Employment Relations Amendment Act (No 2) 2004

1: Title
1: This Act is the Employment Relations Amendment Act (No 2) 2004.
2: In this Act, the Employment Relations Act 2000 the principal Act
2: Commencement
This Act comes into force on 1 December 2004.
3: Purpose
1: This Part—
a: amends the provisions of the principal Act, particularly in relation to—
i: the duty of good faith; and
ii: collective bargaining; and
iii: the processes for resolution of employment relationship problems; and
b: provides, in the principal Act, protection to employees in situations where business undertakings are sold, transferred, or contracted out.
2: The purpose of the amendments referred to in subsection (1)
4: Object of this Act
1: Section 3(a) mutual trust and confidence good faith
2: Section 3(a) subparagraph (i)
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 .
3: Section 3(a)(ii) bargaining
5: Parties to employment relationship to deal with each other in good faith
1: Section 4 subsection (1)
1A: The duty of good faith in subsection (1)
a: is wider in scope than the implied mutual obligations of trust and confidence; and
b: requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative; and
c: without limiting paragraph (b)
i: access to information, relevant to the continuation of the employees' employment, about the decision; and
ii: an opportunity to comment on the information to their employer before the decision is made.
1B: Subsection (1A)(c)
1C: For the purpose of subsection (1B) good reason
a: complying with statutory requirements to maintain confidentiality:
b: protecting the privacy of natural persons:
c: protecting the commercial position of an employer from being unreasonably prejudiced.
2: Section 4(4) paragraph (b)
ba: bargaining for an individual employment agreement or for a variation of an individual employment agreement:
bb: any matter arising under or in relation to an individual employment agreement while the agreement is in force: .
3: Section 4
6: It is a breach of subsection (1)
a: not to be involved in bargaining for a collective agreement; or
b: not to be covered by a collective agreement.
6: New
section 4A The principal Act is amended by inserting, after section 4
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)
a: the failure was deliberate, serious, and sustained; or
b: the failure was intended to undermine—
i: bargaining for an individual employment agreement or a collective agreement; or
ii: an individual employment agreement or a collective agreement; or
iii: an employment relationship; or
c: the failure was a breach of section 59B or section 59C
7: Interpretation
1: Section 5 coverage clause
a: in relation to a collective agreement,—
i: means a provision in the agreement that specifies the work that the agreement covers, whether by reference to the work or type of work or employees or types of employees; and
ii: 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: .
2: Section 5 dwellinghouse dwellinghouse
a: means any building or any part of a building to the extent that it is occupied as a residence; and
b: 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 .
3: Section 5 homeworker and, for the purposes of this definition, the definition of dwellinghouse does not apply
4: So much of Schedule 1 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 homeworker
8: Prohibition on preference
Section 9
3: To avoid doubt, this Act does not prevent a collective agreement containing a term or condition that is intended to recognise the benefits—
a: of a collective agreement:
b: arising out of the relationship on which a collective agreement is based.
9: Access to workplaces
Section 20
4: A discussion in a workplace between an employee and a representative of a union, who is entitled under this section and section 21
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)
10: Object of this Part
Section 31 paragraph (a)
aa: to provide that the duty of good faith in section 4 .
11: Good faith in bargaining for collective agreement
Section 32(1) paragraph (c)
ca: 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) .
12: New
section 33 The principal Act is amended by repealing section 33
33: Duty of good faith requires parties to conclude collective agreement unless genuine reason not to
1: The duty of good faith in section 4
2: For the purposes of subsection (1)
a: opposition or objection in principle to bargaining for, or being a party to, a collective agreement; or
b: disagreement about including in a collective agreement a bargaining fee clause under Part 6B
13: When bargaining may be initiated
Section 41(4) more than 1 union or more than 1 employer 1 or more unions or 1 or more employers
14: New heading and
sections 50A to 50J The principal Act is amended by inserting, after section 50 Facilitating bargaining
50A: Purpose of facilitating collective bargaining
1: The purpose of sections 50B to 50I
2: Sections 50B to 50I
a: prevent the parties from seeking assistance from another person in resolving the difficulties; or
b: apply to any agreement or arrangement with the other person providing such assistance.
