Employment Relations (Triangular Employment) Amendment Act 2019

1: Title
This Act is the Employment Relations (Triangular Employment) Amendment Act 2019
2: Commencement
1: This Act comes into force on the earlier of the following dates:
a: a date appointed by the Governor-General by Order in Council:
b: the date immediately after the expiry of the 12-month period.
2: In this section, the 12-month period
3: Principal Act
This Act amends the Employment Relations Act 2000 principal Act 2020-06-27 Employment Relations Act 2000 unless brought into force earlier by OIC (see section 2(1)﻿(a))
1: Amendments relating to triangular employment
4: Section 5 amended (Interpretation)
In section 5 controlling third party
a: who has a contract or other arrangement with an employer under which an employee of the employer performs work for the benefit of the person; and
b: who exercises, or is entitled to exercise, control or direction over the employee that is similar or substantially similar to the control or direction that an employer exercises, or is entitled to exercise, in relation to the employee
5: Section 103 amended (Personal grievance)
After section 103(3)
4: For the purposes of sections 103B, 115A, and 123A
a: references to the employer were references to the controlling third party; and
b: references to the employee’s employment included work the employee has performed under the control or direction of a controlling third party.
6: New section 103B inserted (Joining controlling third party to personal grievance)
After section 103A
103B: Joining controlling third party to personal grievance
1: This section applies if—
a: an employee has—
i: raised a personal grievance in accordance with section 114; and
ii: applied to the Authority to resolve a personal grievance with the employee’s employer; and
b: the personal grievance relates to an action that is alleged to have occurred while the employee was working under the control or direction of a controlling third party.
2: The employee or the employer, or both, may apply to the Authority or the court to join the controlling third party to the proceedings to resolve the personal grievance.
3: The Authority or the court must grant the application to join a controlling third party if the Authority or the court is satisfied—
a: that the requirement to notify the controlling third party in accordance with section 115A
b: that an arguable case has been made out—
i: that the party to be joined to the proceedings is a controlling third party; and
ii: that the party’s actions caused or contributed to the personal grievance.
4: The Authority or the court may, at any stage of the proceedings, of its own motion join a controlling third party to the proceedings by order.
5: If the Authority or the court joins the controlling third party to the proceedings, the Authority or the court must consider whether to direct the employer, the employee, and the controlling third party to use mediation services to seek to resolve the personal grievance.
7: New section 115A inserted (Notifying controlling third party of personal grievance)
After section 115
115A: Notifying controlling third party of personal grievance
1: For the purposes of section 103B complied with
a: when an employee—
i: considers that the actions of a controlling third party caused or contributed to the personal grievance; and
ii: notifies the controlling third party of that fact within the 90-day employee notification period; or
b: when an employer—
i: considers that the actions of a controlling third party caused or contributed to the personal grievance; and
ii: notifies the controlling third party of that fact within the 90-day employer notification period; or
c: if the controlling third party has consented to being notified under subsection (2)
d: if the Authority has granted leave to notify the controlling third party under subsection (4)
2: Subsection (1)﻿(a) or (b)
3: If the controlling third party does not consent to being notified after the relevant 90-day notification period, the employee or the employer may apply to the Authority for leave to notify the controlling third party after the expiration of that period.
4: On an application under subsection (3)
5: In any case where the Authority grants leave under subsection (4)
6: In this section,— 90-day employee notification period 90-day employer notification period relevant 90-day notification period
8: New section 123A inserted (Remedies where controlling third party caused or contributed to personal grievance)
After section 123
123A: Remedies where controlling third party caused or contributed to personal grievance
1: This section applies if the Authority or the court—
a: determines that an employee has a personal grievance; and
b: has, under section 103B
c: determines that the actions of the controlling third party caused or contributed to the situation that gave rise to the personal grievance.
2: The Authority or the court may, if satisfied that it is just to do so, order the controlling third party to provide to the employee either or both of the remedies in section 123(1)﻿(b) and (c).
3: The Authority or the court must consider the extent to which the actions of the controlling third party caused or contributed to the situation that gave rise to the personal grievance.
4: The Authority or the court must award any remedies against the employer under section 123 and against the controlling third party under subsection (2)
5: The Authority or the court may, if making an order under subsection (2)
6: Subsection (2) subsections (3) to (5)
9: Section 144 amended (Mediation services)
After section 144(1)
1A: For the purposes of this section, employment relationships
10: Section 161 amended (Jurisdiction)
After section 161(1)﻿(e)
ea: joining a controlling third party to a personal grievance under section 103B
2: Further amendment to principal Act
11: Schedule 1AA amended
In Schedule 1AA Schedule