ballot of its members employed by an employer to which subsection (1)(b) applies if it considers that a majority of its members employed by the employer would disagree with bar­ gaining for a single collective agreement.

(4) A secret ballot held under subsection (2) or subsection (3) must be held in accordance with sections 45 and 46, and those sec­ tions apply with all necessary modiﬁcations.
(5) At the conclusion of a secret ballot, the union must inform the following employers of the result of the secret ballot: (a) the employer of the employees in respect of whom the secret ballot has been held; and if subsection (1)(b) applies, the other employers con­ cerned.
(b) (6) At the conclusion of the secret ballots, bargaining for a single collective agreement may continue,— (a) where subsection (1)(a) applies, if the members of each of the 2 unions or of a majority of the unions, if more than 2,— (i) have voted in favour of bargaining for a single collective agreement with the employer; or 44 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 49 (ii) (iii) are considered by their union to be in favour of bargaining for a single collective agreement with the employer; or both; or (b) where subsection (1)(b) applies, if the members of the union or of each union, if there are 2, or of a majority of the unions, if more than 2,— (i) have voted in favour of bargaining for a single collective agreement with the 2 or more employ­ ers; or are considered by the union or each union, as the case may be, to be in favour of bargaining for a single collective agreement with the 2 or more employers; or both.
(ii) (iii) 48 When requirement for secret ballot does not apply Sections 45, 46, and 47 do not apply to bargaining for a single collective agreement if— (a) the collective agreement is intended to replace a single collective agreement that is in force; and the parties to the bargaining are 2 or more of the same parties to the single collective agreement; and the scope of the coverage clause is not wider than the scope of the coverage clause in the single collective agreement.
(b) (c) (2) Parties joining bargaining after it begins 49 (1) A union or employer may become a party to bargaining for a collective agreement after bargaining has been initiated, but only if the requirements of this section are met.
The union or employer that wishes to become a party to the bargaining must, at the time that it seeks to become a party, meet the requirements (including but not limited to those for secret ballots) that would have applied if the union or employer had been a party at the initiation of the bargaining.

The parties to the bargaining must consent to the union or em­ ployer becoming a party to the bargaining.
(3) 45 Part 5 s 50 Employment Relations Act 2000 Reprinted as at 10 September 2007 50 (1) (2) (3) Consolidation of bargaining This section applies if— (a) an employer receives 2 or more notices under section 42 from different unions; and the notices relate, in whole or in part, to the same type of work.
(b) The employer may, within 40 days after receiving the ﬁrst no­ tice, request each union concerned to consolidate the bargain­ ing initiated by each notice into bargaining for a single collect­ ive agreement.
Each union receiving a request under subsection (2) must, within 30 days after receiving the request,— (a) (b) withdraw the notice given under section 42. agree to the request; or (4) A union that does not comply with subsection (3) is to be treated as if it had withdrawn the notice given under section 42.

If all the unions concerned agree to the request, the bargaining initiated by each notice is consolidated into bargaining for a single collective agreement.
(5) Facilitating bargaining This heading was inserted, as from 1 December 2004, by section 14 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
50A Purpose of facilitating collective bargaining (1) The purpose of sections 50B to 50I is to provide a process that enables 1 or more parties to collective bargaining who are hav­ ing serious difﬁculties in concluding a collective agreement to seek the assistance of the Authority in resolving the difﬁcul­ ties.
Sections 50B to 50I do not— (a) prevent the parties from seeking assistance from an­ other person in resolving the difﬁculties; or apply to any agreement or arrangement with the other person providing such assistance.

(b) (2) 46 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 50C Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
50B Reference to Authority (1) One or more matters relating to bargaining for a collective agreement may be referred to the Authority for facilitation to assist in resolving difﬁculties in concluding the collective agreement.

(2) A reference for facilitation— (a) may be made by any party to the bargaining or 2 or more parties jointly; and (b) must be made on 1 or more of the grounds speciﬁed in section 50C(1).
Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
50C Grounds on which Authority may accept reference (1) The Authority must not accept a reference for facilitation un­ less satisﬁed that 1 or more of the following grounds exist: (a) that— (i) (ii) (b) that— (i) (ii) (c) that— (i) (ii) (d) that— in the course of the bargaining, a party has failed to comply with the duty of good faith in section 4; and the failure— (A) was serious and sustained; and has undermined the bargaining: (B) the bargaining has been unduly protracted; and extensive efforts (including mediation) have failed to resolve the difﬁculties that have pre­ cluded the parties from entering into a collective agreement: in the course of the bargaining there has been 1 or more strikes or lockouts; and the strikes or lockouts have been protracted or acrimonious: 47 Part 5 s 50D Employment Relations Act 2000 Reprinted as at 10 September 2007 (i) (ii) in the course of bargaining, a party has proposed a strike or lockout; and the strike or lockout, if it were to occur, would be likely to affect the public interest substantially.
(2) (3) For the purposes of subsection (1)(d)(ii), a strike or lockout is likely to affect the public interest substantially if— (a) the strike or lockout is likely to endanger the life, safety, or health of persons; or the strike or lockout is likely to disrupt social, envir­ onmental, or economic interests and the effects of the disruption are likely to be widespread, long­term, or ir­ reversible.
(b) The Authority must not accept a reference in relation to bar­ gaining for which the Authority has already acted as a facili­ tator unless— (a) circumstances relating to the bargaining have changed; or the bargaining since the previous facilitation has been protracted.

(b) Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
50D Limitation on which member of Authority may provide facilitation A member of the Authority who facilitates collective bargain­ ing must not be the member of the Authority who accepted the reference for facilitation.

Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
50E Process of facilitation (1) The process to be followed during facilitation— (a) must be conducted in private; and (b) is the process determined by the Authority.

(2) During facilitation, the collective bargaining that the facilita­ tion relates to continues subject to the process determined by the Authority.
48 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 50G (3) During facilitation, the Authority— is not acting as an investigative body; and (a) (b) may not exercise the powers it has for investigating mat­ ters.
(4) The provision of facilitation by the Authority may not be challenged or called in question in any proceedings on the ground— (a) that the nature and content of the facilitation was in­ appropriate; or that the manner in which the facilitation was provided was inappropriate.

(b) Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
50F Statements made by parties during facilitation (1) A statement made by a party for the purposes of facilitation is not admissible against the party in proceedings under this Act.

(2) A party may make a public statement about facilitation only if— (a) (b) it is made in good faith; and it is limited to the process of facilitation or the progress being made.

Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

(2) 50G Proposals made or positions reached during facilitation (1) A proposal made by a party or a position reached by parties to collective bargaining during facilitation is not binding on a party after facilitation has come to an end.

This section— (a) (b) Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

applies to avoid doubt; and is subject to any agreement of the parties.
49 Part 5 s 50H Employment Relations Act 2000 Reprinted as at 10 September 2007 50H Recommendation by Authority (1) While assisting parties to bargaining for a collective agree­ ment, the Authority may make 1 or more recommendations about— (a) the process the parties should follow to reach agree­ ment; or the provisions of the collective agreement the parties should conclude; or both.

(c) The Authority may give public notice of a recommendation in such manner as the Authority determines.
(b) (2) (3) A recommendation made by the Authority is not binding on a party, but a party must consider a recommendation before deciding whether to accept the recommendation.

Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
50I Party must deal with Authority in good faith During facilitation, a party to bargaining for a collective agree­ ment must deal with the Authority in good faith.

Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Determining collective agreement if breach of duty of good faith This heading was inserted, as from 1 December 2004, by section 14 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
50J Remedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining (1) A party to bargaining for a collective agreement may apply, on the grounds speciﬁed in subsection (3), to the Authority for a determination ﬁxing the provisions of the collective agreement being bargained for.
The Authority may ﬁx the provisions of the collective agree­ ment being bargained for if it is satisﬁed that— (a) the grounds in subsection (3) have been made out; and (2) 50 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 51 (3) (4) (5) (6) (7) it is appropriate, in all the circumstances, to do so.
(b) The grounds are that— (a) has occurred in relation to the bargaining; and a breach of the duty of good faith in section 4— (i) (ii) was sufﬁciently serious and sustained as to sig­ niﬁcantly undermine the bargaining; and all other reasonable alternatives for reaching agreement have been exhausted; and ﬁxing the provisions of the collective agreement is the only effective remedy for the party or parties affected by the breach of the duty of good faith.
(b) (c) The Authority may make a determination under this section whether or not any penalty for a breach of good faith has been awarded under section 4A in relation to the same bargaining and whether or not the breach is the same breach.

The effect of a determination of the Authority ﬁxing the provi­ sions of a collective agreement is to make the collective agree­ ment binding and enforceable as if it had been— ratiﬁed as required by section 51; and (a) (b) signed by the parties under section 54(1)(b).
Section 59 applies to the determination as if it were a collective agreement.

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

Sections 50A to 50J were inserted, as from 1 December 2004, by section 14 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Collective agreements Ratiﬁcation of collective agreement 51 (1) A union must not sign a collective agreement or a variation of it unless the agreement or variation has been ratiﬁed in accord­ ance with the ratiﬁcation procedure notiﬁed under subsection (2).
51 Part 5 s 52 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) At the beginning of bargaining for a collective agreement or a variation of it, a union must notify the other intended party or parties to the collective agreement of the procedure for ratiﬁ­ cation by the employees to be bound by it that must be com­ plied with before the union may sign the collective agreement or variation of it.
52 When collective agreement comes into force and expires (1) A collective agreement comes into force on— (a) (b) the date speciﬁed in the agreement as the date on which it comes into force; or if no such date is speciﬁed, the date on which the last party to the agreement, or its duly authorised represen­ tative, signed the agreement.

(2) A collective agreement may provide that 1 or more of its pro­ visions have effect from 1 or more dates before or after the date on which the agreement comes into force.
(3) A collective agreement expires on the close of the earliest of the following dates: (a) the date speciﬁed in the agreement as the date on which the agreement expires: the date on which an event occurs, being an event that is speciﬁed by the agreement as an event on the occurrence of which the agreement expires: the date that is the third anniversary of the agreement coming into force.

(b) (c) (4) Subsection (3) applies subject to section 53.
53 Continuation of collective agreement after speciﬁed expiry date (1) A collective agreement that would otherwise expire as pro­ if subsection (2) is complied with; and for the period speciﬁed in subsection (3).

vided in section 52(3) continues in force— (a) (b) This subsection is complied with if the union initiated collect­ ive bargaining before the collective agreement expired and for the purpose of replacing the collective agreement.
(2) 52 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 55 (3) The period is the period (not exceeding 12 months) during which bargaining continues for a collective agreement to re­ place the collective agreement that has expired.

Form and content of collective agreement 54 (1) A collective agreement has no effect unless— (a) (b) it is in writing; and it is signed by each union and employer that is a party to the agreement.
(2) A collective agreement may contain such provisions as the parties to the agreement mutually agree on.
(3) However, a collective agreement— (a) must contain— (i) (iii) (iv) (v) a coverage clause; and (ii) a plain language explanation of the services available for the resolution of employment rela­ tionship problems, including a reference to the period of 90 days in section 114 within which a personal grievance must be raised; and a clause providing how the agreement can be varied; and the date on which the agreement expires or an event on the occurrence of which the agreement is to expire; and (b) must not contain anything— (i) (ii) contrary to law; or inconsistent with this Act.
Subsection (3)(a)(ii) was repealed, as from 1 December 2004, by section 15 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Deduction of union fees 55 (1) A collective agreement is to be treated as if it contains a provi­ sion that requires an employer that is a party to the agreement to deduct, with the consent of a union member, the member’s union fee from the member’s salary or wages on a regular basis during the year.
53 Part 5 s 56 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) A collective agreement may exclude or vary the effect of sub­ section (1).

(3) Union fees deducted from a member’s salary or wages must be paid to the union concerned in accordance with any arrange­ ment agreed with the union.
Application of collective agreement 56 (1) A collective agreement that is in force binds and is enforceable by— (a) (b) the union and the employer that are the parties to the agreement; and employees— (i) who are employed by an employer that is a party to the agreement; and (ii) who are or become members of a union that is a party to the agreement; and (iii) whose work comes within the coverage clause in the agreement.
(1A) However, an employee who is bound by a collective agree­ ment and who holds a minimum wage exemption permit under section 8 of the Minimum Wage Act 1983 may be paid wages at the rate speciﬁed in the permit,— (a) (b) while the permit is in force; and if the union that is a party to the collective agreement agrees.
If the registration of a union that is a party to a collective agree­ ment is cancelled or the union ceases to be an incorporated so­ ciety, the collective agreement continues to bind the employer or employers who are parties to the agreement, and the mem­ bers of the union who were bound by the collective agreement immediately before the cancellation of the union’s registration or the cessation of the union as an incorporated society.
If the union’s registration is cancelled as a result of the union’s amalgamation with 1 or more other unions, the collective agreement binds the amalgamated union.

Subsection (1A) was inserted, as from 1 December 2004, by section 16 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
(2) (3) 54 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 56A Subsection (1A) was amended, as from 28 March 2007, by section 5(1) Min­ imum Wage Amendment Act 2007 (2007 No 12) by substituting “a minimum wage exemption permit” for “an under­rate worker’s permit”.
56A Application of collective agreement to subsequent parties (1) An employer who is not a party to a collective agreement may (c) (b) become a party to the collective agreement if— (a) the agreement provides for an employer to become a party to the agreement after it has been signed by the original parties to the agreement; and the work of some or all of the employer’s employees comes within the coverage clause in the agreement; and the employees referred to in paragraph (b) are not bound by another collective agreement in respect of their work for the employer; and the employer notiﬁes all the parties to the agreement in accordance with subsection (5) that the employer pro­ poses to become a party to the agreement.
(2) On the day after the day on which all parties to the collective agreement have been notiﬁed in accordance with subsection (5),— (a) (d) (b) the employer becomes a party to the collective agree­ ment; and the collective agreement also binds and is enforceable by— (i) (ii) the employer: employees— (A) who are employed by the employer; and (B) who are or become members of a union that is a party to the agreement; and (C) whose work comes within the coverage (3) A union that is not a party to a collective agreement may be­ clause in the agreement.
come a party to the collective agreement if— (a) the agreement provides for a union to become a party to the agreement after it has been signed by the original parties to the agreement; and the union has members doing work that comes within the coverage clause of the collective agreement; and (b) 55 Part 5 s 57 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) (d) as a result of a secret ballot of those members, a major­ ity of them who are entitled to vote and do vote are in favour of the union becoming a party to the collective agreement; and the union notiﬁes all the parties to the collective agree­ ment in accordance with subsection (5) that the union proposes to become a party to the agreement.
(4) On the day after the day on which all parties to the collective agreement have been notiﬁed in accordance with subsection (5),— (a) the union becomes a party to the collective agreement; and the collective agreement also binds and is enforceable by— (i) (ii) the union: employees— (A) who are employed by an employer that is (b) a party to the agreement; and (B) who are or become members of the union; and (C) whose work comes within the coverage clause in the agreement.
For the purposes of this section, a party to a collective agree­ ment is notiﬁed— (a) (b) when the notice is given to the party; or if the notice is posted to the party, on the 7th day after the day on which the notice is posted.

For the purposes of subsection (l)(b) and (c), employees in­ cludes persons whom the employer might employ in the fu­ ture.

Section 56A was inserted, as from 1 December 2004, by section 17 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Employee bound by only 1 collective agreement in respect of same work If an employee is a member of more than 1 union, the em­ ployee is bound by only 1 collective agreement covering the same work done by the employee, being the collective (5) (6) 57 56 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 59 agreement resulting from the bargaining ﬁrst initiated which covered the employee’s work.
58 Employee who resigns as member of union but does not resign as employee (1) A member of a union who is bound by a collective agreement and who resigns as a member of the union but does not resign from his or her employment, may not be subject to any other bargaining for a collective agreement or bound by any other collective agreement until the 60th day before the expiry date of the collective agreement binding on the member before re­ signing as a member of the union.
For the purposes of subsection (1), the expiry date of a col­ lective agreement is determined under section 52(3) without taking section 53 into account.

(2) 59 (1) (2) Copy of collective agreement to be delivered to chief executive The parties to a collective agreement must ensure that, as soon as practicable after they enter into the agreement, a copy of the agreement is delivered to the chief executive.
The copy of the agreement delivered to the chief executive must include any document referred to, or incorporated by reference, in the collective agreement, unless the document is publicly available.

(3) Nothing in the Ofﬁcial Information Act 1982 applies to copies of collective agreements delivered to the chief executive under subsection (1).
The information contained in the copies of collective agree­ ments delivered to the chief executive under subsection (1) must be used only for statistical or analytical purposes.

(4) Undermining collective bargaining or collective agreement This heading was inserted, as from 1 December 2004, by section 18 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
57 Part 5 s 59A Employment Relations Act 2000 Reprinted as at 10 September 2007 59A Interpretation In sections 59B and 59C, reached, in relation to a term or con­ dition in bargaining for a collective agreement, means a term or condition that the parties have agreed or accepted should be a term or condition of the collective agreement if the agree­ ment is concluded and ratiﬁed.
Sections 59A to 59C were inserted, as from 1 December 2004, by section 18 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
59B Breach of duty of good faith to pass on, in certain (1) circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee who is not bound by a collective agreement should be the same or substantially the same as a term or condition in a collective agreement that binds the employer.
(2) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the employer does so with the intention of undermining the collective agreement; and the effect of the employer doing so is to undermine the collective agreement.
(b) (3) It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee should be the same or substantially the same as a term or condition reached in bargaining for a collective agreement.
(4) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the employer does so with the intention of undermining the collective bargaining; or the effect of the employer doing so is to undermine the collective bargaining.

(b) It is not a breach of the duty of good faith in section 4 if any­ thing referred to in subsection (2) or subsection (4) is done with the agreement of the union concerned.
(5) 58 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 5 s 59C (6) In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account: (a) whether the employer bargained with the employee be­ fore they agreed on the term or condition of employ­ ment: (c) (b) whether the employer consulted the union in good faith before agreeing to the term or condition of employment: the number of the employer’s employees bound by the collective agreement or covered by the collective bar­ gaining compared to the number of the employer’s em­ ployees not bound by the collective agreement or not covered by the collective bargaining: how long the collective agreement has been in force: the application of section 63.
(d) (e) Subsection (6) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).

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

Sections 59A to 59C were inserted, as from 1 December 2004, by section 18 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
(7) (8) 59C Breach of duty of good faith to pass on, in certain (1) circumstances, in collective agreement provisions agreed in other collective bargaining or another collective agreement It is not a breach of the duty of good faith in section 4 for an employer to conclude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions in another collective agreement to which the em­ ployer is a party.
(2) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the intention of the employer is to undermine the other collective agreement; and the effect of the employer doing so is to undermine the other collective agreement.
(b) 59 Part 5 s 59C Employment Relations Act 2000 Reprinted as at 10 September 2007 (3) It is not a breach of the duty of good faith in section 4 for an employer to conclude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions reached in bargaining for another collective agree­ ment.
(4) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the employer does so with the intention of undermining the other collective bargaining; or the effect of the employer doing so is to undermine the other collective bargaining.

(b) It is not a breach of the duty of good faith in section 4 if any­ thing referred to in subsection (2) or subsection (4) is done with the agreement of the parties to the other collective agree­ ment or collective bargaining.
In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account: (a) whether the employer and union bargained before agreeing on the provision: (c) (b) whether the employer and union consulted, in good faith, the parties to the other collective agreement or collective bargaining: the number of the employer’s employees bound by the collective agreement or covered by the collective bar­gaining compared to the number of the employer’s employees bound by the other collective agreement or covered by the other collective bargaining: how long the other collective agreement has been in force.
(d) Subsection (4) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).

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

Sections 59A to 59C were inserted, as from 1 December 2004, by section 18 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
(5) (6) (7) (8) 60 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6 s 60A Part 6 Individual employees’ terms and conditions of employment 60 Object of this Part The object of this Part is— (a) (b) (c) to specify the rules for determining the terms and con­ ditions of an employee’s employment; and to require new employees, whose terms and conditions of employment are not determined with reference to a collective agreement, to be given sufﬁcient information and an adequate opportunity to seek advice before en­ tering into an individual employment agreement; and to recognise that, in relation to individual employees and their employers, good faith behaviour is— (i) promoted by providing protection against unfair bargaining; and required when entering into and varying indi­ vidual employment agreements; and consistent with, but not limited to, the implied term of mutual trust and conﬁdence in the rela­ tionship between employee and employer.
(ia) (ii) Paragraph (c)(ia) was inserted, as from 1 December 2004, by section 19(1) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Paragraph (c)(ii) was amended, as from 1 December 2004, by section 19(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by inserting the words “, but not limited to,” after the words “consistent with”.

See section 73 of that Act for the transitional provisions.
60A Good faith in bargaining for individual employment (1) (2) agreement The matters that are relevant to whether an employee and em­ ployer bargaining for an individual employment agreement are dealing with each other in good faith include the circumstances of the employee and employer.
For the purposes of subsection (1), circumstances, in relation to an employee and an employer, include— (a) the operational environment of the employee and em­ ployer; and the resources available to the employee and employer.

(b) 61 Part 6 s 61 Employment Relations Act 2000 Reprinted as at 10 September 2007 Section 60A was inserted, as from 1 December 2004, by section 20 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Employee bound by applicable collective agreement may agree to additional terms and conditions of employment The terms and conditions of employment of an employee who is bound by an applicable collective agreement may include any additional terms and conditions that are— (a) mutually agreed to by the employee and the employer, whether before, on, or after the date on which the em­ ployee became bound by the collective agreement; and not inconsistent with the terms and conditions in the collective agreement.
(b) If the applicable collective agreement expires or the employee resigns from the union that is bound by the agreement,— (a) the employee is employed under an individual employ­ ment agreement based on the collective agreement and any additional terms and conditions agreed under sub­ section (1); and the employee and employer may, by mutual agreement, vary that individual employment agreement as they think ﬁt.
(b) Employer’s obligations in respect of new employee who is not member of union This section— (a) applies to a new employee who— (i) is not a member of a union that is a party to a collective agreement that covers the work to be done by the employee; and enters into an individual employment agreement with an employer that is a party to a collective agreement that covers the work to be done by the employee; but (ii) (b) does not apply to an employee who— (i) resigns as a member of a union and enters into an individual employment agreement with the same employer; or 61 (1) (2) 62 (1) 62 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6 s 62 (ii) enters into a new individual employment agree­ ment with the same employer.
(1A) For the purposes of subsection (1), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
(2) At the time when the employee enters into the individual em­ ployment agreement with an employer, the employer must— (a) inform the employee— (i) (ii) (iii) (iv) (v) that the collective agreement exists and covers work to be done by the employee; and that the employee may join the union that is a party to the collective agreement; and about how to contact the union; and that, if the employee joins the union, the em­ ployee will be bound by the collective agree­ ment; and that, during the ﬁrst 30 days of the employee’s employment, the employee’s terms and condi­ tions of employment comprise— (A) the terms and conditions in the collective agreement that would bind the employee if the employee were a member of the union; and any additional terms and conditions mu­ tually agreed to by the employee and employer that are not inconsistent with the terms and conditions in the collective agreement; and (B) (b) (c) give the employee a copy of the collective agreement; and if the employee agrees, inform the union as soon as practicable that the employee has entered into the in­ dividual employment agreement with the employer.
(3) If the work to be done by the employee is covered by more than 1 collective agreement, the employer must— 63 Part 6 s 63 Employment Relations Act 2000 Reprinted as at 10 September 2007 (4) 63 (1) (2) (a) (b) comply with subsection (2) in relation to the collective agreement that binds more of the employer’s employ­ ees in relation to the work the new employee will be performing than any of the other collective agreements; and inform the employee of the existence of the other agree­ ment or agreements.
Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.

Subsection (1)(a) was substituted, as from 1 December 2004, by section 21(1) Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Subsection (1A) was inserted, as from 1 December 2004, by section 21(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Subsection (3)(a) was amended, as from 1 December 2004, by section 21(3) Employment Relations Amendment Act (No 2) 2004 (2004 No 86) by inserting the words “in relation to the work the new employee will be performing” after the words “that binds more of the employer’s employees”.

See section 73 of that Act for the transitional provisions.
Terms and conditions of employment of new employee who is not member of union The terms and conditions of employment of an employee to whom section 62 applies are determined in accordance with subsections (2) to (5).
For the ﬁrst 30 days after the employee enters into an indi­ vidual employment agreement, the employee’s terms and con­ ditions of employment comprise— (a) the terms and conditions in the collective agreement that would bind the employee if the employee were a mem­ ber of the union; and any additional terms and conditions mutually agreed to by the employee and employer that are not inconsistent with the terms and conditions in the collective agree­ ment.
(b) (2A) However, the employee’s terms and conditions of employment do not include any bargaining fee payable under Part 6B.

If the work to be done by the employee is covered by more than 1 collective agreement, subsection (2)(a) applies to the collect­ ive agreement that binds more of the employer’s employees in (3) 64 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6 s 63A relation to the work the employee will be performing than any of the other collective agreements.
(4) No term or condition of employment may be expressed to alter automatically after the 30­day period to be inconsistent with the collective agreement.

(6) (5) After the 30­day period expires, the employee and the em­ ployer may, by mutual agreement, vary the individual employ­ ment agreement as they think ﬁt.
For an employee who holds a minimum wage exemption per­ mit under section 8 of the Minimum Wage Act 1983, the terms and conditions under subsection (2) are subject to the terms of the permit relating to the wages to be paid.

Subsection (2A) was inserted, as from 1 December 2004, by section 22(1) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Subsection (3) was amended, as from 1 December 2004, by section 22(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by inserting “in relation to the work the employee will be performing” after “employer’s employees”.

See section 73 of that Act for the transitional provisions.

Subsection (6) was inserted, as from 1 December 2004, by section 22(3) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Subsection (6) was amended, as from 28 March 2007, by section 5(1) Minimum Wage Amendment Act 2007 (2007 No 12) by substituting “a minimum wage exemption permit” for “an under­rate worker’s permit”.
63A Bargaining for individual employment agreement or (1) individual terms and conditions in employment agreement This section applies when bargaining for terms and conditions of employment in the following situations: (a) under section 61(1), in relation to additional terms and conditions to the applicable collective agreement: under section 61(2), in relation to— (i) additional terms and conditions to the collective agreement on which the individual employment agreement is based; and variations to the individual employment agree­ ment in subparagraph (i): (ii) under section 63(2), in relation to additional terms and conditions for the ﬁrst 30 days of an individual employ­ ment agreement: 65 (b) (c) Part 6 s 63A Employment Relations Act 2000 Reprinted as at 10 September 2007 (d) (e) (f) (g) (h) under section 63(5), in relation to variations to terms and conditions of an individual employment agreement after the 30­day period: in relation to terms and conditions of an individual em­ ployment agreement for an employee if no collective agreement covers the work done, or to be done, by the employee: where a ﬁxed term of employment, or probationary or trial period of employment, is proposed: under section 69M or section 69N in relation to em­ ployee protection provisions in individual employment agreements: under section 69I in relation to redundancy entitlements with a new employer.
The employer must do at least the following things: (a) provide to the employee a copy of the intended agree­ ment, or the part of the intended agreement, under dis­ cussion; and advise the employee that he or she is entitled to seek in­ dependent advice about the intended agreement or any part of the intended agreement; and give the employee a reasonable opportunity to seek that advice; and consider any issues that the employee raises and re­ spond to them.
(b) (c) (d) Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.

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

The requirements imposed by this section are in addition to any requirements that may be imposed under any provision in this Act.
For the purpose of subsection (1)(e), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
(2) (3) (4) (5) (6) 66 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6 s 65 (7) 64 65 (1) In this section, employee includes a prospective employee.

Section 63A was inserted, as from 1 December 2004, by section 23 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Opportunity to seek advice for new employee where no collective agreement applies [Repealed] Section 64 was repealed, as from 1 December 2004, by section 24 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Terms and conditions of employment where no collective agreement applies The individual employment agreement of an employee whose work is not covered by a collective agreement that binds his or her employer— (a) must be in writing; and (b) may contain such terms and conditions as the employee and employer think ﬁt.
(2) However, the individual employment agreement— (a) must include— (i) (ii) (iii) (iv) (v) (vi) the names of the employee and employer con­ cerned; and a description of the work to be performed by the employee; and an indication of where the employee is to perform the work; and an indication of the arrangements relating to the times the employee is to work; and the wages or salary payable to the employee; and a plain language explanation of the services available for the resolution of employment rela­ tionship problems, including a reference to the period of 90 days in section 114 within which a personal grievance must be raised; and (b) must not contain anything— (i) (ii) contrary to law; or inconsistent with this Act.
67 Part 6 s 65A Employment Relations Act 2000 Reprinted as at 10 September 2007 (3) To determine for the purposes of subsection (1) whether the work of an employee is covered by a collective agreement that binds the employer, a collective agreement that includes a coverage clause referring to named employees, or the work or type of work done by named employees, to whom the collect­ ive agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
Subsection (3) was inserted, as from 1 December 2004, by section 25 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
65A Deduction of union fees (1) An individual employment agreement of an employee who is a member of a union is to be treated as if it contains a provi­ sion that requires the employee’s employer to deduct, with the consent of the employee, the employee’s union fee from the employee’s salary or wages on a regular basis during the year.

(2) An individual employment agreement may exclude or vary the effect of subsection (1).
(3) Union fees deducted from an employee’s salary or wages under subsection (1) must be paid to the union concerned in accordance with any arrangement agreed with the union.

Section 65A was inserted, as from 1 December 2004, by section 26 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Fixed term employment 66 (1) An employee and an employer may agree that the employment at the close of a speciﬁed date or period; or on the occurrence of a speciﬁed event; or at the conclusion of a speciﬁed project.
of the employee will end— (a) (b) (c) Before an employee and employer agree that the employment of the employee will end in a way speciﬁed in subsection (1), the employer must— (a) have genuine reasons based on reasonable grounds for specifying that the employment of the employee is to end in that way; and (2) 68 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6 s 67 (b) advise the employee of when or how his or her employ­ ment will end and the reasons for his or her employment ending in that way.
(3) (4) (5) The following reasons are not genuine reasons for the purposes of subsection (2)(a): (a) to exclude or limit the rights of the employee under this Act: to establish the suitability of the employee for perman­ ent employment.

to exclude or limit the rights of an employee under the Holidays Act 2003.
(b) (c) If an employee and an employer agree that the employment of the employee will end in a way speciﬁed in subsection (1), the employee’s employment agreement must state in writing— the way in which the employment will end; and (a) (b) the reasons for ending the employment in that way.
Failure to comply with subsection (4), including failure to comply because the reasons for ending the employment are not genuine reasons based on reasonable grounds, does not affect the validity of the employment agreement between the employee and the employer.
(6) However, if the employer does not comply with subsection (4), the employer may not rely on any term agreed under subsec­ tion (1)— (a) to end the employee’s employment if the employee elects, at any time, to treat that term as ineffective; or as having been effective to end the employee’s employ­ ment, if the former employee elects to treat that term as ineffective.

(b) Subsection (3)(c) was inserted, as from 1 April 2004, by section 91(2) Holidays Act 2003 (2003 No 129).
Subsections (4) to (6) were inserted, as from 1 December 2004, by section 27 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Probationary arrangements 67 (1) Where the parties to an employment agreement agree as part of the agreement that an employee will serve a period of pro­ bation or trial after the commencement of the employment,— 69 Part 6 s 68 Employment Relations Act 2000 Reprinted as at 10 September 2007 (a) (b) the fact of the probation or trial period must be speciﬁed in writing in the employment agreement; and neither the fact that the probation or trial period is speci­ ﬁed, nor what is speciﬁed in respect of it, affects the ap­ plication of the law relating to unjustiﬁable dismissal to a situation where the employee is dismissed in reliance on that agreement during or at the end of the probation or trial period.
(2) Failure to comply with subsection (1)(a) does not affect the validity of the employment agreement between the parties.

(3) However, if the employer does not comply with subsection (1)(a), the employer may not rely on any term agreed under subsection (1) that the employee serve a period of probation or trial if the employee elects, at any time, to treat that term as ineffective.
Subsections (2) and (3) were inserted, as from 1 December 2004, by section 28 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Unfair bargaining for individual employment agreements Bargaining for an individual employment agreement is unfair if— (a) 1 or more of paragraphs (a) to (d) of subsection (2) apply to a party to the agreement (person A); and the other party to the agreement (person B) or another person who is acting on person B’s behalf— (i) (b) (ii) knows of the circumstances described in the para­ graph or paragraphs that apply to person A; or ought to know of the circumstances in the para­ graph or paragraphs that apply to person A be­ cause person B or the other person is aware of facts or other circumstances from which it can be reasonably inferred that the paragraph or para­ graphs apply to person A.
The circumstances are that person A, at the time of bargaining for or entering into the agreement,— (a) is unable to understand adequately the provisions or implications of the agreement by reason of diminished capacity due (for example) to— 68 (1) (2) 70 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6 s 69 age; or sickness; or a disability relating to communication; or emotional distress; or (i) (ii) (iii) mental or educational disability; or (iv) (v) reasonably relies on the skill, care, or advice of person B or a person acting on person B’s behalf; or is induced to enter into the agreement by oppressive means, undue inﬂuence, or duress; or (b) (c) (3) (4) 69 (1) (d) where section 63A applied, did not have the information or the opportunity to seek advice as required by that section.
In this section, individual employment agreement includes a term or condition of an individual employment agreement.

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

Subsection (2)(d) was amended, as from 1 December 2004, by section 29 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by substituting the expression “63A” for the expression “64”.
See section 73 of that Act for the transitional provisions.

Remedies for unfair bargaining If a party to an individual employment agreement is found to have bargained unfairly under section 68, the Authority may do 1 or more of the following things: (a) make an order that the party pay to the other party such sum, by way of compensation, as the Authority thinks ﬁt: (b) make an order cancelling or varying the agreement: (c) make such other order as it thinks ﬁt in the circum­ stances.
(2) The Authority must not make an order under subsection (1)(b) unless the requirements in section 164 have been met, and that section applies accordingly with all necessary modiﬁcations.

71 Part 6A s 69A Employment Relations Act 2000 Reprinted as at 10 September 2007 Part 6A Continuity of employment if employees’ work affected by restructuring Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to Part 6A read “Continuity of employment if employer’s business re­ structured”.
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.

Subpart 1—Speciﬁed categories of employees Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to subpart 1 of Part 6A read “Speciﬁed categories of employees”.

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (com­ prising sections 69OA to 69OG) coming into force as from 13 December 2006.
See section 11 of that Act as to the transitional provisions.
69A Object of this subpart The object of this subpart is to provide protection to speciﬁed categories of employees if, as a result of a proposed restruc­ turing, their work is to be performed by another person and, to this end, to give— (a) the employees a right to elect to transfer to the other person as employees on the same terms and conditions of employment; and the employees who have transferred a right,— (i) subject to their employment agreements, to bar­ gain for redundancy entitlements from the other person if made redundant by the other person for reasons relating to the transfer of the employees or to the circumstances arising from the transfer of the employees; and (b) 72 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69B (ii) if redundancy entitlements cannot be agreed with the other person, to have the redundancy entitle­ ments determined by the Authority.
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69B Interpretation In this subpart, unless the context otherwise requires,— agreement means a contract or arrangement contracting in has the meaning set out in section 69C contracting out has the meaning set out in section 69C independent contractor means a person engaged to perform work under an agreement that is not an employment agreement new employer has the meaning set out in section 69D redundancy entitlements includes redundancy compensation restructuring— (a) means— (i) (ii) (iii) (iv) contracting out; or contracting in; or subsequent contracting; or selling or transferring an employer’s business (or part of it) to another person; but (b) to avoid doubt, does not include,— (i) (ii) in the case of an employer that is a company, the sale or transfer of any or all of the shares in the company; or any contract, arrangement, sale, or transfer en­ tered into, made, or concluded while the em­ ployer is adjudged bankrupt or in receivership or liquidation subcontractor— (a) means a person engaged by an independent contractor to perform work— 73 Part 6A s 69C Employment Relations Act 2000 Reprinted as at 10 September 2007 (i) (ii) under an agreement that is not an employment agreement; and that the independent contractor has agreed to per­ form for another person; and includes another person engaged by a subcontractor (within the meaning of paragraph (a)) to perform the work or part of the work under an agreement that is not an employment agreement (b) subsequent contracting has the meaning set out in section 69C work, in relation to work performed by an employee, includes part of the work performed by the employee.
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69C Meaning of contracting in, contracting out, and subsequent contracting In this subpart, unless the context otherwise requires, con­ tracting in means a situation where— (a) a person (person A) has an agreement with another per­ son (person B) under which person B performs work as an independent contractor for person A; and the work or some of the work is actually performed by employees of person B or of a subcontractor; and the agreement, or that part of the agreement, under which person B performs the work expires or is termin­ ated; and the work is to be performed by person A or employees (if any) of person A.
(b) (c) (d) In this subpart, unless the context otherwise requires, con­ tracting out means a situation where— (a) a person (person A) enters into an agreement with an­ other person (person B) under which person B is to per­ (1) (2) 74 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69C (b) form work as an independent contractor for person A; and the employees of person A are actually performing, or employed to undertake, the work or some of the work before the agreement takes effect.
(3) (4) (5) (6) person B or employees (if any) of person B; or a subcontractor or employees (if any) of a subcontractor.
The deﬁnition of contracting out applies whether or not the work is to be performed by— (a) (b) In this subpart, unless the context otherwise requires, subsequent contracting means a situation where— (a) a person (person A) has an agreement with another per­ son (person B) under which person B performs work as an independent contractor for person A; and the work or some of the work is actually performed by employees of person B or of a subcontractor; and the agreement or that part of the agreement under which person B performs the work expires or is terminated; and person A enters into an agreement with another person (person C) under which person C is to perform the work as an independent contractor for person A.
(b) (c) (d) The deﬁnition of subsequent contracting applies whether or not— (a) the work concerned has previously been the subject of a subsequent contracting: the engagement of person B as an independent contrac­ tor constituted a contracting out: the work is to be performed by— (i) (ii) person C or employees (if any) of person C; or a subcontractor or employees (if any) of a sub­ contractor.
(b) (c) To avoid doubt, in the deﬁnitions of contracting in, contract­ ing out, and subsequent contracting, references to work in relation to person A— (a) mean work that person A is doing or would otherwise (b) do in person A’s own right; and include work that person A is doing or would otherwise do as an independent contractor or as a subcontractor.
75 Part 6A s 69D Employment Relations Act 2000 Reprinted as at 10 September 2007 Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69D Meaning of new employer (1) In section 69I, new employer,— (a) (b) (c) (d) in relation to contracting in, means person A in the def­ inition of that term: in relation to contracting out,— (i) (ii) means person B in the deﬁnition of that term; but if, instead of person B or employees (if any) of person B performing the work concerned, person B subcontracts the work (whether before or at the same time as the contracting out), means the subcontractor: in relation to subsequent contracting,— (i) (ii) means person C in the deﬁnition of that term; but if, instead of person C or employees (if any) of person C performing the work concerned, person C subcontracts the work (whether before or at the same time as the subsequent contracting), means the subcontractor: in relation to the sale or transfer of an employer’s busi­ ness (or part of it), means the person to whom the busi­ ness (or part of it) is sold or transferred.
In the rest of this subpart, new employer means the person to whom an employee— (a) may elect or has elected to transfer under section 69I; or (b) Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

has transferred under that section.


Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising (2) 76 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69E sections 69OA to 69OG) coming into force as from 13 December 2006.
See section 11 of that Act as to the transitional provisions.

69E Examples of contracting in, contracting out, and (1) subsequent contracting This section contains examples of contracting in, contracting out, and subsequent contracting.

(2) Whether, in the following examples, an employee comes within the protection provided by this subpart depends on whether section 69F applies to the employee.

This subsection sets out examples of contracting in.
(3) Example A A rest home carries on business in the age­related residential care sector.

Instead of providing food catering services through its employees, it enters into an agreement with an independent contractor to provide those services.

The agreement under which the independent contractor provides those services to the rest home expires or is terminated.

The rest home then uses its employees or engages further em­ ployees to provide those services.
Employees of the independent contractor to whom section 69F applies may elect to transfer to the rest home.