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)
50C: Grounds on which Authority may accept reference
1: The Authority must not accept a reference for facilitation unless satisfied that 1 or more of the following grounds exist:
a: that—
i: in the course of the bargaining, a party has failed to comply with the duty of good faith in section 4
ii: the failure—
A: was serious and sustained; and
B: has undermined the bargaining:
b: that—
i: the bargaining has been unduly protracted; and
ii: extensive efforts (including mediation) have failed to resolve the difficulties that have precluded the parties from entering into a collective agreement:
c: that—
i: in the course of the bargaining there has been 1 or more strikes or lockouts; and
ii: the strikes or lockouts have been protracted or acrimonious:
d: that—
i: in the course of bargaining, a party has proposed a strike or lockout; and
ii: the strike or lockout, if it were to occur, would be likely to affect the public interest substantially.
2: For the purposes of subsection (1)(d)(ii)
a: the strike or lockout is likely to endanger the life, safety, or health of persons; or
b: the strike or lockout is likely to disrupt social, environmental, or economic interests and the effects of the disruption are likely to be widespread, long-term, or irreversible.
3: The Authority must not accept a reference in relation to bargaining for which the Authority has already acted as a facilitator unless—
a: circumstances relating to the bargaining have changed; or
b: the bargaining since the previous facilitation has been protracted.
50D: Limitation on which member of Authority may provide facilitation
A member of the Authority who facilitates collective bargaining must not be the member of the Authority who accepted the reference for facilitation.
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 facilitation relates to continues subject to the process determined by the Authority.
3: During facilitation, the Authority—
a: is not acting as an investigative body; and
b: may not exercise the powers it has for investigating matters.
4: The provision of facilitation by the Authority may not be challenged or called in question in any proceedings on the ground—
a: that the nature and content of the facilitation was inappropriate; or
b: that the manner in which the facilitation was provided was inappropriate.
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: it is made in good faith; and
b: it is limited to the process of facilitation or the progress being made.
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.
2: This section—
a: applies to avoid doubt; and
b: is subject to any agreement of the parties.
50H: Recommendation by Authority
1: While assisting parties to bargaining for a collective agreement, the Authority may make 1 or more recommendations about—
a: the process the parties should follow to reach agreement; or
b: the provisions of the collective agreement the parties should conclude; or
c: both.
2: The Authority may give public notice of a recommendation in such manner as the Authority determines.
3: A recommendation made by the Authority is not binding on a party, but a party must consider a recommendation before deciding whether to accept the recommendation.
50I: Party must deal with Authority in good faith
During facilitation, a party to bargaining for a collective agreement must deal with the 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
1: A party to bargaining for a collective agreement may apply, on the grounds specified in subsection (3)
2: The Authority may fix the provisions of the collective agreement being bargained for if it is satisfied that—
a: the grounds in subsection (3)
b: it is appropriate, in all the circumstances, to do so.
3: The grounds are that—
a: a breach of the duty of good faith in section 4
i: has occurred in relation to the bargaining; and
ii: was sufficiently serious and sustained as to significantly undermine the bargaining; and
b: all other reasonable alternatives for reaching agreement have been exhausted; and
c: 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.
4: 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
5: The effect of a determination of the Authority fixing the provisions of a collective agreement is to make the collective agreement binding and enforceable as if it had been—
a: ratified as required by section 51
b: signed by the parties under section 54(1)(b)
6: Section 59
7: If the bargaining for the collective agreement was subject to facilitation under sections 50A to 50I
15: Form and content of collective agreement
Section 54(3)(a)(ii)
16: Application of collective agreement
Section 56 subsection (1)
1A: However, an employee who is bound by a collective agreement and who holds an under-rate worker's permit under section 8 of the Minimum Wage Act 1983
a: while the permit is in force; and
b: if the union that is a party to the collective agreement agrees.
17: New
section 56A The principal Act is amended by inserting, after section 56
56A: Application of collective agreement to subsequent parties
1: An employer who is not a party to a collective agreement may 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
b: the work of some or all of the employer's employees comes within the coverage clause in the agreement; and
c: the employees referred to in paragraph (b)
d: the employer notifies all the parties to the agreement in accordance with subsection (5)
2: On the day after the day on which all parties to the collective agreement have been notified in accordance with subsection (5)
a: the employer becomes a party to the collective agreement; and
b: the collective agreement also binds and is enforceable by—
i: the employer:
ii: 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 clause in the agreement.
3: A union that is not a party to a collective agreement may become 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
b: the union has members doing work that comes within the coverage clause of the collective agreement; and
c: as a result of a secret ballot of those members, a majority of them who are entitled to vote and do vote are in favour of the union becoming a party to the collective agreement; and
d: the union notifies all the parties to the collective agreement in accordance with subsection (5)
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
b: the collective agreement also binds and is enforceable by—
i: the union:
ii: employees—
A: who are employed by an employer that is 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.
5: For the purposes of this section, a party to a collective agreement is notified—
a: when the notice is given to the party; or
b: if the notice is posted to the party, on the 7th day after the day on which the notice is posted.
6: For the purposes of subsection (l)(b) and (c) employees
18: New heading and
sections 59A to 59C The principal Act is amended by inserting, after section 59 Undermining collective bargaining or collective agreement
59A: Interpretation
In sections 59B and 59C
59B: 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
1: It is not a breach of the duty of good faith in section 4
2: However, it is a breach of the duty of good faith in section 4
a: the employer does so with the intention of undermining the collective agreement; and
b: the effect of the employer doing so is to undermine the collective agreement.
3: It is not a breach of the duty of good faith in section 4
4: However, it is a breach of the duty of good faith in section 4
a: the employer does so with the intention of undermining the collective bargaining; or
b: the effect of the employer doing so is to undermine the collective bargaining.
5: It is not a breach of the duty of good faith in section 4 subsection (2) or subsection (4)
6: In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b)
a: whether the employer bargained with the employee before they agreed on the term or condition of employment:
b: whether the employer consulted the union in good faith before agreeing to the term or condition of employment:
c: 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 not bound by the collective agreement or not covered by the collective bargaining:
d: how long the collective agreement has been in force:
e: the application of section 63
7: Subsection (6) subsection (2)(a) and (b) or subsection (4)(a) or (b)
8: Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act.
59C: 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
1: It is not a breach of the duty of good faith in section 4
2: However, it is a breach of the duty of good faith in section 4
a: the intention of the employer is to undermine the other collective agreement; and
b: the effect of the employer doing so is to undermine the other collective agreement.
3: It is not a breach of the duty of good faith in section 4
4: However, it is a breach of the duty of good faith in section 4
a: the employer does so with the intention of undermining the other collective bargaining; or
b: the effect of the employer doing so is to undermine the other collective bargaining.
5: It is not a breach of the duty of good faith in section 4 subsection (2) or subsection (4)
6: In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b)
a: whether the employer and union bargained before agreeing on the provision:
b: whether the employer and union consulted, in good faith, the parties to the other collective agreement or collective bargaining:
c: 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 employees bound by the other collective agreement or covered by the other collective bargaining:
d: how long the other collective agreement has been in force.
7: Subsection (4) subsection (2)(a) and (b) or subsection (4)(a) or (b)
8: Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act.
19: Object of this Part
1: Section 60(c) subparagraph (i)
ia: required when entering into and varying individual employment agreements; and .
2: Section 60(c)(ii) consistent with , but not limited to,
20: New
section 60A The principal Act is amended by inserting, after section 60
60A: Good faith in bargaining for individual employment agreement
1: The matters that are relevant to whether an employee and employer bargaining for an individual employment agreement are dealing with each other in good faith include the circumstances of the employee and employer.
2: For the purposes of subsection (1) circumstances
a: the operational environment of the employee and employer; and
b: the resources available to the employee and employer.
21: Employer's obligations in respect of new employee who is not member of union
1: Section 62(1) paragraph (a)
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
ii: 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 .
2: Section 62 subsection (1)
1A: For the purposes of subsection (1)
3: Section 62(3)(a) that binds more of the employer's employees in relation to the work the new employee will be performing
22: Terms and conditions of employment of new employee who is not member of union
1: Section 63 subsection (2)
2A: However, the employee's terms and conditions of employment do not include any bargaining fee payable under Part 6B
2: Section 63(3) employer's employees in relation to the work the employee will be performing
3: Section 63
6: For an employee who holds an under-rate worker's permit under section 8 of the Minimum Wage Act 1983 subsection (2)
23: New
section 63A The principal Act is amended by inserting, after section 63
63A: Bargaining for individual employment agreement or individual terms and conditions in employment agreement
1: This section applies when bargaining for terms and conditions of employment in the following situations:
a: under section 61(1)
b: under section 61(2)
i: additional terms and conditions to the collective agreement on which the individual employment agreement is based; and
ii: variations to the individual employment agreement in subparagraph (i)
c: under section 63(2)
d: under section 63(5)
e: in relation to terms and conditions of an individual employment agreement for an employee if no collective agreement covers the work done, or to be done, by the employee:
f: where a fixed term of employment, or probationary or trial period of employment, is proposed:
g: under section 69M or section 69N
h: under section 69I
2: The employer must do at least the following things:
a: provide to the employee a copy of the intended agreement, or the part of the intended agreement, under discussion; and
b: advise the employee that he or she is entitled to seek independent advice about the intended agreement or any part of the intended agreement; and
c: give the employee a reasonable opportunity to seek that advice; and
d: consider any issues that the employee raises and respond to them.