Example B The circumstances in this example are the same as in example A except that the independent contractor engages a subcontractor to provide food catering services to the rest home.

As a result of the agreement between the rest home and the inde­ pendent contractor expiring or being terminated, the agreement between the independent contractor and the subcontractor ex­ pires or is terminated.
Employees of the subcontractor to whom section 69F applies may elect to transfer to the rest home.

Note In both example A and example B, it does not matter whether the rest home’s or the independent contractor’s employees originally provided the food catering services or whether the work was con­ tracted out or subcontracted at the outset.
In example A and example B, the persons relate to the deﬁnition of contracting in as follows: •• the rest home is person A: 77 Part 6A s 69E Employment Relations Act 2000 Reprinted as at 10 September 2007 Example B—continued •• the independent contractor is person B.

(4) This subsection sets out examples of contracting out.

Example C A school has employees who provide cleaning services.

The school then enters into an agreement with an independent contractor to do that work or some of that work.
The employees of the school to whom section 69F applies may elect to transfer to the independent contractor.

Note Example C would not be a contracting out if, at the outset, the school did not have employees providing cleaning services.

In example C, the persons relate to the deﬁnition of contracting out as follows: •• •• the school is person A: the independent contractor is person B.
Example D The circumstances in this example are the same as in example C, except that later on the independent contractor decides that, instead of using its employees for the contract for the school, it will engage a subcontractor to do the work or some of the work.

Employees of the independent contractor to whom section 69F applies may elect to transfer to the subcontractor.
Note In example D, the persons relate to the deﬁnition of contracting out as follows: •• •• Note In example C and example D if, at the outset, the independent contractor did not have employees providing cleaning services, but subcontracts the work straight away, then the employees to whom section 69F applies may elect to transfer to the subcon­ tractor.

the independent contractor is person A: the subcontractor is person B.

(5) This subsection sets out examples of subsequent contracting.
Example E An airport operator enters into an agreement with an independent contractor to provide food catering services at the airport.

78 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69E Example E—continued Some time later, the agreement under which the independent contractor provides those services expires or is terminated.

The airport operator then enters into an agreement with a second independent contractor to provide food catering services at the airport.
Employees of the ﬁrst independent contractor to whom section 69F applies may elect to transfer to the second independent con­ tractor.

Note In example E, it does not matter whether the agreement between the airport operator and the ﬁrst independent contractor consti­ tutes a contracting out.
In example E, the persons relate to the deﬁnition of subsequent contracting as follows: •• •• the airport operator is person A: the ﬁrst independent contractor is person B: the second independent contractor is person C. Example F The circumstances in this example are the same as in example E, except that the ﬁrst independent contractor engages a sub­ contractor to do the work or some of the work.
Later on, the agreement under which the subcontractor provides the work expires or is terminated and the ﬁrst independent con­ tractor engages a second subcontractor to provide food catering services at the airport.

The employees of the ﬁrst subcontractor to whom section 69F applies may elect to transfer to the second subcontractor.

Note In example F, the subsequent contracting occurs at the subcon­ tracting level.
In example F, the persons relate to the deﬁnition of subsequent contracting as follows: •• •• •• the independent contractor is person A: the ﬁrst subcontractor is person B: the second subcontractor is person C. Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 79 Part 6A s 69F Employment Relations Act 2000 Reprinted as at 10 September 2007 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69F Application of this subpart (1) (ii) This subpart applies to an employee if— (a) (b) Schedule 1A applies to the employee; and as a result of a proposed restructuring,— (i) the employee will no longer be required by his or her employer to perform the work performed by the employee; and the work performed by the employee (or work that is substantially similar) is to be performed by or on behalf of another person.
To avoid doubt, this subpart applies even though the perform­ ance of the work by or on behalf of the other person does not begin immediately after an employee ceases to perform the work for his or her employer.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
(2) Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69G Notice of right to make election (1) Before a restructuring takes effect, the employer of the em­ ployees who will be affected by the restructuring must provide the employees affected with— (a) a reasonable opportunity to exercise the right to make an election under section 69I(1); and the date by which the right to make an election must be exercised; and information sufﬁcient for the employees to make an in­ formed decision about whether to exercise the right to make an election.
(b) (c) (2) Without limiting subsection (1)(c), the information provided under that provision must include— 80 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69H (a) (b) (c) (d) the name of the new employer: the nature and scope of the restructuring: the date on which the restructuring is to take effect: how to make an election, the person to whom an election is to be sent, and the form in which the election is to be sent (for example by post, fax, or email).
If the restructuring is a contracting in or a subsequent con­ tracting, person A in the deﬁnition that applies must give the employer sufﬁcient notice of, and information about, the re­ structuring to enable the employer to comply with subsection (1).

(3) (4) An employer or other person who fails to comply with this section is liable to a penalty imposed by the Authority.
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.

(2) 69H Employee bargaining for alternative arrangements (1) To avoid doubt, an employee may, after his or her employer has complied with section 69G and before deciding whether to elect to transfer to the new employer, bargain with his or her employer for alternative arrangements.
If the employee and employer agree on alternative arrange­ ments,— (a) the alternative arrangements must be recorded in writ­ ing; and if paragraph (a) is complied with, the employee may not subsequently elect to transfer to the new employer.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
(b) Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising 81 Part 6A s 69I Employment Relations Act 2000 Reprinted as at 10 September 2007 sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69I Employee may elect to transfer to new employer (1) An employee to whom this subpart applies may, before the date provided to the employee under section 69G(1)(b), elect to transfer to the new employer.
If an employee elects to transfer to the new employer, then to the extent that the employee’s work is to be performed by the new employer, the employee— (a) (2) (b) (c) becomes an employee of the new employer on and from the speciﬁed date; and is employed on the same terms and conditions by the new employer as applied to the employee immediately before the speciﬁed date, including terms and condi­ tions relating to whether the employee is employed full­ time or part­time; and is not entitled to any redundancy entitlements under those terms and conditions of employment from his or her previous employer because of the transfer.
To avoid doubt,— (a) the election of an employee to transfer to a new em­ ployer may result in the employee being employed by more than 1 employer if— (i) only part of the employee’s work is affected by the restructuring; or the work performed by the employee will be per­ formed by or on behalf of more than one new em­ ployer; and (ii) (b) a person becomes the new employer of an employee who elects to transfer to the new employer whether or not the new employer— (i) has, or intends to have, employees performing the type of work (or work that is substantially similar) to the work performed by the employee who has elected to transfer to the new employer; or (ii) was an employer before the employee transferred to the new employer.
(3) 82 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69J (c) this section does not affect the employment agreement of an employee who elects not to transfer to the new employer.

Example This example relates to subsection (3)(a).

A retailer owns 3 gift shops and engages an independent contractor to clean the shops.

The independent contractor employs a cleaner to clean the gift shops.

The cleaning contract between the retailer and the independent contractor expires.
The retailer enters into a cleaning contract with a second inde­ pendent contractor for the cleaning of 1 shop, and enters into a new cleaning contract with the ﬁrst independent contractor for the cleaning of the other 2 shops.

As a result, the ﬁrst independent contractor no longer requires the cleaner to clean 1 of the shops.
The cleaner may elect to transfer and become an employee of the second independent contractor in relation to 1 shop while remain­ ing an employee of the ﬁrst independent contractor in relation to the other 2 shops.

In this section, speciﬁed date means the date on which the restructuring takes effect.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
(4) 69J Employment of employee who elects to transfer to new (1) (2) employer treated as continuous The employment of an employee who elects to transfer to a new employer is to be treated as continuous, including for the purpose of service­related entitlements whether legislative or otherwise.
To avoid doubt, and without limiting subsection (1),— (a) in relation to an employee’s entitlements under the Holidays Act 2003,— 83 Part 6A s 69J Employment Relations Act 2000 Reprinted as at 10 September 2007 (i) (ii) (iii) the period of employment of an employee with the employer that ends with the transfer must be treated as a period of employment with the new employer for the purpose of determining the employee’s entitlement to annual holidays, sick leave, and bereavement leave; and the employer must not pay the employee for an­ nual holidays not taken before the date of trans­ fer; and the new employer must recognise the employee’s entitlement to— (A) any sick leave, including any sick leave carried over under section 66 of that Act, not taken before the date of transfer; and any annual holidays not taken before the date of transfer; and any alternative holidays not taken or ex­ changed for payment under section 61 of that Act before the date of transfer: (B) (C) (b) for the purposes of determining an employee’s rights and beneﬁts to parental leave and parental leave pay­ ments under the Parental Leave and Employment Protection Act 1987,— (i) the period of employment of an employee with the employer that ends with the transfer must be treated as a period of employment with the new employer; and the new employer must treat any notice given to or by the employer under the Act as if it had been given to or by the new employer.
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

(ii) Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
84 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69K 69K Terms and conditions of employment of transferring (1) employee under ﬁxed term employment This section applies to an employee if— (a) he or she is an employee of— (i) (ii) person A in the deﬁnition of contracting out; or person B or of a subcontractor in the deﬁnition of contracting in; or person B or of a subcontractor in the deﬁnition of subsequent contracting; or an employer who is selling or transferring the employer’s business (or part of it) to another per­ son; and (iii) (iv) (b) the employee’s terms and conditions of employment in­ clude a term agreed under section 66(1) that is— (i) linked to the expiry or termination of the agree­ ment under which his or her employer performs the work; or included in contemplation of his or her employer entering into an agreement that constitutes a re­ structuring.
(ii) (2) Despite the employee’s terms and conditions of employment containing a term referred to in subsection (1)(b), the em­ ployee may elect, under section 69I, to transfer to the new em­ ployer.
If the employee elects, under section 69I, to transfer to the new employer, then the following provisions apply: (a) (3) if the restructuring is a contracting out, the employee’s terms and conditions of employment must be read and applied as if the term agreed under section 66(1) were linked to the expiry or termination of the agreement be­ tween person A and person B (or a subcontractor): if the restructuring is a contracting in, the employee’s terms and conditions of employment cease to include the term referred to in subsection (1)(b): if the restructuring is a subsequent contracting, the em­ ployee’s terms and conditions of employment must be read and applied as if the term agreed under section 66(1) were linked to the expiry or termination of the (b) (c) 85 Part 6A s 69L Employment Relations Act 2000 Reprinted as at 10 September 2007 (d) contract or arrangement between person A and person C (or a subcontractor): if the restructuring is a sale or transfer of an employer’s business, the employee’s terms and conditions of em­ ployment cease to include the term referred to in sub­ section (1)(b).
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69L Agreements excluding entitlements for technical (1) (2) redundancy not affected To avoid doubt, this subpart does not limit or affect any terms and conditions of employment under which the employee’s entitlement to redundancy entitlements is excluded where the employee may transfer to the new employer but elects not to do so.

This subpart does not limit or affect section 77HA of the State Sector Act 1988.
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69M New employer becomes party to collective agreement that binds employee electing to transfer This section applies if— (a) an employee who elects to transfer to a new employer is a member of a union and bound by a collective agree­ ment; and (1) 86 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69N (b) the new employer is not a party to the collective agree­ ment that the union is a party to.
(2) On and from the date on which the employee becomes an em­ ployee of the new employer, the new employer becomes a party to the collective agreement, but only in relation to, and for the purposes of, that employee.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69N Employee who transfers may bargain for redundancy (1) (2) (3) entitlements with new employer This section applies to an employee if— (a) (b) (c) the employee elects, under section 69I(1), to transfer to a new employer; and the new employer proposes to make the employee re­ dundant for reasons relating to the transfer of the em­ ployees or to the circumstances arising from the trans­ fer of the employees; and the employee’s employment agreement— (i) does not provide for redundancy entitlements for those reasons or in those circumstances; or does not expressly exclude redundancy entitle­ ments for those reasons or in those circum­ stances.
(ii) The employee is entitled to redundancy entitlements from his or her new employer.

If an employee seeks redundancy entitlements from his or her new employer, the employee and new employer must bargain with a view to reaching agreement on appropriate redundancy entitlements.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
87 Part 6A s 69O Employment Relations Act 2000 Reprinted as at 10 September 2007 Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69O Authority may investigate bargaining and determine (1) redundancy entitlements If an employee and his or her new employer fail to agree on redundancy entitlements under section 69N(3), the employee or new employer may apply to the Authority to investigate the bargaining relating to the matter.
(2) After concluding the investigation, the Authority must deter­ mine— (a) (b) if, in the Authority’s view, it is possible for the bargain­ ing to continue, how further bargaining should occur; or if, in the Authority’s view, further bargaining is not warranted, the redundancy entitlements due to an em­ ployee.
(b) (c) (d) (e) In determining the redundancy entitlements under subsection (2)(b), the Authority may take into account one or more of the following matters: (a) the redundancy entitlements (if any) provided in the em­ ployee’s employment agreement for redundancy in cir­ cumstances other than restructuring: the employee’s length of service with his or her previous employer and new employer: how much notice of the redundancy the employee has received: the ability of the new employer to provide redundancy entitlements: the likelihood of the employee being re­employed or obtaining employment with another employer: any other relevant matter that the Authority thinks ﬁt.
(f) Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section (3) 88 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69OA 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.

Subpart 2—Disclosure of costs relating to transfer of employees under proposed restructuring Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to subpart 2 of Part 6A read “Other employees”.

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.
See section 11 of that Act as to the transitional provisions.
69OA Object of this subpart The object of this subpart is to provide for the disclosure of employee transfer costs information if— (a) disclosure is sought for the purpose of— (i) deciding whether to terminate an agreement or let it expire; or negotiating an agreement; or deciding whether to enter into an agreement; or tendering for an agreement; and (ii) (iii) (iv) a restructuring would result if the agreement were to be— (i) (ii) (iii) (iv) terminated or to expire; or concluded; or entered into; or awarded.
(b) Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to subpart 2 of Part 6A read “Other employees”.
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 89 Part 6A s 69OB Employment Relations Act 2000 Reprinted as at 10 September 2007 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69OB Interpretation (1) In this subpart, employee transfer costs information, in re­ lation to a proposed restructuring,— (a) means information about the employment­related en­ titlements of the employees who would be eligible to elect, under section 69I, to transfer to a new employer if the proposed restructuring were to proceed; and includes— (i) (b) (ii) (iii) (iv) (v) the number of employees who would be eligible to elect to do so; and the wages or salary payable in a stated period (for example, a week, fortnight, or month) to the employees for performing the work that would be subject to the proposed restructuring; and the total number of hours the employees spend in a stated period (for example, a week, fortnight, or month) performing the work that would be subject to the proposed restructuring; and the cost of service­related entitlements of the em­ ployees whether legislative or otherwise; and the cost of any other entitlements of the employ­ ees in their capacity as employees, including any entitlements already agreed but not due until a fu­ ture date or time.
(2) Any term or expression deﬁned in subpart 1 and used but not deﬁned in this subpart has the same meaning as in subpart 1.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to subpart 2 of Part 6A read “Other employees”.

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
90 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69OC 69OC Disclosure of employee transfer costs information (1) A request for the disclosure of employee transfer costs infor­ mation may be made if— (a) disclosure is sought for the purpose of— (i) deciding whether to terminate an agreement or let it expire; or negotiating an agreement; or deciding whether to enter into an agreement; or tendering for an agreement; and (ii) (iii) (iv) a restructuring would result if the agreement were to be— (i) (ii) (iii) (iv) terminated or to expire; or concluded; or entered into; or awarded.
(b) (2) (3) The persons who may make the request are the persons who would, if the restructuring were to proceed and they were par­ ties to the restructuring, be— (a) (b) (c) (d) person A in the deﬁnition of contracting in: person B in the deﬁnition of contracting out: person C in the deﬁnition of subsequent contracting: the person to whom an employer’s business (or part of it) is sold or transferred.
The persons to whom a request may be made are the persons who would, if the restructuring were to proceed and they were parties to the restructuring, be— (a) (b) (c) (d) person B in the deﬁnition of contracting in: person A in the deﬁnition of contracting out: person A in the deﬁnition of subsequent contracting: the seller or transferor in the case of the sale or transfer of an employer’s business (or part of it).
(4) A person to whom a request is made under subsection (3) must provide to the person who made the request under subsection (2) employee transfer costs information that relates to the pro­ posed restructuring.

(5) A person must provide the employee transfer costs informa­ tion in sufﬁcient time for the person who made the request to take the information into account for the purpose for which it was requested.
91 Part 6A s 69OD Employment Relations Act 2000 Reprinted as at 10 September 2007 (6) Employee transfer costs information provided under this sec­ tion must be provided— (a) (b) in aggregate form; and to the extent practicable, in a form that protects the pri­ vacy of the employees concerned.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to subpart 2 of Part 6A read “Other employees”.

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69OD Provision of employee transfer costs information by (1) (2) (3) (4) (5) other persons Subsection (2) applies to a person who receives a request for employee transfer costs information under section 69OC(3)(a).

If the request relates (whether wholly or in part) to work that has been subcontracted and the person receiving the request does not have some or all of the information requested, the person must immediately require the subcontractor to provide the information.
Subsection (4) applies to a person who receives a request for employee transfer costs information under section 69OC(3)(c).

If the person does not have some or all of the information re­ quested, the person must immediately require the person who performs the work to which the request relates to provide the information.
If the person who performs the work has subcontracted some or all of the work and does not have some or all of the in­ formation requested, the person must immediately require the subcontractor to provide the information.
(6) A person required to provide information— (a) under subsection (2) or (4) must provide the informa­ tion— 92 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69OE (b) (i) (ii) to the person who received the request; and in time for that person to comply with section 69OC(5): under subsection (5) must provide the information— (i) (ii) to the person who required the information; and in time for the person who received the request to comply with section 69OC(5).
(7) However, if the subcontractor who is required to provide the information under subsection (2) or (5) does not have some or all of the information requested because the work has been fur­ ther subcontracted, the subcontractor must immediately pro­ vide to the person who required the information any details the subcontractor has about who the other subcontractor is and how to contact the other subcontractor, and (to avoid doubt) subsection (2) or (5) (as the case may require) applies accord­ ingly.
Employee transfer costs information provided under this sec­ tion must be provided— (a) (b) in aggregate form; and to the extent practicable, in a form that protects the pri­ vacy of the employees concerned.

(8) Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to subpart 2 of Part 6A read “Other employees”.

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69OE Updating disclosure of employee transfer costs (1) information This section applies if— (a) employee transfer costs information has been provided under section 69OC or 69OD; and after the provision of the information, there is a change in the employment­related entitlements or circum­ stances that the information relates to; and the change makes the information provided out of date.
(b) (c) 93 Part 6A s 69OF Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) (3) The person who provided the employee transfer costs informa­ tion must, immediately after the change in the employment­re­ lated entitlements or circumstances, provide to the person who was originally provided with the information details specify­ ing— (a) (b) what the up­to­date information is.
If the person who is provided with the up­to­date employee transfer costs information is not the person who made the re­ quest for the original information under section 69OC,— (a) the information that is out of date; and the person must, immediately after receiving the up­to­ date information, provide it to the person who received the request for the original information; and that person must, immediately after receiving the up­to­ date information, provide it to the person who made the request for the original information.
(b) (4) A person is not required to provide up­to­date information if, at the time of the change in the employment­related entitlements or circumstances, a request could not have been made for the information under section 69OC.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to subpart 2 of Part 6A read “Other employees”.

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69OF Employer who is subject to Ofﬁcial Information Act 1982 Nothing in the Ofﬁcial Information Act 1982 (except section 6) enables an employer that is subject to that Act to withhold information that is requested under this subpart.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to subpart 2 of Part 6A read “Other employees”.
See section 2(1)(a) of 94 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69OH that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.

69OG Subpart prevails over agreement A contract, agreement, or other arrangement has no force or effect to the extent that it is inconsistent with this subpart.
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

The previous heading to subpart 2 of Part 6A read “Other employees”.
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.

Subpart 3—Other employees Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69OH Object of this subpart The object of this subpart is to provide protection to employ­ ees to whom subpart 1 does not apply if, as a result of a re­ structuring, their work is to be performed by or on behalf of another person and, to this end, to require their employment agreements to contain employee protection provisions relat­ ing to negotiations between the employer and the other person about the transfer of affected employees to the other person.
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising 95 Part 6A s 69OI Employment Relations Act 2000 Reprinted as at 10 September 2007 sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69OI Interpretation (1) (b) (ii) In this subpart, unless the context otherwise requires,— employee means an employee to whom Schedule 1A does not apply employee protection provision means a provision— (a) the purpose of which is to provide protection for the employment of employees affected by a restructuring; and that includes— (i) a process that the employer must follow in nego­ tiating with a new employer about the restructur­ ing to the extent that it relates to affected employ­ ees; and the matters relating to the affected employees’ employment that the employer will negotiate with the new employer, including whether the affected employees will transfer to the new employer on the same terms and conditions of employment; and the process to be followed at the time of the restructuring to determine what entitlements, if any, are available for employees who do not transfer to the new employer new employer, in relation to a restructuring, means,— (a) in the case of a contracting out, person B in the deﬁn­ ition of that term; or in the case of a sale or transfer of a business, the person to whom the business is sold or transferred (iii) (b) restructuring— (a) means— (i) (ii) contracting out; or selling or transferring the employer’s business (or part of it) to another person; but (b) to avoid doubt, does not include— (i) (ii) contracting in; or subsequent contracting; or 96 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6A s 69OJ (iii) (iv) in the case of an employer that is a company, the sale or transfer of any or all of the shares in the company; or any contract, arrangement, sale, or transfer en­ tered into, made, or concluded while the em­ ployer is adjudged bankrupt or in receivership or liquidation.
(2) For the purposes of this subpart, an employee is an affected employee if,— (a) as a result of a restructuring, the employee is, or will be, no longer required by his or her employer to perform the work performed by the employee; and the type of work performed by the employee (or work that is substantially similar) is, or is to be, performed by or on behalf of another person.

(b) (3) Any term or expression deﬁned in subpart 1 and used but not deﬁned in this subpart has the same meaning as in subpart 1.
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69OJ Collective agreements and individual employment agreements must contain employee protection provision Every collective agreement and every individual employment agreement must contain an employee protection provision to the extent that the agreement binds employees to whom this subpart applies.

Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
97 Part 6A s 69OK Employment Relations Act 2000 Reprinted as at 10 September 2007 69OK Affected employee may choose whether to transfer to new employer If an employer, in relation to a restructuring, arranges for an affected employee to transfer to the new employer, the affected employee may— (a) (b) Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

choose to transfer to the new employer; or choose not to transfer to the new employer.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).

See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.
See section 11 of that Act as to the transitional provisions.

Subpart 4—Review of Part Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.
69OL Review of operation of Part after 3 years (1) The Minister must, as soon as is practicable, 3 years after the commencement of the Employment Relations Amendment Act 2006, require a report to be prepared on— (a) whether the operation of this Part since the commence­ ment of that Act has met the objects speciﬁed in sections 69A and 69OH; and if not, whether any amendments to this Part are neces­ sary or desirable to meet those objects.
(b) The Minister must ensure that the persons and organisations (including representatives of employees and employers), that the Minister thinks appropriate, are consulted during the prep­ aration of the report about the matters to be considered in the report.

(2) 98 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6B s 69P (3) The Minister must present a copy of the report to the House of Representatives.
Part 6A (comprising sections 69A to 69O) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Part 6A (comprising sections 69A to 69O) was substituted by a new Part 6A (comprising sections 69A to 69OL), as from 14 September 2006, by section 6 Employment Relations Amendment Act 2006 (2006 No 41).
See section 2(1)(a) of that Act as to subpart 2 of the new Part 6A of this Act (comprising sections 69OA to 69OG) coming into force as from 13 December 2006.

See section 11 of that Act as to the transitional provisions.

Part 6B Bargaining fees Part 6B (comprising sections 69P to 69W) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
69P Interpretation In this Part, unless the context otherwise requires,— bargaining fee means an amount payable by an employee to a union under a bargaining fee clause, whether payable as a lump sum or on a periodical basis bargaining fee clause means a provision in a collective agree­ ment that, subject to this Part,— (a) applies to the employer’s employees who are not mem­ bers of a union and who perform work that comes within the coverage clause of the collective agreement; and speciﬁes the amount of the bargaining fee; and requires those employees to pay a bargaining fee; and provides that those employees’ terms and conditions of employment comprise the terms and conditions of em­ ployment speciﬁed in the collective agreement.
Part 6B (comprising sections 69P to 69W) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
(b) (c) (d) 99 Part 6B s 69Q Employment Relations Act 2000 Reprinted as at 10 September 2007 69Q Bargaining fee clause does not come into force unless agreed to ﬁrst by employer and union and then by secret ballot (1) A bargaining fee clause does not come into force unless the clause has— (a) (2) (b) ﬁrst been agreed to by the employer and the union in a collective agreement; and then been agreed to in a secret ballot held in accordance with this section.
The secret ballot must be— (a) held before the collective agreement comes into force; and conducted jointly by the employer and union.

(3) An employee is entitled to vote in a secret ballot if— (b) (a) (b) the work performed by the employee comes within the coverage clause in the collective agreement; and the employee is— (i) (ii) not a member of any union; or a member only of the union that is a party to the collective agreement with the employer.
(4) For the purposes of a secret ballot, a ballot paper must contain, or have attached to it, a copy of the bargaining fee clause.

(5) A bargaining fee clause is agreed to in a secret ballot if a ma­ jority of the employer’s employees who vote, vote in favour of the clause.

Part 6B (comprising sections 69P to 69W) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
69R Employer to notify employees if bargaining fee clause agreed to If a bargaining fee clause is agreed to in a secret ballot, the employer must provide the employees referred to in section 69S(a) to (c) with a copy of the collective agreement that contains the bargaining fee clause and notify them in writing that— (a) their terms and conditions of employment will comprise the terms and conditions of employment speciﬁed in the (1) 100 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 6B s 69S collective agreement (including the obligation to pay a bargaining fee) on and from the later of the following: the expiry of the period referred to in paragraph (i) (c); or the date on which the collective agreement comes into force; and (ii) the bargaining fee will be deducted from their wages, specifying the amount of the bargaining fee; and if an employee does not wish to pay the bargaining fee, the employee must notify the employer in writing within the period speciﬁed in the collective agreement for that purpose that the employee does not agree to pay the bargaining fee.
(b) (c) (2) If an employee notiﬁes his or her employer that the employee does not agree to pay the bargaining fee,— (a) the bargaining fee clause does not apply to the em­ ployee; and the employee’s terms and conditions of employment re­ main the same until such time as varied by agreement with the employer.

(b) Part 6B (comprising sections 69P to 69W) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.
69S Which employees bargaining fee clause applies to When a bargaining fee clause has been agreed to in a secret ballot and comes into force, the clause applies to an employee if— (a) the work performed by the employee comes within the coverage clause of the collective agreement; and the employee is not a member of any union; and the employee was— (i) entitled to vote in the secret ballot that agreed to the clause; or employed in the period beginning immediately after the secret ballot was held and ending with the close of the day before the date on which the collective agreement came into force; and the employee has not notiﬁed his or her employer in writing, within the period speciﬁed under section (ii) (b) (c) (d) 101 Part 6B s 69T Employment Relations Act 2000 Reprinted as at 10 September 2007 69R(1)(c) that the employee does not agree to pay the bargaining fee.
Part 6B (comprising sections 69P to 69W) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

69T Bargaining fee clause binding on employer and employee While a bargaining fee clause applies to an employee,— (a) the clause is binding on the employee and his or her employer; and the employer must deduct the bargaining fee from the employee’s wages and pay it to the union concerned.
(b) Part 6B (comprising sections 69P to 69W) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

69U Amount of bargaining fee (1) A bargaining fee must not be greater than the union fee that an employee would be required to pay to the union if the em­ ployee were a member of the union.
(2) A bargaining fee has no effect to the extent (if any) that the bargaining fee does not comply with subsection (1).

Part 6B (comprising sections 69P to 69W) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

69V Expiry of bargaining fee clause A bargaining fee clause expires when the collective agreement that contains the clause expires.
Part 6B (comprising sections 69P to 69W) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

69W Validity of bargaining fee clause A bargaining fee clause, and anything done under it in accord­ ance with this Part,— (a) is not a breach of, or inconsistent with, this Act (in par­ ticular sections 8, 9, 11, and 68(2)(c)), and overrides the Wages Protection Act 1983.
(b) 102 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 7 s 71 Part 6B (comprising sections 69P to 69W) was inserted, as from 1 December 2004, by section 30 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Part 7 Employment relations education leave 70 71 Object of this Part The object of this Part is to provide paid leave to certain em­ ployees to increase their knowledge about employment rela­ tions for the purpose of— (a) improving relations among unions, employees, and em­ ployers; and promoting the object of this Act, especially the duty of good faith.
(b) Interpretation In this Part, unless the context otherwise requires,— eligible employee, in relation to a union or an employer, means an employee who is a member of a union eligible employee: this deﬁnition was substituted, as from 1 December 2004, by section 31 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
employment relations education means employment rela­ tions education approved under section 72 speciﬁed date means— 1 March; or (a) such other date in a year as is speciﬁed in a collective (b) agreement for the purposes of this Part year means,— (a) if a collective agreement does not provide a speciﬁed date as an alternative date to 1 March, a period of 12 months beginning on 1 March and ending on the close of the last day of February in the following year, the ﬁrst such year being 1 March 2001 to 28 February 2002: if a collective agreement does provide a speciﬁed date as an alternative date to 1 March, a period of 12 months beginning on the speciﬁed date.
(b) 103 Part 7 s 72 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) (3) 72 Minister to approve employment relations education (1) The Minister may, for the purposes of this Part, approve courses of employment relations education.

The Minister may approve a course of employment relations education only if satisﬁed that the course will further the object of this Part.

The Minister may delegate his or her power under subsection (1) to 1 or more persons.
Subsection (1) was amended, as from 1 December 2004, by section 32 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by omitting the words “by notice in the Gazette,”.

See section 73 of that Act for the transitional provisions.

73 Union entitled to allocate employment relations education leave (2) (1) A union is entitled to allocate employment relations education leave to eligible employees in accordance with this Part.
The maximum number of days of employment relations edu­ cation leave that a union is entitled to allocate in a year in re­ spect of an employer’s eligible employees is the number of days calculated in accordance with section 74, unless the em­ ployer agrees to the allocation of additional days.
The maximum number of days of employment relations edu­ cation leave that a union is entitled to allocate in a year to an eligible employee is 5 days, unless the employee’s employer agrees to the allocation of additional days.

Employment relations education leave expires if it is not allo­ cated by the end of the year in respect of which it is calculated under section 74, unless the employer agrees that the leave may be carried forward to the next year.
(4) (3) Calculation of maximum number of days of employment relations education leave The maximum number of days of employment relations edu­ cation leave that a union is entitled to allocate in respect of an employer is based on the number of full­time equivalent eli­ gible employees employed by the employer as at the 30th day before the speciﬁed date in a year, and is determined in accord­ ance with the following table: 74 (1) 104 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 7 s 75 Full­time equivalent eligible employees as atthe 30th day before the speciﬁed date in a year 1­5 6­50 51­280 281 or more Maximum number of days of employment relations education leave that union entitled to allocate 3 5 1 day for every 8 full­time equivalent eligible employees or part of that number 35 days plus 5 days for every 100 full­time equivalent eligible employees or part of that number that exceeds 280 (2) (b) For the purposes of calculating the number of full­time equiva­ lent eligible employees employed by an employer,— (a) an eligible employee who normally works 30 hours or more during a week is to be counted as 1: an eligible employee who normally works less than 30 hours during a week is to be counted as one­half.
Subsection (1) was amended, as from 1 December 2004, by section 33(1) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by inserting the words “the 30th day before” after the words “by the employer as at”.

See section 73 of that Act for the transitional provisions.
Subsection (1) was amended, as from 1 December 2004, by section 33(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by inserting in the heading to the ﬁrst column to the table the words “the 30th day before” after the words “as at”.

See section 73 of that Act for the transitional provisions.
75 Union to notify employer of maximum number of days of employment relations education leave calculated (1) After calculating the maximum number of days of employ­ ment relations education leave, a union must give the employer concerned a notice containing— (a) the maximum number of days calculated in respect of the employer; and 105 Part 7 s 76 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) the details of the calculation.
(b) The union must comply with subsection (1) within 1 month after the speciﬁed date in each year.

(3) Until a union complies with this section, the union must not (4) 76 (1) allocate employment relations education leave.

If a union fails to comply with subsections (1) and (2), the union forfeits one­twelfth of the employment relations educa­ tion leave for each complete month that the failure continues.
Allocation of employment relations education leave calculated in respect of another employer This section applies to a union that is a party to a collective agreement with 2 or more employers.

(2) A union may allocate employment relations education leave calculated in respect of an employer to 1 or more eligible em­ ployees of another employer only if, and to the extent that, the employers concerned agree, and subject to any terms and con­ ditions agreed with the employers.
77 Allocation of employment relations education leave to eligible employee (1) A union allocates employment relations education leave to an eligible employee by giving a notice to the employee, and a copy of the notice to the employee’s employer, that informs the employee— (a) (b) (c) that the union has allocated employment relations edu­ cation leave to the employee; and of the number of days of employment relations educa­ tion leave allocated to the employee; and that the employee must take the employment relations education leave by the end of the year in which it is allocated; and of the terms or effect of sections 78 and 79.
(d) The allocation of employment relations education leave does not, of itself, entitle the employee to take the leave.
(2) 106 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 7 s 79 78 Eligible employee proposing to take employment relations education leave (1) An eligible employee proposing to take employment relations (c) education leave must tell his or her employer— (a) (b) that the employee proposes to take that leave; and the dates on which the employee proposes to take that leave; and the employment relations education that the employee proposes to undertake during that leave.
(2) An eligible employee must not take employment relations edu­ cation leave unless the employee complies with subsection (1) as soon as possible, but in any event no later than 14 days before the ﬁrst day of such leave.
(3) An employer may refuse to allow an eligible employee to take employment relations education leave if the employer is satis­ ﬁed, on reasonable grounds, that the employee taking employ­ ment relations education leave on the dates notiﬁed would un­ reasonably disrupt the employer’s business.

(4) (3A) To avoid doubt, a representative of an eligible employee may comply with subsection (1) on behalf of the eligible employee.
In subsection (2), day means a day of the week other than a day in the period beginning with 25 December in any year and ending with 5 January in the following year.

Subsection (3A) was inserted, as from 1 December 2004, by section 34 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
79 Eligible employee taking employment relations education leave entitled to ordinary pay (1) An employer must pay to an eligible employee the employee’s relevant daily pay (as deﬁned in section 9 of the Holidays Act 2003) for every day or part of a day taken by the employee as employment relations education leave.
(2) However, an employer is not required to comply with subsec­ tion (1) in respect of any day for which the eligible employee is paid weekly compensation under the Injury Prevention, Rehabilitation, and Compensation Act 2001.
Subsection (1) was amended, as from 1 April 2004, by section 91(2) Holidays Act 2003 (2003 No 129) by substituting the words “relevant daily pay (as de­ 107 Part 8 s 80 Employment Relations Act 2000 Reprinted as at 10 September 2007 ﬁned in section 9 of the Holidays Act 2003)” for the words “ordinary pay (as deﬁned in section 4 of the Holidays Act 1981)”.
Subsection (2) was amended, as from 1 April 2002, by section 337(1) Injury Prevention, Rehabilitation, and Compensation Act 2001 (2001 No 49), by sub­ stituting the words “the Injury Prevention, Rehabilitation, and Compensation Act 2001” for the words “the Accident Insurance Act 1998”.

See Part 10 of that Act for provisions relating to transition from competitive provision of work­ place accident insurance.
See Part 11 of that Act for transitional provisions re­ lating to entitlements provided by Corporation.
Part 8 Strikes and lockouts 80 Object of this Part The object of this Part is— (a) to recognise that the requirement that a union and an employer must deal with each other in good faith does not preclude certain strikes and lockouts being lawful (as deﬁned in this Part); and to deﬁne lawful and unlawful strikes and lockouts; and to ensure that where a strike or lockout is threatened in an essential service, there is an opportunity for a medi­ ated solution to the problem.
(b) (c) Interpretation 81 Meaning of strike (1) In this Act, strike means an act that— (a) is the act of a number of employees who are or have been in the employment of the same employer or of different employers— (i) in discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it; or in refusing or failing after any such discontinu­ ance to resume or return to their employment; or in breaking their employment agreements; or in refusing or failing to accept engagement for work in which they are usually employed; or in reducing their normal output or their normal rate of work; and (ii) (iii) (iv) (v) 108 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 8 s 83 (b) is due to a combination, agreement, common under­ standing, or concerted action, whether express or im­ plied, made or entered into by the employees.
In this Act, strike does not include an employees’ meeting authorised— (a) (b) (c) In this Act, to strike means to become a party to a strike.

Compare: 1991 No 22 s 61 by an employer; or by an employment agreement; or by this Act.
(2) (3) 82 Meaning of lockout (1) In this Act, lockout means an act that— is the act of an employer— (a) (i) in closing the employer’s place of business, or suspending or discontinuing the employer’s busi­ ness or any branch of that business; or in discontinuing the employment of any employ­ ees; or in breaking some or all of the employer’s em­ ployment agreements; or in refusing or failing to engage employees for any work for which the employer usually employs employees; and (ii) (iii) (iv) (b) is done with a view to compelling employees, or to aid another employer in compelling employees, to— (i) (ii) accept terms of employment; or comply with demands made by the employer.
(2) In this Act, to lock out means to become a party to a lockout.
Compare: 1991 No 22 s 62 Lawfulness of strikes and lockouts 83 Lawful strikes and lockouts related to collective bargaining Participation in a strike or lockout is lawful if the strike or lockout— (a) (b) is not unlawful under section 86; and relates to bargaining— 109 Part 8 s 84 Employment Relations Act 2000 Reprinted as at 10 September 2007 84 85 (1) (i) for a collective agreement that will bind each of the employees concerned; or (ii) with regard to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declar­ ation made by the Court under section 192(2)(c).
Compare: 1991 No 22 s 64(1) Lawful strikes and lockouts on grounds of safety or health Participation in a strike or lockout is lawful if the employees who strike have, or the employer who locks out has, reasonable grounds for believing that the strike or lockout is justiﬁed on the grounds of safety or health.
Compare: 1991 No 22 s 71(1) (b) Effect of lawful strike or lockout Lawful participation in a strike or lockout does not give rise— to proceedings under section 99 that are founded on tort; (a) or to proceedings under section 100 for the grant of an injunction; or to any action or proceedings— (i) (ii) (iii) for a breach of an employment agreement; or for a penalty under this Act; or for the grant of a compliance order.
(c) (2) Where it is proved in proceedings that participation in a strike or lockout of a kind described in section 86 has occurred, a party to those proceedings who alleges that participation in the strike or lockout was lawful by virtue of section 84 has the burden of proving that allegation.
Compare: 1991 No 22 ss 64(2), 71(2) Unlawful strikes or lockouts Participation in a strike or lockout is unlawful if the strike or lockout— (a) occurs while a collective agreement binding the em­ ployees participating in the strike or affected by the lockout is in force, unless subsection (2) applies; or 86 (1) 110 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 8 s 86 (b) (c) (d) (da) (e) (f) (b) occurs during bargaining for a proposed collective agreement that will bind the employees participating in the strike or affected by the lockout, unless— (i) at least 40 days have passed since the bargaining was initiated; and if on the date bargaining was initiated the em­ ployees were bound by the same collective agree­ ment, that collective agreement has expired; and if on that date the employees were bound by dif­ ferent collective agreements, at least 1 of those collective agreements has expired; or (ii) (iii) relates to a personal grievance; or relates to a dispute; or relates to a bargaining fee clause or proposed bargaining fee clause under Part 6B; or relates to any matter dealt with in Part 3; or is in an essential service and the requirements as to no­ tice that are contained in section 90 or section 91, as the case may be, have not been complied with; or takes place in contravention of an order of the Court.
to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declaration made by the Court under section 192(2)(c); or to a collective agreement that is still in force after the ﬁrst of the collective agreements referred to in subsec­ tion (1)(b)(iii) has expired, for so long as that bargaining continues.
(2) (g) Subsection (1)(a) does not apply— (a) (3) For the purposes of this section, in determining whether a col­ lective agreement is in force or has expired section 53 is not to be taken into account.

Compare: 1991 No 22 s 63(a)­(d), (f), (g) Subsection (1)(da) was inserted, as from 1 December 2004, by section 35 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
111 Part 8 s 87 Employment Relations Act 2000 Reprinted as at 10 September 2007 Suspension of employees during strikes Suspension of striking employees 87 (1) Where there is a strike, the employer may suspend the employ­ ment of an employee who is a party to the strike.

(2) Unless sooner revoked by the employer, a suspension under (3) subsection (1) continues until the strike is ended.
The suspension under this section of all or any of the employ­ ees who are on strike does not end the strike and those employ­ ees do not, by reason only of their suspension under subsection (1), cease to be parties to the strike.

(4) An employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allow­ ances, or other emoluments in respect of the period of the sus­ pension.
(5) On the resumption of the employee’s employment, the em­ ployee’s service must be treated as continuous, despite the period of suspension, for the purpose of rights and beneﬁts that are conditional on continuous service.
Compare: 1991 No 22 s 65 88 Suspension of non­striking employees where work not available during strike (1) Where there is a strike, and as a result of the strike an employer is unable to provide for a non­striking employee work that is normally performed by that employee, the employer may suspend the employee’s employment until the strike is ended.
(2) A non­striking employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the suspension.

(3) On the resumption of the employee’s employment, that em­ ployee’s service must be treated as continuous, despite the period of suspension, for the purpose of rights and beneﬁts that are conditional on continuous service.
(4) Where a non­striking employee or group of non­striking em­ ployees is suspended under subsection (1), that employee or group of employees may— 112 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 8 s 90 (5) 89 (a) (b) challenge the suspension by applying for the grant of a compliance order under section 137; and seek other remedies under this Act in respect of the suspension, including (without limitation) arrears of wages.
In this section, non­striking employee means an employee who is in the employer’s employment and who is not on strike.

Compare: 1991 No 22 s 66(1), (2) Basis of suspension Where an employer suspends an employee under section 87 or section 88, the employer must indicate to the employee, at the time of the employee’s suspension, the section under which the suspension is being effected.
Compare: 1991 No 22 s 67 Essential services Strikes in essential services 90 (1) No employee employed in an essential service may strike— (a) (b) unless participation in the strike is lawful under section 83 or section 84; and if subsection (2) applies,— (i) without having given to his or her employer and to the chief executive, within 28 days before the date of the commencement of the strike, notice in writing of his or her intention to strike; and before the date speciﬁed in the notice as the date on which the strike will begin.
The requirements speciﬁed in subsection (1)(b) apply if— (a) the proposed strike will affect the public interest, in­ cluding (without limitation) public safety or health; and the proposed strike relates to bargaining of the type spe­ ciﬁed in section 83(b).
(ii) (b) The notice required by subsection (1)(b)(i) must specify— the period of notice, being a period that is— (a) (i) No less than 14 days in the case of an essential service described in Part A of Schedule 1; and 113 (2) (3) Part 8 s 91 Employment Relations Act 2000 Reprinted as at 10 September 2007 (ii) No less than 3 days in the case of an essential service described in Part B of Schedule 1; and (b) (c) the nature of the proposed strike, including whether or not the proposed action will be continuous; and the place or places where the proposed strike will occur; and the date on which the strike will begin.
(d) The notice— (a) must be signed by a representative of the employee’s (4) (b) union on the employee’s behalf: need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who— (i) are members of a union that is a party to the bar­ gaining; and are covered by the bargaining; and are employed in the relevant part of the essential service or at any particular place or places where the essential service is carried on.
(ii) (iii) Compare: 1991 No 22 s 69 Lockouts in essential services 91 (1) No employer engaged in an essential service may lock out any employees who are employed in the essential service— (a) (b) unless participation in the lockout is lawful under sec­ tion 83 or section 84; and if subsection (2) applies,— (i) without having given to the employees’ union or unions and to the chief executive, within 28 days before the date of commencement of the lockout, notice in writing of the employer’s intention to lock out; and before the date speciﬁed in the notice as the date on which the lockout will begin.
The requirements speciﬁed in subsection (1)(b) apply if— (a) the proposed lockout will affect the public interest, in­ cluding (without limitation) public safety or health; and the proposed lockout relates to bargaining of the type speciﬁed in section 83(b).
(ii) (b) (2) 114 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 8 s 93 (3) (4) 92 The notice required by subsection (1)(b)(i) must specify— the period of notice, being a period that is— (a) (i) no less than 14 days in the case of an essential service described in Part A of Schedule 1; and no less than 3 days in the case of an essential service described in Part B of Schedule 1; and (ii) (b) (c) the nature of the proposed lockout, including whether or not it will be continuous; and the place or places where the proposed lockout will occur; and the date on which the lockout will begin; and the names of the employees who will be locked out.
(d) (e) The notice must be signed either by the employer or on the employer’s behalf.
Compare: 1991 No 22 s 70 Chief executive to ensure mediation services provided Where the chief executive receives a notice of intention to strike or lock out under section 90(1)(b)(i) or section 91(1)(b)(i), the chief executive must ensure that mediation services are provided as soon as possible to the parties to the proposed strike or lockout for the purpose of assisting the parties to avoid the need for the strike or lockout.
Procedure to provide public with notice before strike or lockout in certain passenger transport services 93 Procedure to provide public with notice before strike in certain passenger transport services (1) No employee employed in a passenger road service or a pas­ senger rail service may strike— (a) unless participation in the strike is lawful under section 83 or section 84; and (b) without the employee’s union giving his or her em­ ployer notice in writing of the employee’s intention to strike.
(2) The notice required by subsection (1) must specify— 115 Part 8 s 94 Employment Relations Act 2000 Reprinted as at 10 September 2007 (a) (b) (c) the period of notice, being a period of not less than 24 hours; and the nature of the proposed strike, including whether or not the proposed action will be continuous; and the particular passenger road service or passenger rail service that will be affected by the strike; and the date on which the strike will begin.
(d) The notice— (a) must be signed by a representative of the employee’s (3) (b) union; and need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who— (i) are members of a union that is a party to the bar­ gaining; and are covered by the bargaining; and are employed in the relevant part of the passenger road service or passenger rail service.
(ii) (iii) (5) (4) An employer who is given notice of a strike under subsection (1) must take all practicable steps to ensure that the public who are likely to be affected are notiﬁed of the strike as soon as possible after the employer receives the notice.
For the purposes of this section and section 94, passenger road service means the carriage of passengers on any road, whether or not for hire or reward, by means of a large pas­ senger service vehicle within the meaning of that term in sec­ tion 2(1) of the Transport Services Licensing Act 1989 (not including any service speciﬁed as an exempt service in Part 1 of Schedule 1 of that Act or in regulations referred to in that Part).
94 Procedure to provide public with notice before lockout in certain passenger transport services (1) No employer engaged in providing a passenger road service or passenger rail service may lock out employees who are em­ ployed in the service— (a) unless participation in the lockout is lawful under sec­ tion 83 or section 84; and 116 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 8 s 96 (b) without having given to the employees’ union or unions notice in writing of the employer’s intention to lock out.
(2) (3) (b) (c) The notice required by subsection (1) must specify— (a) the period of notice, being a period of not less than 24 hours; and the nature of the proposed lockout, including whether or not it will be continuous; and the particular passenger road service or passenger rail service that will be affected by the lockout; and the date on which the lockout will begin; and the names of the employees who will be locked out.
(d) (e) The notice must be signed either by the employer or on the employer’s behalf.

(4) An employer engaged in providing a passenger road service or passenger rail service and who intends to lock out any employ­ ees who are employed in the service must take all practicable steps to ensure that the public who are likely to be affected are notiﬁed of the lockout as soon as possible.
Penalty for breach of section 93 or section 94 95 (1) A union that fails to comply with section 93 is liable to a penalty imposed by the Court under this Act.

(2) An employer who fails to comply with section 93 or section 94 is liable to a penalty imposed by the Court under this Act.

Except as provided in this section, a union or employer is under no liability (whether under this Act or the general law) for a failure to comply with section 93 or section 94.
(3) Employer’s liability for wages during lockout Employer not liable for wages during lockout 96 (1) Where any employees are locked out by their employer, those employees are not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the lockout, unless the employer’s participation in the lockout is unlawful.
(2) On the resumption of work by the employees, their service must be treated as continuous, despite the period of the lock­ 117 Part 8 s 97 Employment Relations Act 2000 Reprinted as at 10 September 2007 out, for the purpose of rights and beneﬁts that are conditional on continuous service.

Compare: 1991 No 22 s 72 Performance of duties of striking or locked out employees 97 Performance of duties of striking or locked out employees This section applies if there is a lockout or lawful strike.
(1) (2) An employer may employ or engage another person to per­ form the work of a striking or locked out employee only in accordance with subsection (3) or subsection (4).
(3) An employer may employ another person to perform the work of a striking or locked out employee if the person— (a) is already employed by the employer at the time the strike or lockout commences; and is not employed principally for the purpose of perform­ ing the work of a striking or locked out employee; and agrees to perform the work.
(b) (c) (4) An employer may employ or engage another person to perform the work of a striking or locked out employee if— (a) there are reasonable grounds for believing it is neces­ sary for the work to be performed for reasons of safety or health; and the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health.
(b) (5) A person who performs the work of a striking or locked out employee in accordance with subsection (3) or subsection (4) must not perform that work for any longer than the dura­ tion of the strike or lockout.

(6) An employer who fails to comply with this section is liable to a penalty imposed by the Authority under this Act in respect of each person who performs the work concerned.
Record of strikes and lockouts Record of strikes and lockouts If a strike or lockout occurs, the employer of the employees participating in the strike or affected by the lockout must— 98 118 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 8 s 100 (a) (b) keep a record, in the prescribed form, of the strike or lockout; and give to the chief executive, within 1 month after the end of the strike or lockout, a copy of that record.
Compare: 1991 No 22 s 142 Jurisdiction of Employment Court 99 (1) Jurisdiction of Court in relation to torts The Court has full and exclusive jurisdiction to hear and de­ termine proceedings founded on tort— (a) issued against a party to a strike or lockout that is threat­ ened, is occurring, or has occurred, and that have re­ sulted from or are related to that strike or lockout: issued against any person in respect of picketing related to a strike or lockout.
(b) (2) No other court has jurisdiction to hear and determine any ac­ tion or proceedings founded on tort— (a) (b) resulting from or related to a strike or lockout: in respect of any picketing related to a strike or lockout.
(3) Where any action or proceedings founded on tort are com­ menced in the Court, and the Court is satisﬁed that the pro­ ceedings resulted from or related to participation in a strike or lockout that is lawful under section 83 or section 84,— (a) (b) the Court must dismiss those proceedings; and no proceedings founded on tort and resulting from or related to that strike or lockout may be commenced in the District Court or the High Court.
Compare: 1991 No 22 s 73 100 (1) Jurisdiction of Court in relation to injunctions The Court has full and exclusive jurisdiction to hear and deter­ mine any proceedings issued for the grant of an injunction— to stop a strike or lockout that is occurring or to prevent (a) a threatened strike or lockout; or to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout.
(b) 119 Part 8A s 100A Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) No other court has jurisdiction to hear and determine any ac­ tion or proceedings seeking the grant of an injunction— (a) to stop a strike or lockout that is occurring or to prevent a threatened strike or lockout; or to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout.
(b) (3) Where any action or proceedings seeking the grant of an in­ junction to stop a strike or lockout or to prevent a threatened strike or lockout are commenced in the Court, and the Court is satisﬁed that participation in the strike or lockout is lawful under section 83 or section 84,— (a) the Court must dismiss that action or those proceedings; and no proceedings seeking the grant of an injunction to stop that strike or lockout or to prevent that threatened strike or lockout may be commenced in the District Court or the High Court.
Compare: 1991 No 22 s 74 (b) Part 8A Codes of employment practice and code of good faith for public health sector Part 8A (comprising sections 100A to 100E) was inserted, as from 1 December 2004, by section 36 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Codes of employment practice 100A Codes of employment practice (1) The Minister may, by notice in the Gazette, approve 1 or more codes of employment practice.
The notice in the Gazette may, instead of setting out the code of employment practice being approved,— (a) (b) provide sufﬁcient information to identify the code; and specify the date on which the code comes into force; and state where copies of the code may be obtained.
(c) (2) 120 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 8A s 100D (3) (4) Before the Minister approves a code of employment practice, the Minister must consult, or be satisﬁed that there has been consultation, with such persons and organisations as the Min­ ister thinks appropriate, including relevant employer and em­ ployee interests.
The purpose of a code of employment practice is to provide guidance on the application of this Act— (a) (b) (c) generally; or in relation to particular types of situations; or in relation to particular parts or areas of the employment environment.

Part 8A (comprising sections 100A to 100E) was inserted, as from 1 December 2004, by section 36 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
100B Amendment and revocation of code of practice A code of practice may be amended or revoked in the same manner as the code is approved.

Part 8A (comprising sections 100A to 100E) was inserted, as from 1 December 2004, by section 36 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
100C Authority or Court may have regard to code of practice The Authority or the Court may, in determining any matter within its jurisdiction, have regard to a code of employment practice that— (a) (b) was in force at the relevant time; and in the form in which it was then in force, related to the circumstances before the Authority or the Court.

Part 8A (comprising sections 100A to 100E) was inserted, as from 1 December 2004, by section 36 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Code of good faith for public health sector 100D Code of good faith for public health sector (1) Schedule 1B contains a code of good faith for the public health sector.
The code— (a) applies subject to the other provisions of this Act and any other enactment; and (2) 121 Part 8A s 100E Employment Relations Act 2000 Reprinted as at 10 September 2007 (3) (4) (5) (b) in particular, does not limit the application of the duty of good faith in section 4 in relation to the public health sector.

Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4 has been complied with.
It is a breach of the duty of good faith in section 4 for a person to whom the code applies to fail to comply with the code.

This section does not prevent a code of good faith approved under section 35 or a code of employment practice approved under section 100A applying in relation to the public health sector.

(6) However, in the case of any inconsistency, the code set out in Schedule 1B prevails over a code approved under section 35 or section 100A.
Part 8A (comprising sections 100A to 100E) was inserted, as from 1 December 2004, by section 36 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

100E Amendments to or replacement of code of good faith for public health sector The Governor­General may, by Order in Council made on the recommendation of the Minister, amend or replace the code of good faith for the public health sector set out in Schedule 1B.
The Minister must not make a recommendation under subsec­ tion (1) unless— (a) requested to do so by— (i) not less than three­quarters of district health boards; and unions who represent not less than three­quarters of union members employed by district health boards; and (ii) (b) the Minister has consulted the Minister of Health and such other persons and organisations as he or she con­ siders appropriate.
Part 8A (comprising sections 100A to 100E) was inserted, as from 1 December 2004, by section 36 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
(1) (2) 122 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 103 Part 9 Personal grievances, disputes, and enforcement Object 101 Object of this Part The object of this Part is— (a) (b) (ab) to recognise that, in resolving employment relationship problems, access to both information and mediation ser­ vices is more important than adherence to rigid formal procedures; and to recognise that employment relationship problems are more likely to be resolved quickly and successfully if the problems are ﬁrst raised and discussed directly be­ tween the parties to the relationship; and to continue to give special attention to personal grievances, and to facilitate the raising of personal grievances with employers; and to recognise the importance of reinstatement as a rem­ edy; and to ensure that the role of the Authority and the Court in resolving employment relationship problems is to de­ termine the rights and obligations of the parties rather than to ﬁx terms and conditions of employment.
Paragraph (ab) was inserted, as from 1 December 2004, by section 37 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

(d) (c) Personal grievances 102 Employee may pursue personal grievance under this Act An employee who believes that he or she has a personal grievance may pursue that grievance under this Act.
103 Personal grievance (1) For the purposes of this Act, personal grievance means any grievance that an employee may have against the employee’s employer or former employer because of a claim— (a) that the employee has been unjustiﬁably dismissed; or 123 Part 9 s 103 Employment Relations Act 2000 Reprinted as at 10 September 2007 (b) (c) (d) (e) (f) (g) that the employee’s employment, or 1 or more con­ ditions of the employee’s employment (including any condition that survives termination of the employment), is or are or was (during employment that has since been terminated) affected to the employee’s disadvantage by some unjustiﬁable action by the employer; or that the employee has been discriminated against in the employee’s employment; or that the employee has been sexually harassed in the em­ ployee’s employment; or that the employee has been racially harassed in the em­ ployee’s employment; or that the employee has been subject to duress in the employee’s employment in relation to membership or non­membership of a union or employees organisation; or that the employee’s employer has failed to comply with a requirement of Part 6A.
For the purposes of this Part, a representative, in relation to an employer and in relation to an alleged personal grievance, means a person— (a) (b) who either— who is employed by that employer; and (i) (ii) has authority over the employee alleging the grievance; or is in a position of authority over other employees in the workplace of the employee alleging the grievance.
In subsection (1)(b), unjustiﬁable action by the employer does not include an action deriving solely from the interpretation, application, or operation, or disputed interpretation, applica­ tion, or operation, of any provision of any employment agree­ ment.

Compare: 1991 No 22 s 27 Subsection (1)(f) was amended, as from 14 September 2006, by section 7(1) Employment Relations Amendment Act 2006 (2006 No 41) by adding the expression “; or”.

See section 11 of that Act as to the transitional provisions.
Subsection (1)(g) was inserted, as from 14 September 2006, by section 7(2) Em­ ployment Relations Amendment Act 2006 (2006 No 41).

See section 11 of that Act as to the transitional provisions.
(2) (3) 124 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 104 103A Test of justiﬁcation For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justiﬁable must be de­ termined, on an objective basis, by considering whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer would have done in all the cir­ cumstances at the time the dismissal or action occurred Section 103A was inserted, as from 1 December 2004, by section 38 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.
104 Discrimination (1) For the purposes of section 103(1)(c), an employee is discrimi­ nated against in that employee’s employment if the employee’s employer or a representative of that employer, by reason di­ rectly or indirectly of any of the prohibited grounds of dis­ crimination speciﬁed in section 105, or by reason directly or indirectly of that employee’s refusal to do work under section 28A of the Health and Safety in Employment Act 1992, or involvement in the activities of a union in terms of section 107,— (a) refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe beneﬁts, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualiﬁcations, experience, or skills employed in the same or substantially similar circumstances; or dismisses that employee or subjects that employee to any detriment, in circumstances in which other employ­ ees employed by that employer on work of that descrip­ tion are not or would not be dismissed or subjected to such detriment; or retires that employee, or requires or causes that em­ ployee to retire or resign.
(b) (c) (2) For the purposes of this section, detriment includes anything that has a detrimental effect on the employee’s employment, job performance, or job satisfaction.

125 Part 9 s 105 Employment Relations Act 2000 Reprinted as at 10 September 2007 (3) This section is subject to the exceptions set out in section 106.
Compare: 1991 No 22 s 28(1) Subsection (1) was amended, as from 5 May 2003, by section 33(1) Health and Safety in Employment Amendment Act 2002 (2002 No 86) by inserting the words “refusal to do work under section 28A of the Health and Safety in Employment Act 1992, or” after the words “indirectly of that employee’s”.
105 Prohibited grounds of discrimination for purposes of (1) (2) sex: section 104 The prohibited grounds of discrimination referred to in sec­ tion 104 are the prohibited grounds of discrimination set out in section 21(1) of the Human Rights Act 1993, namely— (a) (b) marital status: (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) The items listed in subsection (1) have the meanings (if any) given to them by section 21(1) of the Human Rights Act 1993. religious belief: ethical belief: colour: race: ethnic or national origins: disability: age: political opinion: employment status: family status: sexual orientation.
106 Exceptions in relation to discrimination (1) Section 104 must be read subject to the following provisions of the Human Rights Act 1993 dealing with exceptions in relation to employment matters: (a) section 24 (which provides for an exception in relation to crews of ships and aircraft): section 25 (which provides for an exception in relation to work involving national security): section 26 (which provides for an exception in relation to work performed outside New Zealand): section 27 (which provides for exceptions in relation to authenticity and privacy): (b) (c) (d) 126 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 106 (2) (i) (f) (e) (g) (h) (k) (l) section 28 (which provides for exceptions for purposes of religion): section 29 (which provides for exceptions in relation to disability): section 30 (which provides for exceptions in relation to age): section 31 (which provides for an exception in relation to employment of a political nature): section 32 (which provides for an exception in relation to family status): (j) section 34 (which relates to regular forces and Police): section 35 (which provides a general qualiﬁcation on exceptions).
(m) section 70 (which relates to superannuation schemes).

For the purposes of subsection (1), sections 24 to 35 of the Human Rights Act 1993 must be read as if they referred to section 104 of this Act, rather than to section 22 of that Act.
In particular,— (a) references in sections 24 to 29, 31, and 32 of that Act to section 22 of that Act must be read as if they were references to section 104(1) of this Act; and references in section 30 or section 34 of that Act— (i) (b) to section 22(1)(a) or 22(1)(b) of that Act must be read as if they were references to section 104(1)(a) of this Act; and to section 22(1)(c) of that Act must be read as if they were references to section 104(1)(b) of this Act; and to section 22(1)(d) of that Act must be read as if they were references to section 104(1)(c) of this Act.
(ii) (iii) (3) Nothing in section 104 includes as discrimination— (a) (b) anything done or omitted for any of the reasons set out in paragraph (a) or paragraph (b) of section 73(1) of the Human Rights Act 1993 (which relate to measures to ensure equality); or preferential treatment granted by reason of any of the reasons set out in paragraph (a) or paragraph (b) of sec­ 127 Part 9 s 107 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) tion 74 of the Human Rights Act 1993 (which relate to pregnancy, childbirth, or family responsibilities); or retiring an employee or requiring or causing an em­ ployee to retire at a particular age that has effect by virtue of section 149(2) of the Human Rights Act 1993 (which is a savings provision in relation to retire­ ment ages speciﬁed in certain employment contracts).
Subsection (1)(j) was repealed, as from 5 May 2007, by section 6(2) Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16).

Subsection (1)(m) was inserted, as from 1 December 2004, by section 39 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Subsection (2)(a) was amended, as from 5 May 2007, by section 6(3) Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16) by sub­ stituting “and 32” for “32, and 33”.
107 Deﬁnition of involvement in activities of union for purposes of section 104 For the purposes of section 104, involvement in the activities of a union means that, within 12 months before the action com­ plained of, the employee— (a) was an ofﬁcer of a union or part of a union, or was a member of the committee of management of a union or part of a union, or was otherwise an ofﬁcial or represen­ tative of a union or part of a union; or had acted as a negotiator or representative of employees in collective bargaining; or (b) (ba) had participated in a strike lawfully; or (c) was involved in the formation or the proposed forma­ tion of a union; or had made or caused to be made a claim for some beneﬁt of an employment agreement either for that employee or any other employee, or had supported any such claim, whether by giving evidence or otherwise; or had submitted another personal grievance to that em­ ployee’s employer; or had been allocated, had applied to take, or had taken any employment relations education leave under this Act; or (d) (e) (f) (1) 128 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 108 (g) was a delegate of other employees in dealing with the employer on matters relating to the employment of those employees.
(2) An employee who is representing employees under the Health and Safety in Employment Act 1992, whether as a health and safety representative (as the term is deﬁned in that Act) or otherwise, is to be treated as if he or she were a delegate of other employees for the purposes of subsection (1)(g).

Compare: 1991 No 22 s 28(2) Subsection (1)(ba) was inserted, as from 1 December 2004, by section 40 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Subsection (2) was inserted, as from 5 May 2003, by section 33(2) Health and Safety in Employment Amendment Act 2002 (2002 No 86).
108 Sexual harassment (1) For the purposes of sections 103(1)(d) and 123(d), an em­ ployee is sexually harassed in that employee’s employment if that employee’s employer or a representative of that em­ ployer— (a) directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains— (i) an implied or overt promise of preferential treat­ ment in that employee’s employment; or an implied or overt threat of detrimental treat­ ment in that employee’s employment; or an implied or overt threat about the present or future employment status of that employee; or (ii) (iii) (b) by— (i) the use of language (whether written or spoken) of a sexual nature; or the use of visual material of a sexual nature; or (ii) (iii) physical behaviour of a sexual nature,— directly or indirectly subjects the employee to be­ haviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
129 Part 9 s 109 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) For the purposes of sections 103(1)(d) and 123(d), an em­ ployee is also sexually harassed in that employee’s employ­ ment (whether by a co­employee or by a client or customer of the employer), if the circumstances described in section 117 have occurred.
Compare: 1991 No 22 s 29 109 Racial harassment For the purposes of sections 103(1)(e) and 123(d), an em­ ployee is racially harassed in the employee’s employment if the employee’s employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly— (a) expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and has, either by its nature or through repetition, a detri­ mental effect on the employee’s employment, job per­ formance, or job satisfaction.
(b) (c) 110 Duress (1) For the purposes of section 103(1)(f), an employee is subject to duress in that employee’s employment in relation to mem­ bership or non­membership of a union or employees organ­ isation if that employee’s employer or a representative of that employer directly or indirectly— (a) makes membership of a union or employees organisa­ tion or of a particular union or employees organisation a condition to be fulﬁlled if that employee wishes to re­ tain that employee’s employment; or (b) makes non­membership of a union or employees organ­ isation or of a particular union or employees organisa­ tion a condition to be fulﬁlled if that employee wishes to retain that employee’s employment; or exerts undue inﬂuence on that employee, or offers, or threatens to withhold or does withhold, any incentive or advantage to or from that employee, or threatens to or (c) 130 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 111 does impose any disadvantage on that employee, with intent to induce that employee— (i) to become or remain a member of a union or employees organisation or a particular union or employees organisation; or to cease to be a member of a union or employees organisation or a particular union or employees organisation; or not to become a member of a union or employees organisation or a particular union or employees organisation; or in the case of an employee who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or on account of the fact that the employee is, or, as the case may be, is not, a member of a union or employees organisation or of a particular union or employees organisation, to resign from or leave any employment; or to participate in the formation of a union or em­ ployees organisation; or (ii) (iii) (iv) (v) (vi) (2) (vii) not to participate in the formation of a union or employees organisation.
In this section and in section 103(1)(f), employees organisa­ tion means any group, society, association, or other collec­ tion of employees other than a union, however described and whether incorporated or not, that exists in whole or in part to further the employment interests of the employees belonging to it.
Compare: 1991 No 22 s 30 111 Deﬁnitions relating to personal grievances Each of the terms personal grievance, discrimination, sex­ ual harassment, racial harassment, and duress have in any employment agreement the meanings given to those terms by sections 103, 104, 105, 106, 107, 108, 109, and 110 unless the employment agreement gives an extended meaning to the term.
Compare: 1991 No 22 s 31 131 Part 9 s 112 Employment Relations Act 2000 Reprinted as at 10 September 2007 112 Choice of procedures (1) Where the circumstances giving rise to a personal grievance by an employee are also such that that employee would be entitled to make a complaint under the Human Rights Act 1993, the employee may take 1, but not both, of the following steps: (a) (b) the employee may, if the grievance is not otherwise re­ solved, apply to the Authority for the resolution of the grievance: the employee may make, in relation to those circum­ stances, a complaint under the Human Rights Act 1993.
For the purposes of subsection (1)(b), an employee makes a complaint when proceedings in relation to that complaint are commenced by the complainant or the Commission.

If an employee applies to the Authority for a resolution of the grievance under subsection (1)(a), the employee may not exer­ cise or continue to exercise any rights in relation to the subject matter of the grievance that the employee may have under the Human Rights Act 1993.
If an employee makes a complaint under subsection (1)(b), the employee may not exercise or continue to exercise any rights in relation to the subject matter of the complaint that the employee may have under this Act.

Compare: 1991 No 22 s 39 (2) (3) (4) Subsection (2) was substituted, as from 1 January 2002, by section 71 Human Rights Amendment Act 2001 (2001 No 96).

Subsections (3) and (4) were inserted, as from 1 December 2004, by section 41 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

113 Personal grievance provisions only way to challenge (1) dismissal If an employee who has been dismissed wishes to challenge that dismissal or any aspect of it, for any reason, in any court, that challenge may be brought only in the Authority under this Part as a personal grievance.
(2) Nothing in subsection (1) prevents an action under this Part to recover— (a) wages relating to a period of notice or alleged period of notice; or 132 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 114 (b) wages or other money relating to the employment prior to the dismissal; or other money payable on dismissal.
(c) 114 Raising personal grievance (1) Every employee who wishes to raise a personal grievance must, subject to subsections (3) and (4), raise the grievance with his or her employer within the period of 90 days begin­ ning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the em­ ployee, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period.
For the purposes of subsection (1), a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.
(2) (3) Where the employer does not consent to the personal grievance being raised after the expiration of the 90­day period, the employee may apply to the Authority for leave to raise the personal grievance after the expiration of that period.
(4) On an application under subsection (3), the Authority, after giving the employer an opportunity to be heard, may grant leave accordingly, subject to such conditions (if any) as it thinks ﬁt, if the Authority— is satisﬁed that the delay in raising the personal (a) grievance was occasioned by exceptional circum­ stances (which may include any 1 or more of the circumstances set out in section 115); and considers it just to do so.
(b) In any case where the Authority grants leave under subsection (4), the Authority must direct the employer and employee to use mediation to seek to mutually resolve the grievance.

(6) No action may be commenced in the Authority or the Court in relation to a personal grievance more than 3 years after the (5) 133 Part 9 s 115 Employment Relations Act 2000 Reprinted as at 10 September 2007 date on which the personal grievance was raised in accordance with this section.
Compare: 1991 No 22 s 33 115 Further provision regarding exceptional circumstances under section 114 For the purposes of section 114(4)(a), exceptional circum­ stances include— (a) where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period speciﬁed in section 114(1); or (b) where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; or where the employee’s employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 or section 65, as the case may be; or (d) where the employer has failed to comply with the obli­ gation under section 120(1) to provide a statement of reasons for dismissal.
(c) Special provision where sexual harassment alleged Where a personal grievance involves allegations of sexual har­ assment, no account may be taken of any evidence of the com­ plainant’s sexual experience or reputation.
Compare: 1991 No 22 s 35 Sexual or racial harassment by person other than employer This section applies where— (a) a request of the kind described in section 108(1)(a) is made to an employee by a person (not being a repre­ sentative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer; or 116 117 (1) 134 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 118 (b) (c) an employee is subjected to behaviour of the kind de­ scribed in section 108(1)(b) by a person (not being a representative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer; or an employee is subjected to behaviour of the kind de­ scribed in section 109 by a person (not being a repre­ sentative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer.
If this section applies, the employee may make a complaint about that request or behaviour to the employee’s employer or to a representative of the employer.

The employer or representative, on receiving a complaint under subsection (2), must inquire into the facts.
If the employer or representative is satisﬁed that the request was made or that the behaviour took place, the employer or representative must take whatever steps are practicable to pre­ vent any repetition of such a request or of such behaviour.
Compare: 1991 No 22 s 36(1), (2) Sexual or racial harassment after steps not taken to prevent repetition This section applies if— (a) a person in relation to whom an employee has made a complaint under section 117(2) either— (i) makes to that employee after the complaint a re­ quest of the kind described in section 108(1)(a); or the complaint subjects that employee after to behaviour of the kind described in section 108(1)(b) or section 109; and (ii) (2) (3) (4) 118 (1) (b) the employer of that employee, or a representative of that employer, has not taken whatever steps are practic­ able to prevent the repetition of such a request or such behaviour.
(2) If this section applies, the employee is deemed for the purposes of this Act and for the purposes of any employment agreement to have a personal grievance by virtue of having been sexually 135 Part 9 s 119 Employment Relations Act 2000 Reprinted as at 10 September 2007 harassed or racially harassed, as the case may be, in the course of the employee’s employment as if the request or behaviour were that of the employee’s employer.
Compare: 1991 No 22 s 36(3) 119 Presumption in discrimination cases (1) Subsection (2) applies if, in any matter before the Authority or the Court,— (a) (b) the employee establishes that the employer or the em­ ployer’s representative took any action or omitted any action as described in any of paragraphs (a) to (c) of section 104(1) in relation to that employee; and if it is a case where the employee alleges that the dis­ crimination was by reason directly or indirectly of the employee’s involvement in the activities of a union, the employee establishes that he or she was a person de­ scribed in section 107.
(2) If this subsection applies, there is a rebuttable presumption that the employer or representative of the employer discriminated against the employee on the grounds, or for the reason, speci­ ﬁed in section 104(1) and alleged by the employee.
120 Statement of reasons for dismissal (1) Where an employee is dismissed, that employee may, within 60 days after the dismissal or within 60 days after the em­ ployee has become aware of the dismissal, whichever is the later, request the employer to provide a statement in writing of the reasons for the dismissal.

Every employer to whom a request is made under subsection (1) must, within 14 days after the day on which the request is received, provide the statement to the person who made the request.
Compare: 1991 No 22 s 38 (2) 121 Statements privileged Any statements made or information given in the course of raising a personal grievance or in the course of attempting to 136 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 123 resolve the grievance or in the course of any matter relating to a personal grievance are absolutely privileged.
Compare: 1991 No 22 s 37 122 Nature of personal grievance may be found to be of different type from that alleged Nothing in this Part or in any employment agreement prevents a ﬁnding that a personal grievance is of a type other than that alleged.
Compare: 1991 No 22 s 34 Remedies in relation to personal grievances 123 Remedies (1) Where the Authority or the Court determines that an employee has a personal grievance, it may, in settling the grievance, pro­ vide for any 1 or more of the following remedies: (a) (b) (c) reinstatement of the employee in the employee’s former position or the placement of the employee in a position no less advantageous to the employee: the reimbursement to the employee of a sum equal to the whole or any part of the wages or other money lost by the employee as a result of the grievance: the payment to the employee of compensation by the employee’s employer, including compensation for— (i) humiliation, loss of dignity, and injury to the feel­ ings of the employee; and loss of any beneﬁt, whether or not of a monetary kind, which the employee might reasonably have been expected to obtain if the personal grievance had not arisen: (ii) (ca) (d) if the Authority or the Court ﬁnds that any workplace conduct or practices are a signiﬁcant factor in the per­ sonal grievance, recommendations to the employer con­ cerning the action the employer should take to prevent similar employment relationship problems occurring: if the Authority or the Court ﬁnds an employee to have been sexually or racially harassed in his or her employ­ ment, recommendations to the employer— 137 Part 9 s 124 Employment Relations Act 2000 Reprinted as at 10 September 2007 (i) concerning the action the employer should take in respect of the person who made the request or was guilty of the harassing behaviour, which action may include the transfer of that person, the taking of disciplinary action against that person, or the taking of rehabilitative action in respect of that person: about any other action that it is necessary for the employer to take to prevent further harassment of the employee concerned or any other employee.
(2) When making an order under subsection (1)(b) or (c), the Au­ thority or the Court may order payment to the employee by instalments, but only if the ﬁnancial position of the employer requires it.

Compare: 1991 No 22 s 40 (ii) Paragraph (ca) was inserted, as from 1 December 2004, by section 42(1) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Subsection (2) was inserted, as from 1 December 2004, by section 42(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
124 Remedy reduced if contributing behaviour by employee Where the Authority or the Court determines that an employee has a personal grievance, the Authority or the Court must, in deciding both the nature and the extent of the remedies to be provided in respect of that personal grievance,— (a) consider the extent to which the actions of the employee contributed towards the situation that gave rise to the personal grievance; and if those actions so require, reduce the remedies that would otherwise have been awarded accordingly.
(b) Compare: 1991 No 22 ss 40(2), 41(3) 125 Reinstatement to be primary remedy (1) This section applies where— (a) the remedies sought by or on behalf of an employee in respect of a personal grievance include reinstatement (as described in section 123(a)); and 138 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 127 (2) (b) it is determined that the employee did have a personal grievance.
If this section applies the Authority must, whether or not it pro­ vides for any of the other remedies provided for in section 123, provide, wherever practicable, for reinstatement as described in section 123(a).
Compare: 1987 No 77 s 228(1) 126 Provisions applying if reinstatement ordered Where the remedy of reinstatement is provided by the Author­ ity or the Court, the employee must be reinstated immediately or on such date as is speciﬁed by the Authority or the Court and, despite any challenge to or appeal against the determin­ ation of the Authority or the Court, the provisions for reinstate­ ment remain in full force pending the outcome of those pro­ ceedings unless the Authority or the Court otherwise orders.
Compare: 1991 No 22 s 42 (2) 127 Authority may order interim reinstatement (1) The Authority may if it thinks ﬁt, on the application of an employee who has raised a personal grievance with his or her employer, make an order for the interim reinstatement of the employee pending the hearing of the personal grievance.
The employee must, at the time of ﬁling the application for an order under subsection (1), ﬁle a signed undertaking that the employee will abide by any order that the Authority may make in respect of damages— (a) that are sustained by the other party through the granting of the order for interim reinstatement; and that the Authority decides that the employee ought to pay.

(b) (3) The undertaking must be referred to in the order for interim reinstatement and is part of it.
(4) When determining whether to make an order for interim rein­ statement, the Authority must apply the law relating to interim injunctions having regard to the object of this Act.

The order for interim reinstatement may be subject to any con­ ditions that the Authority thinks ﬁt.

(5) 139 Part 9 s 128 Employment Relations Act 2000 Reprinted as at 10 September 2007 (6) The Authority may at any time rescind or vary an order made under this section.
(7) Nothing in this section prevents the Court from granting an in­ terim injunction reinstating an employee if the Court is seized of the proceedings dealing with the personal grievance.

128 Reimbursement (1) This section applies where the Authority or the Court deter­ mines, in respect of any employee,— (a) (b) that the employee has a personal grievance; and that the employee has lost remuneration as a result of the personal grievance.
(2) If this section applies then, subject to subsection (3) and sec­ tion 124, the Authority must, whether or not it provides for any of the other remedies provided for in section 123, order the employer to pay to the employee the lesser of a sum equal to that lost remuneration or to 3 months’ ordinary time remu­ neration.
(3) Despite subsection (2), the Authority may, in its discretion, order an employer to pay to an employee by way of compen­ sation for remuneration lost by that employee as a result of the personal grievance, a sum greater than that to which an order under that subsection may relate.
Compare: 1991 No 22 s 41(1), (2) Disputes 129 Person bound by, or party to, employment agreement may pursue dispute under this Act (1) Where there is a dispute about the interpretation, application, or operation of an employment agreement, any person bound by the agreement or any party to the agreement may pursue that dispute in accordance with Part 10.
If the dispute relates to a collective agreement, the person or party pursuing the dispute must ensure that all union and em­ ployer parties to the agreement have notice of the existence of the dispute.
Compare: 1991 No 22 s 44 (2) 140 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 130 Recovery of wages 130 Wages and time record (1) Every employer must at all times keep a record (called the wages and time record) showing, in the case of each employee employed by that employer,— (a) (b) (c) (d) the name of the employee: the employee’s age, if under 20 years of age: the employee’s postal address: the kind of work on which the employee is usually em­ ployed: whether the employee is employed under an individual employment agreement or a collective agreement: in the case of an employee employed under a collective agreement, the title and expiry date of the agreement, and the employee’s classiﬁcation under it: (e) (f) (i) (h) (g) where necessary for the purpose of calculating the em­ ployee’s pay, the hours between which the employee is employed on each day, and the days of the employee’s employment during each pay period: the wages paid to the employee each pay period and the method of calculation: details of any employment relations education leave taken under Part 7: such other particulars as may be prescribed.
(j) Every employer must, upon request by an employee or by a person authorised under section 236 to represent an employee, provide that employee or person immediately with access to or a copy of or an extract from any part or all of the wages and time record relating to the employment of the employee by the employer at any time in the preceding 6 years at which the employer was obliged to keep such a record.
(2) (3) Where an employer keeps a wages and time record in accord­ ance with any other Act, that employer is not required to keep a wages and time record under this Act in respect of the same matters.