3: Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.
4: Failure to comply with this section does not affect the validity of the employment agreement between the employee and the employer.
5: The requirements imposed by this section are in addition to any requirements that may be imposed under any provision in this Act.
6: For the purpose of subsection (1)(e)
7: In this section, employee
24: Section 64 Section 64
25: Terms and conditions of employment where no collective agreement applies
Section 65
3: To determine for the purposes of subsection (1)
26: New
section 65A The principal Act is amended by inserting, after section 65
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 provision 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)
27: Fixed term employment
Section 66
4: If an employee and an employer agree that the employment of the employee will end in a way specified in subsection (1)
a: the way in which the employment will end; and
b: the reasons for ending the employment in that way.
5: Failure to comply with subsection (4)
6: However, if the employer does not comply with subsection (4) subsection (1)
a: to end the employee's employment if the employee elects, at any time, to treat that term as ineffective; or
b: as having been effective to end the employee's employment, if the former employee elects to treat that term as ineffective.
28: Probationary arrangements
Section 67 subsections (2) (3)
2: Failure to comply with subsection (1)(a)
3: However, if the employer does not comply with subsection (1)(a) subsection (1)
29: Unfair bargaining for individual employment agreements
Section 68(2)(d) 64 63A
30: New
Part 6A 6B The principal Act is amended by inserting, after Part 6
6A: Continuity of employment if employer's business restructured
1: Specified categories of employees
69A: Object of this subpart
The object of this subpart is to provide protection to specified categories of employees if their employer proposes to restructure its business so that their work is to be performed for a new employer and, to this end, to give employees a right—
a: to elect to transfer to the new employer on the same terms and conditions of employment; and
b: subject to their employment agreements, to bargain for redundancy entitlements from the new employer if made redundant by the new employer for reasons related to the restructuring of the previous employer's business; and
c: if redundancy entitlements cannot be agreed with the new employer, to have the redundancy entitlements determined by the Authority.
69B: Interpretation
In this subpart, unless the context otherwise requires,— new employer
a: the person who undertakes, or proposes to undertake, the employer's business (or part of it) for the employer; or
b: the person to whom the employer's business (or part of it) is, or is to be, sold or transferred; or
c: the person who is to carry out the work after the termination of a contract or arrangement referred to in paragraph (a)(iii) restructuring redundancy entitlements restructuring
a: means—
i: entering into a contract or arrangement under which the employer's business (or part of it) is undertaken for the employer by another person; or
ii: selling or transferring the employer's business (or part of it) to another person; or
iii: the termination of a contract or arrangement referred to in subparagraph (i)
b: to avoid doubt, does not include,—
i: 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
ii: any contract, arrangement, sale, or transfer entered into, made, or concluded while the employer is adjudged bankrupt or in receivership or liquidation.
69C: Application of this subpart
This subpart applies to an employee if—
a: Schedule 1A
b: the business of the employee's employer is being, or is proposed to be, restructured; and
c: as a result, the employee is, or will be, no longer required by his or her employer to perform the work, or part of the work, performed by the employee; and
d: the type of work performed by the employee (or work that is substantially similar) is, or is to be, performed by employees of the new employer.
69D: Notice of right to make election
1: Before an employer's business is restructured, the employer must, in complying with section 4(1A)(c)
a: a reasonable opportunity to exercise the right to make an election under section 69F(1)
b: the date by which the right to make the election must be exercised.