Every employer who fails to comply with any requirement of this section is liable to a penalty imposed by the Authority.
Compare: 1991 No 22 s 47 (4) 141 Part 9 s 131 Employment Relations Act 2000 Reprinted as at 10 September 2007 131 Arrears (1) Where— (a) (b) there has been default in payment to an employee of any wages or other money payable by an employer to an employee under an employment agreement or a contract of apprenticeship; or any payments of any such wages or other money has been made at a rate lower than that legally payable,— the whole or any part, as the case may require, of any such wages or other money may be recovered by the employee by action commenced in the prescribed manner in the Authority.
(1A) The Authority may order payment of the wages or other money to the employee by instalments, but only if the ﬁnancial pos­ ition of the employer requires it.

Subsection (1) applies despite the acceptance by the employee of any payment at a lower rate or any express or implied agree­ ment to the contrary.

Subsection (1) does not affect any other remedies for the re­ covery of wages or other money payable by an employer to any employee under an employment agreement or a contract of apprenticeship.
Compare: 1991 No 22 s 48(1) (3) (2) Subsection (1A) was inserted, as from 1 December 2004, by section 43 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
132 Failure to keep or produce records (1) Where any claim is brought before the Authority under section 131 to recover wages or other money payable to an employee, the employee may call evidence to show that— (a) the defendant employer failed to keep or produce a wages and time record in respect of that employee as required by this Act; and that failure prejudiced the employee’s ability to bring an accurate claim under section 131.
(b) (2) Where evidence of the type referred to in subsection (1) is given, the Authority may, unless the defendant proves that those claims are incorrect, accept as proved all claims made by the employee in respect of— 142 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 135 (a) (b) the wages actually paid to the employee: the hours, days, and time worked by the employee.
(3) A defendant may not use as evidence any wages and time record that would be inadmissible under section 232(3).

Compare: 1991 No 22 s 50 133 (1) (2) (3) Penalties Jurisdiction concerning penalties The Authority has full and exclusive jurisdiction to deal with all actions for the recovery of penalties under this Act— (a) (b) for any breach of an employment agreement; or for a breach of any provision of this Act for which a penalty in the Authority is provided in the particular provision.
Subsection (1) is subject to— (a) sections 177 and 178 (which allow for the referral or removal of certain matters to the Employment Court); and any right to have the matter heard by the Court under section 179.

(b) Subject to any rights of appeal under this Act, the Court has full and exclusive jurisdiction to deal with all actions for the recovery of penalties under this Act for a breach of any other provision of this Act for which a penalty in the Court is pro­ vided in the particular provision.
Compare: 1991 No 22 s 51 134 Penalties for breach of employment agreement (1) Every party to an employment agreement who breaches that agreement is liable to a penalty under this Act.

Every person who incites, instigates, aids, or abets any breach of an employment agreement is liable to a penalty imposed by the Authority.
Compare: 1991 No 22 s 52 (2) 135 Recovery of penalties (1) Any action for the recovery of a penalty may be brought,— 143 Part 9 s 135 Employment Relations Act 2000 Reprinted as at 10 September 2007 (a) (b) (c) in the case of a breach of an employment agreement, at the suit of any party to the employment agreement who is affected by the breach; or in the case of a breach of this Act, at the suit of any person in relation to whom the breach is alleged to have taken place; or if permitted in the particular penalty provision, by a Labour Inspector.
(2) Every person who is liable to a penalty under this Act is li­ able,— (a) in the case of an individual, to a penalty not exceeding $5,000: in the case of a company or other corporation, to a penalty not exceeding $10,000.

(b) (3) A claim for 2 or more penalties against the same person may (4) be joined in the same action.
In any claim for a penalty the Authority or the Court may give judgment for the total amount claimed, or any amount, not ex­ ceeding the maximum speciﬁed in subsection (2), or the Au­ thority or the Court may dismiss the action.

(4A) The Authority or the Court may order payment of a penalty by instalments, but only if the ﬁnancial position of the person paying the penalty requires it.
(5) An action for the recovery of a penalty under this Act must be commenced within 12 months after the earlier of— (a) the date when the cause of action ﬁrst became known to the person bringing the action; or the date when the cause of action should reasonably have become known to the person bringing the action.

(b) Compare: 1991 No 22 s 53 Subsection (4A) was inserted, as from 1 December 2004, by section 44(1) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

Subsection (5) was substituted, as from 1 December 2004, by section 44(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
144 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 137 136 Application of penalties recovered (1) Subject to any order made under subsection (2), every penalty recovered in any penalty action, whether before the Authority or the Court, must be paid into the Authority or the Court, as the case requires, and not to the plaintiff, and must then be paid by the Authority or the Court into the Crown Bank Account.
The Authority or the Court may order that the whole or any part of any penalty recovered must be paid to any person.
Compare: 1991 No 22 s 54 (2) Compliance orders 137 Power of Authority to order compliance (1) This section applies where any person has not observed or complied with— (a) any provision of— (i) (ii) any employment agreement; or Parts 1, 3 to 6, 6A (except subpart 2), 6B, 7, and 9; or any terms of settlement or decision that section 151 provides may be enforced by compliance order; or a demand notice that section 225(4) provides may be enforced by compliance order; or sections 56, 58, 77A, and 77D of the State Sector Act 1988; or Parts 6 and 7 of the State Sector Act 1988; or section 11(3)(c) of the Health and Disability Ser­ vices Act 1993; or (iii) (iv) (v) (vi) (vii) (viii) clauses 5 and 6 of Schedule 1 of the Broadcasting (ix) (x) (xi) Act 1989; or sections 83, 83A, and 83B of the Fire Service Act 1975; or clauses 18, 19, and 21 of Schedule 5 of the Injury Prevention, Rehabilitation, and Compensation Act 2001; or Part 2A (other than section 19G) and Schedule 1A of the Health and Safety in Employment Act 1992; or 145 Part 9 s 137 Employment Relations Act 2000 Reprinted as at 10 September 2007 (b) any order, determination, direction, or requirement made or given under this Act by the Authority or a member or ofﬁcer of the Authority.
(2) Where this section applies, the Authority may, in addition to any other power it may exercise, by order require, in or in con­ junction with any matter before the Authority under this Act to which that person is a party or in respect of which that per­ son is a witness, that person to do any speciﬁed thing or to cease any speciﬁed activity, for the purpose of preventing fur­ ther non­observance of or non­compliance with that provision, order, determination, direction, or requirement.
The Authority must specify a time within which the order is to be obeyed.
The following persons may take action against another person by applying to the Authority for an order of the kind described in subsection (2): (a) (3) (4) (b) any person (being an employee, employer, union, or employer organisation) who alleges that that person has been affected by non­observance or non­compliance of the kind described in subsection (1): a health and safety inspector appointed under sec­ tion 29 of the Health and Safety in Employment Act 1992 who alleges that there has been non­observance or non­compliance of the kind described in subsection (1)(a)(xi).
Compare: 1991 No 22 s 55(1), (2) Subsection (1)(a)(ii) was substituted, as from 13 December 2006, by section 8 Employment Relations Amendment Act 2006 (2006 No 41).

See section 11 of that Act as to the transitional provisions.

Subsection (1)(a)(x) was substituted, as from 1 April 2002, by section 337(1) In­ jury Prevention, Rehabilitation, and Compensation Act 2001 (2001 No 49).

See Part 10 of that Act for provisions relating to transition from competitive provi­ sion of workplace accident insurance.
See Part 11 of that Act for transitional provisions relating to entitlements provided by Corporation.

Subsection (1)(a)(xi) was inserted, as from 5 May 2003, by section 33(3) Health and Safety in Employment Amendment Act 2002 (2002 No 86).

Subsection (1)(a)(xi) was amended, as from 1 December 2004, by section 45 Employment Relations Amendment Act (No 2) 2004 (2004 No 86) by substituting the expression “19G” for the expression “19K”.

See section 73 of that Act for the transitional provisions.
Subsection (4) was substituted, as from 5 May 2003, by section 33(4) Health and Safety in Employment Amendment Act 2002 (2002 No 86).
146 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 138 138 Further provisions relating to compliance order by (1) (2) Authority The power given to the Authority by section 137(2) may be exercised by the Authority— (a) (b) of its own motion; or on the application of— (i) (ii) any party to the matter; or in the case of section 137(4)(b), a health and safety inspector.
Before exercising its power under section 137(2) in relation to a person who is not a party to the matter, the Authority must give that person an opportunity to appear or be represented before the Authority.

(3) Any time speciﬁed by the Authority under section 137 may from time to time be extended by the Authority on the appli­ cation of the person who is required to obey the order.
(4) A compliance order of the kind described in section 137(2)— (a) may be made subject to such terms and conditions as the Authority thinks ﬁt (including conditions as to the actions of the applicant); and (b) may be expressed to continue in force until a speciﬁed time or the happening of a speciﬁed event.
(4A) If the compliance order relates in whole or in part to the pay­ ment to an employee of a sum of money, the Authority may order payment to the employee by instalments, but only if the ﬁnancial position of the employer requires it.

(5) Where the Authority makes a compliance order of the kind described in section 137(2), it may then adjourn the matter, without imposing any penalty or making a ﬁnal determination, to enable the compliance order to be complied with while the matter is adjourned.
(6) Where any person fails to comply with a compliance order made under section 137, the person affected by the failure may apply to the Court for the exercise of its powers under section 140(6).

Compare: 1991 No 22 s 55(3)­(7) Subsection (1)(b) was substituted, as from 5 May 2003, by section 33(5) Health and Safety in Employment Amendment Act 2002 (2002 No 86).
147 Part 9 s 139 Employment Relations Act 2000 Reprinted as at 10 September 2007 Subsection (4A) was inserted, as from 1 December 2004, by section 46 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
139 Power of Court to order compliance (1) This section applies where any person has not observed or complied with— (a) (b) any provision of Part 8; or any order, determination, direction, or requirement made or given under this Act by the Court.
(2) Where this section applies, the Court may, in addition to any other power it may exercise, by order require, in or in conjunc­ tion with any proceedings under this Act to which that person is a party or in respect of which that person is a witness, that person to do any speciﬁed thing or to cease any speciﬁed ac­ tivity, for the purpose of preventing further non­observance of or non­compliance with that provision, order, determination, direction, or requirement.
The Court must specify a time within which the order is to be obeyed.

(3) (4) Where any person (being an employee, employer, union, or employer organisation) alleges that that person has been af­ fected by a non­observance or non­compliance of the kind de­ scribed in subsection (1), that person may commence proceed­ ings against any other person in respect of the non­observance or non­compliance by applying to the Court for an order of the kind described in subsection (2).
Compare: 1991 No 22 s 56(1), (2) 140 Further provisions relating to compliance order by Court The power given to the Court by section 139(2) may be exer­ (1) cised by the Court— (a) (b) on the application of any party to the proceedings; or except where the proceedings are commenced under section 139(4), of its own motion.
Before exercising its power under section 139(2) in relation to a person who is not a party to the proceedings, the Court must give that person an opportunity to appear or be represented before the Court.

(2) 148 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 9 s 140A (3) Any time speciﬁed by the Court under section 139 may from time to time be extended by the Court on the application of the person who is required to obey the order.
(4) A compliance order of the kind described in section 139(2)— (a) may be made subject to such terms and conditions as the Court thinks ﬁt (including conditions as to the actions of the applicant); and (b) may be expressed to continue in force until a speciﬁed time or the happening of a speciﬁed event.
(5) Where the Court makes a compliance order of the kind de­ scribed in section 139(2), it may then adjourn the proceedings, without imposing any penalty or ﬁne or making a ﬁnal deter­ mination, to enable the compliance order to be complied with while the proceedings are adjourned.
(6) Where any person fails to comply with a compliance order made under section 139, or where the Court, on an application under section 138(6), is satisﬁed that any person has failed to comply with a compliance order made under section 137, the Court may do 1 or more of the following things: (a) if the person in default is a plaintiff, order that the pro­ ceedings be stayed or dismissed as to the whole or any part of the relief claimed by the plaintiff in the proceed­ ings: if the person in default is a defendant, order that the defendant’s defence be struck out and that judgment be sealed accordingly: order that the person in default be sentenced to impris­ onment for a term not exceeding 3 months: order that the person in default be ﬁned a sum not ex­ ceeding $40,000: order that the property of the person in default be se­ questered.
(b) (c) (d) (e) Compare: 1991 No 22 s 56(3)­(7) 140A Compliance order in relation to disclosure of employee (1) transfer costs information This section applies where— (a) any person has not observed or complied with section 69OC, 69OD, or 69OE; or 149 Part 9 s 140A Employment Relations Act 2000 Reprinted as at 10 September 2007 (b) there are reasonable grounds to believe that a person will not observe or comply with section 69OC, 69OD, or 69OE.
(2) Where this section applies, the Authority may, in addition to any other power it may exercise, by order require that person to do any speciﬁed thing or to cease any speciﬁed activity for the purpose of preventing— (a) further non­observance of or non­compliance with sec­ tion 69OC, 69OD,or 69OE; or non­observance of or non­compliance with section 69OC, 69OD, or 69OE.

(b) (3) The Authority must specify a time within which the order is to be obeyed.
(4) An application to the Authority for an order of the kind de­ scribed in subsection (2) may be made by the following per­ sons: (a) a person who has made or proposes to make a request under section 69OC(2): a person who has required another person to provide information under section 69OD(2), (4), or (5): an employee who would be eligible to elect to transfer to the new employer under section 69I: a union of which the employee is a member.
(b) (c) (d) (5) Where a person alleges that a person has been or would be affected by non­observance of or non­compliance with section 69OC, 69OD, or 69OE, that person may take action against another person by applying to the Authority for an order of the kind described in subsection (2).

The power given to the Authority by subsection (2) may be exercised by the Authority— (a) (b) of its own motion; or on the application of a person described in subsection (4).
(6) Sections 138(2) to (4), (5), and (6), 140(6), and 161 apply, with all necessary modiﬁcations, to a compliance order under subsection (2) as if the compliance order were a compliance order made under section 137(2).
(7) 150 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 143 (8) For the purposes of section 161(1), any non­observance of or non­compliance with or proposed non­observance of or non­ compliance with section 69OC, 69OD, or 69OE or failure to comply with a compliance order under subsection (2) is to be treated as if it were an employment relationship problem.

Section 140A was inserted, as from 13 December 2006, by section 9 Employ­ ment Relations Amendment Act 2006 (2006 No 41).
See section 11 of that Act as to the transitional provisions.

Enforcement of order 141 Enforcement of order Any order made or judgment given under this Act by the Au­ thority or the Court (including an order imposing a ﬁne) may be ﬁled in any District Court, and is then enforceable in the same manner as an order made or judgment given by the Dis­ trict Court.
Compare: 1991 No 22 s 58 Limitation period for actions other than personal grievances 142 Limitation period for actions other than personal grievances No action may be commenced in the Authority or the Court in relation to an employment relationship problem that is not a personal grievance more than 6 years after the date on which the cause of action arose.
Part 10 Institutions 143 Object of this Part The object of this Part is to establish procedures and institu­ tions that— (a) support successful employment relationships and the good faith obligations that underpin them; and recognise that employment relationships are more likely to be successful if problems in those relation­ ships are resolved promptly by the parties themselves; and (b) 151 Part 10 s 144 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) (d) (da) (e) (f) (fa) (g) recognise that, if problems in employment relationships are to be resolved promptly, expert problem­solving support, information, and assistance needs to be avail­ able at short notice to the parties to those relationships; and recognise that the procedures for problem­solving need to be ﬂexible; and recognise that the person who provides mediation ser­ vices can manage any mediation process actively; and recognise that there will always be some cases that re­ quire judicial intervention; and recognise that judicial intervention at the lowest level needs to be that of a specialist decision­making body that is not inhibited by strict procedural requirements; and investigations by the specialist deci­ ensure that sion­making body are, generally, concluded before any higher court exercises its jurisdiction in relation to the investigations; and recognise that difﬁcult issues of law will need to be de­ termined by higher courts.
Paragraph (da) was inserted, as from 1 December 2004, by section 47(1) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Paragraph (fa) was inserted, as from 1 December 2004, by section 47(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Mediation services 144 Mediation services (1) The chief executive must employ or engage persons to provide mediation services to support all employment relationships.
Those mediation services may include— (a) the provision of general information about employment rights and obligations: the provision of information about what services are available for persons (including unions and other bod­ ies corporate) who have employment relationship prob­ lems: (b) (2) 152 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 145 (c) (d) (e) other services that assist the smooth conduct of employ­ ment relationships: other services (of a type that can address a variety of cir­ cumstances) that assist persons to resolve, promptly and effectively, their employment relationship problems: services that assist persons to resolve any problem with the ﬁxing of new terms and conditions of employment.
144A Dispute resolution services (1) Nothing in this Act prevents the chief executive from provid­ ing dispute resolution services to parties in work­related rela­ tionships that are not employment relationships.

Services provided in accordance with this section proceed on the basis speciﬁed in writing by the chief executive.

Section 144A was inserted, as from 1 December 2004, by section 48 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

(2) 145 Provision of mediation services (1) The chief executive, by way of general instructions under sec­ tion 153(2) and (3),— (a) may decide how the mediation services required by sec­ tion 144 are to be provided; and (b) may, in order to promote fast and effective resolutions, treat matters presented for mediation in different ways.
(2) Any of the mediation services may be provided, for ex­ ample,— (a) (b) (c) by a telephone, facsimile, internet, or e­mail service (whether as a means of explaining where information can be found or as a means of actually providing the in­ formation or of otherwise seeking to resolve the prob­ lem); or by publishing pamphlets, brochures, booklets, or codes; or by specialists who— (i) respond to requests or themselves identify how, where, and when their services can best support the object of this Act; or 153 Part 10 s 146 Employment Relations Act 2000 Reprinted as at 10 September 2007 (ii) provide their services in the manner, and at the time and place (including wherever practicable the workplace itself), that are most likely to re­ solve the problem in question; or provide their services in all of the ways described in this paragraph.
(3) Any of the mediation services may be provided— (iii) (a) (b) by a combination of the ways described in subsection (2); or in such other ways as the chief executive thinks ﬁt to best support the object of this Act.

Subsections (2) and (3) do not limit subsection (1).

Subsection (1) was substituted, as from 1 December 2004, by section 49 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
(4) 146 Access to mediation services A person who wishes to access mediation services must con­ tact an ofﬁce of the Department that deals with employment relations issues.

(2) 147 Procedure in relation to mediation services (1) Where mediation services are provided, the person who pro­ vides the services decides what services are appropriate to the particular case.
That person, in providing those services,— (a) may, having regard to the object of this Act and the needs of the parties, follow such procedures, whether structured or unstructured, or do such things as he or she considers appropriate to resolve the problem or dispute promptly and effectively; and (ab) may offer mediation services on the basis that, prior to the commencement of a mediation, the parties have agreed— (i) that the services will be limited to a speciﬁed time; and if the problem is not resolved within the speci­ ﬁed time, the parties will resolve the problem by (ii) 154 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 148 using the process in section 150 (with any neces­ sary modiﬁcations); and (b) may receive any information, statement, admission, document, or other material, in any way that he or she thinks ﬁt, whether or not it would be admissible in judicial proceedings.
(3) To avoid doubt, the person who provides the services also decides the procedures that will be followed, which may in­ clude— (a) addressing any party to the matter without any repre­ sentative of that party being present: expressing to any party his or her views on the substance of 1 or more of the issues between the parties— (i) with or without any representative of the party being present: (ii) with or without any other party or parties to the matter being present: expressing to any party his or her views on the process the party is following or the position the party has adopted about the employment relationship problem— with or without any representative of the party (i) being present: (ii) with or without any other party or parties to the matter being present.
(b) (c) Subsection (2)(ab) was inserted, as from 1 December 2004, by section 50(1) Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Subsection (3) was inserted, as from 1 December 2004, by section 50(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
148 Conﬁdentiality (1) Except with the consent of the parties or the relevant party, a person who— (a) (b) (c) (d) provides mediation services; or is a person to whom mediation services are provided; or is a person employed or engaged by the Department; or is a person who assists either a person who provides me­ diation services or a person to whom mediation services are provided— 155 Part 10 s 148 Employment Relations Act 2000 Reprinted as at 10 September 2007 must keep conﬁdential any statement, admission, or document created or made for the purposes of the mediation and any in­ formation that, for the purposes of the mediation, is disclosed orally in the course of the mediation.
(2) No person who provides mediation services may give evi­ dence in any proceedings, whether under this Act or any other Act, about— (a) (b) the provision of the services; or anything, related to the provision of the services, that comes to his or her knowledge in the course of the pro­ vision of the services.
(3) No evidence is admissible in any court, or before any person acting judicially, of any statement, admission, document, or information that, by subsection (1), is required to be kept con­ ﬁdential.

(4) Nothing in the Ofﬁcial Information Act 1982 applies to any statement, admission, document, or information disclosed or made in the course of the provision of mediation services to the person providing those services.
(5) Where mediation services are provided for the purpose of as­ sisting persons to resolve any problem in determining or agree­ ing on new collective terms and conditions of employment, subsections (1) and (3) do not apply to any statement, admis­ sion, document, or information disclosed or made in the course of the provision of any such mediation services.
(6) Nothing in this section— (a) (b) (c) prevents the discovery or affects the admissibility of any evidence (being evidence which is otherwise discover­ able or admissible and which existed independently of the mediation process) merely because the evidence was presented in the course of the provision of mediation services; or prevents the gathering of information by the Depart­ ment for research or educational purposes so long as the parties and the speciﬁc matters in issue between them are not identiﬁable; or prevents the disclosure by any person employed or en­ gaged by the Department to any other person employed or engaged by the Department of matters that need to be 156 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 149 (d) disclosed for the purposes of giving effect to this Act; or applies in relation to the functions performed, or powers exercised, by any person under section 149(2) or section 150(2).
149 Settlements (1) Where a problem is resolved, whether through the provision of mediation services or otherwise, any person— (a) who is employed or engaged by the chief executive to provide the services; and (b) who holds a general authority, given by the chief ex­ ecutive, to sign, for the purposes of this section, agreed terms of settlement,— may, at the request of the parties to the problem, and under that general authority, sign the agreed terms of settlement.
(2) Any person who receives a request under subsection (1) must, before signing the agreed terms of settlement,— (a) (b) explain to the parties the effect of subsection (3); and be satisﬁed that, knowing the effect of that subsection, the parties afﬁrm their request.
(3) Where, following the afﬁrmation referred to in subsection (2) of a request made under subsection (1), the agreed terms of settlement to which the request relates are signed by the person empowered to do so,— (a) (ab) (b) those terms are ﬁnal and binding on, and enforceable by, the parties; and the terms may not be cancelled under section 7 of the Contractual Remedies Act 1979; and except for enforcement purposes, no party may seek to bring those terms before the Authority or the Court, whether by action, appeal, application for review, or otherwise.
(4) A person who breaches an agreed term of settlement to which subsection (3) applies is liable to a penalty imposed by the Authority.

Subsection (3)(ab) was inserted, as from 1 December 2004, by section 51(1) Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
157 Part 10 s 150 Employment Relations Act 2000 Reprinted as at 10 September 2007 Subsection (4) was inserted, as from 1 December 2004, by section 51(2) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

150 Decision by authority of parties (1) The parties to a problem may agree in writing to confer on a person employed or engaged by the chief executive to provide mediation services, the power to decide the matters in issue.
The person on whom the power is conferred must, before mak­ ing and signing a decision under that power,— (a) (b) explain to the parties the effect of subsection (3); and be satisﬁed that, knowing the effect of that subsection, the parties afﬁrm their agreement.
(2) (3) Where, following the afﬁrmation referred to in subsection (2) of an agreement made under subsection (1), a decision on how to resolve a problem is made and signed by the person empowered to do so,— (a) that decision is ﬁnal and binding on, and enforceable by, the parties; and except for enforcement purposes, no party may seek to bring that decision before the Authority or the Court, whether by action, appeal, application for review, or otherwise.
(b) (4) A person who breaches a term of a decision to which subsec­ tion (3) applies is liable to a penalty imposed by the Authority.

Subsection (4) was inserted, as from 1 December 2004, by section 52 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
150A Payment on resolution of problem (1) Any payment by 1 party to another, required by any agreed terms of settlement under section 149(3) or decision under sec­ tion 150(3), must be paid directly to the other party and not to a representative of that party, and the party receiving the payment may not receive, or agree to receive, payment in any other manner.

For the purposes of this Act, a payment that does not comply with subsection (1) is to be treated as if the payment has not been made.
(2) 158 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 152 (3) Subsection (1) does not— (a) apply if the party to whom the payment is required to be made is receiving or has received legal aid under the Legal Services Act 2000 for any matter related to the employment relationship problem giving rise to the mediation; or prevent a payment being made to the other party’s so­ licitor.
(b) Section 150A was inserted, as from 1 December 2004, by section 53 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
151 Enforcement of terms of settlement agreed or authorised Any agreed terms of settlement that are, under section 149(3), enforceable by the parties and any decision that, under section 150(3), is enforceable by the parties, may be enforced— by compliance order under section 137; or (a) in the case of a monetary settlement, in 1 of the follow­ (b) ing ways: (i) (ii) by compliance order under section 137: by using, as if the settlement or decision were an order enforceable under section 141, the proced­ ure applicable under section 141.
152 Mediation services not to be questioned as being inappropriate (1) No mediation services may be challenged or called in question in any proceedings on the ground— (a) that the nature and content of the services was inappro­ priate; or that the manner in which the services were provided was inappropriate.
(b) (2) Nothing in subsection (1) or in sections 149 and 150 prevents any agreed terms of settlement signed under section 149 or any decision made and signed under section 150 from being challenged or called in question on the ground that,— (a) In the case of terms signed under section 149, the pro­ visions of subsections (2) and (3) of that section (which 159 Part 10 s 153 Employment Relations Act 2000 Reprinted as at 10 September 2007 (b) relate to knowledge about the effect of a settlement) were not complied with; and In the case of a decision made and signed under section 150, the provisions of subsections (2) and (3) of that section (which relate to knowledge about the effect of conferring decision­making power on the person pro­ viding mediation services) were not complied with.
153 (1) (2) (b) Independence of mediation personnel The chief executive must ensure that any person employed or engaged to provide mediation services under section 144— (a) is, in deciding how to handle or deal with any particular problem or aspect of it, able to act independently; and is independent of any of the parties to whom mediation services are being provided in a particular case.
The chief executive, in managing the overall provision of me­ diation services, is not prevented by subsection (1) from giving general instructions about the manner in which, and the times and places at which, mediation services are to be provided.

(3) Any such general instructions may include general instruc­ tions about the manner in which mediation services are to be provided in relation to particular types of matters or particular types of situations or both.
(4) Where a Labour Inspector is a party to any matter in respect of which a person employed or engaged by the chief executive is providing mediation services, the fact that the Labour In­ spector and that person are employed by the same employer is not a ground for challenging the independence of that person.
(5) Where the chief executive is a party to any matter in respect of which a person employed or engaged by the chief executive is providing mediation services, that fact is not a ground for challenging the independence of that person.
(6) No person who is employed or engaged by the chief executive to provide mediation services may— (a) hold ofﬁce, at the same time, as a member of the Au­ thority; or be employed, at the same time, to staff or support— (i) the Authority under section 185; or (b) 160 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 157 (ii) the Court under section 198.
154 Other mediation services Nothing in this Part prevents any person seeking and using mediation services other than those provided by the chief ex­ ecutive under section 144.

Compare: 1991 No 22 s 78(5) (2) 155 Arbitration (1) Nothing in this Act prevents the parties to an employment agreement from agreeing to submit an employment relation­ ship problem to arbitration.
If the parties to an employment agreement purport to submit an employment relationship problem to arbitration,— (a) nothing in the Arbitration Act 1996 applies in respect of that submission; and the parties must determine the procedure for the arbitra­ tion.
(b) (3) The submission of an employment relationship problem to ar­ bitration does not— (a) prevent any of the parties from using mediation services or applying to the Authority or the Court in accordance with this Part; or otherwise affect the application of this Act.

(b) Employment Relations Authority 156 Employment Relations Authority This section establishes an authority called the Employment Relations Authority.
157 Role of Authority (1) The Authority is an investigative body that has the role of re­ solving employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities.
The Authority must, in carrying out its role,— (a) (b) comply with the principles of natural justice; and aim to promote good faith behaviour; and (2) 161 Part 10 s 158 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) (d) support successful employment relationships; and generally further the object of this Act.
(3) (2A) Subsection (2)(a) does not require the Authority to allow the cross­examination of a party or person, but the Authority may, in its absolute discretion, permit such cross­examination.

The Authority must act as it thinks ﬁt in equity and good con­ science, but may not do anything that is inconsistent with this Act or with the relevant employment agreement.
Subsection (2A) was inserted, as from 14 November 2001, by section 10 Em­ ployment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001 (2001 No 91).

158 Lodging of applications Proceedings before the Authority are to be commenced by the lodging of an application in the prescribed form.
159 Duty of Authority to consider mediation (1) Where any matter comes before the Authority for determin­ ation, the Authority— (a) must, whether through a member or through an ofﬁcer, ﬁrst consider whether an attempt has been made to re­ solve the matter by the use of mediation; and (b) must direct that mediation or further mediation, as the case may require, be used before the Authority investi­ gates the matter, unless the Authority considers that the use of mediation or further mediation— (i) will not contribute constructively to resolving the matter; or (ii) will not, in all the circumstances, be in the public interest; or (iii) will undermine the urgent or interim nature of the proceedings; and (c) must, in the course of investigating any matter, consider from time to time, as the Authority thinks ﬁt, whether to direct the parties to use mediation.
(2) Where the Authority gives a direction under subsection (1)(b) or subsection (1)(c), the parties must comply with the direction and attempt in good faith to reach an agreed settle­ ment of their differences, and proceedings in relation to the 162 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 161 request before the Authority are suspended until the parties have done so or the Authority otherwise directs (whichever ﬁrst occurs).
160 Powers of Authority (1) The Authority may, in investigating any matter,— (a) call for evidence and information from the parties or from any other person: require the parties or any other person to attend an in­ vestigation meeting to give evidence: interview any of the parties or any person at any time before, during, or after an investigation meeting: in the course of an investigation meeting, fully examine any witness: decide that an investigation meeting should not be in public or should not be open to certain persons: follow whatever procedure the Authority considers ap­ propriate.
(b) (c) (d) (e) (f) (2) (3) 161 (1) The Authority may take into account such evidence and infor­ mation as in equity and good conscience it thinks ﬁt, whether strictly legal evidence or not.

The Authority is not bound to treat a matter as being a matter of the type described by the parties, and may, in investigating the matter, concentrate on resolving the employment relationship problem, however described.
Subsection (1)(c) was amended, as from 1 December 2004, by section 54 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by inserting the words “, during, or after” after the words “any time before”.

See section 73 of that Act for the transitional provisions.
Jurisdiction The Authority has exclusive jurisdiction to make determin­ ations about employment relationship problems generally, in­ cluding— (a) disputes about the interpretation, application, or oper­ ation of an employment agreement: (b) matters related to a breach of an employment agree­ ment: 163 Part 10 s 161 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) matters about whether a person is an employee (not being matters arising on an application under section 6(5)): (ca) facilitating bargaining under sections 50A to 50I: (cb) ﬁxing the provisions of a collective agreement under section 50J: (da) (d) matters alleged to arise under section 68 because a party to an individual employment agreement has bargained unfairly: investigating bargaining under section 69O and, if necessary, determining redundancy entitlements under that section: personal grievances: matters about whether the good faith obligations im­ posed by this Act (including those that apply where a union and an employer bargain for a collective agree­ ment) have been complied with in a particular case: (e) (f) (g) matters about the recovery of wages or other money under section 131: (i) (h) matters about whether the rules of a union, or of an incorporated society that wishes to register as a union, comply with the provisions of this Act: matters about whether an incorporated society is en­ titled to register under this Act as a union or is entitled to continue to be so registered: matters about whether a person is entitled to be a mem­ ber of a union: (j) (k) matters related to a failure by a union to comply with its (l) (m) rules: any proceedings related to a strike or lockout (other than those founded on tort or seeking an injunction): actions for the recovery of penalties— (i) under this Act for a breach of an employment agreement: under this Act for a breach of any provision of this Act (being a provision that provides for the penalty to be recovered in the Authority): under section 76 of the Holidays Act 2003: (ii) (iii)
 164 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 161 (iv) (v) under section 10 of the Minimum Wage Act 1983: under section 13 of the Wages Protection Act 1983: (2) (3) (s) (n) (o) (p) (q) (r) compliance orders under section 137: objections under section 225 to demand notices: orders for interim reinstatement under section 127: actions of the type referred to in section 228(1): any other action (being an action that is not directly within the jurisdiction of the Court) arising from or re­ lated to the employment relationship or related to the interpretation of this Act (other than an action founded on tort): determinations under such other powers and functions as are conferred on it by this or any other Act.
Except as provided in subsection (1)(ca), (cb), (d), (da), and (f), the Authority does not have jurisdiction to make a deter­ mination about any matter relating to— bargaining; or (a) (b) the ﬁxing of new terms and conditions of employment.

Except as provided in this Act, no court has jurisdiction in relation to any matter that, under subsection (1), is within the exclusive jurisdiction of the Authority.
Compare: 1991 No 22 s 79(1)(b)­(g), (j) Subsection (1)(ca) and (cb) was inserted, as from 1 December 2004, by section 55(1) Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

Subsection (1)(da) was inserted, as from 1 December 2004, by section 55(2) Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
Subsection (1)(da) was amended, as from 14 September 2006, by section 10 Employment Relations Amendment Act 2006 (2006 No 41) by substituting the expression “69O” for the expression “69J”.

See section 11 of that Act as to the transitional provisions.

Subsection (1)(m)(iii) was amended, as from 1 April 2004, by section 91(2) Holidays Act 2003 (2003 No 129) by substituting the words “section 76 of the Holidays Act 2003” for the words “section 20 of the Holidays Act 1981”.
Subsection (2) was amended, as from 1 December 2004, by section 55(3) Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by substituting the words “subsection (1)(ca), (cb), (d), (da), and (f)” for the words “subsec­ tion (1)(d) or subsection (1)(f)”.

See section 73 of that Act for the transitional provisions.
165 Part 10 s 162 Employment Relations Act 2000 Reprinted as at 10 September 2007 162 Application of law relating to contracts Subject to sections 163 and 164, the Authority may, in any matter related to an employment agreement, make any order that the High Court or a District Court may make under any enactment or rule of law relating to contracts, including— (a) (b) (c) (d) (e) (f) (g) Compare: 1991 No 22 s 104(1)(h) the Contracts (Privity) Act 1982: the Contractual Mistakes Act 1977: the Contractual Remedies Act 1979: the Fair Trading Act 1986: the Frustrated Contracts Act 1944: the Illegal Contracts Act 1970: the Minors’ Contracts Act 1969.
163 Restriction on Authority’s power in relation to collective agreements The Authority may not, under section 162 or any other provi­ sion of this Act, make in respect of a collective agreement an order cancelling or varying the agreement or any term of the agreement.
Compare: 1991 No 22 s 104(2) 164 Application to individual employment agreements of law relating to contracts Where the Authority, has, under section 69(1)(b) or section 162, the power to make an order cancelling or varying an in­ dividual employment agreement or any term of such an agree­ ment, the Authority may make such an order only if— (a) the Authority (whether or not it gave any direction under section 159(1)(b) in relation to the matter)— (i) has identiﬁed the problem in relation to the agree­ ment; and has directed the parties to attempt in good faith to resolve that problem; and (ii) (b) (c) the parties have attempted in good faith to resolve the problem relating to the agreement by using mediation; and despite the use of mediation, the problem has not been resolved; and 166 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 169 (d) the Authority is satisﬁed that any remedy other than such an order would be inappropriate or inadequate.
Compare: 1991 No 22 s 104(2) 165 Other provisions relating to investigations of Authority The provisions of Schedule 2 have effect in relation to the Authority and matters within its jurisdiction.

166 Membership of Authority The Authority consists of— (1) (a) (2) (3) 1 member who is to be appointed as the Chief of the Employment Relations Authority: at least 2 other members.

(b) For the purposes of any matter within its jurisdiction, the Au­ thority consists of 1 member of the Authority.
The Chief of the Authority is responsible for making such ar­ rangements as are practicable to ensure that the members of the Authority discharge their functions— (a) (b) Compare: 1991 No 22 ss 81(1), (2) in an orderly and expeditious way; and in a way that meets the object of this Act.

167 Appointment of members Each member of the Authority is to be appointed by the Gov­ ernor­General on the recommendation of the Minister.
Compare: 1991 No 22 s 82(1) 168 Oath of ofﬁce Each member of the Authority must, before entering on the exercise of any of his or her functions as a member of the Authority, swear or afﬁrm before a Judge of the Court that the member of the Authority will faithfully and impartially perform his or her duties as a member of the Authority.

Compare: 1991 No 22 s 82(3) 169 Term of ofﬁce (1) Every member of the Authority is to be appointed for a term not exceeding 4 years.
167 Part 10 s 170 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) A member of the Authority is eligible for reappointment from time to time.

Compare: 1991 No 22 s 83 170 Vacation of ofﬁce (1) A member of the Authority may at any time be removed from ofﬁce by the Governor­General for incapacity affecting per­ formance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Governor­General.
(2) A member of the Authority is deemed to have vacated his or her ofﬁce if he or she is, under the Insolvency Act 1967, ad­ judged bankrupt.

(3) A member of the Authority may at any time resign his or her ofﬁce by giving notice in writing to that effect to the Minister.
Compare: 1991 No 22 s 84 171 Salaries and allowances (1) (b) There is to be paid to each member of the Authority, out of pub­ lic money, without further appropriation than this section,— (a) a salary at such rate or in accordance with such scale of rates as the Remuneration Authority from time to time determines; and subject to subsection (2), such allowances as are from time to time determined by the Remuneration Authority.
There is to be paid to each member of the Authority, in respect of time spent travelling in the exercise of the Authority’s func­ tions, travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951; and the pro­ visions of that Act apply accordingly as if the member were a member of a statutory Board and the travelling were in the service of a statutory Board.
In the case of the Chief of the Authority, the rate of salary and the allowances determined may be higher than those for the other members of the Authority.

(2) (3) (4) Nothing in subsection (1) prevents in an appropriate case pay­ ment to a member of the Authority of a salary and allowances on a per diem basis.
Compare: 1991 No 22 s 86(1)­(3) 168 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 173 Subsection (1) was amended, as from 1 April 2003, by section 4(1) Remuner­ ation Authority (Members of Parliament) Amendment Act 2002 (2002 No 54) by substituting the words “Remuneration Authority” for the words “Higher Salaries Commission” in both places where they appear.
172 Temporary appointments (1) The Governor­General may from time to time, on the recom­ mendation of the Minister, appoint 1 or more temporary mem­ bers of the Authority to hold ofﬁce for such period as may be speciﬁed in the instrument of appointment.

The period so speciﬁed may not exceed 12 months; but any person appointed under this section may from time to time be reappointed.

(2) (3) A person so appointed has all the powers of a member.
(4) Every person appointed as a temporary member of the Au­ thority under this section is, during the term of that member’s appointment, to be paid, on a per diem basis,— (a) such salary, payable pursuant to section 171 to a mem­ ber of the Authority, as the Governor­General directs; and The allowances to which that person would be entitled if that person held ofﬁce under section 166(1).
(b) Compare: 1991 No 22 s 87(1)­(4) 173 Procedure (1) The Authority, in exercising its powers and functions, must— comply with the principles of natural justice; and (a) act in a manner that is reasonable having regard to its (b) investigative role.

(1A) Subsection (1)(a) does not require the Authority to allow the cross­examination of a party or person, but the Authority may, in its absolute discretion, permit such cross­examination.
The Authority may meet with the parties at such times and places as are from time to time ﬁxed by a member of the Au­ thority or an ofﬁcer of the Authority.

(2) (2A) The Authority may exercise its powers under section 160(1) in the absence of 1 or more of the parties.
(2B) However, if the Authority acts under subsection (2A), the Au­ thority must provide to an absent party— 169 Part 10 s 174 Employment Relations Act 2000 Reprinted as at 10 September 2007 (a) (b) any material it receives that is relevant to the case of the absent party; and an opportunity to comment on the material before the Authority takes it into account.

(2C) To avoid doubt, subsections (2A) and (2B) do not limit the powers of the Authority to make ex parte orders.
(3) Meetings of the Authority may be adjourned from time to time and from place to place by a member of the Authority or an ofﬁcer of the Authority designated for the purpose by the chief executive, whether at any meeting or at any time before the time ﬁxed for the meeting.

The Chief of the Authority may require particular members of the Authority to investigate particular matters.
Compare: 1991 No 22 s 88(4)­(6) (4) Subsection (1A) was inserted, as from 14 November 2001, by section 10 Em­ ployment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001 (2001 No 91).

Subsections (2A) to (2C) were inserted, as from 1 December 2004, by section 56 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
174 Determinations In recording its determination on any matter before it, the Au­ thority, for the purpose of delivering speedy, informal, and practical justice to the parties,— (a) must— (i) (ii) state relevant ﬁndings of fact; and state and explain its ﬁndings on relevant issues of law; and express its conclusions on the matters or issues it considers require determination in order to dis­ pose of the matter; and specify what orders (if any) it is making; but (iii) (iv) need not— (i) (ii) set out a record of all or any of the evidence heard or received; or record or summarise any submissions made by the parties; or (b) 170 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 177 (iii) (iv) indicate why it made, or did not make, speciﬁc ﬁndings as to the credibility of any evidence or person; or record the process followed in investigating and determining the matter.
175 Seal of Authority The Authority is to have a seal, which is to be judicially noticed by all courts and for all purposes.

Compare: 1991 No 22 s 89 176 Protection of members of Authority, etc (1) A member of the Authority, in the performance of his or her duties under this Act, has and enjoys the same protection as a Justice of the Peace acting in his or her criminal jurisdiction has and enjoys under Part 7 of the Summary Proceedings Act 1957.
For the avoidance of doubt as to the privileges and immunities of members of the Authority and of parties, representatives, and witnesses in the proceedings of the Authority, it is declared that such proceedings are judicial proceedings.
Compare: 1991 No 22 s 92 (2) 177 Referral of question of law (1) The Authority may, where a question of law arises during an investigation,— (a) refer that question of law to the Court for its opinion; and delay the investigation until it receives the Court’s opin­ ion on that question.

(b) (2) (3) (4) Every reference under subsection (1) must be made in the pre­ scribed manner.
The Court must provide the Authority with its opinion on the question of law and the Authority must then continue its in­ vestigation in accordance with that opinion.
Subsection (1) does not apply— (a) to a question about the procedure that the Authority has followed, is following, or is intending to follow; and 171 Part 10 s 178 Employment Relations Act 2000 Reprinted as at 10 September 2007 (b) without limiting paragraph (a), to a question about whether the Authority may follow or adopt a particular procedure.

Compare: 1991 No 22 s 93 Subsection (4) was inserted, as from 1 December 2004, by section 57 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.

178 Removal to Court (1) Where a matter comes before the Authority, any party may apply to the Authority to have the matter, or part of it, removed to the Court for the Court to hear and determine it without the Authority investigating the matter.
The Authority may order the removal of the matter, or any part of it, to the Court if— (a) (2) an important question of law is likely to arise in the matter other than incidentally; or the case is of such a nature and of such urgency that it is in the public interest that it be removed immediately to the Court; or the Court already has before it proceedings which are between the same parties and which involve the same or similar or related issues; or the Authority is of the opinion that in all the circum­ stances the Court should determine the matter.
(b) (c) (d) (3) Where the Authority declines to remove any matter, or a part of it, to the Court, the party applying for the removal may seek the special leave of the Court for an order of the Court that the matter or part be removed to the Court, and in any such case the Court must apply the criteria set out in paragraphs (a) to (c) of subsection (2).
(4) An order for removal to the Court under this section may be made subject to such conditions as the Authority or the Court, as the case may be, thinks ﬁt.

(5) Where the Authority, acting under subsection (2), orders the removal of any matter, or a part of it, to the Court, the Court may, if it considers that the matter or part was not properly so removed, order that the Authority investigate the matter.
This section does not apply— (6) 172 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 179 (a) to a matter, or part of a matter, about the procedure that the Authority has followed, is following, or is intending to follow; and (b) without limiting paragraph (a), to a matter, or part of a matter, about whether the Authority may follow or adopt a particular procedure.
Compare: 1991 No 22 s 94 Subsection (6) was inserted, as from 1 December 2004, by section 58 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

179 Challenges to determinations of Authority (1) A party to a matter before the Authority who is dissatisﬁed with the determination of the Authority or any part of that de­ termination may elect to have the matter heard by the Court.
Every election under this section must be made in the pre­ scribed manner within 28 days after the date of the determin­ ation of the Authority.

The election must— (a) (2) (3) specify the determination, or the part of the determin­ ation, to which the election relates; and state whether or not the party making the election is seeking a full hearing of the entire matter (in this Part referred to as a hearing de novo).
(b) (4) (5) If the party making the election is not seeking a hearing de novo, the election must specify, in addition to the matters spe­ ciﬁed in subsection (3),— (a) (b) (c) any error of law or fact alleged by that party; and any question of law or fact to be resolved; and the grounds on which the election is made, which grounds are to be speciﬁed with such reasonable par­ ticularity as to give full advice to both the Court and the other parties of the issues involved; and the relief sought.
(d) Subsection (1) does not apply— (a) to a determination, or part of a determination, about the procedure that the Authority has followed, is following, or is intending to follow; and 173 Part 10 s 179A Employment Relations Act 2000 Reprinted as at 10 September 2007 (b) without limiting paragraph (a), to a determination, or part of a determination, about whether the Authority may follow or adopt a particular procedure.
Compare: 1991 No 22 s 95(1), (2) Subsection (5) was inserted, as from 1 December 2004, by section 59 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

179A Limitation on challenges to certain determinations of (1) Authority This section applies to a determination of the Authority made— (a) (b) for the purposes of sections 50A to 50I; or under section 50J.
(2) A party may not elect, under section 179(1), to have the matter heard by the Court unless the matter is whether 1 or more of the grounds in section 50C(1) or section 50J(3) exist.

Section 179A was inserted, as from 1 December 2004, by section 60 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
180 Election not to operate as stay The making of an election under section 179 does not operate as a stay of proceedings on the determination of the Authority unless the Court, or the Authority, so orders.
181 Report in relation to good faith (1) Where the election states that the person making the election is seeking a hearing de novo, the Authority must, if the Court so requests, as soon as practicable, submit to the Court a written report giving the Authority’s assessment of the extent to which the parties involved in the investigation have— (a) facilitated rather than obstructed the Authority’s inves­ tigation; and acted in good faith towards each other during the inves­ tigation.
(b) The Court may request a report under subsection (1) only where the Court considers, on the basis of the determination made by the Authority under section 174, that any party may not have participated in the Authority’s investigation of the (2) 174 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 183 (3) matter in a manner that was designed to resolve the issues involved.
The Authority must, before submitting the report to the Court, give each party to the proceedings a reasonable opportunity to supply to the Authority written comments on the draft report.

(4) A party who supplies written comments to the Authority under subsection (3) must, immediately after doing so, serve a copy of those comments on each other party to the proceedings.

The Authority must, in submitting the ﬁnal report to the Court, submit with it any written comments received from any party.
(5) 182 Hearings (1) Where the election states that the person making the election is seeking a hearing de novo, the hearing held pursuant to that election is to be a hearing de novo unless the parties agree otherwise or the Court otherwise directs.
The Court may give a direction under subsection (1) only if— it has requested a report under section 181(1); and (a) it is satisﬁed,— (b) (i) (ii) on the basis of that report; and after having had regard to any comments submit­ ted under section 181(5),— (2) that the person making the election did not participate in the Authority’s investigation of the matter in a manner that was designed to resolve the issues involved.
(3) Where— (a) (b) the Court gives a direction under subsection (1); or the election states that the person seeking the election is not seeking a hearing de novo,— the Court must direct, in relation to the issues involved in the matter, the nature and extent of the hearing.

183 Decision (1) Where a party to a matter has elected under section 179 to have that matter heard by the Court, the Court must make its own decision on that matter and any relevant issues.
175 Part 10 s 184 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) Once the Court has made a decision, the determination of the Authority on the matter is set aside and the decision of the Court on the matter stands in its place.

(3) Despite subsection (2), a person may apply for review of the determination of the Authority under section 194.
Compare: 1991 No 22 s 95(4)­(7) Subsections (2) and (3) were inserted, as from 1 December 2004, by section 61 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
184 Restriction on review (1) Except on the ground of lack of jurisdiction or as provided in section 179, no determination, order, or proceedings of the Authority are removable to any court by way of certiorari or otherwise, or are liable to be challenged, appealed against, re­ viewed, quashed, or called in question in any court.
(1A) No review proceedings under section 194 may be initiated in relation to any matter before the Authority unless— (a) the Authority has issued ﬁnal determinations on all mat­ ters relating to the subject of the review application be­ tween the parties to the matter; and (if applicable) the party initiating the review proceed­ ings has challenged the determination under section 179; and the Court has made a decision on the challenge under section 183.
(b) (c) (b) For the purposes of subsection (1), the Authority suffers from lack of jurisdiction only where,— (a) in the narrow and original sense of the term jurisdiction, it has no entitlement to enter upon the inquiry in ques­ tion; or the determination or order is outside the classes of de­ terminations or orders which the Authority is authorised to make; or the Authority acts in bad faith.
(c) Subsection (1A) was inserted, as from 1 December 2004, by section 62 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

(2) 176 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 187 185 Staff of Authority (1) The chief executive may from time to time designate such number of employees of the Department to act as ofﬁcers of the Authority as may be required.
The ofﬁcers designated under subsection (1) must act under the general direction of the chief executive.

The Department is to provide such other employees as may be required to provide the Authority with such services and resources as may be necessary to enable it to effectively per­ form its functions and exercise its jurisdiction.
Subject to section 153(6), any employee designated under subsection (1) or provided to the Authority under subsection (3) may also hold any other ofﬁce or position in the Depart­ ment.

Compare: 1991 No 22 s 101 Employment Court 186 Employment Court (1) This section establishes a court of record, called the Employ­ ment Court, which, in addition to the jurisdiction and powers specially conferred on it by this Act or any other Act, has all the powers inherent in a court of record.
The Court established by subsection (1) is declared to be the same Court as the Employment Court established by section 103 of the Employment Contracts Act 1991.
Compare: 1991 No 22 s 103 (2) (3) (4) (2) 187 (1) Jurisdiction of Court The Court has exclusive jurisdiction— (a) to hear and determine elections under section 179 for a hearing of a matter previously determined by the Au­ thority, whether under this Act or any other Act confer­ ring jurisdiction on the Authority: to hear and determine actions for the recovery of penal­ ties under this Act for a breach of any provision of this Act (being a provision that provides for the penalty to be recovered in the Court): (b) 177 Part 10 s 188 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) to hear and determine questions of law referred to it by the Authority under section 177: to hear and determine applications for leave to have matters before the Authority removed into the Court under section 178(3): to hear and determine matters removed into the Court under section 178: to hear and determine, under section 6(5), any question whether any person is to be declared to be— (i) (ii) an employee within the meaning of this Act; or a worker or employee within the meaning of any of the Acts referred to in section 223(1): to order compliance under section 139: to hear and determine proceedings founded on tort and resulting from or related to a strike or lockout: to hear and determine any application for an injunction of a type speciﬁed in section 100: to hear and determine any application for review of the type referred to in section 194: to issue warrants under section 231: to exercise its powers in respect of any offence against this Act: to exercise such other functions and powers as are con­ ferred on it by this or any other Act.
(2) (3) The Court does not have jurisdiction to entertain an application for summary judgment.

Except as provided in this Act, no other court has jurisdiction in relation to any matter that, under subsection (1), is within the exclusive jurisdiction of the Court.
Compare: 1991 No 22 s 104(1)(a), (c), (d), (e), (j), (l), (m), (n), (o) 188 Role in relation to jurisdiction (1) The general role of the Court in relation to its jurisdiction is to hear and determine matters within its jurisdiction and to exercise its powers.
(2) Where any matter comes before the Court for decision, the Court— 178 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 189 (a) must, whether through a Judge or through an ofﬁcer of the Court, ﬁrst consider whether an attempt has been made to resolve the matter by the use of mediation; and (b) must direct that mediation or further mediation, as the case may require, be used before the Court hears the matter, unless the Court considers that the use of medi­ ation or further mediation— (i) will not contribute constructively to resolving the matter; or (ii) will not, in all the circumstances, be in the public interest; or (iii) will undermine the urgent or interim nature of the proceedings; and (c) must, in the course of hearing and determining any mat­ ter, consider from time to time, as the Court thinks ﬁt, whether to direct the parties to use mediation.
(3) Where the Court gives a direction under subsection (2)(b) or (c), the parties must comply with the direction and attempt in good faith to reach an agreed settlement of their differences; and proceedings in relation to the request before the Court are suspended until the parties have done so or the Court otherwise directs (whichever ﬁrst occurs).
It is not a function of the Court to advise or direct the Authority in relation to— (a) (4) the exercise of its investigative role, powers, and juris­ diction; or the procedure— (i) that it has followed, is following, or is intending to follow; or (b) (ii) without limiting subparagraph (i), that it may fol­ low or adopt.

Subsection (4) was substituted, as from 1 December 2004, by section 63 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
See section 73 of that Act for the transitional provisions.
189 Equity and good conscience (1) In all matters before it, the Court has, for the purpose of sup­ porting successful employment relationships and promoting good faith behaviour, jurisdiction to determine them in such 179 Part 10 s 190 Employment Relations Act 2000 Reprinted as at 10 September 2007 manner and to make such decisions or orders, not inconsist­ ent with this or any other Act or with any applicable collective agreement or the particular individual employment agreement, as in equity and good conscience it thinks ﬁt.
The Court may accept, admit, and call for such evidence and information as in equity and good conscience it thinks ﬁt, whether strictly legal evidence or not.

Compare: 1991 No 22 ss 104(3), 126(1) (2) (2) 190 Application of other provisions (1) The Court has, in relation to matters within its jurisdiction, and in addition to the powers speciﬁcally conferred on it by this Act or any other Act, the powers conferred on the Authority by sections 162 and 164.
For the purposes of subsection (1), sections 162 and 164 apply, in relation to the Court,— (a) as if, for the word “Authority”, there were substituted the word “Court”; and as if, for the word “member”, there were substituted the word “Judge”; and with all other necessary modiﬁcations.

(b) (c) 191 Other provisions relating to proceedings of Court The provisions of Schedule 3 have effect in relation to the Court and matters within its jurisdiction.
192 Application to collective agreements of law relating to (1) contracts The Court may not, under section 162 (as applied by section 190(1)), make in respect of a collective agreement an order cancelling or varying the agreement or any term of the agree­ ment.
(2) Despite subsection (1), the Court may, instead of making an order of the kind described in that subsection,— (a) make an order— (i) suspending some aspect of the agreement; and 180 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 194 (b) (c) (ii) directing the parties to the collective agreement to reopen bargaining with regard to the sus­ pended aspect of the agreement; and in addition to an order under paragraph (a), make an order requiring the parties to make use of mediation in the bargaining required by paragraph (a)(ii); and in addition to orders under paragraphs (a) and (b), make a declaration that the employees and employers covered by the collective agreement (or either of them) are, or are not, to have the right to strike or lock out available to them, while the bargaining required by the order under paragraph (a)(ii) continues.
(3) Every declaration under subsection (2)(c) must state the date on which the right to strike or lock out is to become available or is to cease to be available.
Compare: 1991 No 22 s 104(2) (2) 193 Proceedings not to be questioned (1) Except on the ground of lack of jurisdiction or as provided in sections 213, 214, 217, and 218, no decision, order, or pro­ ceedings of the Court are removable to any court by certiorari or otherwise, or are liable to be challenged, appealed against, reviewed, quashed, or called in question in any court.
For the purposes of subsection (1), the Court suffers from lack of jurisdiction only where,— (a) in the narrow and original sense of the term jurisdiction, it has no entitlement to enter upon the inquiry in ques­ tion; or the decision or order is outside the classes of decisions or orders which the Court is authorised to make; or the Court acts in bad faith.
(b) (c) Compare: 1991 No 22 s 104(5), (6) 194 Application for review (1) If any person wishes to apply for review under Part 1 of the Judicature Amendment Act 1972, or bring proceedings seek­ ing a writ or order of, or in the nature of, mandamus, prohib­ ition, or certiorari, or a declaration or injunction, in relation 181 Part 10 s 194 Employment Relations Act 2000 Reprinted as at 10 September 2007 the Authority; or an ofﬁcer of the Authority or the Court; or an employer, or that employer’s representative; or a union, or that union’s representative; or the Registrar of Unions; or the Minister; or the chief executive; or any other person— to the exercise, refusal to exercise, or proposed or purported exercise by— (a) (b) (c) (d) (e) (f) (g) (h) of a statutory power or statutory power of decision (as deﬁned by section 3 of the Judicature Amendment Act 1972) conferred by or under this Act or any of the provisions of Parts 5, 6, 7, or 7A of the State Sector Act 1988, the provisions of subsections (2) to (4) of this section apply.
(2) Despite any other Act or rule of law, but subject to section 184(1A), the Court has full and exclusive jurisdiction to hear and determine any application or proceedings of the type re­ ferred to in subsection (1) and all such applications or proceed­ ings must be made to or brought in the Court.
(3) Where a right of appeal (which includes, for the purposes of this subsection, the right to make an election under section 179) is conferred on any person under this Act or the State Sector Act 1988 in respect of any matter, that person may not make an application under subsection (1) in respect of that matter unless any appeal brought by that person in the exercise of that right of appeal has ﬁrst been determined.
(4) A Judge may at any time and after hearing such persons, if any, as the Judge thinks ﬁt, give such directions prescribing the procedure to be followed in any particular case under this section as the Judge deems expedient having regard to the ex­ igencies of the case and the interests of justice.
Compare: 1991 No 22 s 105 Subsection (2) was amended, as from 1 December 2004, by section 64 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by inserting the words “but subject to section 184(1A),” after the words “rule of law,”.

See section 73 of that Act for the transitional provisions.
182 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 195 194A Application for review by certain employees (1) This section applies to any exercise, refusal to exercise, or pro­ posed or purported exercise of a statutory power or statutory power of decision by an employer if that exercise, refusal to exercise, or proposed or purported exercise of the statutory power or statutory power of decision is or gives rise to an em­ ployment relationship problem.
(2) When subsection (1) applies, the employee or former em­ ployee concerned— (a) must use the employment relationship problem­solving provisions in this Act to deal with the problem; and (b) may not bring an application for review in relation to the problem in the Court or the High Court.

Section 194A was inserted, as from 1 December 2004, by section 65 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
195 Non­attendance or refusal to co­operate (1) Every person commits an offence, and is liable on conviction by the Court to a ﬁne not exceeding $5,000, who, after being summoned under this Act as a witness,— (a) refuses or neglects, without sufﬁcient cause, to attend as a witness before the Authority or the Court or to pro­ duce to the Authority or the Court any books, papers, documents, records, or things required by the summons to be produced; or refuses, without sufﬁcient cause, to be sworn or to give evidence or, having been sworn, refuses to answer any question that the person is lawfully required by the Au­ thority or the Court to answer concerning the proceed­ ings.
(b) (2) No person summoned under this Act as a witness is liable to a ﬁne under this Act unless there has been paid or tendered to that person in accordance with clause 6 of Schedule 2 the amount ﬁxed under subclause (3) of that clause or in accord­ ance with clause 7 of Schedule 3 the amount ﬁxed under sub­ clause (3) of that clause.
Compare: 1991 No 22 s 127 183 Part 10 s 196 Employment Relations Act 2000 Reprinted as at 10 September 2007 196 Contempt of Court or Authority (1) This section applies where any person— (a) assaults, threatens, intimidates, or wilfully insults any person, being a member of the Authority, a Judge, an ofﬁcer of the Authority, a Registrar of the Court, any other ofﬁcer of the Court, or any witness, during that person’s sitting or attendance in the Authority or the Court, or in going to or returning from the Authority or the Court; or (b) wilfully interrupts or obstructs the proceedings of the Authority or the Court or otherwise misbehaves in the Authority or the Court; or wilfully and without lawful excuse disobeys any order or direction of the Authority or the Court in the course of the hearing of any proceedings.
(c) (2) Where this section applies,— (a) (b) any member of the police, with or without the assistance of any other person, may, by order of the Authority or the Court, take the offender into custody, and detain the offender until the rising of the Authority or the Court: a Judge, if the Judge thinks ﬁt, may sentence the of­ fender to imprisonment for any period not exceeding 3 months, or sentence the offender to pay a ﬁne not ex­ ceeding $5,000 for every such offence; and, in default of payment of any such ﬁne, may direct that the offender be imprisoned for any period not exceeding 3 months, unless the ﬁne is sooner paid.
Compare: 1991 No 22 s 107 197 Constitution of Court The Court consists of— (a) 1 Judge called the Chief Judge of the Employment Court: at least 2 other Judges who are to be called Judges of the Employment Court.
(b) Compare: 1991 No 22 s 110 184 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 200A 198 Registrar and ofﬁcers of Court (1) The chief executive may from time to time designate such number of employees of the Department to act as Registrars of the Court as may be required, and appoint such other ofﬁ­ cers of the Court as may be required.
Subject to section 153(6), an employee designated under sub­ section (1) may also hold any other ofﬁce or position in the Authority or the Department.

Compare: 1991 No 22 s 111 (2) 199 Seal of Court The Court is to have a seal, which is to be judicially noticed by all Courts and for all purposes.

Compare: 1991 No 22 s 112 Judges of the Court 200 Appointment of Judges (1) The Judges of the Court are to be appointed by the Governor­ General on the advice of the Attorney­General.
(2) No person may be appointed a Judge of the Court unless that person has held a practising certiﬁcate as a barrister or solicitor for at least 7 years.

The jurisdiction of the Court is not affected by any vacancy in the number of Judges of the Court.

(3) (4) A Judge of the Court must not undertake any other paid em­ ployment or hold any other ofﬁce (whether paid or not) unless the Chief Judge is satisﬁed that the employment or other ofﬁce is compatible with judicial ofﬁce.
Compare: 1991 No 22 s 113(1), (2), (8) Subsection (4) was inserted, as from 20 May 2004, by section 3 Employment Relations Amendment Act 2004 (2004 No 43).

200A Judges act on full­time basis but may be authorised to act part­time (1) A person acts as a Judge of the Court on a full­time basis unless he or she is authorised by the Attorney­General to act on a part­time basis.
185 Part 10 s 201 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) (3) (4) (5) The Attorney­General may, in accordance with subsection (4), authorise a Judge appointed under section 200 to act on a part­ time basis for any speciﬁed period.

To avoid doubt, an authorisation under subsection (2) may take effect as from a Judge’s appointment or at any other time, and may be given more than once in respect of the same Judge.
The Attorney­General may authorise a Judge to act on a part­ time basis only— (a) on the request of the Judge; and (b) with the concurrence of the Chief Judge.

In considering whether to concur under subsection (4), the Chief Judge must have regard to the ability of the Court to discharge its obligations in an orderly and expeditious way.

(7) (6) A Judge who is authorised to act on a part­time basis must resume acting on a full­time basis at the end of the authorised part­time period.
The basis on which a Judge acts must not be altered during the term of the Judge’s appointment without the Judge’s consent, but consent under this subsection is not necessary if the alter­ ation is required by subsection (6).

If any question arises as to the number of Judges of the Court,— (a) (b) a Judge who is acting on a full­time basis counts as 1: a Judge who is acting on a part­time basis counts as an appropriate fraction of 1.
(8) Section 200A was inserted, as from 20 May 2004, by section 4 Employment Relations Amendment Act 2004 (2004 No 43).

201 Seniority (1) Subject to subsections (2) and (3), the Judges of the Court other than the Chief Judge have seniority among themselves according to the dates of their appointments as Judges of the Court.
If 2 or more of them are both appointed on the same day, they have seniority according to the precedence assigned to them by the Governor­General or, failing any such assignment, ac­ cording to the order in which they take the judicial oath.

(2) 186 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 204 (3) Every permanent Judge has seniority over every temporary Judge.
Compare: 1991 No 22 s 113(7) 202 Senior Judge to act as Chief Judge in certain circumstances (1) While any vacancy exists in the ofﬁce of Chief Judge, or dur­ ing any absence from New Zealand of the Chief Judge, the se­ nior Judge of the Court in New Zealand has authority to act as Chief Judge and to execute the duties of that ofﬁce and to ex­ ercise all powers that may be lawfully exercised by the Chief Judge.
(2) Whenever by reason of illness or any cause other than absence from New Zealand the Chief Judge is prevented from exercis­ ing the duties of the ofﬁce, the Governor­General may author­ ise the senior Judge of the Court to act as Chief Judge until the Chief Judge resumes those duties, and during that period to execute the duties of that ofﬁce and to exercise all powers that may be lawfully exercised by the Chief Judge.
Compare: 1991 No 22 s 114 203 Judges to have immunities of High Court Judges The Judges have all the immunities of a Judge of the High Court.

204 Protection of Judges against removal from ofﬁce (1) A Judge of the Court may not be removed from ofﬁce except by the Sovereign or the Governor­General, acting upon the address of the House of Representatives.
(2) An address under subsection (1) may be moved only on the grounds of— (a) (b) the Judge’s misbehaviour; or the Judge’s incapacity to discharge the functions of the Judge’s ofﬁce.

Compare: 1986 No 114 s 23; 1991 No 22 s 113(3), (4) 187 Part 10 s 205 Employment Relations Act 2000 Reprinted as at 10 September 2007 205 Age of retirement Every Judge of the Court must retire from ofﬁce on attaining the age of 70 years.
Compare: 1991 No 22 s 113(6) Section 205 was amended, as from 6 March 2007, by section 4 Employment Relations Amendment Act 2007 (2007 No 2) by substituting “70” for “68”.
206 Salaries and allowances of Judges (1) There is to be paid to each Judge of the Court, out of public money, without further appropriation than this section,— (a) a salary at such rate as the Remuneration Authority from time to time determines; and such allowances as are from time to time determined by the Remuneration Authority; and such additional allowances, being travelling allowances or other incidental or minor allowances, as may be de­ termined from time to time by the Governor­General.
(b) (c) (2) (3) In the case of the Chief Judge, the rate of salary and the al­ lowances determined may be higher than those for the other Judges.

The salary of a Judge is not to be reduced while the Judge holds ofﬁce.

(3A) The salary and allowances payable for a period during which a Judge acts on a part­time basis must be calculated and paid as a pro­rata proportion of the salary and allowances for a full­time equivalent position.
(3B) For the purpose of subsection (3), the payment of salary and allowances on a pro­rata basis under subsection (3A) is not a reduction of salary.
(4) Any determination made under subsection (1)(c), and any pro­ vision of any such determination, may be made so as to come into force on a date speciﬁed in the determination, being the date of the making of the determination or any other date, whether before or after the date of the making of the deter­ mination or the date of the commencement of this section.
Every determination made under subsection (1)(c), and every provision of any such determination, in respect of which no (5) 188 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 207 date is speciﬁed under subsection (4) comes into force on the date of the making of the determination.
Compare: 1991 No 22 s 115 Subsection (1) was amended, as from 1 April 2003, by section 4(1) Remuner­ ation Authority (Members of Parliament) Amendment Act 2002 (2002 No 54) by substituting the words “Remuneration Authority” for the words “Higher Salaries Commission” in both places where they appear.

Subsections (3A) and (3B) were inserted, as from 20 May 2004, by section 5 Employment Relations Amendment Act 20004 (2004 No 43).
207 Appointment of temporary Judges (1) The Governor­General may from time to time, whenever in the Governor­General’s opinion it is necessary or expedient to make a temporary appointment, appoint 1 or more temporary Judges of the Court to hold ofﬁce for such period as is speciﬁed in the warrant of appointment.
The period so speciﬁed may not exceed 2 years or, in the case of a person who has attained the age of 70 years, 12 months; but any person appointed under this section may from time to time be reappointed.

Except as provided in subsection (4), no person may be ap­ pointed as a Judge under this section unless that person is eli­ gible for appointment as a Judge under section 200.
(2) (3) (4) A person otherwise qualiﬁed who has attained the age of 70 years (including a Judge who has retired after attaining that age) may, subject to subsection (2), be appointed as a Judge under this section.

The power conferred by this section may be exercised at any time, even though there may be 1 or more persons holding the ofﬁce of Judge, whether under section 200 or this section.
Every Judge appointed under this section is to be paid— (a) (6) (5) such salary, not exceeding the salary payable for the time being to Judges other than the Chief Judge, as the Governor­General in Council directs; and the allowances to which the Judge would be entitled if the Judge were appointed under section 200.

(b) (7) Nothing in the Remuneration Authority Act 1977 limits the provisions of subsection (6).
Compare: 1991 No 22 s 116 189 (2) (3) (4) (2) Part 10 s 208 Employment Relations Act 2000 Reprinted as at 10 September 2007 Subsection (2) was amended, as from 6 March 2007, by section 5(1) Employ­ ment Relations Amendment Act 2007 (2007 No 2) by substituting “70” for “68”.

Subsection (4) was amended, as from 6 March 2007, by section 5(2) Employ­ ment Relations Amendment Act 2007 (2007 No 2) by substituting “70” for “68”.
Subsection (7) was amended, as from 1 April 2003, by section 4(1) Remuner­ ation Authority (Members of Parliament) Amendment Act 2002 (2002 No 54) by substituting “Remuneration Authority” for “Higher Salaries Commission”.

208 Sittings (1) Subject to section 209, the jurisdiction of the Court is to be exercised by a Judge sitting alone.

Sittings of the Court are to be held at such times and places as are from time to time ﬁxed by the Court.
Sittings may be ﬁxed either for a particular case or generally for a class of cases then before the Court and ripe for hearing.

The Court may be adjourned from time to time and from place to place by the Judge or by the Registrar of the Court, whether at any sitting or at any time before the time ﬁxed for the sitting.

Compare: 1991 No 22 s 117 209 Full Court (1) The Chief Judge may direct that the Court must sit as a full Court to hear and determine any proceedings, case, or ques­ tion.
The full Court comprises,— (a) as presiding member, the Chief Judge or a Judge nom­ inated by the Chief Judge: at least 2 other Judges nominated by the Chief Judge.
(b) Compare: 1991 No 22 s 119 210 Quorum and decision of Court (1) Where, in relation to any proceedings, case, or question, the Court consists of more than 1 Judge, the presence of at least 2 Judges is necessary to constitute a sitting of the Court for the purposes of those proceedings, or that case or question, except as otherwise expressly provided.

The decision of a majority of the Judges present at the sitting of the Court is the decision of the Court.
(2) 190 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 212 (3) Where the Judges present at a sitting of the Court are equally divided in opinion, the decision of the Court, for the purposes of subsection (2), is the decision of the Chief Judge if the Chief Judge is present or, if the Chief Judge is not present, the deci­ sion of the most senior of the Judges present.
The decision of the Court in every case must be signed by a Judge, and may be issued by a Judge or by the Registrar of the Court.

Compare: 1991 No 22 s 120 (4) 211 Statement of case for Court of Appeal In any matter before the Court the Judge may, of the Judge’s own motion, or on the application of any party, state a case for the Court of Appeal on any question of law arising in the matter, excluding any question as to the construction of any employment agreement.
Compare: 1991 No 22 s 122 212 Court may make rules (1) (2) The Court may from time to time make rules (not inconsistent with this Act or with any regulations made under this Act) for the purpose of regulating the practice and procedure of the Court and the proceedings of parties.
To the extent that the Court does not make rules under sub­ section (1) regulating the practice and procedure of the Court under— (a) (b) section 99 (jurisdiction of Court in relation to torts); and section 100 (jurisdiction of Court in relation to injunc­ tions); and section 194 (application for review),— (c) proceedings in the Court under those sections are to be regu­ lated by the rules applicable to proceedings founded on tort, injunctions, and judicial review in the High Court, as far as they are applicable and with all necessary modiﬁcations.
Compare: 1991 No 22 s 130 191 Part 10 s 213 Employment Relations Act 2000 Reprinted as at 10 September 2007 Review of proceedings 213 Review of proceedings before Court (1) If, in relation to any proceedings before the Court, any per­ son wishes to apply for a review under Part 1 of the Judicature Amendment Act 1972 or bring proceedings seeking a writ or order of, or in the nature of, mandamus, prohibition, or certi­ orari, or a declaration or an injunction, the provisions of sub­ sections (2) to (4) apply.
(3) (2) Despite anything in any other Act or rule of law, the applica­ tion or proceedings referred to in subsection (1) must be made to or brought in the Court of Appeal.
The Court of Appeal or a Judge of that Court may at any time and after hearing such persons, if any, as it or the Judge thinks ﬁt, give such directions prescribing the procedure to be fol­ lowed in any particular case under this section as it or the Judge considers expedient having regard to the exigencies of the case and the interests of justice and the object of this Act.
The decision of the Court of Appeal on any such matter is ﬁnal and conclusive, and there is no right of review of or appeal against the Court’s decision.
Compare: 1991 No 22 s 131 (4) Appeals 214 Appeals on question of law (1) A party to a proceeding under this Act who is dissatisﬁed with a decision of the Court (other than a decision on the con­ struction of an individual employment agreement or a collect­ ive employment agreement) as being wrong in law may, with the leave of the Court of Appeal, appeal to the Court of Ap­ peal against the decision; and section 66 of the Judicature Act 1908 applies to any such appeal.
(2) A party desiring to appeal to the Court of Appeal under this section against a decision of the Employment Court must, within 28 days after the date of the issue of the decision or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by rules of Court, for leave to appeal to that Court.
192 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 214A (3) (4) (5) The Court of Appeal may grant leave accordingly if, in the opinion of that Court, the question of law involved in that ap­ peal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks ﬁt, whether as to costs or otherwise.

In its determination of an appeal, the Court of Appeal may conﬁrm, modify, or reverse the decision appealed against or any part of that decision.
(6) Neither an application for leave to appeal nor an appeal op­ erates as a stay of proceedings on the decision to which the application or the appeal relates unless the Court or the Court of Appeal so orders.

(7) Compare: 1991 No 22 s 135 The heading to section 214 was amended, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53) by omitting the words “to Court of Appeal”.

See sections 50 to 55 of that Act for the transitional and savings provisions.
Subsection (1) was substituted, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53).

See sections 50 to 55 of that Act for the transitional and savings provisions.

Subsection (7) was repealed, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53).

See sections 50 to 55 of that Act for the transi­ tional and savings provisions.
214A Appeals to Supreme Court on question of law in exceptional circumstances (1) A party to a proceeding under this Act who is dissatisﬁed with a decision of the Court (other than a decision on the con­ struction of an individual employment agreement or a collect­ ive employment agreement) as being wrong in law may, with the leave of the Supreme Court, appeal to the Supreme Court against the decision.
In its determination of the appeal, the Supreme Court may con­ ﬁrm, modify, or reverse the decision appealed against or any part of that decision.

(2) 193 Part 10 s 215 Employment Relations Act 2000 Reprinted as at 10 September 2007 (4) (3) Neither an application for leave to appeal nor an appeal oper­ ates as a stay of proceedings on the decision to which the ap­ plication or the appeal relates unless the Court or the Supreme Court so orders.
This section is subject to section 14 of the Supreme Court Act 2003 (which provides that the Supreme Court must not give leave to appeal directly to it against a decision made in a court other than the Court of Appeal unless it is satisﬁed that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court).

Section 214A was inserted, as from 1 January 2004, by section 48(1) Supreme Court Act 2003 (2003 No 53).
See sections 50 to 55 of that Act for the transi­ tional and savings provisions.

215 Court of Appeal may refer appeals back for reconsideration (2) (1) Despite anything in section 214, the Court of Appeal may in any case, instead of determining an appeal under that section, direct the Court to reconsider, either generally or in respect of any speciﬁed matters, the whole or any speciﬁed part of the matter to which the appeal relates.
In giving a direction under this section, the Court of Appeal must— (a) (b) advise the Court of its reasons for so doing; and give the Court such directions as it thinks just as to the rehearing or reconsideration or otherwise of the whole or any part of the matter that is referred back for recon­ sideration.
(3) In reconsidering the matter, the Court must have regard to— the Court of Appeal’s reasons for giving a direction (a) under subsection (1); and the Court of Appeal’s directions under subsection (2)(b).
(b) Compare: 1991 No 22 s 136 Special provision in respect of appeals 216 Obligation to have regard to special jurisdiction of Court In determining an appeal under section 214 or section 218, the Court of Appeal must have regard to— 194 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 10 s 219 (a) (b) (c) the special jurisdiction and powers of the Court; and the object of this Act and the objects of the relevant Parts of this Act; and in particular, the provisions of sections 189, 190, 193, 219, and 221.
Compare: 1991 No 22 s 137 Other appeals 217 Appeal to Court of Appeal against conviction or order or sentence in respect of contempt of Court Any person who has been convicted of an offence against this Act, and any person against whom an order (other than an order to the effect only that a person be taken into custody until the rising of the Court) has been made under section 140(6) or section 196 of this Act or section 11A(7) of the Minimum Wage Act 1983, may appeal to the Court of Appeal against the order as if that person were a defendant who had been con­ victed on an information and sentenced by the High Court.
Compare: 1991 No 22 s 133 218 Appeal to Court of Appeal in respect of order on application for review Any party to an application for review or other proceeding under section 194 who is dissatisﬁed with any ﬁnal or inter­ locutory order in respect of the application may appeal to the Court of Appeal; and section 66 of the Judicature Act 1908 ap­ plies to any such appeal.
Compare: 1991 No 22 s 134 Miscellaneous provisions 219 Validation of informal proceedings, etc (1) If anything which is required or authorised to be done by this Act is not done within the time allowed, or is done informally, the Court, or the Authority, as the case may be, may in its discretion, on the application of any person interested, make an order extending the time within which the thing may be done, or validating the thing so informally done.
195 Part 10 s 220 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) Nothing in this section authorises the Court to make any such order in respect of judicial proceedings then already instituted in any court other than the Court.
Compare: 1991 No 22 s 138 220 Documents under seal and certain signatures to be (1) judicially noticed Every document bearing the seal of the Authority or the Court is to be received in evidence without further proof, and the signature of a member of the Authority, or of a Judge, or of the Registrar of the Court, or of an ofﬁcer of the Authority is to be judicially noticed in or before any Court or before any person or ofﬁcer acting judicially or under any power or authority conferred by this Act, if the signature is attached to some order, certiﬁcate, or other ofﬁcial document made or purporting to be made under this Act or under any Act or provision of an Act repealed by this Act.
(2) No proof is required of the handwriting or ofﬁcial position of any person acting under this section.
Compare: 1991 No 22 s 139 Joinder, waiver, and extension of time In order to enable the Court or the Authority, as the case may be, to more effectually dispose of any matter before it accord­ ing to the substantial merits and equities of the case, it may, at any stage of the proceedings, of its own motion or on the ap­ plication of any of the parties, and upon such terms as it thinks ﬁt, by order,— (a) (b) direct parties to be joined or struck out; and amend or waive any error or defect in the proceedings; and subject to section 114(4), extend the time within which anything is to or may be done; and generally give such directions as are necessary or expe­ dient in the circumstances.
(c) (d) Compare: 1991 No 22 s 140 221 196 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 11 s 224 222 Application of Ofﬁcial Information Act 1982 Nothing in the Ofﬁcial Information Act 1982 applies to any information held by the Department or the Authority or the Court in relation to any proceedings brought before the Au­ thority or the Court.
Compare: 1991 No 22 s 102(b) Part 11 General provisions Labour Inspectors 223 Labour Inspectors (1) The chief executive may designate as Labour Inspectors such employees of the Department as the chief executive from time to time considers necessary for the purposes of— (a) (b) (c) (d) (da) this Act: and the Equal Pay Act 1972; and the Holidays Act 2003; and the Minimum Wage Act 1983; and the Parental Leave and Employment Protection Act 1987; and the Volunteers Employment Protection Act 1973; and the Wages Protection Act 1983.
(e) (f) Every Labour Inspector is to have a warrant of designation signed by the chief executive and must produce it for in­ spection if requested to do so in the course of the Labour Inspector’s duties.