2: If an employer's business is restructured within the meaning of paragraph (a)(iii) restructuring section 69B subsection (1)
69E: Employee bargaining for alternative arrangements
1: To avoid doubt, an employee may, after his or her employer has complied with section 69D
2: If the employee and employer agree on alternative arrangements,—
a: the alternative arrangements must be recorded in writing; and
b: if paragraph (a)
69F: 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 69D(1)(b)
2: If an employee elects to transfer to the new employer, then to the extent that the employee is no longer required to perform work for his or her employer, the employee—
a: becomes an employee of the new employer on and from the specified date; and
b: 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 conditions relating to whether the employee is employed full-time or part-time; and
c: is not entitled to any redundancy entitlements under those terms and conditions of employment from his or her previous employer because of the transfer.
3: The employment of an employee who elects to transfer to the new employer is to be treated as continuous, including for the purpose of service-related entitlements whether legislative or otherwise.
4: To avoid doubt, this section does not affect the employment agreement of an employee who elects not to transfer to the new employer.
5: In this section, specified date
a: a date agreed by the employee and his or her previous employer; but
b: if no date is agreed, the date on which the restructuring of the previous employer's business takes effect.
69G: Agreements excluding entitlements for technical redundancy not affected
1: 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.
2: This subpart does not limit or affect section 77HA of the State Sector Act 1988
69H: New employer becomes party to collective agreement that binds employee electing to transfer
1: 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 agreement; and
b: the new employer is not a party to the collective agreement that the union is a party to.
2: On and from the date on which the employee becomes an employee 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.
69I: Employee who transfers may bargain for redundancy entitlements with new employer
1: This section applies to an employee if—
a: the employee elects, under section 69F(1)
b: the new employer proposes to make the employee redundant for reasons relating to the restructuring; and
c: the employee's employment agreement—
i: does not provide for redundancy entitlements in that circumstance; or
ii: does not expressly exclude redundancy entitlements in that circumstance.
2: The employee is entitled to redundancy entitlements from his or her new employer.
3: 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.
69J: Authority may investigate bargaining and determine redundancy entitlements
1: If an employee and his or her new employer fail to agree on redundancy entitlements under section 69I(3)
2: After concluding the investigation, the Authority must determine—
a: if, in the Authority's view, it is possible for the bargaining to continue, how further bargaining should occur; or
b: if, in the Authority's view, further bargaining is not warranted, the redundancy entitlements due to an employee.
3: In determining the redundancy entitlements under subsection (2)(b)
a: the redundancy entitlements (if any) provided in the employee's employment agreement for redundancy in circumstances other than restructuring:
b: the employee's length of service with his or her previous employer and new employer:
c: how much notice of the redundancy the employee has received:
d: the ability of the new employer to provide redundancy entitlements :
e: the likelihood of the employee being re-employed or obtaining employment with another employer:
f: any other relevant matter that the Authority thinks fit.
2: Other employees
69K: Object of this subpart
The object of this subpart is to provide protection to employees to whom subpart 1 does not apply if their employer restructures its business so that their work is to be performed for a new employer and, to this end, to require their employment agreements to contain employee protection provisions relating to negotiations between the employer and new employer about the transfer of affected employees to the new employer.
69L: Interpretation
1: In this subpart, unless the context otherwise requires,— employee Schedule 1A employee protection provision
a: the purpose of which is to provide protection for the employment of affected employees if their employer's business is restructured; and
b: that includes—
i: a process that the employer must follow in negotiating with a new employer about the restructuring to the extent that it relates to affected employees; and
ii: 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
iii: 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
a: who undertakes, or proposes to undertake, the employer's business (or part of it) for the employer; or
b: to whom the employer's business (or part of it) is, or is to be, sold or transferred restructuring
a: means—
i: entering into a contract or arrangement under which the employer's business (or part of it) is undertaken for the employer by another person; or
ii: selling or transferring the employer's business (or part of it) to another person; but
b: to avoid doubt, does not include—
i: the termination of a contract or arrangement under which the employer carried out work on behalf of another person; or
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
iii: any contract, arrangement, sale, or transfer entered into, made, or concluded while the employer is adjudged bankrupt or in receivership or liquidation.
2: For the purposes of this subpart, an employee is an affected employee
a: the business of the employee's employer is being, or is proposed to be, restructured; and
b: as a result, the employee is, or will be, no longer required by his or her employer to perform the work performed by the employee; and
c: the type of work performed by the employee (or work that is substantially similar) is, or is to be, performed by employees of the new employer.
69M: New collective agreements and new individual employment agreements must contain employee protection provision
Every collective agreement and every individual employment agreement entered into on or after the commencement of this section must contain an employee protection provision to the extent that the agreement binds employees to whom this subpart applies.