Compare: 1991 No 22 s 143 (2) Subsection (1)(c) was substituted, as from 1 April 2004, by section 91(2) Holi­ days Act 2003 (2003 No 129).

Subsection (1)(da) was inserted, as from 1 July 2002, by section 6 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 (2002 No 7).
Demand notices 224 Demand notice (1) A Labour Inspector (or a person authorised by a Labour In­ spector to do so) may serve on an employer a demand notice, in the prescribed form, if— 197 Part 11 s 225 Employment Relations Act 2000 Reprinted as at 10 September 2007 (a) (b) (c) (d) an employee makes a complaint to the Labour Inspector, or the Labour Inspector believes on reasonable grounds, that an employee has not received wages or holiday pay or other money payable by the employer to the employee under the Minimum Wage Act 1983 or the Holidays Act 2003; and the Labour Inspector has given the employer not less than 7 days to comment on the complaint or the grounds for the Labour Inspector’s belief; and the Labour Inspector, after considering any comments made by the employer under paragraph (b), is satisﬁed that the employee is entitled to the wages or holiday pay or other money; and the Labour Inspector is satisﬁed that the employer is not willing to pay the wages or holiday pay or other money to the employee in a reasonable manner or within a rea­ sonable time.
(2) A demand notice must be served— (a) (b) by giving it to the employer concerned; or if the employer does not accept the demand notice, by leaving it in the employer’s presence and drawing the employer’s attention to it.

(3) A demand notice may not be served in the period commencing on 17 December and ending with the close of 8 January in the following year.
(4) A demand notice has no effect to the extent, if any, that it claims money (being wages or holiday pay or other money) that was payable more than 6 years earlier than the date on which the demand notice is served on the employer concerned.

Subsection (1)(a) was amended, as from 1 April 2004, by section 91(2) Holidays Act 2003 (2003 No 129) by substituting the words “Holidays Act 2003” for the words “Holidays Act 1981”.
225 Objections to demand notice (1) An employer may lodge with the Authority an objection to a demand notice.

(2) An objection must be lodged by an employer with the Author­ ity within 28 days after the demand notice is served on the employer.
198 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 11 s 227 (3) A demand notice has the consequences speciﬁed in subsection (4) (4)— (a) (b) if no objection is lodged before the close of the period speciﬁed in subsection (2); or if any objection lodged before the close of the period speciﬁed in subsection (2) is withdrawn (whether before or after the close of that period).
The consequences are that the demand notice— (a) imposes a legal requirement on the employer to comply with it; and is prima facie evidence before the Court or the Author­ ity or (for the purposes of paragraph (d), before a Dis­ trict Court) that the employer owes to the employee the wages or holiday pay or other money speciﬁed in the notice; and (b) (c) may be enforced by the making by the Authority of a (d) compliance order under section 137; and is enforceable as a judgment debt under section 141 (which applies with any necessary modiﬁcations).
226 Authority to determine objection (1) The function of the Authority in respect of an objection is to determine whether or not the whole or part of the wages or holiday pay or other money speciﬁed in the notice is due to the employee by the employer and, if so, the amount payable.

(2) A determination by the Authority that any wages or holiday pay or other money is due is enforceable as a judgment debt under section 141 (which applies with any necessary modiﬁ­ cations).
227 Withdrawal of demand notice A demand notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of a demand notice does not pre­ vent another demand notice being served in relation to the same matter.
199 Part 11 s 228 Employment Relations Act 2000 Reprinted as at 10 September 2007 Actions to recover wages or holiday pay, etc (2) 228 Actions by Labour Inspector (1) A Labour Inspector may commence an action in the name and on behalf of an employee to recover any wages or holiday pay or other money payable by an employer to that employee under the Minimum Wage Act 1983 or the Holidays Act 2003.
If a Labour Inspector commences an action under subsection (1), the Labour Inspector must not issue a demand notice under section 224 in respect of the same wages or holiday pay or other money.

Sections 131 and 132 apply, with the necessary modiﬁcations, to actions commenced under subsection (1).

Subsection (1) was amended, as from 1 April 2004, by section 91(2) Holidays Act 2003 (2003 No 129) by substituting the words “Holidays Act 2003” for the words “Holidays Act 1981”.
(3) Powers 229 Powers of Labour Inspectors (1) For the purpose of performing his or her functions and du­ ties under any Act speciﬁed in section 223(1), every Labour Inspector has, subject to sections 230 to 233, the following powers: (a) (b) (c) the power to enter, at any reasonable hour, any premises where any person is employed or where the Labour In­ spector has reasonable cause to believe that any per­ son is employed, accompanied, if the Labour Inspector thinks ﬁt, by any other employee of the Department qualiﬁed to assist or by a member of the police: the power to interview any person at any premises of the kind described in paragraph (a) and the power to interview any employer or any employee: the power to require the production of, and to inspect and take copies from,— (i) any wages and time record or any holiday and leave record whether kept under this Act or any other Act: any other document held which records the re­ muneration of any employees: (ii) 200 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 11 s 229 (d) (e) (f) the power to require any employer to supply to the Labour Inspector a copy of the wages and time record or holiday and leave record or employment agreement or both of any employee of that employer: the power to inspect, and take copies of, any record kept under section 98 of strikes and lockouts: the power to question any employer about compliance with any of the Acts referred to in section 223(1).
(3) (2) Where any Labour Inspector makes any requirement of an em­ ployer under subsection (1)(c) or subsection (1)(d), that em­ ployer must forthwith comply with that requirement.

Every employer who, without reasonable cause, fails to com­ ply with any requirement made of that employer under subsec­ tion (1)(c) or subsection (1)(d) is liable, in an action brought by a Labour Inspector, to a penalty under this Act imposed by the Authority.
(4) Where a Labour Inspector alleges that any person has not ob­ served or not complied with any provision of section 130(1) or of subsection (2) of this section or of any of the Acts referred to in section 223(1), that Labour Inspector may commence pro­ ceedings against that other person in respect of the non­obser­ vance or non­compliance by applying to the Authority under section 137 for an order of the kind described in subsection (1) of that section, and the provisions of that section apply ac­ cordingly with all necessary modiﬁcations.
(5) No person is, on examination or inquiry under this section, required to give to any question any answer tending to incrim­ inate that person.

(6) Despite subsection (1), the power of a Labour Inspector to enter any defence area within the meaning of the Defence Act 1990 is subject to any regulations made under section 93 of that Act.
(7) A Labour Inspector may recover a penalty under this Act in the Authority for a breach of any provision that provides for the imposition of a penalty and is a provision of any of the Acts referred to in section 223(1).
Compare: 1991 No 22 s 144 201 Part 11 s 230 Employment Relations Act 2000 Reprinted as at 10 September 2007 Subsection (1)(c)(i) was amended, as from 1 April 2004, by section 91(2) Holi­ days Act 2003 (2003 No 129) by substituting the words “holiday and leave record” for the words “holiday book”.

Subsection (1)(d) was amended, as from 1 April 2004, by section 91(2) Holidays Act 2003 (2003 No 129) by inserting the words “or holiday and leave record” after the word “record”.
Subsection (3) was amended, as from 1 December 2004, by section 66 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by inserting the words “, in an action brought by a Labour Inspector,” after the words “is liable”.

See section 73 of that Act for the transitional provisions.
230 Entry of dwellinghouses No Labour Inspector may, under section 229, enter in or be on any dwellinghouse unless he or she either— (a) (b) has the consent of an occupier of that dwellinghouse; or is authorised to do so by a warrant issued under section 231.
Compare: 1992 No 96 s 31(2) 231 Entry warrant A Judge who, on application made on oath, is satisﬁed that there is reasonable ground for believing that a dwelling­ house— (a) (b) is a place in which any person is employed; or is the only practicable means through which a place in which any person is employed may be entered,— may issue a warrant authorising a Labour Inspector named in it to enter that dwellinghouse or any part of that dwellinghouse that is, or is the only practicable means through which the In­ spector may enter, a place where any person is employed.
Compare: 1992 No 96 s 31(3) 232 Compilation of wages and time record (1) Where an employer fails to produce, in response to a require­ ment under section 229(1)(c)(i), a wages and time record or, in response to a requirement under section 229(1)(d), a copy of a wages and time record, a Labour Inspector may, by written notice given to that employer, require that employer— to compile a wages and time record; and (a) to deliver a written copy of the record compiled under (b) paragraph (a) to the Labour Inspector.
202 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 11 s 233 (2) (3) (4) (5) The notice must specify— (a) (b) the employee in respect of which, and the period in rela­ tion to which, the wages and time record must be com­ piled; and the date by which the wages and time record must be both compiled and delivered to the Labour Inspector (which date must be at least 30 days after the date of the notice).
If an employer fails to comply with a notice under subsection (1), written evidence of the contents of the employer’s wages and time record, in relation to the period speciﬁed in the notice, may not, in any proceedings under this Act, be produced by the employer without the consent of the other party or parties or the leave of the Authority.
Every employer who, without reasonable cause, fails to com­ ply with a notice given to that employer under subsection (1) is liable, in an action brought by a Labour Inspector, to a penalty under this Act imposed by the Authority.

In this section, a wages and time record, if applicable, in­ cludes a holiday and leave record kept under section 81 of the Holidays Act 2003.
Subsection (4) was amended, as from 1 December 2004, by section 67 Em­ ployment Relations Amendment Act (No 2) 2004 (2004 No 86) by inserting the words “, in an action brought by a Labour Inspector,” after the words “is liable”.

See section 73 of that Act for the transitional provisions.

Subsection (5) was inserted, as from 1 April 2004, by section 91(2) Holidays Act 2003 (2003 No 129).
233 Obligations of Labour Inspectors (1) In entering any premises under the authority of section 229(1)(a) or under the authority of a warrant issued under section 231, a Labour Inspector is bound by any existing reasonable safety and health procedures and requirements applying at the premises and, to the extent that such proced­ ures or requirements reasonably limit or prohibit the entry of persons other than employees to particular parts of the premises, may not enter such parts.
Every Labour Inspector who enters any premises under the au­ thority of section 229(1)(a) or under the authority of a warrant issued under section 231 must, on ﬁrst entering those premises, (2) 203 Part 11 s 234 Employment Relations Act 2000 Reprinted as at 10 September 2007 and, if requested, at any subsequent time, produce to the em­ ployer or a representative of the employer that person’s war­ rant under section 223(2) or the warrant issued under section 231, as the case may require.
(4) (3) Where a Labour Inspector enters any premises under the au­ thority of section 229(1)(a) or under the authority of a warrant issued under section 231 and is unable, despite reasonable ef­ forts, to ﬁnd at those premises the employer or any represen­ tative of the employer, that Labour Inspector must, after the entry and inspection and before leaving those premises, leave at those premises a written notice addressed to the employer.
That written notice must state— (a) (b) (c) (d) Except for the purposes of an Act speciﬁed in section 223(1), any Labour Inspector who inspects, or is supplied with a copy of, any document pursuant to section 229 must not disclose to any person any information obtained as a result of the inspec­ tion of the document or the supply of the copy.
Compare: 1991 No 22 s 145 the identity of the person who entered the premises; and the fact that the person is a Labour Inspector; and the date and time of the entry; and the reasons for the entry.
(5) 234 Circumstances in which ofﬁcers, directors, or agents of (1) company liable for minimum wages and holiday pay This section applies in any case where a Labour Inspector commences an action in the Authority against a company to recover any money payable by way of minimum wages or holi­ day pay to an employee of the company.
(2) Where, in any case to which this section applies, the Labour Inspector establishes on the balance of probabilities that the amount claimed in the action by way of minimum wages or holiday pay or both is, if judgment is given for that amount, unlikely to be paid in full, whether because— (a) (b) the company is in receivership or liquidation; or there are reasonable grounds for believing that the com­ pany does not have sufﬁcient assets to pay that amount in full,— 204 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 11 s 235 the Authority may authorise the Labour Inspector to bring an action for the recovery of that amount against any ofﬁcer, dir­ ector, or agent of the company who has directed or authorised the default in payment of the minimum wages or holiday pay or both.
(4) (3) Where, in any action authorised under subsection (2), it is proved that the ofﬁcer, director, or agent of the company against whom the action is brought directed or authorised the default in payment of the minimum wages or holiday pay or both, that ofﬁcer, director, or agent is with the company (and any other ofﬁcer, director, or agent of the company who directed or authorised the default in payment) jointly and severally liable to pay the amounts recoverable in the action and judgment may be given accordingly.
In this section,— company has the meaning given to it by section 2(1) of the Receiverships Act 1993 holiday pay means any amount payable under the Holidays Act 2003 to an employee as pay for an annual holiday or public holiday holiday pay: this deﬁnition was amended, as from 1 April 2004, by section 91(2) Holidays Act 2003 (2003 No 129) by substituting the words “Holidays Act 2003” for the words “Holidays Act 1981”.

minimum wages means minimum wages payable under the Minimum Wage Act 1983.
(5) Nothing in this section affects any other remedies for the re­ covery of wages or holiday pay or other money payable by a company to any employee of that company.

235 Obstruction (1) A person commits an offence who, without reasonable cause,— (a) (b) obstructs, delays, hinders, or deceives; or causes to be obstructed, delayed, hindered, or de­ ceived,— any Labour Inspector while the Labour Inspector is lawfully exercising or performing any power, function, or duty.
205 Part 11 s 236 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) A person who commits an offence against subsection (1) is liable on conviction by the Court to a ﬁne not exceeding $10,000.

Representation 236 Representation (1) Where any Act to which this section applies confers on any employee the right to do anything or take any action— (a) (b) that employee may choose any other person to represent the employee for the purpose.
in respect of an employer; or in the Authority or the Court,— (2) Where any Act to which this section applies confers on an employer the right to do anything or take any action— (a) (b) that employer may choose any other person to represent that employer for the purpose.
in respect of an employee; or in the Authority or the Court,— (4) and Injury Prevention, Rehabilitation, (c) (d) (e) (f) (g) (3) Any person purporting to represent any employee or employer must establish that person’s authority for that representation.
The Acts to which this section applies are— (a) (b) this Act: the Compensation Act 2001: the Equal Pay Act 1972: the Holidays Act 2003: the Human Rights Act 1993: the Minimum Wage Act 1983: the Parental Leave and Employment Protection Act 1987: the Police Act 1958: the State Sector Act 1988: the Wages Protection Act 1983.

(h) (i) (j) Subsection (4)(b) was substituted, as from 1 April 2002, by section 337(1) In­ jury Prevention, Rehabilitation, and Compensation Act 2001 (2001 No 49).
See Part 10 of that Act for provisions relating to transition from competitive provi­ sion of workplace accident insurance.

See Part 11 of that Act for transitional provisions relating to entitlements provided by Corporation.

Subsection (4)(d) was substituted, as from 1 April 2004, by section 91(2) Holi­ days Act 2003 (2003 No 129).
206 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 11 s 237A Miscellaneous provisions 237 Regulations The Governor­General may from time to time, by Order in Council, make regulations for all or any of the following pur­ poses: (a) (b) prescribing the forms for the purposes of this Act: prescribing the duties of ofﬁcers of the Authority, of the Registrar of the Court, and of any other ofﬁcers or persons acting in execution of this Act: prescribing any act or thing necessary to supplement or render more effectual the provisions of this Act as to the conduct of proceedings before the Authority or the Court: prescribing the procedure in relation to the conduct of matters before the Authority or the Court: prescribing procedures in relation to the issue of sum­ monses to witnesses and to the hearing of evidence on oath: prescribing charges or fees in relation to— (i) services provided by the chief executive under this Act; or (ii) the functions of the Authority or the Court: providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
(c) (d) (e) (f) (g) Compare: 1991 No 22 s 146 237A Amendments to Schedule 1A (1) The Governor­General may, by Order in Council, amend Schedule 1A to add to, omit from, or vary the categories of employees.

(3) (2) An Order in Council must not be made under subsection (1) unless made on the recommendation of the Minister.
The Minister must not make a recommendation under subsec­ tion (2) unless the Minister— (a) has received from any person or organisation a request to amend Schedule 1A that speciﬁes the grounds on which it is believed that the criteria in subsection (4) are met; and 207 Part 11 s 238 Employment Relations Act 2000 Reprinted as at 10 September 2007 (b) (c) has received a report from the Department that assesses the request; and has provided the Department’s assessment to, and has consulted, such employers, employees, the representa­ tives of such employers and employees, and such other persons and organisations, as the Minister considers ap­ propriate; and is satisﬁed that the criteria in subsection (4) are met.
(d) The criteria are— (a) whether the employees concerned are employed in a sector in which the restructuring of an employer’s busi­ ness occurs frequently: (b) whether the restructuring of employers’ businesses in the sector concerned has tended to undermine the em­ ployees’ terms and conditions of employment.

whether the employees concerned have little bargaining power.

(c) In this section, restructuring has the same meaning as in sub­ part 1 of Part 6A.
Section 237A was inserted, as from 1 December 2004, by section 68 Employ­ ment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

(4) (5) 238 No contracting out The provisions of this Act have effect despite any provision to the contrary in any contract or agreement.
Compare: 1991 No 22 s 147 239 New Schedule 3 substituted in Police Act 1958 The Police Act 1958 is amended by repealing Schedule 3, and substituting the Schedule 3 set out in Schedule 4.

240 Consequential amendments The enactments speciﬁed in Schedule 5 are amended in the manner indicated in that schedule.

241 Repeals The enactments speciﬁed in Schedule 6 are repealed.
208 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 11 s 245 Transitional provisions 242 Enforcement of existing individual employment contracts Every individual employment contract within the meaning of (1) the Employment Contracts Act 1991 that is in force immedi­ ately before the commencement of this Act continues in force according to its tenor and is enforceable in the Authority or the Court.
Part 6 does not apply in relation to any individual employment contract to which subsection (1) applies.

(2) 243 Enforcement of existing collective employment contracts (1) Every collective employment contract within the meaning of the Employment Contracts Act 1991 that is in force immedi­ ately before the commencement of this Act continues in force according to its tenor and is enforceable in the Authority or the Court.

This section is subject to sections 244 to 246.


(2) 244 Existing collective employment contracts and collective bargaining Subject to section 246, a collective employment contract that is continued in force by section 243 is, for the purpose of sections 40(2) and 41 and Part 8, to be treated as if it were a collective agreement and as if the date of the expiry of that collective agreement were the earlier of— (a) the date on which the collective employment contract is expressed to expire; or 31 July 2003.
(b) 245 Existing procedures in relation to disputes and personal (1) grievances Subject to sections 247 and 248, the grievance and disputes procedures that, under section 32 or section 44 of the Employ­ ment Contracts Act 1991, are contained— (a) in any individual employment contract that is continued in force by section 242; or in any collective employment contract that is continued in force by section 243— (b) 209 Part 11 s 246 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) are, as from the commencement of this Act, of no effect.
Subject to sections 247 and 248,— (a) the parties to every individual employment contract that is continued in force by section 242; and the parties to every collective employment contract that is continued in force by section 243— (b) are, as from the commencement of this Act, subject to the problem resolution regime provided for in this Act.
246 Expiration of existing collective employment contracts (1) Where any employees who are covered by a collective em­ ployment contract that is continued in force by section 243 are members of a union,— (a) an employer of employees covered by that collective employment contract; or a union whose members are bound by that collective employment contract— (b) (2) may conduct a secret ballot of such of the employees covered by that collective employment contract as are members of the union for the purpose of determining whether a majority of those employees is in favour of the date of the expiry of that collective employment contract being 1 July 2001 or some other speciﬁed date (being a date after 1 July 2001 but before the date on which that collective employment contract is ex­ pressed to expire).
Subject to subsection (3), where a majority of the valid votes recorded in any secret ballot conducted for the purposes of subsection (1) is in favour of the date of the expiry of the col­ lective employment contract to which the ballot relates being 1 July 2001 or some other speciﬁed date, that date becomes, in relation to such of the employees of the employer as are immediately before that date members of the union in respect of which the ballot was conducted, the date of the expiry of that collective employment contract and that collective em­ ployment contract is deemed to have been amended accord­ ingly.
(3) Where the date of the expiry of a collective employment con­ tract is changed under subsection (2), that collective employ­ ment contract— 210 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 11 s 248 (a) (b) (c) does not expire in respect of any employee of the em­ ployer who is covered by the collective employment contract but who, immediately before the new date of the expiry of the collective employment contract, is not a member of the union in respect of whose members the ballot was conducted; but continues in force according to its tenor in relation to any employee to whom paragraph (a) applies; but if the union in respect of whose members the ballot was conducted was a party to the collective employment contract, that union ceases, on the new date of expiry, to be a party to the collective employment contract.
247 Existing proceedings (1) All applications, actions, appeals, proceedings, and other mat­ ters under any Act which, before the commencement of this section, have been made or referred under the Employment Contracts Act 1991 or any other Act amended or repealed by that Act or by this Act to the Court of Appeal or the Employ­ ment Court or the Employment Tribunal, and which have not been determined or completed at the commencement of this section are to be determined or completed by the Court of Ap­ peal, Employment Court, or Employment Tribunal, as the case may require, as if this Act had not been passed.
Subsection (1) is subject to sections 249 to 252.

Compare: 1991 No 22 s 182(1) (2) 248 Existing causes of action (1) Subject to the applicable period of limitation, the repeal by this Act of any existing Act or provision does not extinguish any existing cause of action.
(2) Where any cause of action has arisen before the commence­ ment of this section under any of the provisions repealed by this Act and at that date no proceedings have been initiated in respect of that cause of action under those provisions, those provisions continue to apply to any proceedings commenced in respect of any such cause of action as if this Act had not been passed.
211 Part 11 s 249 Employment Relations Act 2000 Reprinted as at 10 September 2007 (3) Subsection (2) is subject to sections 249 to 252 and subsection (4) of this section.
(4) Where any cause of action has arisen before the commence­ ment of this section in relation to the dismissal of an employee, proceedings in the Employment Tribunal in respect of that cause of action,— (a) if commenced before the close of 30 June 2001, may be other than in accordance with section 113(1); but if commenced after 30 June 2001, must be in accord­ ance with section 113(1) and Part 9.
(b) Compare: 1991 No 22 s 183(1), (2) 249 Employment Tribunal Despite the repeals effected by this Act, the Employment Tri­ bunal is to remain in ofﬁce until the close of 31 January 2001 for the purpose of— (a) determining or completing any proceedings under sec­ tion 247 that are within the jurisdiction of the Employ­ ment Tribunal: determining or completing any proceedings in relation to a cause of action of the type referred to in section 248 that are within the jurisdiction of the Employment Tribunal: exercising any other jurisdiction given to it by this Act,— (b) (c) and for those purposes the Employment Tribunal has all ne­ cessary powers, and may exercise, despite the repeals effected by this Act, the powers conferred on the Employment Tribunal by the repealed enactments, which apply accordingly with all necessary modiﬁcations.
Compare: 1991 No 22 s 186(1) 250 Exercise of powers of Employment Tribunal after 31 January 2001 (1) Despite the repeals effected by this Act, temporary members of the Employment Tribunal may be appointed from time to time under section 87 of the Employment Contracts Act 1991 and the provisions of that Act, including, in particular, the pro­ visions of sections 84, 86, and 92, apply in relation to any tem­ 212 Reprinted as at 10 September 2007 Employment Relations Act 2000 Part 11 s 251 porary members so appointed as if that Act had not been re­ pealed.
(2) An appointment under subsection (1) may be made before or after the close of 31 January 2001.
(3) Where any person appointed as a temporary member of the Employment Tribunal under subsection (1) is a person who, immediately before the commencement of this Act, held ofﬁce as a member of the Employment Tribunal, the conditions of service of every such temporary member (except those as to his or her term of ofﬁce) are to be the same as they would have been if both periods of service as a member of the Employment Tribunal had been continuous.
(4) Any temporary member of the Employment Tribunal who is in ofﬁce after the close of 31 January 2001 by virtue of an appointment under subsection (1) has jurisdiction, in the name of the Employment Tribunal,— (a) to determine or complete any proceedings under section 247 that are not determined before the close of 31 Janu­ ary 2001: to determine or complete any proceedings in relation to a cause of action of the type referred to in section 248 that are within the jurisdiction of the Employment Tribunal: to exercise any other jurisdiction conferred on any such temporary member by this Act.
(b) (c) (5) For the purposes of subsection (4), any temporary member of the Employment Tribunal to whom subsection (4) applies has, and may exercise, despite the repeals effected by this Act, the powers conferred on the Employment Tribunal by the repealed enactments, which apply accordingly with all necessary modi­ ﬁcations.
251 Exercise of powers of Authority before close of 31 (1) January 2001 The Chief of the Employment Tribunal may, at any time before the close of 31 January 2001,— (a) exercise, in the name of the Authority, such of the juris­ diction and the powers of the Authority as the Chief of the Employment Tribunal thinks ﬁt; or 213 Part 11 s 252 Employment Relations Act 2000 Reprinted as at 10 September 2007 (c) (b) appoint any member or temporary member of the Em­ ployment Tribunal to exercise, in the name of the Au­ thority, in the period beginning on 2 October 2000 and ending with the close of 31 January 2001, such of the powers of the Authority as the Chief of the Employment Tribunal thinks ﬁt; or both exercise jurisdiction and powers under paragraph (a) and make appointments under paragraph (b).
The Chief of the Authority may appoint any member or tempo­ rary member of the Employment Tribunal to exercise, in the name of the Authority, in the period speciﬁed in subsection (1)(b), such of the jurisdiction and the powers of the Author­ ity as the Chief of the Authority thinks ﬁt.

(2) (3) Any appointment made under subsection (1)(b) or subsection (2), unless sooner revoked by the Chief of the Employment Tribunal or the Chief of the Employment Authority, expires with the close of 31 January 2001.
252 Exercise by Authority of powers of Tribunal after 31 January 2001 Despite the repeals effected by this Act, the Chief of the Au­ thority may from time to time appoint any member of the Au­ thority— (a) to determine and complete, in the name of the Employ­ ment Tribunal, any proceedings under section 247 that are not determined either before the close of 31 Janu­ ary 2001 by the Employment Tribunal or after the close of 31 January 2001 by a temporary member of the Em­ ployment Tribunal appointed under section 250: to exercise any other jurisdiction conferred on the Em­ ployment Tribunal or any temporary member of the Em­ ployment Tribunal by this Act.
(b) 253 Existing appointments (1) The person who immediately before 2 October 2000 holds of­ ﬁce as the Chief Judge of the Employment Court constituted by the Employment Contracts Act 1991 is, without further ap­ pointment, deemed as from the commencement of that day to 214 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 1 (2) have been duly appointed as the Chief Judge of the Employ­ ment Court under this Act.
The persons who immediately before 2 October 2000 hold of­ ﬁce as Judges (other than temporary Judges) of the Employ­ ment Court constituted under the Employment Contracts Act 1991 are, without further appointment, deemed as from the commencement of that day to have been appointed as Judges of the Employment Court constituted under this Act.

1 Schedule 1 Essential services A ss 5, 90, 91 The production, processing, or supply of manufactured gas or natural gas (including liqueﬁed natural gas).
The production, processing, distribution, or sale of petroleum, whether reﬁned or not.

The production or supply of electricity or the operational man­ agement of a State enterprise (within the meaning of section 2 of the State­Owned Enterprises Act 1986) that has electricity generation within the deﬁnition of the nature and scope of its business in its statement of corporate intent.

The supply of water to the inhabitants of a city, district, or other place.

The disposal of sewage.


The work of a ﬁre brigade within the meaning of the Fire Service Act 1975 (but excluding the work performed by mem­ bers of volunteer ﬁre brigades).

215 Schedule 1 Employment Relations Act 2000 Reprinted as at 10 September 2007 A—continued The provision of all necessary services in connection with the arrival, berthing, loading, unloading, and departure of ships at a port.
(b) (b) (b) The operation of— (a) a service for the carriage of passengers or goods by water between the North Island and the South Island or between the South Island and Stewart Island; or a service necessary for the operation of a service re­ ferred to in paragraph (a).
The operation of— (a) an air transport service, being a service by aircraft for the public carriage of passengers or goods for hire or reward (but excluding an air topdressing service); or a service necessary for the operation of an air transport service referred to in paragraph (a).

The operation of an ambulance service for sick or injured per­ sons.
The operation of— (a) a hospital care institution within the meaning of section 58(4) of the Health and Disability Services (Safety) Act 2001; or a service necessary for the operation of such an institu­ tion.

Clause 11 was substituted, as from 1 October 2002, by section 58(1) Health and Disability Services (Safety) Act 2001 (2001 No 93).

See section 11 of that Act as to transitional arrangements for existing providers.

The manufacture or supply of surgical and dialysis solutions.
216 13 14 15 1 2 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 1A A—continued The manufacture or supply of a pharmaceutical that is for the time being listed in the pharmaceutical schedule under the New Zealand Public Health and Disability Act 2000.

Clause 13 was substituted, as from 1 January 2001, by section 111(1) New Zealand Public Health and Disability Act 2000 (2000 No 91).

The operation of a residential welfare institution or prison.
The production of butter or cheese or of any other product of milk or cream and the processing, distribution, or sale of milk, cream, butter, or cheese or of any other product of milk or cream.

B The holding and preparation of sheep, cattle, goats, pigs, or deer for slaughtering, the slaughtering of such animals, and the subsequent processing of their meat and smallgoods for the domestic market or the export market.
The operation of meat inspection services associated with the slaughtering or supply of meat for domestic consumption.

Compare: 1991 No 22 Schedule 3 Schedule 1A Employees to whom subpart 1 of Part 6A applies ss 69C, 237A Schedules 1A and 1B were inserted, as from 1 December 2004, by section 69 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
217 Schedule 1B Employment Relations Act 2000 Reprinted as at 10 September 2007 Employees who provide the following services in the speciﬁed sec­ tors, facilities, or places of work: (a) cleaning services, food catering services, caretaking, or laun­ dry services for the education sector (being the public and pri­ vate pre­school, primary, secondary, and tertiary educational institutions): cleaning services, food catering services, orderly services, or laundry services for the health sector (being any hospital, as deﬁned by the Hospitals Act 1957 and any hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992): cleaning services, food catering services, orderly services, or laundry services in the age­related residential care sector: cleaning services or food catering services in the public service (as deﬁned in Schedule 1 of the State Sector Act 1988) or local government sector: cleaning services or food catering services in relation to any airport facility or for the aviation sector: cleaning services or food catering services in relation to any other place of work (within the meaning of the Health and Safety in Employment Act 1992).
Schedule 1B Code of good faith for public health sector Schedules 1A and 1B were inserted, as from 1 December 2004, by section 69 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.
s 100D Application This code applies to the following parties to an employment relationship in the public health sector: (a) (b) (c) district health boards: employees of district health boards: unions whose members are employees of district health boards: other employers to the extent that they provide services to district health boards or the New Zealand Blood Ser­ vice: (d) (b) (c) (d) (e) (f) 1 (1) 218 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 1B (e) (f) (g) (h) (i) employees of the employers referred to in paragraph (d) to the extent that they are engaged in providing ser­ vices to district health boards or the New Zealand Blood Service: unions whose members are employees referred to in paragraph (e): the New Zealand Blood Service: employees of the New Zealand Blood Service: unions whose members are employees of the New Zealand Blood Service.
(3) (2) However, to avoid doubt, subclause (1)(d) and (e) applies in relation to the provision of services only if the services are provided to a district health board or the New Zealand Blood Service in its role as a provider of services.
Before a district health board or the New Zealand Blood Ser­ vice enters into an agreement or arrangement with another em­ ployer for the provision of services to the district health board or the New Zealand Blood Service, the district health board or the New Zealand Blood Service must notify the employer that this code will apply to the employer in relation to the provision of those services.
(4) However, failure to comply with subclause (3) does not affect the validity of an agreement or arrangement referred to in that subclause.
2 Purpose The purpose of this code is— (a) (b) to promote productive employment relationships in the public health sector: to require the parties to make or continue a commit­ ment— (i) to develop, maintain, and provide high quality public health services; and to the safety of patients; and to engage constructively and participate fully and effectively in all aspects of their employment re­ lationships: (ii) (iii) (c) to recognise the importance of— (i) collective arrangements; and 219 Schedule 1B Employment Relations Act 2000 Reprinted as at 10 September 2007 (ii) the role of unions in the public health sector.
3 Interpretation In this code, unless the context otherwise requires,— good employer has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000 health professional means— (a) an employee who provides services to patients as a health practitioner (as deﬁned in section 5 of the Health Practitioners Competence Assurance Act 2003); and any other employee who works in a recognised clinical discipline providing services for the purpose of assess­ ing, improving, protecting, or managing the physical or mental health of individuals or groups of individuals (b) industrial action means a strike or a lockout life preserving services means— (a) (b) crisis intervention for the preservation of life: care required for therapeutic services without which life would be jeopardised: urgent diagnostic procedures required to obtain infor­ mation on potentially life­threatening conditions crisis intervention for the prevention of permanent dis­ ability: care required for therapeutic services without which permanent disability would occur: urgent diagnostic procedures required to obtain infor­ mation on conditions that could potentially lead to per­ manent disability (c) (d) (e) (f) life preserving services: paragraphs (d) to (f) of this deﬁnition were inserted, as from 22 December 2006, by clause 4 Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395).
services— (a) has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000; and to avoid doubt,— (i) includes cleaning services, food catering ser­ vices, laundry services, and orderly services; but does not include building construction services.
(b) (ii) 220 Reprinted as at 10 September 2007 General Employment Relations Act 2000 Schedule 1B 4 (1) (2) (3) (4) (5) 5 General requirements In all aspects of their employment relationship, the parties must— (a) (b) In their employment relationship, the parties must— (a) engage constructively; and participate fully and effectively.
behave openly and with courtesy and respect towards each other; and create and maintain open, effective, and clear lines of communication, including providing information in a timely manner; and recognise the role of health professionals as advocates for patients; and (b) (c) (d) make time to meet as and when required— (i) (ii) (iii) to address not only the industrial issues between the parties but also issues facing the public health sector, the employer, and the employees; and to search for solutions that will result in produc­ tive employment relationships and the enhanced delivery of services; and to ensure that any change is managed effectively; and (e) recognise the time and resource constraints that may af­ fect their ability to participate fully, and make allow­ ances for those constraints.
To enable employees and their unions to comply with sub­ clause (1), employers must ensure that appropriate steps are taken in their workplaces to encourage, enable, and facilitate employee and union involvement.

The parties must use their best endeavours to resolve, in a con­ structive manner, any differences between them.

Subclauses (2) to (4) do not limit subclause (1).

Obligation to be good employer Every employer must be a good employer.
221 Schedule 1B Employment Relations Act 2000 Reprinted as at 10 September 2007 6 (1) (2) 7 Collective bargaining and collective agreements The parties must support collective bargaining, including multi­employer collective agreements, where it is practical and reasonable to do so.

The parties must, as far as practical and reasonable, support the deﬁnition of coverage that best recognises the parties’ commit­ ment to collective employment arrangements.
Principles of the Treaty of Waitangi The parties must recognise and support Part 3 of the New Zealand Public Health and Disability Act 2000 which, in order to recognise the principles of the Treaty of Waitangi and with a view to improving health outcomes for Maori, provides mech­ anisms to enable Maori to contribute to decision­making on, and to participate in the delivery of, health and disability ser­ vices.
Collective bargaining Agreement on clinical expert or other suitable person As part of the arrangement required under section 32(1)(a), the parties must make every endeavour to agree on a clinical expert or other suitable person for the purposes of clause 13(1).
Speciﬁc things employers must not do during collective bargaining During collective bargaining employers must not— (a) communicate directly with union members in relation to the collective bargaining; or negotiate with employees who are not union members with a view to undermining or inﬂuencing the collective bargaining; or attempt to discourage employees from joining or re­ maining with the union; or contract out services with a view to undermining or in­ ﬂuencing the collective bargaining; or terminate or fail to renew a contract with another em­ ployer who is providing public health services through (b) (c) (d) (e) 8 9 222 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 1B its employees, with a view to undermining or inﬂuenc­ ing any collective bargaining between the other em­ ployer and its employees.
10 Mutual obligations (1) During collective bargaining each party must— (a) (b) (c) give thorough and reasonable consideration to the other’s proposals; and not act in a manner that undermines the other or the authority of the other; and not deliberately attempt to provoke a breakdown in the bargaining; and (d) where appropriate, consider ways in which they may take into account tikanga Maori (Maori customary values and practices) in the bargaining.
(2) (3) If agreement cannot be reached or the collective bargaining is in difﬁculty, the parties must give favourable consideration to attending mediation without delay, and must consider third party decision­making.
The parties must recognise that collective bargaining and col­ lective agreements need to— (a) provide for the opportunity for participation of union ofﬁcials, delegates, and members in decision­making where those decisions may have an impact on the work or working environment of those members; and provide for the release of employees to participate in decision­making where appropriate, acknowledging the key role of union delegates in the collective representa­ tion of union members; and provide for union delegates to carry out their roles, in­ cluding the time needed for communication and con­ sultation with members, and for union delegate educa­ tion.
(b) (c) 223 Schedule 1B Employment Relations Act 2000 Reprinted as at 10 September 2007 Patient safety 11 General obligation for employers to provide for patient safety during industrial action During industrial action, employers must provide for patient safety by ensuring that life preserving services are available to prevent a serious threat to life or permanent disability.
(2) Contingency plans 12 (1) As soon as notice of industrial action is received or given, an employer must develop (if it has not already done so) a con­ tingency plan and take all reasonable and practicable steps to ensure that it can provide life preserving services if industrial action occurs.
If an employer believes that it cannot arrange to deliver any life preserving service during industrial action without the as­ sistance of members of the union, the employer must make a request to the union seeking the union’s and its members’ agreement to maintain or to assist in maintaining life preserv­ ing services.
The request must include speciﬁc details about— (a) the life preserving service the employer seeks assistance to maintain; and the employer’s contingency plan relating to that life pre­ serving service; and the support it requires from union members.

(4) A request must be made by the close of the day after the date (b) (3) (c) of the notice of industrial action.
(5) As soon as practicable after the employer has made a request but not later than 4 days after the date of the notice of industrial action, the parties must meet and negotiate in good faith and make every reasonable effort to agree on— (a) the extent of the life preserving service necessary to provide for patient safety during the industrial action; and the number of staff necessary to enable the employer to provide that life preserving service; and (b) 224 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 1B (c) a protocol for the management of emergencies which require additional life preserving services.
(6) An agreement reached between the parties must be recorded in writing.

13 (1) (2) Adjudication If the parties cannot reach agreement under clause 12(5) they must, within 5 days after the date of the notice of industrial action, refer the matter for adjudication by a clinical expert or other suitable person as agreed under clause 8.
The adjudicator must conduct the adjudication in a manner he or she considers appropriate and must— (a) receive and consider representations from the parties; and in consultation with the parties, seek expert advice if the adjudicator considers that it is necessary to do so; and attempt to resolve any differences between the parties to enable them to reach agreement and, if that is not possible, make a determination binding on the parties; and provide a determination to the parties as soon as pos­ sible but not later than 7 days after the date of notice of industrial action.
(b) (c) (d) (3) (4) The parties must use their best endeavours to give effect to the determination.

The parties must bear their own costs in relation to an adjudi­ cation.

Public comments 14 (1) Recognition of employees’ right to make public comments Employers must respect and recognise the right of their em­ ployees to comment publicly and engage in public debate on matters within their expertise and experience as employees.

(2) However, this clause applies subject to clauses 15 to 17.
225 Schedule 1B Employment Relations Act 2000 Reprinted as at 10 September 2007 15 Employee must ﬁrst raise matter with employer Before an employee exercises the right speciﬁed in clause 14(1) in relation to the operations of his or her employer, the employee must ﬁrst— (a) (b) raise the matter with his or her employer; and provide a reasonable time for his or her employer to respond.
16 When employee may make public comments about employer’s operations If the employee is dissatisﬁed with his or her employer’s re­ sponse or there is no response from his or her employer, the employee may exercise the right speciﬁed in clause 14(1) if the employee makes it clear that he or she is— speaking in a personal capacity; or (a) speaking on behalf of a union with its authority to do so.
(b) 17 18 Conﬁdentiality When exercising the right speciﬁed in clause 14(1), an em­ ployee must not breach patient conﬁdentiality or professional conﬁdentiality.

Rights of union not affected To avoid doubt, clauses 14 to 16 do not prevent a union from making public comments or engaging in public debate on any matter relating to the public health sector.
Continuity of employment Outsourcing or direct provision of services This clause applies if— (a) an employer is a district health board or the New Zealand Blood Service; and the employer obtains services from its employees; and the employer engages or arranges for another employer to provide some or all of those services— (i) (ii) to the employer (outsourcing); or direct to patients (direct provision).
(b) (c) 19 (1) 226 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 1B (2) 20 (1) (2) 21 (1) The employees referred to in subclause (1)(b) who are affected by the outsourcing or direct provision are entitled to be em­ ployed by the other employer on the same terms and conditions as applied to the employees immediately before the outsourc­ ing or direct provision took effect.
(c) (b) Change in provider of outsourced services This clause applies if— (a) a district health board or the New Zealand Blood Service has outsourced (within the meaning of clause 19(1)(c)(i)) the provision of services to it by another employer; and the agreement or arrangement under which the other employer provides those services comes to an end; and the district health board or the New Zealand Blood Ser­ vice makes an agreement or arrangement with a new employer to provide some or all of those services to it.
The employees of the employer referred to in subclause (1)(b) who are affected by the outsourcing are entitled to be employed by the other employer on the same terms and conditions as applied to the employees immediately before the agreement or arrangement referred to in subclause (1)(b) came to an end.
Obligation to notify provisions of clauses 19 and 20 Before a district health board or the New Zealand Blood Ser­ vice enters into an agreement or arrangement with a new em­ ployer to which clause 19 or clause 20 applies, it must no­ tify the employer of the provisions of clause 19 or clause 20, whichever applies in the circumstances.

(2) However, failure to comply with subclause (1) does not affect the validity of an agreement or arrangement referred to in that subclause.
This clause is in addition to clause 1(3).

(3) 227 Schedule 1B Employment Relations Act 2000 Reprinted as at 10 September 2007 Remedying breaches of good faith 22 23 Notice of breach If a party believes that another party has breached the duty of good faith in section 4, it must bring this to the attention of the party in breach at an early stage.
Obligation of party in breach A party in breach must— (a) if the breach can be made good, make good the breach by making every endeavour to restore the other party to the position the other party was in before the breach; or if the breach cannot be made good, provide an explan­ ation to the other party.

(b) Transitional 24 (1) Transitional This code does not apply to anything done or any matter aris­ ing before the commencement of the code.
(2) However, subclause (1) applies subject to subclauses (3) and (4).

Subclause (1) does not prevent the code applying in relation to— (a) a collective agreement entered into before the com­ mencement of the code; or bargaining for a collective agreement that began before the commencement of the code.

(b) Clause 20 applies even though the agreement or arrangement referred to in clause 20(1)(b) was entered into before the com­ mencement of the code.
(3) (4) 228 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 2 Schedule 2 Provisions having effect in relation to Employment Relations Authority s 165 1 (1) (2) Construction of employment agreements and statutory provisions The Authority may, in performing its role, deal with any ques­ tion related to the employment relationship, including— (a) any question connected with an employment agree­ ment, being a question that arises in the course of any investigation by the Authority: any question connected with the construction of this Act or of any other Act, being a question that arises in the course of any investigation by the Authority.
(b) Subclause (1)(b) has effect in relation to a question even though that question concerns the meaning of this Act (being the Act under which the Authority is constituted) or of an Act under which the Authority operates in a particular case.
Compare: 1991 No 22 s 79(1)(h), s (i) Representation of parties 2 (1) Any party or person involved in a matter before the Authority, or called upon to appear before the Authority, may— (a) (b) appear personally; or be represented— (i) (ii) (iii) by an ofﬁcer or member of a union; or by an agent; or by a barrister or solicitor.

(2) The Authority may order any person to appear before it or be represented before it.
Compare: 1991 No 22 s 90 Privileged communications 3 (1) Where any party to any matter before the Authority is repre­ sented by a person other than a barrister or solicitor, any com­ munications between that party and that person in relation to those proceedings are as privileged as they would have been if that person had been a barrister or solicitor.
229 Schedule 2 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) 4 (1) (2) In subclause (1), party, in relation to any matter before the Authority, includes any person who— (a) (b) appears or is represented before the Authority; or under clause 2(2) is ordered to appear or be represented before the Authority.
Reopening of investigation The Authority may order an investigation to be reopened upon such terms as it thinks reasonable, and in the meantime to stay the effect of any order previously made.

The reopened investigation need not be carried out by the same member of the Authority.
Compare: 1991 No 22 s 91(1), (4) 4A Service outside New Zealand Any document relating to a matter before the Authority may be served out of New Zealand— (a) (b) Clause 4A was inserted, as from 1 December 2004, by section 70 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

by leave of the Authority; and in accordance with regulations made under this Act.
Witness summons For the purposes of any matter before the Authority, the Au­ thority may, on the application of any party to the matter, or of its own volition, issue a summons to any person requiring that person to attend before the Authority and give evidence.

The summons must be in the prescribed form, and may require the person to produce before the Authority any books, papers, documents, records, or things in that person’s possession or under that person’s control in any way relating to the matter.
The power to issue a summons under this clause may be ex­ ercised by the Authority or a member of the Authority, or by any ofﬁcer of the Authority purporting to act by the direction or with the authority of the Authority or a member of the Au­ thority.
Compare: 1991 No 22 s 96 5 (1) (2) (3) 230 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 2 6 (1) (2) Witnesses’ expenses Every person attending the Authority on a summons, and every other person giving evidence before the Authority, is entitled, subject to subclause (2), to be paid, by the party calling that person, witnesses’ fees, allowances, and travelling expenses according to the scales for the time being prescribed by regu­ lations made under the Summary Proceedings Act 1957, and those regulations apply accordingly.
The Authority may disallow the whole or any part of any sum payable under subclause (1).

(3) On each occasion on which the Authority issues a summons under clause 5, the Authority, or the person exercising the power of the Authority under subclause (3) of that clause, must ﬁx an amount that, on the service of the summons, or at some other reasonable time before the date on which the witness is required to attend, is to be paid or tendered to the witness.
The amount ﬁxed under subclause (3) of this clause is to be the estimated amount of the allowances and travelling expenses (but not fees) to which, in the opinion of the Authority or per­ son, the witness will be entitled, according to the prescribed scales, if the witness attends at the time and place speciﬁed in the summons.
(4) (5) Where the Authority, on its own volition, issues a summons to any person under clause 5(1),— (a) that person, if he or she attends the Authority on that summons, is entitled, subject to subclause (2), to be paid by the Department the amount of the witnesses’ fees, allowances, and travelling expenses speciﬁed in subclause (1); and the Department must provide any amount ﬁxed under subclause (3) as the amount required to be paid or ten­ dered to that person.
(b) Compare: 1991 No 22 s 96 7 (1) Evidence at distance For the purpose of obtaining the evidence of witnesses at a distance, the Authority or, while the Authority is not sitting, any member of the Authority, has all the powers and functions of a District Court Judge under the District Courts Act 1947.
231 Schedule 2 Employment Relations Act 2000 Reprinted as at 10 September 2007 (2) The provisions of the District Courts Act 1947 relating to the taking of evidence at a distance apply, with the necessary modiﬁcations, as if the Authority were a District Court.

(3) Despite subclause (2) evidence may, for the purposes of this Act, be taken at a distance by a Registrar of a District Court.
Compare: 1991 No 22 s 96 8 (1) Power to take evidence on oath The Authority may take evidence on oath and, for that purpose, any member of the Authority, or any other person acting under the express or implied direction of the Authority or a member of the Authority, may administer an oath.

(2) On any indictment for perjury it is sufﬁcient to prove that the oath was administered in accordance with subclause (1).
Compare: 1991 No 22 s 96 9 10 (1) Party competent as witness Any party to a matter before the Authority is competent to give evidence in the matter and may be compelled to give evidence as a witness.
Compare: 1991 No 22 s 96 Power to prohibit publication The Authority may, in respect of any matter, order that all or any part of any evidence given or pleadings ﬁled or the name of any party or witness or other person not be published, and any such order may be subject to such conditions as the Authority thinks ﬁt.
(2) Where a matter is resolved by the Authority making a consent order as to the terms of settlement, the Authority may make an order prohibiting the publication of all or part of the contents of that settlement, subject to such conditions as the Authority thinks ﬁt.
Compare: 1991 No 22 s 97 Power to award interest Subject to subclause (2), in any matter involving the recovery of any money, the Authority may, if it thinks ﬁt, order the 11 (1) 232 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 2 inclusion, in the sum for which judgment is given, of interest, at such rate not exceeding the 90­day bill rate (as at the date of the order), plus 2%, as the Authority thinks ﬁt, on the whole or part of the money for the whole or part of the period between the date when the cause of action arose and the date of payment in accordance with the determination of the Authority.
Subclause (1) does not authorise the giving of interest upon interest.

Power to proceed if any party fails to attend If, without good cause shown, any party to a matter before the Authority fails to attend or be represented, the Authority may act as fully in the matter before it as if that party had duly attended or been represented.
Compare: 1991 No 22 s 100 No invalidity for want of form No determination or order of the Authority, and no matter be­ fore the Authority, is to be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form.

Compare: 1991 No 22 s 104(4) (2) 12 13 14 Withdrawal of matter Where any matter is before the Authority, it may at any time be withdrawn by the applicant or appellant.
Compare: 1991 No 22 s 88(8) 15 (1) (2) Power to award costs The Authority may order any party to a matter to pay to any other party such costs and expenses (including expenses of witnesses) as the Authority thinks reasonable.

The Authority may apportion any such costs and expenses be­ tween the parties or any of them as it thinks ﬁt, and may at any time vary or alter any such order in such manner as it thinks reasonable.
Compare: 1991 No 22 s 98 233 Schedule 3 Employment Relations Act 2000 Reprinted as at 10 September 2007 16 17 Investigation to continue on change in Authority Where any change takes place in the member constituting the Authority, any investigation then in progress does not abate and is not affected, but is to continue and is to be dealt with by the Authority as if no change had taken place; but the Author­ ity may require evidence to be retaken where necessary.
Compare: 1991 No 22 s 128 Urgency Where any person applies to the Authority to accord urgency to an investigation, the Authority must consider that application and may, if satisﬁed that it is necessary and just to do so, order that the investigation take place as soon as practicable.
Compare: 1991 No 22 s 118 Investigation not to abate by reason of death 18 (1) An investigation by the Authority does not abate by reason of any vacancy in the membership of the Authority, or of the death of any party to the matter being investigated.

In the latter case, the legal personal representative of the de­ ceased party is to be substituted in the deceased party’s stead.
Compare: 1991 No 22 s 129 (2) Schedule 3 Provisions having effect in relation to Employment Court s 191 Construction of employment agreements and statutory provisions The Court may, in exercising its jurisdiction, hear and deter­ mine any question related to the employment relationship, in­ cluding— (a) any question connected with an employment agree­ ment, being a question that arises in the course of any proceedings properly brought before the Court: any question connected with the construction of this Act or of any other Act, being a question that arises in the (b) 1 (1) 234 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 3 course of any proceedings properly brought before the Court.
(2) Subclause (1)(b) has effect in relation to a question even though that question concerns the meaning of this Act (being the Act under which the Court is constituted) or of an Act under which the Court operates in a particular case.
Compare: 1991 No 22 s 104(1)(f), (i) Appearance of parties 2 (1) Any party to any proceedings before the Court, and any other person appearing before the Court, may— (a) (b) appear personally; or be represented— (i) (ii) (iii) by an ofﬁcer or member of a union; or by an agent; or by a barrister or solicitor.
(2) In any proceedings the Court may allow to appear or to be represented any person who applies to the Court for leave to appear or be represented and who, in the opinion of the Court, is justly entitled to be heard; and the Court may order any other person so to appear or be represented.
Compare: 1991 No 22 s 123 Privileged communications 3 (1) Where any party to proceedings before the Court is repre­ sented by a person other than a barrister or solicitor, any com­ munications between that party and that person in relation to those proceedings and to the matter in issue (if it has been be­ fore the Authority) are as privileged as they would have been if that person had been a barrister or solicitor.
In subclause (1), party, in relation to proceedings before the Court, includes any person who, under clause 2(2),— (a) is allowed to appear or be represented in those proceed­ ings; or is ordered to appear or be represented in those proceed­ ings.

(b) (2) 235 Schedule 3 Employment Relations Act 2000 Reprinted as at 10 September 2007 4 5 (1) Evidence Any party to any proceedings before the Court may give and call evidence.
Compare: 1991 No 22 s 123(1) Rehearing The Court has in every proceeding, on the application of an original party to the proceeding, the power to order a rehearing to be had upon such terms as it thinks reasonable, and in the meantime to stay proceedings.

(2) Despite subclause (1), a rehearing may not be granted on an application made more than 28 days after the decision or order, unless the Court is satisﬁed that the application could not rea­ sonably have been made sooner.
The application— (a) must be served on the opposite party not less than 7 clear (3) (4) (5) (6) days before the day ﬁxed for the hearing; and (b) must state the grounds on which the application is made.

Those grounds must be veriﬁed by afﬁdavit.

The application does not operate as a stay of proceedings un­ less the Court so orders.

The rehearing need not take place before the Judge by whom the proceedings were originally heard.
Compare: 1991 No 22 s 125 5A Service outside New Zealand Any document relating to a matter before the Court may be served out of New Zealand— (a) (b) Clause 5A was inserted, as from 1 December 2004, by section 71 Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

See section 73 of that Act for the transitional provisions.

by leave of the Court; and in accordance with regulations made under this Act.
Witness summons For the purposes of any proceedings before the Court, the Court may, on the application of any party to those proceed­ ings, or of its own volition, issue a summons to any person 6 (1) 236 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 3 requiring that person to attend before the Court and give evi­ dence at the hearing of those proceedings.

(2) A summons may not be issued under subclause (1) to a mem­ (3) (4) 7 (1) (2) ber of the Authority.
The summons must be in the prescribed form, and may require the person to produce before the Court any books, papers, documents, records, or things in that person’s possession or under that person’s control in any way relating to the proceed­ ings.

The power to issue a summons under this section may be ex­ ercised by the Court or a Judge, or by any ofﬁcer of the Court purporting to act by the direction or with the authority of the Court or a Judge.
Compare: 1991 No 22 s 126(2)(a), (b) Witnesses’ expenses Every person attending the Court on a summons, and every other person giving evidence before the Court, is entitled, sub­ ject to subclause (2), to be paid, by the party calling that per­ son, witnesses’ fees, allowances, and travelling expenses ac­ cording to the scales for the time being prescribed by regu­ lations made under the Summary Proceedings Act 1957, and those regulations apply accordingly.
The Court may disallow the whole or any part of any sum payable under subclause (1).

(3) On each occasion on which the Court issues a summons under clause 6, the Court, or the person exercising the power of the Court under subclause (4) of that clause, must ﬁx an amount that, on the service of the summons, or at some other reason­ able time before the date on which the witness is required to attend, is to be paid or tendered to the witness.
The amount ﬁxed under subclause (3) of this clause is to be the estimated amount of the allowances and travelling expenses (but not fees) to which, in the opinion of the Court or person, the witness will be entitled, according to the prescribed scales, if the witness attends at the time and place speciﬁed in the summons.
Compare: 1991 No 22 s 126(2)(d) (4) 237 Schedule 3 Employment Relations Act 2000 Reprinted as at 10 September 2007 8 (1) (2) Evidence at distance For the purpose of obtaining the evidence of witnesses at a dis­ tance, the Court, or, while the Court is not sitting, any Judge, has all the powers and functions of a District Court Judge under the District Courts Act 1947.
The provisions of the District Courts Act 1947 relating to the taking of evidence at a distance apply, with the necessary modiﬁcations, as if the Court were a District Court.

(3) Despite subclause (2) evidence may, for the purposes of this Act, be taken at a distance by a Registrar of a District Court.
Compare: 1991 No 22 s 126(2)(f) 9 (1) Power to take evidence on oath The Court may take evidence on oath, and for that purpose any Judge, or any other person acting under the express or implied direction of the Court or a Judge, may administer an oath.

(2) On any indictment for perjury it is sufﬁcient to prove that the oath was administered in accordance with subclause (1).
Compare: 1991 No 22 s 126(2)(g), (h) Party competent as witness Any party to proceedings before the Court is competent to give evidence in those proceedings and may be compelled to give evidence as a witness.

Compare: 1991 No 22 s 126(2)(i) Power to dispense with evidence In any proceedings the Court may, if it thinks ﬁt, dispense with any evidence on any matters on which all parties to the proceedings have agreed.
Compare: 1991 No 22 s 126(3) Power to prohibit publication In any proceedings the Court may order that all or any part of any evidence given or pleadings ﬁled or the name of any party or witness or other person not be published, and any such order may be subject to such conditions as the Court thinks ﬁt.
10 11 12 (1) 238 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 3 (2) Where proceedings are resolved by the Court making a con­ sent order as to the terms of settlement, the Court may make an order prohibiting the publication of all or part of the con­ tents of that settlement, subject to such conditions as the Court thinks ﬁt.
Compare: 1991 No 22 s 109 13 (1) (2) Discovery The Court may, in relation to discovery, make any order that a District Court may make under section 56A or section 56B of the District Courts Act 1947; and those sections apply accord­ ingly with all necessary modiﬁcations.

Every application for an order under section 56A or section 56B of the District Courts Act 1947 (as applied by subclause (1)) is to be dealt with in accordance with regulations made under this Act.
(3) Nothing in subclauses (1) and (2) limits the making of rules under section 212 or regulations under section 237.
14 (1) (2) 15 (1) (2) Power to award interest Subject to subclause (2), in any proceedings for the recovery of any money, the Court may, if it thinks ﬁt, order the inclusion, in the sum for which judgment is given, of interest, at such rate not exceeding the 90­day bill rate (as at the date of the order), plus 2%, as the Court thinks ﬁt, on the whole or part of the money for the whole or part of the period between the date when the cause of action arose and the date of payment in accordance with the judgment.
Subclause (1) does not authorise the giving of interest upon interest.

Power to dismiss frivolous cases The Court may, in any proceedings, at any time dismiss any matter or defence before it which it thinks frivolous or trivial.

In any such case the order of the Court may be limited to an order against the party bringing the matter or defence before the Authority for payment of costs and expenses.
Compare: 1991 No 22 s 121 239 Schedule 3 Employment Relations Act 2000 Reprinted as at 10 September 2007 16 17 Power to proceed if any party fails to attend If, without good cause shown, any party to proceedings before the Court fails to attend or be represented, the Court may act as fully in the matter before it as if that party had duly attended or been represented.
Compare: 1991 No 22 s 124 Proceedings not invalid for want of form No decision or order of the Court, and no proceedings before the Court, are to be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form.

Compare: 1991 No 22 s 104(4) 18 Withdrawal of proceedings Where any matter is before the Court, it may at any time be withdrawn by the applicant or appellant.
Compare: 1991 No 22 s 106 Power to award costs The Court in any proceedings may order any party to pay to any other party such costs and expenses (including expenses of witnesses) as the Court thinks reasonable.

The Court may apportion any such costs and expenses between the parties or any of them as it thinks ﬁt, and may at any time vary or alter any such order in such manner as it thinks rea­ sonable.
Compare: 1991 No 22 s 108 Proceedings to continue on change in Court Where any change takes place in the Judge constituting the Court, any proceedings or inquiry then in progress do not abate and are not affected, but are to continue and are to be dealt with by the Court as if no change had taken place; but the Court may require evidence to be retaken where necessary.
Compare: 1991 No 22 s 128 19 (1) (2) 20 240 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 4 21 22 (1) (2) 1 2 3 Urgency Where any party to any proceedings applies to the Court to accord urgency to the hearing of the proceedings, the Court must consider that application and may, if satisﬁed that it is necessary and just to do so, order that the proceedings be heard by the Court as soon as practicable.
Compare: 1991 No 22 s 118 Proceedings not to abate by reason of death Proceedings before the Court do not abate by reason of the seat of any Judge being vacant for any cause whatever, or of the death of any party to the proceedings.

In the latter case, the legal personal representative of the de­ ceased party is to be substituted in the deceased party’s stead.
Compare: 1991 No 22 s 129 s 239 Schedule 4 New Schedule 3 of Police Act 1958 Schedule 3 Procedure for conciliation and arbitration Initiation of negotiations for agreements Subject to this Act, the appropriate service organisation or the Commissioner may at any time initiate negotiations for the making or renewal of an agreement under section 67 by sub­ mitting a notice to the chief executive of the Department of Labour.
s 67(6) Contents of notice Every notice submitted under clause 1 must indicate any claims that the initiating party wishes to make against the other party and must identify the matters that may be ﬁxed under section 67(3).
Power to withdraw notice The initiating party may, at any time before a settlement has been reached, withdraw a notice submitted under clause 1 by 241 Schedule 4 Employment Relations Act 2000 Reprinted as at 10 September 2007 4 5 6 7 (1) (2) Schedule 3—continued giving written notice to that effect to the chief executive of the Department of Labour.
Service of copies of notice Immediately after the submission of a notice under clause 1 or clause 3, the party that submitted the notice must serve a copy on the other party.

Duty of chief executive The chief executive of the Department of Labour must, on receiving a notice submitted under clause 1, designate a person to facilitate negotiations in relation to the claims made by the initiating party.

Mediator The person designated under clause 5 is, in this schedule, re­ ferred to as the mediator.
Mediator to determine date for negotiations The mediator must, as soon as practicable after being desig­ nated by the chief executive of the Department of Labour, de­ termine, in consultation with the representatives of the parties, a date, time, and place for negotiations.
The mediator must— (a) notify the service organisation and the Commissioner of the date, time, and place determined for the negoti­ ations; and notify the service organisation and the Commissioner that they may each nominate up to 10 persons as nego­ tiators on behalf of the parties to the negotiations.

(b) Action where mediator cannot arrange for negotiations 8 (1) Where the mediator is unable to bring together the parties for negotiations, the mediator must inform the arbitrating body accordingly.
242 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 4 Schedule 3—continued (2) (3) The arbitrating body must then attempt to facilitate or arrange to bring together the parties for negotiations and may, for that purpose,— (a) (b) give such directions incidental thereto as it thinks ﬁt: call on the services of the chief executive of the Depart­ ment of Labour or any other person.
Subject to subclause (4), where the arbitrating body’s actions do not result in bringing together the parties for negotiations, the arbitrating body must proceed to hear and determine those parts of the claim that may be ﬁxed under section 67(3) by settling those terms of the agreement.
(4) Where the arbitrating body is satisﬁed that the inability of the mediator or other person to bring together the parties for ne­ gotiations was caused by the party which initiated the negoti­ ations for an agreement under clause 1, the arbitrating body— (a) must not proceed to hear and determine the claim under subclause (3); and (b) must regard the notice submitted under clause 1 as be­ ing withdrawn and must notify the parties to the nego­ tiations accordingly.
(5) Where the parties to negotiations are notiﬁed under subclause (4), those negotiations lapse.

Negotiators 9 (1) No barrister or solicitor who holds a practising certiﬁcate for the time being in force under the Law Practitioners Act 1982, whether that barrister or solicitor is acting under a power of attorney or otherwise, is allowed to act as a negotiator unless the parties agree.
(3) (2) Nothing in subclause (1) prevents a person acting as a nego­ tiator where that person is acting substantially as an employer or employee rather than as a barrister or solicitor.

The mediator may permit any other person to act for a negoti­ ator who is unable to attend any negotiations.

The powers and functions of the parties to negotiate the claim, and of the mediator, are not affected by any vacancy in the ofﬁce of negotiator for either party.
(4) 243 Schedule 4 Employment Relations Act 2000 Reprinted as at 10 September 2007 Schedule 3—continued Powers and functions of mediator The mediator must make every endeavour to bring about a settlement of the claim.

The mediator must determine, in consultation with the appro­ priate service organisation and the Commissioner, the proced­ ures to be followed in the negotiations.

The mediator may from time to time adjourn the negotiations.
The mediator must make and preserve a record of the negoti­ ations.

The mediator may at any time, of the member’s own volition or at the joint request of the parties, seek the advice or opinion of the Employment Relations Authority.
Settlement If a settlement of the claim is arrived at in negotiations, the mediator must record in writing the terms of settlement, which must be signed and dated by— the mediator; and (a) an authorised representative of the appropriate service (b) organisation; and an authorised representative of the Commissioner.

(c) The terms of settlement must be given by the mediator to— (a) (b) the representatives of the parties; and the chief executive of the Department of Labour.
Unsettled disputes If the claim to which this Schedule applies is not settled by ne­ gotiations, the mediator must refer the claim to the arbitrating body.
Statement as to state of negotiations The appropriate service organisation and the Commissioner must each provide the arbitrating body with a signed statement as to— (a) the state of the negotiations; and 10 (1) (2) (3) (4) (5) 11 (1) (2) 12 13 (1) 244 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 4 (2) 14 15 16 17 Schedule 3—continued (b) the issues in dispute, identifying the matters that may be ﬁxed under section 67(3).
The statement must indicate, among other things, whether or not a partial settlement has been reached.

Copies of statement A copy of the statement must be forwarded to the other party at the same time as it is provided to the arbitrating body.
Power of arbitrating body to determine dispute where parties agree If the parties agree in writing, the arbitrating body, after giving the parties an opportunity to be heard, must, subject to the provisions of this schedule, hear and determine the claim by deciding the conditions of employment that may be included in the agreement under section 67(3).
Duty of arbitrating body where power to determine dispute not conferred on it If the parties do not agree to the claim being heard and deter­ mined by the arbitrating body, the arbitrating body must forth­ with call the parties to a meeting for the purpose of determin­ ing the most appropriate method of resolving the dispute.
Hearing by arbitrating body At any such meeting the arbitrating body must hear the parties and may do all or any of the following: (a) refer the dispute to the chief executive of the Depart­ ment of Labour to arrange (by delegation if necessary) for further negotiations between the parties to try and resolve the dispute: consult such organisations as may be appropriate with a view to ascertaining whether they could assist in re­ solving the dispute: with the written consent of the parties, refer it to the arbitrating body to hear and determine the matters that may be ﬁxed under section 67(3): (b) (c) 245 Schedule 4 Employment Relations Act 2000 Reprinted as at 10 September 2007 Schedule 3—continued (d) take such other action as the arbitrating body considers in all the circumstances might assist to resolve the dis­ pute.
Other actions of arbitrating body Any action or actions taken by the arbitrating body under clause 17 do not preclude the arbitrating body from taking any further action under that clause.
Lapse of negotiations Where, in respect of any dispute,— (a) the arbitrating body has exercised any or all of the powers conferred by clause 17; and the arbitrating body is satisﬁed that no action short of hearing and determining the dispute will settle it; and the parties do not agree to the dispute being heard and determined by the arbitrating body,— (b) (c) those matters which may be ﬁxed under section 67(3) and which remain in dispute must be referred to compulsory arbi­ tration in accordance with clauses 20 to 27.
All other matters raised in the claim lapse.

Arbitrating body The arbitrating body, for the purposes of the compulsory arbi­ tration, is a committee appointed from time to time under this clause.
The committee consists of— (a) an equal number of representatives (not exceeding 2) nominated respectively by the service organisations jointly and the Commissioner; and a person to chair the committee, who is to be either— (i) a person mutually agreed by the service organ­ isations and the Commissioner; or a person designated by the chief executive of the Department of Labour.
(ii) (b) 18 19 20 (1) (2) 246 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 4 (3) (4) (5) 21 22 23 (1) Schedule 3—continued The person designated under subclause (2)(b)(ii) may be the same person as the person designated under clause 5 as the mediator.
If the service organisations or the Commissioner fail to make nominations for the purposes of subclause (2)(a) or act in such a way that the committee cannot be established, in accordance with subclause (2), the chief executive of the Department of Labour must appoint as members of the committee such per­ sons as the chief executive of the Department of Labour thinks ﬁt.

The members of the committee hold ofﬁce at the pleasure of the chief executive of the Department of Labour.
Statement as to state of negotiations The appropriate service organisation and the Commissioner must each provide the arbitrating body with a signed statement as to— (a) (b) the issues in dispute in accordance with clause 19; and the position on those issues of the party providing the statement; and full particulars of the ﬁnal offer being made by the party providing the statement.
(c) Copies of statement When the arbitrating body has received both of the statements required under clause 21, it must supply— (a) a copy of the service organisation’s statement to the Commissioner; and a copy of the Commissioner’s statement to the service organisation.

(b) Hearing and determination of dispute The arbitrating body, after giving the parties an opportunity to be heard, must, subject to the provisions of this schedule, hear and determine the dispute and settle the terms of the agree­ ment.
247 Schedule 4 Employment Relations Act 2000 Reprinted as at 10 September 2007 Schedule 3—continued (2) The arbitrating body must, at the conclusion of the hearing and before making its determination, give each of the parties the opportunity to restate in writing, within a speciﬁed time or before a speciﬁed date, its ﬁnal offer.

(3) Where any party so restates its ﬁnal offer, the offer as restated is that party’s ﬁnal offer for the purposes of clause 26.
Criteria to be observed by arbitrating body The arbitrating body, in hearing and determining a dispute in relation to a proposed agreement, must have regard to— (a) the supply and demand factors for the skills of the mem­ bers covered by the proposed agreement; and the need for fairness and equity in the rate of pay and conditions of employment for work covered by the pro­ posed agreement; and any changes in the content of any job or in the skills, duties, or responsibilities of positions covered by the proposed agreement; and any changes in productivity arising from, for example, the introduction of new technology; and relativities within the proposed agreement, and between it and other awards and agreements; and the special conditions applicable to employment as a member of the Police; and such other matters as the Commissioner or the arbitrat­ ing body, as the case may be, considers relevant, or as may be agreed upon between the Commissioner and the appropriate service organisation.
(b) (c) (d) (e) (f) (g) Application of criteria In applying the criteria, the arbitrating body— (a) is not bound by historical precedent and practice of any sort; and (b) must consider whether relativities or conditions of em­ ployment should be changed to take account of factors that are speciﬁc to the work covered by the proposed agreement; and 24 25 248 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Schedule 3—continued (c) is not to have any regard whatsoever to any matters that remained in dispute but were not matters that may be ﬁxed under section 67(3).
Duty of arbitrating body to accept one ﬁnal offer In determining any dispute under this schedule, the arbitrat­ ing body must accept either the ﬁnal position adopted by the service organisation or the ﬁnal position adopted by the Com­ missioner.

The arbitrating body must accept in full the ﬁnal offer made by one of the parties.

The arbitrating body may not adopt only a part or parts of one ﬁnal offer and a part of the other ﬁnal offer.
Right of parties to agree on other methods Nothing in this schedule prevents the parties from agreeing to have the dispute or any issues in dispute determined in a way different from that set out in clauses 20 to 26.
Power of arbitrating body to waive technical irregularities The arbitrating body in its discretion may waive any technical irregularity or omission that may have occurred in the submis­ sion or reference of a dispute of interest to the arbitrating body, if it is satisﬁed that the provisions of this Act have been sub­ stantially complied with.
26 (1) (2) (3) 27 28 Schedule 5 Enactments amended Accident Insurance Act 1998 (1998 No 114) s 240 Repeal section 78(a) and substitute: “(a) section 131 of the Employment Relations Act 2000:”.

Omit from section 134(4) the words “Employment Tribunal” and substitute the words “Employment Relations Authority”.
249 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Anzac Day Act 1966 (RS Vol 33 p 13) Application to terms of employment Repeal section 4 and substitute: “4 “(1) The terms of employment of any employee contained in any Act or employment agreement include, or are deemed to in­ clude, provision for the observance of Anzac Day as if it were a holiday to be allowed on pay.
“(2) Where in any Act or employment agreement provision is made for the transfer of the granting of a holiday, or of the obser­ vance of certain hours of labour, or of the payment of certain rates of wages on Anzac Day to any other day instead of An­ zac Day, that provision is void and of no effect.
“(4) “(3) Nothing in this section affects any provision permitting or re­ quiring an employer to grant a holiday on any other day instead of Anzac Day where the employee is required to work on An­ zac Day at ordinary rates of wages.
In this section,— “Act includes any regulation, rule, or order made under any Act of Parliament “employment agreement has the meaning given to it by sec­ tion 5 of the Employment Relations Act 2000.” Arts Council of New Zealand Toi Aotearoa Act 1994 (1994 No 19) Repeal subclauses (3) and (4) of clause 10 of Schedule 1 and substi­ tute: “(3) Before entering into any collective agreement under the Em­ ployment Relations Act 2000, the Council must consult with the State Services Commissioner about the conditions of em­ ployment to be included in the collective agreement.
“(4) Where there is no collective agreement, the Council must con­ sult with the State Services Commissioner from time to time about the conditions of employment applying generally to the employees of the Council.” Omit from clause 13(a) of Schedule 1 the expression “Employment Contracts Act 1991” and substitute the expression “Employment Re­ lations Act 2000”.
250 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Civil Aviation Act 1990 (RS Vol 32 p 1) Repeal clause 26 of Schedule 3 and substitute: “26 Before entering into any collective agreement under the Employment Relations Act 2000, the Authority must consult with the State Services Commissioner about the conditions of employment to be included in the collect­ ive agreement.” Clerk of the House of Representatives Act 1988 (1988 No 126) Repeal sections 25 and 26 and the heading above section 25 and sub­ stitute: “Employment relations “25 Application of Employment Relations Act 2000 Except as otherwise provided in section 26 of this Act, the Em­ ployment Relations Act 2000 applies in relation to employees appointed under section 18 of this Act.
“26 Negotiation of conditions of employment “(1) The Clerk of the House of Representatives must negotiate under the Employment Relations Act 2000 every collective agreement applicable to employees appointed under section 18 of this Act.

“(2) The Clerk of the House of Representatives must conduct the negotiations— “(a) with a union of which employees are members; and “(b) in consultation with the State Services Commissioner.
In this section, union has the meaning given to that term by section 5 of the Employment Relations Act 2000.” “(3) Commerce Act 1986 (RS Vol 31 p 71) Repeal section 18C(a) and substitute: “ “(a) the person may pursue, in relation to those circumstances, a personal grievance under the Employment Relations Act 2000:”.
251 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Companies Act 1993 (1993 No 105) Omit from clause 2(g) of Schedule 7 the words “Employment Tri­ bunal” and substitute the words “Employment Relations Authority”.
Crown Research Institutes Act 1992 (1992 No 47) Repeal section 9 and substitute: “9 Collective agreements No Crown Research Institute may enter into a collective agreement that binds any or all of its employees unless that Crown Research Institute, or an authorised representative of that Crown Research Institute, has ﬁrst consulted with the State Services Commissioner with respect to the terms and conditions of employment to be included in the collective agreement.” Defence Act 1990 (1990 No 28) Repeal section 45(5) and substitute: “ “(5) Nothing in the Employment Relations Act 2000 applies to the conditions of service of members of the Armed Forces.” Omit from section 61A(1)(b) the words “employment contract” and substitute the words “employment agreement”.
Omit from section 68(1) the words “employment contract” and sub­ stitute the words “employment agreement”.

Repeal sections 69 to 71 and the heading above section 69 and sub­ stitute: “Application of Employment Relations Act 2000 “69 Application to Civil Staff of Employment Relations Act 2000 Except as otherwise provided in this Act, the Employment Re­ lations Act 2000 applies in relation to the Civil Staff.
252 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 “70 Negotiation of conditions of employment “(1) The Chief of Defence Force is responsible for negotiating, under the Employment Relations Act 2000, every collective agreement applicable to employees in the Civil Staff.

“(2) The Chief of Defence Force must consult with the State Ser­ vices Commissioner when negotiating any collective agree­ ments under this section.
“(3) The State Services Commissioner may at any time either be­ fore or during the negotiation of such collective agreements indicate to the Chief of Defence Force that the State Services Commissioner wishes to participate with the Chief of Defence Force in negotiating those collective agreements, and the Chief of Defence Force must allow the State Services Commissioner to participate accordingly.
“71 Personal grievances and disputes “(b) Despite the provisions of sections 61A and 70,— “(a) in relation to a personal grievance, the employer is the Chief of Defence Force; and in relation to a dispute about the interpretation, applica­ tion, or operation of any collective agreement, the em­ ployer is the Chief of Defence Force acting, if the State Services Commissioner so requires, together with or in consultation with the State Services Commissioner.” Disabled Persons Community Welfare Act 1975 (RS Vol 26 p 143) Repeal section 26(3)(h)(iii) and substitute: “ “(iii) such union registered under the Employment Relations Act 2000 as the Director­General may specify:”.
Education Act 1989 (RS Vol 34 p 17) Omit from section 71(3) the words “award, and agreement” and sub­ stitute the words “and collective agreement”.

Omit from section 198(2) the words “an award or an agreement” and substitute the words “a collective agreement”.
253 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Repeal section 339(2) and substitute: “ “(2) The company must not enter into a collective agreement (within the meaning of the Employment Relations Act 2000) with any of its employees, unless the company or its repre­ sentative has ﬁrst consulted the State Services Commissioner with respect to the terms and conditions of the agreement.” Environment Act 1986 (RS Vol 36 p 223) Repeal section 11(2) and substitute: “(2) The Commissioner is responsible for negotiating, under the Employment Relations Act 2000, every employment agree­ ment applicable to employees appointed under this section.” Equal Pay Act 1972 (RS Vol 35 p 279) Repeal the deﬁnition of Court in section 2(1) and substitute: “Court means the Employment Court constituted under the Employ­ ment Relations Act 2000.” Omit from the deﬁnition of employee in section 2(1) the words “means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or any other work or effort whatso­ ever; and includes any person who is a worker within the extended meaning given to the term worker by subsections (2) and (3) of section 2 of the Industrial Relations Act 1973” and substitute the words “has the same meaning as in the Employment Relations Act 2000”.
Repeal the deﬁnition of employer in section 2(1) and substitute: “employer means any person employing an employee or employ­ ees”.

Repeal the deﬁnition of Employment Tribunal in section 2(1) and substitute: “Employment Relations Authority means the Employment Rela­ tions Authority established by section 156 of the Employment Rela­ tions Act 2000”.
254 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Add to the deﬁnition of industrial agreement in section 2(1) the words “and a collective agreement made under the Employment Re­ lations Act 2000”.

Repeal the deﬁnition of Inspector in section 2(1) and substitute: “Inspector means a Labour Inspector designated under section 223 of the Employment Relations Act 2000”.
Repeal section 10 and substitute: “10 Approval by Court or Employment Relations Authority of instruments or proposed instruments “(1) Despite anything in the Employment Relations Act 2000, the Court may, of its own motion or on the application of any party, examine the provisions of any proposed collective agreement under that Act ﬁxing any rate of remuneration of employees, whether or not those provisions have been agreed upon in con­ ciliation, in order to determine whether the provisions of the proposed collective agreement meet such of the requirements of sections 3 to 6 of this Act as are applicable.
“(2) After hearing the parties or, if the Court thinks ﬁt, without hearing the parties, the Court may,— “(a) “(b) if the Court is satisﬁed that those provisions meet the re­ quirements of sections 3 to 6 of this Act, approve those provisions: if the Court is not so satisﬁed,— “(i) refer the proposed collective agreement back to the parties for further consideration and amend­ ment of those provisions in order to meet the re­ quirements of sections 3 to 6 of this Act and, if it does so, the Court may state principles for the guidance of the parties for the implementation of equal pay in that collective agreement; or amend the provisions of the proposed collective agreement in order to meet the requirements of sections 3 to 6 of this Act, and make the collective agreement as so amended.
“(3) Despite anything in any other Act or in any rule of law, the Employment Relations Authority may, of its own motion or on the application of an Inspector, examine the provisions of any instrument or proposed instrument (not being a collect­ “(ii) 255 “(b) Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 ive agreement under the Employment Relations Act 2000) in order to determine whether the provisions of the instrument or proposed instrument ﬁxing any rate of remuneration for em­ ployees meet such of the requirements of sections 3 to 7 of this Act as are applicable.
“(4) After hearing the parties to the instrument or proposed instru­ ment or their representatives or, if the Employment Relations Authority thinks ﬁt, without a hearing, the Employment Rela­ tions Authority may,— “(a) if the Employment Relations Authority is satisﬁed that those provisions meet such of the requirements of sec­ tions 3 to 7 of this Act as are applicable, approve those provisions: if the Employment Relations Authority is not so satis­ ﬁed,— “(i) refer the instrument or proposed instrument back to the parties, or, as the case may be, to the ap­ propriate authority, for renegotiation or, as the case may be, for reconsideration or amendment of those provisions in order to meet those require­ ments, and, if it does so, the Employment Rela­ tions Authority may state principles for the guid­ ance of the parties or that authority for the im­ plementation of equal pay in that instrument or proposed instrument; or in the case of an instrument, amend it to the ex­ tent necessary to meet those requirements and the instrument as so amended has effect accordingly.
“(5) The Employment Relations Authority must not exercise any of its powers under this section without a hearing if any party to the instrument or proposed instrument requests a hearing.” “(ii) Omit from section 12 the words “Employment Tribunal” wherever they appear and substitute in each case the words “Employment Re­ lations Authority”.