69N: When existing collective agreement or individual employment agreement must contain employee protection provision
1: Every collective agreement and every individual employment agreement in force immediately before the commencement of this section must be varied to include an employee protection provision to the extent that the agreement binds employees to whom this subpart applies.
2: Subsection (1)
a: 12 months after the commencement of this section; or
b: when the collective agreement or individual employment agreement is next amended; or
c: if an employer's business is restructured, before the restructuring occurs.
69O: Affected employee may choose whether to transfer to new employer
If an employer, in relation to the restructuring of the employer's business, arranges for an affected employee to transfer to the new employer, the affected employee may—
a: choose to transfer to the new employer; or
b: choose not to transfer to the new employer.
6B: Bargaining fees
69P: Interpretation
In this Part, unless the context otherwise requires,— bargaining fee bargaining fee clause
a: applies to the employer's employees who are not members of a union and who perform work that comes within the coverage clause of the collective agreement; and
b: specifies the amount of the bargaining fee; and
c: requires those employees to pay a bargaining fee; and
d: provides that those employees' terms and conditions of employment comprise the terms and conditions of employment specified in the collective agreement.
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: first been agreed to by the employer and the union in a collective agreement; and
b: then been agreed to in a secret ballot held in accordance with this section.
2: The secret ballot must be—
a: held before the collective agreement comes into force; and
b: conducted jointly by the employer and union.
3: An employee is entitled to vote in a secret ballot if—
a: the work performed by the employee comes within the coverage clause in the collective agreement; and
b: the employee is—
i: not a member of any union; or
ii: 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 majority of the employer's employees who vote, vote in favour of the clause.
69R: Employer to notify employees if bargaining fee clause agreed to
1: 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)
a: their terms and conditions of employment will comprise the terms and conditions of employment specified in the collective agreement (including the obligation to pay a bargaining fee) on and from the later of the following:
i: the expiry of the period referred to in paragraph (c)
ii: the date on which the collective agreement comes into force; and
b: the bargaining fee will be deducted from their wages, specifying the amount of the bargaining fee; and
c: 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.
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 employee; and
b: the employee's terms and conditions of employment remain the same until such time as varied by agreement with the employer.
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
b: the employee is not a member of any union; and
c: the employee was—
i: entitled to vote in the secret ballot that agreed to the clause; or
ii: 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
d: the employee has not notified his or her employer in writing, within the period specified under section 69R(1)(c)
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
b: the employer must deduct the bargaining fee from the employee's wages and pay it to the union concerned.
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 employee 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)
69V: Expiry of bargaining fee clause
A bargaining fee clause expires when the collective agreement that contains the clause expires.
69W: Validity of bargaining fee clause
A bargaining fee clause, and anything done under it in accordance with this Part,—
a: is not a breach of, or inconsistent with, this Act (in particular sections 8, 9, 11, and 68(2)(c)
b: overrides the Wages Protection Act 1983
31: Interpretation
Section 71 eligible employee eligible employee .
32: Minister to approve employment relations education
Section 72(1) by notice in the Gazette,
33: Calculation of maximum number of days of employment relations education leave
1: Section 74(1) by the employer as at the 30th day before
2: The heading to the first column to the table in section 74(1) as at the 30th day before
34: Eligible employee proposing to take employment relations education leave
Section 78 subsection (3)
3A: To avoid doubt, a representative of an eligible employee may comply with subsection (1)
35: Unlawful strikes or lockouts
Section 86(1) paragraph (d)
da: relates to a bargaining fee clause or proposed bargaining fee clause under Part 6B .
36: New
Part 8A The principal Act is amended by inserting, after section 100
8A: Codes of employment practice and code of good faith for public health sector
Codes of employment practice
100A: Codes of employment practice
1: The Minister may, by notice in the Gazette
2: The notice in the Gazette
a: provide sufficient information to identify the code; and
b: specify the date on which the code comes into force; and
c: state where copies of the code may be obtained.
3: 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 Minister thinks appropriate, including relevant employer and employee interests.
4: The purpose of a code of employment practice is to provide guidance on the application of this Act—
a: generally; or
b: in relation to particular types of situations; or
c: in relation to particular parts or areas of the employment environment.
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.
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: was in force at the relevant time; and
b: in the form in which it was then in force, related to the circumstances before the Authority or the Court. Code of good faith for public health sector
100D: Code of good faith for public health sector
1: Schedule 1B
2: The code—
a: applies subject to the other provisions of this Act and any other enactment; and
b: in particular, does not limit the application of the duty of good faith in section 4
3: Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4
4: It is a breach of the duty of good faith in section 4
5: This section does not prevent a code of good faith approved under section 35 section 100A
6: However, in the case of any inconsistency, the code set out in Schedule 1B section 35 or section 100A
100E: Amendments to or replacement of code of good faith for public health sector
1: The Governor-General 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
2: The Minister must not make a recommendation under subsection (1)
a: requested to do so by—
i: not less than three-quarters of district health boards; and
ii: unions who represent not less than three-quarters of union members employed by district health boards; and
b: the Minister has consulted the Minister of Health and such other persons and organisations as he or she considers appropriate.
37: Object of this Part
Section 101 paragraph (a)
ab: to recognise that employment relationship problems are more likely to be resolved quickly and successfully if the problems are first raised and discussed directly between the parties to the relationship; and .
38: New
section 103A The principal Act is amended by inserting, after section 103
103A: Test of justification
For the purposes of section 103(1)(a) and (b) .
39: Exceptions in relation to discrimination
Section 106(1)
m: section 70
40: Definition of involvement in activities of union for purposes of
section 104 Section 107 paragraph (b)
ba: had participated in a strike lawfully; or .
41: Choice of procedures
Section 112
3: If an employee applies to the Authority for a resolution of the grievance under subsection (1)(a) Human Rights Act 1993
4: If an employee makes a complaint under subsection (1)(b)
42: Remedies
1: Section 123 paragraph (c)
ca: if the Authority or the Court finds that any workplace conduct or practices are a significant factor in the personal grievance, recommendations to the employer concerning the action the employer should take to prevent similar employment relationship problems occurring: .
2: Section 123 subsection (2)
2: When making an order under subsection (1)(b) or (c)
43: Arrears
Section 131 subsection (1)
1A: The Authority may order payment of the wages or other money to the employee by instalments, but only if the financial position of the employer requires it.
44: Recovery of penalties
1: Section 135 subsection (4)
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.
2: Section 135 subsection (5)
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
b: the date when the cause of action should reasonably have become known to the person bringing the action.
45: Power of Authority to order compliance
Section 137(1)(a)(xi) 19K 19G
46: Further provisions relating to compliance order by Authority
Section 138 subsection (4)
4A: If the compliance order relates in whole or in part to the payment 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.
47: Object of this Part
1: Section 143 paragraph (d)
da: recognise that the person who provides mediation services can manage any mediation process actively; and .
2: Section 143 paragraph (f)
fa: ensure that investigations by the specialist decision-making body are, generally, concluded before any higher court exercises its jurisdiction in relation to the investigations; and .
48: New
section 144A The principal Act is amended by inserting, after section 144
144A: Dispute resolution services
1: Nothing in this Act prevents the chief executive from providing dispute resolution services to parties in work-related relationships that are not employment relationships.
2: Services provided in accordance with this section proceed on the basis specified in writing by the chief executive.
49: Provision of mediation services
Section 145 subsection (1)
1: The chief executive, by way of general instructions under section 153(2) and (3)
a: may decide how the mediation services required by section 144
b: may, in order to promote fast and effective resolutions, treat matters presented for mediation in different ways.
50: Procedure in relation to mediation services
1: Section 147(2) paragraph (a)
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
ii: if the problem is not resolved within the specified time, the parties will resolve the problem by using the process in section 150 .
2: Section 147
3: To avoid doubt, the person who provides the services also decides the procedures that will be followed, which may include—
a: addressing any party to the matter without any representative of that party being present:
b: 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:
c: 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—
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.
51: Settlements
1: Section 149(3) paragraph (a)
ab: the terms may not be cancelled under section 7 of the Contractual Remedies Act 1979 .
2: Section 149
4: A person who breaches an agreed term of settlement to which subsection (3)
52: Decision by authority of parties
Section 150
4: A person who breaches a term of a decision to which subsection (3)
53: New
section 150A The principal Act is amended by inserting, after section 150
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) section 150(3)
2: For the purposes of this Act, a payment that does not comply with subsection (1)
3: Subsection (1)
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
b: prevent a payment being made to the other party's solicitor.
54: Powers of Authority
Section 160(1)(c) any time before , during, or after
55: Jurisdiction
1: Section 161(1) paragraph (c)
ca: facilitating bargaining under sections 50A to 50I
cb: fixing the provisions of a collective agreement under section 50J .