Omit from section 13 the words “Employment Tribunal” wherever they appear and substitute in each case the words “Employment Re­ lations Authority”.
256 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Omit from section 13(2) the words “section 48 of the Employment Contracts Act 1991” and substitute the words “section 131 of the Employment Relations Act 2000”.
Repeal section 14 and substitute: “14 Procedure and jurisdiction of Employment Relations Authority In exercising its functions under this Act, or in respect of any breach of this Act, the Employment Relations Authority has all the powers and functions it has under the Employment Re­ lations Act 2000.” Repeal section 15(3) and substitute: “(3) Nothing in this section derogates from the rights of any person under Part 9 of the Employment Relations Act 2000 in relation to the settlement of a personal grievance.” Films, Videos, and Publications Classiﬁcation Act 1993 (1993 No 94) Repeal clause 2(4) of Schedule 1 and substitute: “(4) The Chief Censor must,— “(a) “(b) before entering into a collective agreement in relation to all or any of the employees of the Classiﬁcation Of­ ﬁce appointed under this clause, consult with the State Services Commissioner with respect to the terms and conditions of employment to be included in the collect­ ive agreement; and from time to time consult with the State Services Com­ missioner in relation to the terms and conditions of employment of those employees appointed under this clause who are not covered by a collective agreement.” Fisheries Act 1996 (1996 No 88) Omit from section 103(5)(d) the expression “Employment Contracts Act 1991” and substitute the expression “Employment Relations Act 2000”.
Omit from section 103(5)(g) the expression “Employment Tribunal” and substitute the expression “Employment Relations Authority”.

257 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Omit from section 107(7)(a) the expression “Employment Tribunal” and substitute the expression “Employment Relations Authority”.

Omit from section 332(6)(c) the expression “Employment Contracts Act 1991” and substitute the expression “Employment Relations Act 2000”.
Omit from section 332(6)(f) the expression “Employment Tribunal” and substitute the expression “Employment Relations Authority”.
Repeal section 333(2) and substitute: “(2) For the purposes of subsection (1), reasonable grounds for a belief that a breach has occurred includes— “(a) advice from the chief executive (within the meaning of the Employment Relations Act 2000) that a decision or order of the Employment Relations Authority or Em­ ployment Court has been made to that effect: advice from the chief executive (within the meaning of the Employment Relations Act 2000) to the effect that any information or records requested, whether from an authorised agent in accordance with section 332(3) of this Act or from the employer, have not been provided.” “(b) Government Superannuation Fund Act 1956 (RS Vol 21 p 209) Repeal paragraph (b) of the deﬁnition of controlling authority in section 2(1) and substitute: “(b) a contributor employed in the Education service, means the employer as deﬁned in section 2 of the State Sector Act 1988.” Repeal the deﬁnition of Education service in section 2(1) and sub­ stitute: “Education service has the meaning given to it by section 2 of the State Sector Act 1988.” Repeal paragraph (b) of the deﬁnition of Judge in section 81A and substitute: “(b) a Judge of the Employment Court appointed under section 200 of the Employment Relations Act 2000 or deemed to have been appointed under that Act by subsection (1) or subsection (2) of section 253 of that Act:”.
258 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Repeal paragraph (b) of the deﬁnition of temporary Judge in section 81A and substitute: “(b) a Judge of the Employment Court appointed under section 207 of the Employment Relations Act 2000:”.
Hazardous Substances and New Organisms Act 1996 (1996 No 30) Repeal clause 32 of Schedule 1 and substitute: “32 Before entering into any collective agreement under the Employment Relations Act 2000, the Authority must consult with the State Services Commissioner about the conditions of employment to be included in the collect­ ive agreement.” Health and Disability Commissioner Act 1994 (1994 No 88) Repeal clause 2(5) of Schedule 2 and substitute: “(5) The Commissioner must,— “(a) “(b) before entering into a collective agreement in relation to all or any of the Commissioner’s employees appointed under this clause, consult with the State Services Com­ missioner with respect to the terms and conditions of employment to be included in the collective agreement; and from time to time consult with the State Services Com­ missioner in relation to the terms and conditions of em­ ployment applying to those employees appointed under this clause who are not covered by a collective agree­ ment.” Health and Disability Services Act 1993 (1993 No 22) Repeal section 43(2) and substitute: “(2) A hospital and health service may not enter into a collective agreement in relation to any or all of its employees unless the service or its representative has ﬁrst consulted with the State Services Commissioner with respect to the terms and condi­ tions of the agreement.” 259 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Repeal clause 14(3) of Schedule 2 and substitute: “(3) The Authority may not enter into a collective agreement in relation to any or all of its employees unless the Authority has ﬁrst consulted with the State Services Commissioner with respect to the terms and conditions of the agreement.” Health Reforms (Transitional Provisions) Act 1993 (1993 No 23) Repeal the deﬁnition of employee in section 2(1) and substitute: “employee has the same meaning as in section 6 of the Employment Relations Act 2000”.
Higher Salaries Commission Act 1977 (RS Vol 35 p 307) Repeal the item relating to the members of the Employment Tribunal in Schedule 4 and substitute: “The Chief of the Employment Relations Authority and other mem­ bers of the Employment Relations Authority (being the members who hold ofﬁce under section 166 of the Employment Relations Act 2000).” Historic Places Act 1993 (1993 No 38) Repeal section 67(3) and (4) and substitute: “(3) Before entering into any collective agreement under the Em­ ployment Relations Act 2000, the Trust must consult with the State Services Commissioner about the conditions of employ­ ment to be included in the collective agreement.
“(4) Where there is no collective agreement, the Trust must con­ sult with the State Services Commissioner from time to time about the conditions of employment applying generally to the employees of the Trust.” Holidays Act 1981 (RS Vol 27 p 611) [Repealed] Schedule 5 was amended, as from 1 April 2004, by section 91(1) Holidays Act 2003 (2003 No 129) by omitting so much as relates to the “Holidays Act 1981”.
260 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Housing Restructuring Act 1992 (1992 No 76) Repeal section 8 and substitute: “8 Collective agreements Before entering into any collective agreement under the Em­ ployment Relations Act 2000, the company must consult with the State Services Commissioner over the conditions of em­ ployment to be included in the collective agreement.” Human Rights Act 1993 (1993 No 82) Insert in section 2, after the deﬁnition of employer: “employment agreement has the meaning given to that term by sec­ tion 5 of the Employment Relations Act 2000.” Insert in section 30A(2)(a), after the words “employment contract”, the words “or employment agreement”.
Omit from section 64 the expression “Employment Contracts Act 1991” in both places where it appears and substitute in each case the expression “Employment Relations Act 2000”.

Omit from section 64(b) the words “employment contract” and sub­ stitute the words “employment agreement”.
Repeal clause 1(4) in Schedule 1 and substitute: “(4) The Commission or the Conciliator must,— “(a) “(b) before entering into a collective agreement in relation to all or any of the employees of the Commission or the Conciliator appointed under this clause, consult with the State Services Commissioner with respect to the terms and conditions of employment to be included in the col­ lective agreement; and from time to time consult with the State Services Com­ missioner in relation to the terms and conditions of em­ ployment applying to those employees appointed under this clause who are not covered by a collective agree­ ment.” 261 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Immigration Act 1987 (RS Vol 33 p 163) Repeal section 39(4) and substitute: “(4) No employer is liable for an offence against subsection (1) in respect of any period during which the employer continues to employ any person in compliance with the minimum require­ ments of any employment agreement (within the meaning of the Employment Relations Act 2000) relating to the giving of notice on termination of employment.” Industry Training Act 1992 (1992 No 55) Repeal the deﬁnition of employment contract in section 2 and sub­ stitute: “employment agreement has the same meaning as in the Employ­ ment Relations Act 2000”.
Repeal section 3 and substitute: “3 Training contracts to have effect as employment agreements Any contract between an employer and an employee that re­ lates to the employee’s receiving, or provides for the employee to receive, industry training (whether provided by the em­ ployer or by some other person) is for all purposes deemed to be part of the employee’s employment agreement.” Repeal section 15(e) and substitute: “(e) subject to section 16 of this Act and to paragraph (b) of this section and sections 80 to 252 of the Employment Relations Act 2000 apply to every technician’s contract and apprentice­ ship contract as if it were an employment agreement within the meaning of that Act.” Judicature Amendment Act 1972 (RS Vol 22 p 489) Repeal section 3A and substitute: “3A Jurisdiction of Employment Court This Part of this Act is subject to the provisions of the Employ­ ment Relations Act 2000 relating to the jurisdiction of the Em­ ployment Court in respect of applications for review or pro­ ceedings for a writ or order of, or in the nature of, mandamus, 262 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 prohibition, certiorari, or for a declaration or injunction against any body constituted by, or any person acting pursuant to, the Employment Relations Act 2000.” Land Transport Act 1998 (1998 No 110) Repeal clause 33 of Schedule 1 and substitute: “33 Before entering into a collective agreement under the Employment Relations Act 2000, the Authority must consult with the State Services Commissioner about the conditions of employment to be included in the collect­ ive agreement.” Legal Services Act 1991 (1991 No 71) Repeal section 19(1)(e)(iv) and substitute: “(iv) the Employment Relations Authority; or”.
Maori Language Act 1987 (1987 No 176) Insert in Part A of Schedule 1, after the item “District Courts”, “The Employment Court”.

Insert in Part B of Schedule 1, after the item “The Waitangi Tribunal”, “The Employment Relations Authority”.
Maritime Transport Act 1994 (1994 No 104) Repeal clause 33 of Schedule 1 and substitute: “33 Before entering into any collective agreement under the Employment Relations Act 2000, the Authority must consult with the State Services Commissioner about the conditions of employment to be included in the collect­ ive agreement.” 263 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Minimum Wage Act 1983 (RS Vol 27 p 701) Repeal section 2 and substitute: “2 Interpretation In this Act, unless the context otherwise requires,— “employer means a person employing any worker or workers; and includes a person engaging or employing a homeworker “Employment Relations Authority means the Employment Relations Authority established under the Employment Rela­ tions Act 2000 “homeworker has the meaning given to it by section 5 of the Employment Relations Act 2000 “Labour Inspector means a Labour Inspector designated under section 223 of the Employment Relations Act 2000 “worker has the same meaning as that given to the term em­ ployee by section 6 of the Employment Relations Act 2000.” Repeal section 8A(3) and substitute: “(3) Where an employer keeps a wages and time record in accord­ ance with the Employment Relations Act 2000, the employer is not required to keep a wages and time record under this Act in respect of the same matters.” Repeal section 10 and substitute: “10 Penalties and jurisdiction Every person who makes default in the full payment of any wages payable by that person under this Act and every person who fails to otherwise comply with the requirements of this Act is liable to a penalty recoverable by a Labour Inspector, and imposed by the Employment Relations Authority, under the Employment Relations Act 2000.” Omit from section 11 the words “Employment Tribunal” in the same manner as an action under section 48 of the Employment Contracts Act 1991 and substitute the words “Employment Relations Author­ ity” in the same manner as an action under section 131 of the Em­ ployment Relations Act 2000.
264 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Repeal sections 11A and 11B and substitute: “11A Compliance order Sections 131 and 138 of the Employment Relations Act 2000 apply to the non­observance or non­compliance with any pro­ vision of, or requirement given under, this Act as if it were a provision of, or requirement given under, Parts 5 to 9 of the Employment Relations Act 2000, and proceedings under that Act may be commenced by the worker or employer affected by the non­observance or non­compliance.
“11B 40­hour 5­day week “(1) Subject to subsections (2) and (3), every employment agree­ ment under the Employment Relations Act 2000 must ﬁx at not more than 40 the maximum number of hours (exclusive of overtime) to be worked in any week by any worker bound by that employment agreement.

“(2) The maximum number of hours (exclusive of overtime) ﬁxed by an employment agreement to be worked by any worker in any week may be ﬁxed at a number greater than 40 if the parties to the agreement agree.
“(3) Where the maximum number of hours (exclusive of overtime) ﬁxed by an employment agreement to be worked by any worker in any week is not more than 40, the parties to the agreement must endeavour to ﬁx the daily working hours so that those hours are worked on not more than 5 days of the week.” Museum of New Zealand Te Papa Tongarewa Act 1992 (1992 No 19) Repeal clause 3(3) in Schedule 1 and substitute: “(3) Before entering into any collective agreement under the Em­ ployment Relations Act 2000, the Board must consult with the State Services Commissioner about the conditions of employ­ ment to be included in the collective agreement.” Repeal clause 6(a) in Schedule 1 and substitute: “(a) the person may pursue, in relation to those circumstances, a personal grievance under the Employment Relations Act 2000; or”.
265 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 New Zealand Antarctic Institute Act 1996 (1996 No 38) Repeal clause 13(3) and (4) in Schedule 1 and substitute: “(3) Before entering into any collective agreement under the Em­ ployment Relations Act 2000, the Institute must consult with the State Services Commissioner about the conditions of em­ ployment to be included in the collective agreement.
“(4) The Institute must, from time to time, consult with the State Services Commissioner in relation to the terms and conditions of employment applying to those employees appointed under this clause who are not covered by a collective agreement.” Oaths and Declarations Act 1957 (RS Vol 28 p 821) Insert in section 22(2), after paragraph (a): “(aa) in the case of a Judge of the Employment Court, by a Judge of the High Court or a Judge of the Employment Court:”.
Parental Leave and Employment Protection Act 1987 (RS Vol 27 p 753) Repeal the deﬁnition of Court in section 2(1) and substitute: “Court means the Employment Court constituted under the Employ­ ment Relations Act 2000”.

Omit the deﬁnition of Employment Tribunal in section 2(1) and substitute: “Employment Relations Authority means the Employment Re­ lations Authority established under the Employment Relations Act 2000”.
Omit from section 55 the expression “Employment Tribunal” wher­ ever it appears and substitute in each case the expression “Employ­ ment Relations Authority”.
Repeal section 56(4) and substitute: “(4) A parental leave complaint to which this section applies is not a personal grievance within the meaning of section 103 of the Employment Relations Act 2000.” 266 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Repeal sections 58 and 59 and substitute: “58 Power to refer complaint to Employment Relations Authority “(1) Where a parental leave complaint is not disposed of between the parties, it may be referred to the Employment Relations Authority.
“(2) The Employment Relations Authority must, subject to any de­ cision to provide mediation services, proceed to hear and de­ termine the complaint and, in doing so, must consider— “(a) the written statement of the complaint required by sec­ tion 57(5); and any evidence or submissions given by or on behalf of the parties; and such other matters as the Employment Relations Au­ thority thinks ﬁt.
“(b) “(c) “59 Role of institutions Where any parental leave complaint comes before the Em­ ployment Relations Authority, sections 177 to 184 of the Em­ ployment Relations Act 2000 apply in relation to that parental leave complaint and sections 214 and 215 of that Act apply in relation to appeals to the Court of Appeal.” Repeal section 66 and substitute: “66 Reinstatement Where the remedy of reinstatement is provided by the Em­ ployment Relations Authority or the Employment Court, the employee must be reinstated immediately or on such date as is speciﬁed by the Employment Relations Authority or the Em­ ployment Court and, despite any appeal against the determin­ ation of the Employment Relations Authority or the Employ­ ment Court, the provisions for reinstatement remain in full force pending the determination of the appeal.” Omit from section 68(1), and also from section 68(2), the words “the Employment Tribunal or the Court” and substitute in each case the words “the Employment Relations Authority or the Court”.
267 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Police Act 1958 (RS Vol 26 p 669) Repeal the deﬁnition of Chief of the Employment Tribunal in sec­ tion 2 and substitute: “Chief of the Employment Relations Authority means the Chief of the Employment Relations Authority appointed under section 166(1)(a) of the Employment Relations Act 2000”.
Repeal the deﬁnition of Employment Court in section 2 and substi­ tute: “Employment Court means the Employment Court constituted under the Employment Relations Act 2000”.

Repeal the deﬁnition of Employment Tribunal in section 2 and sub­ stitute: “Employment Relations Authority means the Employment Rela­ tions Authority established by section 156 of the Employment Rela­ tions Act 2000”.
Repeal the deﬁnition of member of the Employment Tribunal in section 2 and substitute: “member of the Employment Relations Authority means a mem­ ber of the Employment Relations Authority who holds ofﬁce under section 166(1) of the Employment Relations Act 2000; and includes a temporary member appointed under section 172 of that Act”.

Omit from section 67(6) the expression “the Third Schedule to this Act” and substitute the expression “Schedule 3”.
Repeal section 67A and substitute: “67A Individual employment agreements “(1) Subject to subsection (2), nothing in section 67 prevents the Commissioner and any sworn member of the Police from en­ tering into an individual employment agreement.
“(2) Where there is an applicable agreement under section 67 and the Commissioner and a sworn member of the Police enter into an individual employment agreement, the provisions of the individual employment agreement prevail to the extent that there is any inconsistency between the individual employment agreement and the applicable agreement under section 67.” Omit from section 69(3) the word “contract” and substitute the word “agreement”.
268 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Repeal section 80(5) and substitute: “(5) Clause 21 of Schedule 3 of the Employment Relations Act 2000 relating to urgency applies to an application under this section.” Repeal sections 83 to 85 and the heading above section 83 and sub­ stitute: “Disputes Settlement of disputes “83 “(1) Where there is a dispute about the interpretation, application, or operation of any provision of any agreement that applies to sworn members of the Police,— “(a) a person bound by the agreement or any party to the agreement may pursue that dispute in accordance with Part 10 of the Employment Relations Act 2000; and the person or party pursuing the dispute must ensure that every service organisation that was involved in negoti­ ations for the making or renewal of the agreement has notice of the existence of the dispute.
“(b) “(2) Where there is a dispute about the interpretation, application, or operation of any provision of any agreement made under section 77, a person bound by the agreement may pursue that dispute in accordance with Part 10 of the Employment Rela­ tions Act 2000.” Repeal section 87 and substitute: “87 Personal grievances “(1) Part 9 of the Employment Relations Act 2000 applies in rela­ tion to personal grievances by sworn members of the Police.
“(2) For the purposes of Part 9 of the Employment Relations Act 2000 (as applied by subsection (1)), an action by the Commis­ sioner (other than the imposition of a penalty under this Act) is not unjustiﬁable if— “(a) the Commissioner’s principal reason for taking the ac­ tion is to ensure that an operational requirement is met; and any failure to perform the requirement would be likely to result in a breach of the oath of ofﬁce prescribed by section 37.” “(b) 269 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 Repeal section 94.
Repeal section 96 and substitute: “96 Employment Relations Act 2000 and State Sector Act 1988 not to apply “(1) Except as otherwise expressly provided in this Act, nothing in either the Employment Relations Act 2000 or the State Sector Act 1988 applies to any persons employed as members of the Police under this Act.
“(2) Subject to this Part,— “(a) “(b) sections 139 and 140 of the Employment Relations Act 2000, with any necessary modiﬁcations, apply to the non­observance of or non­compliance with any provi­ sion of this Part of this Act or of an agreement under this Act: if any person wishes to apply for review under Part 1 of the Judicature Amendment Act 1972, or bring proceed­ ings seeking a writ or order of, or in the nature of, man­ damus, prohibition, certiorari, or declaration or injunc­ tion, in relation to the exercise, refusal, or proposed or purported exercise by any person or body of any power under this Part of this Act, the provisions of subsections (2) to (4) of section 194 of the Employment Relations Act 2000 apply: “(c) Part 11 of the Employment Relations Act 2000 applies to proceedings before the Employment Court under this Part as if those proceedings were proceedings under that Act.” Repeal Schedules 4 and 5.
Privacy Act 1993 (1993 No 28) Repeal clause 2(5) of Schedule 1 and substitute: “(5) The Commissioner must,— “(a) before entering into a collective agreement in relation to all or any of the Commissioner’s employees appointed under this clause, consult with the State Services Com­ missioner with respect to the terms and conditions of employment to be included in the collective agreement; and 270 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 “(b) from time to time consult with the State Services Com­ missioner in relation to the terms and conditions of em­ ployment applying to those employees appointed under this clause who are not covered by a collective agree­ ment.” Protected Disclosures Act 2000 (2000 No 7) Repeal paragraph (b) of the deﬁnition of employee in section 3 and substitute: “(b) a homeworker within the meaning of section 5 of the Employ­ ment Relations Act 2000:”.
Repeal section 17 and substitute: “17 Personal grievance “(1) Where an employee who makes a protected disclosure of in­ formation under this Act claims to have suffered retaliatory action from his or her employer or former employer, that em­ ployee,— “(a) if that retaliatory action consists of or includes dis­ missal, may have a personal grievance, for the purposes of paragraph (a) of section 103(1) of the Employment Relations Act 2000, because of a claim of unjustiﬁable dismissal, and Part 9 of that Act applies accordingly; and if that retaliatory action consists of action other than dismissal or includes an action in addition to dismissal, may have a personal grievance, for the purposes of para­ graph (b) of section 103(1) of the Employment Rela­ tions Act 2000, because of a claim described in that paragraph, and Part 9 of that Act applies accordingly.
“(b) “(2) This section applies only to employees within the meaning of the Employment Relations Act 2000.” Retirement Income Act 1993 (1993 No 148) Repeal clause 2(4) of Schedule 2 and substitute: “(4) The Retirement Commissioner must,— “(a) before entering into a collective agreement in relation to all or any of the Retirement Commissioner’s employees 271 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 “(b) appointed under this clause, consult with the State Ser­ vices Commissioner with respect to the terms and con­ ditions of employment to be included in the collective agreement; and from time to time consult with the State Services Com­ missioner in relation to the terms and conditions of em­ ployment applying to those employees appointed under this clause who are not covered by a collective agree­ ment.” Royal New Zealand Foundation for the Blind Act 1963 (RS Vol 37 p 811) Repeal section 22(6) and substitute: “(6) Nothing in any collective agreement within the meaning of the Employment Relations Act 2000 prevents any appeal under this section.” Social Security Act 1964 (RS Vol 32 p 625) Omit from section 3(1) the deﬁnition of strike and substitute: “strike has the same meaning as in section 81 of the Employment Relations Act 2000.” Omit from section 3(1) the deﬁnition of union and substitute: “union has the same meaning as in section 5 of the Employment Relations Act 2000.” Omit from section 91(1)(b) the words “employees organisation” and substitute the word “union”.
Repeal section 91(2).

Repeal clause 1(c)(i) of Schedule 30 and substitute: “(i) fees or subscriptions payable on an annual or regular basis to any union:”.

272 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Social Welfare (Transitional Provisions) Act 1990 (RS Vol 32 p 883) Repeal clause 15(a) of Schedule 3 and substitute: “(a) the person may pursue, in relation to those circumstances, a personal grievance under the Employment Relations Act 2000:”.
Southland Electricity Act 1993 (1993 No 147) Repeal section 8 and substitute: “8 Collective agreements Before entering into any collective agreement under the Em­ ployment Relations Act 2000, the company must consult with the State Services Commissioner over the conditions of em­ ployment to be included in the collective agreement.” State Sector Act 1988 (RS Vol 33 p 715) Repeal the deﬁnition of applicable collective employment contract in section 2 and substitute: “applicable collective agreement means the collective agreement that is binding on the relevant union and employer, at the relevant point of time in relation to an employee of the employer who is a member of the union”.
Repeal the deﬁnition of collective employment contract in section 2, and substitute: “collective agreement means an employment agreement that is bind­ ing on 1 or more employers and 2 or more employees”.
Omit from section 2 the deﬁnition of Education service and substi­ tute: “Education service means— “(a) service in the employment of— any state school; or “(i) any integrated school within the meaning of the Private “(ii) Schools Conditional Integration Act 1975; or “(iii) any university, polytechnic, or college of education; or “(iv) any other educational institution for which a separate employer for the purposes of this Act is designated by any enactment or by the Minister: 273 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 “(b) service as a registered teacher in the employment of any free kindergarten association that controls a free kindergarten within the meaning of section 315(1) of the Education Act 1989”.
Insert in the deﬁnition of employer in section 2, after paragraph (a): in relation to any free kindergarten within the meaning of “(b) section 315(1) of the Education Act 1989, means the free kindergarten association by which that free kindergarten is controlled:”.

Repeal the deﬁnition of employment contract in section 2 and sub­ stitute: “employment agreement means a contract of service”.
Repeal the deﬁnitions of individual employment contract and lock­ out in section 2 and substitute: “individual employment agreement means an employment agree­ ment that is binding on only 1 employer and 1 employee who is not bound by a collective agreement that binds the employer “lockout has the meaning given to it by section 82 of the Employ­ ment Relations Act 2000”.
Repeal the deﬁnition of strike in section 2 and substitute: “strike has the meaning given to it by section 81 of the Employment Relations Act 2000 “union means a union registered under Part 4 of the Employment Relations Act 2000”.
Repeal section 59(1)(b) and substitute: “(b) may, subject to any conditions of employment included in the employment agreement applying to the employee, at any time remove any employee from that employee’s ofﬁce or employ­ ment.” Omit from section 61A(1) the words “subject to the relevant employ­ ment contract” and substitute the words “subject to the relevant em­ ployment agreement”.

Omit from section 61B(1) the word “contracts” and substitute the word “agreements”.
Omit from section 61B(2) the word “contract” in both places where it appears and substitute in each case the word “agreement”.
274 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 Omit from the heading to Part 6 the words “APPLICATION OF THE EMPLOYMENT CONTRACTS ACT 1991”, and substitute: “Application of Employment Relations Act 2000.” Repeal sections 67 to 69 and substitute: “67 Application to Public Service of Employment Relations Act 2000 Except as otherwise provided in this Act, the Employment Re­ lations Act 2000 applies in relation to the Public Service.
“68 Negotiation of conditions of employment “(1) The Commissioner is responsible for negotiating under the Employment Relations Act 2000 every collective agreement applicable to employees of any Department of the Public Ser­ vice as if the Commissioner were the employer.
“(2) Without limiting subsection (1), it is declared that, for the pur­ poses of initiating bargaining for a collective agreement, good faith bargaining for a collective agreement, and entering into collective agreements,— “(a) the Commissioner has the same rights, duties, and obligations under the Employment Relations Act 2000 as the Commissioner would have if the Commissioner were the employer; and employees of each Department affected are to be treated as if they were all employees of the Commissioner.
“(b) “(3) The Commissioner must conduct the negotiations— “(a) with a union of which the employees are members; and in consultation with the chief executive of each Depart­ “(b) ment affected.

“(4) Every collective agreement must be entered into between— “(a) “(b) the Commissioner; and a union of which the employees to whom the collective agreement is applicable are members.
“(5) Every collective agreement entered into between the Commis­ sioner and a union and relating to employees of a Department is binding on— “(a) the chief executive of that Department; and 275 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 “(b) the employees of that Department who are or become members of the union and whose work comes within the coverage clause in the collective agreement.
“(6) Except as provided in this section, an employer who is bound by a collective agreement under subsection (5) has the rights, obligations, and duties that that employer would have, in re­ spect of that collective agreement, under the Employment Re­ lations Act 2000 as if that employer were a party to that agree­ ment.” “69 Personal grievances and disputes Despite the provisions of section 68,— “(a) “(b) “(c) in relation to a personal grievance, the employer is the chief executive of the Department; and in relation to a dispute about the interpretation, applica­ tion, or operation of any collective agreement, the em­ ployer is the chief executive of the Department acting, if the Commissioner so requires, together with or in con­ sultation with the Commissioner; and in relation to any other employment relationship problem (within the meaning of the Employment Re­ lations Act 2000), the employer is the chief executive of the Department.” Repeal section 70(2) and substitute: “(2) Where the Commissioner, acting under subsection (1), dele­ gates to a chief executive the function, under section 68(1), of conducting negotiations with a union of which the employees are members, the chief executive must conduct those negoti­ ations in consultation with the Commissioner.” Repeal sections 73 to 74A and substitute: “73 Application of Employment Relations Act 2000 Except as otherwise provided in this Act, the Employment Re­ lations Act 2000 applies in relation to the Education service.
“74 Negotiation of conditions of employment “(1) Except as provided in section 74C, the Commissioner is re­ sponsible for negotiating under the Employment Relations Act 2000 every collective agreement applicable to employees of 276 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 the Education service as if the Commissioner were the em­ ployer.
“(2) Without limiting subsection (1), it is declared that, for the pur­ poses of initiating bargaining for a collective agreement, good faith bargaining for a collective agreement, and entering into collective agreements,— “(a) the Commissioner has the same rights, duties, and obligations under the Employment Relations Act 2000 as the Commissioner would have if the Commissioner were the employer; and employees of the Education service are to be treated as if they were all employees of the Commissioner.
“(b) “(3) Unless otherwise directed in writing by the Commissioner, an employer in the Education service must not lock out employ­ ees or suspend striking employees in relation to negotiations by the Commissioner for a collective agreement applicable to those employees.
“(4) The Commissioner must conduct the negotiations— “(a) with a union of which the employees are members; and “(b) in consultation with— “(i) “(ii) the chief executive of the Ministry of Education; and representatives of the employer or employers who will be bound by the collective agreement, which representatives must be employers or or­ ganisations of employers, of persons employed in the Education service.
“(5) Every collective agreement must be entered into between— “(a) “(b) the Commissioner; and a union of which the employees to whom the collective agreement is applicable are members.

“(6) Every collective agreement entered into between the Commis­ sioner and any union and relating to employees in the Educa­ tion service is binding on— “(a) the employers of the employees to whom the collective agreement is applicable; and the employees in the Education service who are, or who become, members of the union.
“(b) 277 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 “(7) Except as provided in this section, an employer who is bound by a collective agreement under subsection (6) has the rights, obligations, and duties that that employer would have, in re­ spect of that collective agreement, under the Employment Re­ lations Act 2000 as if that employer were a party to that agree­ ment.
“74A Personal grievances and disputes Despite the provisions of section 74,— “(a) “(b) “(c) in relation to a personal grievance, the employer is the employer as deﬁned in section 2; and in relation to a dispute about the interpretation, applica­ tion, or operation of any collective agreement, the em­ ployer is the employer as deﬁned in section 2, acting, if the Commissioner so requires, together or in consult­ ation with the Commissioner; and in relation to any other employment relationship problem (within the meaning of the Employment Relations Act 2000), the employer is the employer as deﬁned in section 2.” Repeal section 74B(2) and substitute: “(2) Where the Commissioner, acting under subsection (1), dele­ gates to an employer or an organisation of employers the func­ tion, under section 74(1), of conducting negotiations with a union of which the employees are members, the employer or organisation of employers must conduct those negotiations in consultation with— “(a) “(b) the Commissioner; and the chief executive of the Ministry of Education.” Omit from section 74C(2) the words “Employment Contracts Act 1991 collective employment contracts” and substitute the words “Employment Relations Act 2000” collective agreements.
Repeal section 74C(3) and substitute: “(3) Before entering into any collective agreement under the Em­ ployment Relations Act 2000, the chief executive of each uni­ versity, polytechnic, or college of education or any organ­ isation of employers representing jointly such chief execu­ tives, must consult with the State Services Commissioner over 278 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 the conditions of employment to be included in the collective agreement.” Omit from section 74D(1) the words “employment contract” and sub­ stitute the word “agreement”.
Omit from section 75(1), and also from section 75(2), the words “em­ ployment contract” in both places where they appear, and substitute in each case the word “agreement”.
Repeal section 76(4) and substitute: “(4) Nothing in this section is to be construed so as to prevent any union from making representations to the employer or to any other person or persons acting under delegation from the em­ ployer on any matter affecting the salaries, wages, or condi­ tions of employment of any employees who are members of that union.” Repeal section 77E(1)(b) and substitute: “(b) may, subject to any conditions of employment included in the employment agreement applying to the employee, at any time remove any employee from that employee’s employment.” Repeal paragraph (b) of the deﬁnition of employer in section 84 and substitute: “(b) in relation to— “(i) any institution that is subject to Part IX of the Education Act 1989; or any free kindergarten within the meaning of section 315(1) of the Education Act 1989— “(ii) for the application period (within the meaning of subsection (1) of section 91A of the Education Act 1989), means the chief executive of the Ministry (within the meaning of that subsec­ tion):”.
State­Owned Enterprises Act 1986 (RS Vol 33 p 813) Application of Employment Relations Act 2000 Repeal section 8 and substitute: “8 “(1) Except as otherwise provided in this Act, the Employment Re­ lations Act 2000 applies in relation to every State enterprise.
279 Schedule 5 Employment Relations Act 2000 Reprinted as at 10 September 2007 “(2) Before entering into any collective agreement under the Em­ ployment Relations Act 2000, every State enterprise named in the Second Schedule of this Act must consult with the State Services Commissioner over the conditions of employment to be included in the collective agreement.” Transit New Zealand Act 1989 (1989 No 75) Repeal clause 23(c) of Schedule 1A and substitute: “(c) before entering into any collective agreement under the Em­ ployment Relations Act 2000, the Board must consult with the State Services Commissioner about the conditions of employ­ ment to be included in the collective agreement.” Transport Accident Investigation Commission Act 1990 (1990 No 99) Omit from section 14E(1), and also from section 14F(1), the expres­ sion “Employment Contracts Act 1991” and substitute in each case the expression “Employment Relations Act 2000”.
Volunteers Employment Protection Act 1973 (RS Vol 21 p 897) [Repealed] Schedule 5 was amended, as from 1 April 2004, by section 16 Volunteers Employment Protection Amendment Act 2004 (2004 No 12) by omitting so much as relates to the “Volunteers Employment Protection Act 1973”.
Wages Protection Act 1983 (RS Vol 27 p 905) Repeal the deﬁnition of worker in section 2 and substitute: “worker has the same meaning as that given to the term employee by section 6 of the Employment Relations Act 2000; and, in relation to any employer, means a worker employed by that employer.” Repeal paragraph (b) of the deﬁnition of recoverable period in sec­ tion 6(1) and substitute: “(b) been on strike (within the meaning of section 81 of the Em­ ployment Relations Act 2000); or”.
Omit from section 6(2) the words “employment contract within the meaning of the Employment Contracts Act 1991” and substitute the 280 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 5 words “agreement within the meaning of the Employment Relations Act 2000”.
Omit from section 11(1) the words “the Employment Tribunal, estab­ lished under the Employment Contracts Act 1991, in the prescribed manner” and substitute the words “the Employment Relations Au­ thority, established by the Employment Relations Act 2000, in the prescribed manner”.

Omit from section 12A(2) the words “Employment Tribunal” and substitute the words “Employment Relations Authority”.
Omit from section 12A(2) the words “section 143(1) of the Employ­ ment Contracts Act 1991” and substitute the words “section 223 of the Employment Relations Act 2000”.
Repeal section 13 and substitute: “13 Penalties Where— “(a) “(b) any payment is made by or on behalf of any employer in contravention of this Act; or any employer or any person on that employer’s behalf contravenes or fails to comply with any of the provi­ sions of this Act,— that employer is liable, at the suit of the worker or of a Labour Inspector designated under section 223 of the Employment Relations Act 2000, to a penalty imposed under that Act by the Employment Relations Authority.” Repeal section 16 and substitute: “16 Provisions in collective agreements Subject to section 6(2), nothing in this Act derogates from or makes it unlawful to comply with— “(a) any provision of any collective agreement within the meaning of the Employment Relations Act 2000; or any provision of any order of the Employment Court or the Employment Relations Authority established by the Employment Relations Act 2000.” “(b) 281 Schedule 6 Employment Relations Act 2000 Reprinted as at 10 September 2007 Waitangi Day Act 1976 (RS Vol 27 p 913) Application to terms of employment Repeal section 5 and substitute: “5 “(1) The terms of employment of any worker contained in any Act or employment agreement include, or are deemed to include, provision for the observance of Waitangi Day as if it were a holiday to be allowed on pay.
“(2) Where in any Act or employment agreement provision is made for the transfer of the granting of a holiday, or of the obser­ vance of certain hours of labour, or of the payment of certain rates of wages on Waitangi Day to any other day instead of Waitangi Day, that provision is void and of no effect.
“(3) Nothing in this section affects any provision permitting or re­ quiring an employer to grant a holiday on any other day instead of Waitangi Day where the worker is required to work on Wai­ tangi Day at ordinary rates of wages.
In this section,— “Act includes any regulation, rule, or order made under any Act of Parliament “employment agreement has the meaning given to it by sec­ tion 5 of the Employment Relations Act 2000.” “(4) s 241 Schedule 6 Enactments repealed Defence Amendment Act 1997 (1997 No 41) Section 3(2)(c).

Education Act 1964 (RS Vol 34 p 355) Section 106B(1)(g) and 201D(d).

Electricity Industry Reform Act 1998 (1998 No 88) So much of Schedule 2 as relates to the Employment Contracts Act 1991.
282 Reprinted as at 10 September 2007 Employment Relations Act 2000 Schedule 6 Employment Contracts Act 1991 (1991 No 22) Employment Contracts Amendment Act 1991 (1991 No 98) Equal Pay Amendment Act 1990 (RS Vol 35 p 304) Section 2.

Equal Pay Amendment Act 1991 (RS Vol 35 p 304) Sections 2(1), 4, 5, 6(1), and 7.

Government Superannuation Fund Amendment Act (No 2) 1992 (1992 No 61) Section 11.
Holidays Amendment Act 1991 (RS Vol 27 p 635) [Repealed] Schedule 6 was amended, as from 1 April 2004, by section 91(1) Holidays Act 2003 (2003 No 129) by omitting so much as relates to the “Holidays Amendment Act 1991”.

Human Rights Act 1993 (1993 No 82) So much of Schedule 2 as relates to the Employment Contracts Act 1991.

Immigration Amendment Act 1991 (RS Vol 33 p 340) Section 21.

Minimum Wage Amendment Act 1987 (RS Vol 27 p 707) Section 2.
Minimum Wage Amendment Act 1991 (RS Vol 27 p 708) Sections 2, 7, 9, and 10.

283 Employment Relations Act 2000 Reprinted as at 10 September 2007 Parental Leave and Employment Protection Amendment Act 1991 (RS Vol 27 p 792) Sections 6, 7, and 8.

Police Amendment Act 1991 (1991 No 29) Sections 2(1), 9(2), 10, 11, 15, and 16 and the Schedule.

Police Amendment Act 1992 (1992 No 68) Section 9.

State Sector Amendment Act 1991 (RS Vol 33 p 715) Sections 4, 5, and 11.
State Sector Amendment Act 1997 (1997 No 8) Part 1 and section 6.

Volunteers Employment Protection Amendment Act 1990 (1990 No 114) Section 2.

Wages Protection Amendment Act 1991 (RS Vol 27 p 912) Sections 2(1), (3), 4, and 5.
13 March 2000 16 March 2000 27 July 2000 9, 14, 15, 16 August 2000 16 August 2000 Legislative history Introduction (Bill 8­1) First reading and referral to the Employment and Accident Insurance Legislation Committee Reported from Employment and Accident Insurance Legislation Committee (Bill 8­2) Committee of the whole House Third reading 284