2: Section 161(1) paragraph (d)
da: investigating bargaining under section 69J .
3: Section 161(2) subsection (1)(d) or subsection (1)(f) subsection (1)(ca), (cb), (d), (da), and (f)
56: Procedure
Section 173 subsection (2)
2A: The Authority may exercise its powers under section 160(1)
2B: However, if the Authority acts under subsection (2A)
a: any material it receives that is relevant to the case of the absent party; and
b: an opportunity to comment on the material before the Authority takes it into account.
2C: To avoid doubt, subsections (2A) and (2B)
57: Referral of question of law
Section 177
4: Subsection (1)
a: to a question about the procedure that the Authority has followed, is following, or is intending to follow; and
b: without limiting paragraph (a)
58: Removal to Court
Section 178
6: This section does not apply—
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)
59: Challenges to determinations of Authority
Section 179
5: Subsection (1)
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
b: without limiting paragraph (a)
60: New
section 179A The principal Act is amended by inserting, after section 179
179A: Limitation on challenges to certain determinations of Authority
1: This section applies to a determination of the Authority made—
a: for the purposes of sections 50A to 50I
b: under section 50J
2: A party may not elect, under section 179(1) section 50C(1) or section 50J(3)
61: Decision
Section 183 subsections (2) (3)
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) section 194
62: Restriction on review
Section 184 subsection (1)
1A: No review proceedings under section 194
a: the Authority has issued final determinations on all matters relating to the subject of the review application between the parties to the matter; and
b: (if applicable) the party initiating the review proceedings has challenged the determination under section 179
c: the Court has made a decision on the challenge under section 183
63: Role in relation to jurisdiction
Section 188(4) subsection (4)
4: It is not a function of the Court to advise or direct the Authority in relation to—
a: the exercise of its investigative role, powers, and jurisdiction; or
b: the procedure—
i: that it has followed, is following, or is intending to follow; or
ii: without limiting subparagraph (i)
64: Application for review
Section 194(2) rule of law, but subject to section 184(1A)
65: New
section 194A The principal Act is amended by inserting, after section 194
194A: Application for review by certain employees
1: This section applies to any exercise, refusal to exercise, or proposed 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 employment relationship problem.
2: When subsection (1)
a: must use the employment relationship problem-solving 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.
66: Powers of Labour Inspectors
Section 229(3) is liable , in an action brought by a Labour Inspector,
67: Compilation of wages and time record
Section 232(4) is liable , in an action brought by a Labour Inspector,
68: New
section 237A The principal Act is amended by inserting, after section 237
237A: Amendments to
Schedule 1A
1: The Governor-General may, by Order in Council, amend Schedule 1A
2: An Order in Council must not be made under subsection (1)
3: The Minister must not make a recommendation under subsection (2)
a: has received from any person or organisation a request to amend Schedule 1A subsection (4)
b: has received a report from the Department that assesses the request; and
c: has provided the Department's assessment to, and has consulted, such employers, employees, the representatives of such employers and employees, and such other persons and organisations, as the Minister considers appropriate; and
d: is satisfied that the criteria in subsection (4)
4: The criteria are—
a: whether the employees concerned are employed in a sector in which the restructuring of an employer's business occurs frequently:
b: whether the restructuring of employers' businesses in the sector concerned has tended to undermine the employees' terms and conditions of employment.
c: whether the employees concerned have little bargaining power.
5: In this section, restructuring Part 6A
69: New
Schedules 1A 1B The principal Act is amended by inserting, after Schedule 1 Schedule 1
70: Schedule 2 Schedule 2 clause 4
4A: Service outside New Zealand
Any document relating to a matter before the Authority may be served out of New Zealand—
a: by leave of the Authority; and
b: in accordance with regulations made under this Act.
71: Schedule 3 Schedule 3 clause 5
5A: Service outside New Zealand
Any document relating to a matter before the Court may be served out of New Zealand—
a: by leave of the Court; and
b: in accordance with regulations made under this Act.
72: Consequential amendments
The enactments specified in Schedule 2
73: Transitional provisions
1: The amendments made by this Act do not apply to anything done or any matter arising before the commencement of this Act.
2: However, subsection (1) subsections (3) to (20)
3: The definition of coverage clause section 5 section 7(1)
4: Section 9(3) section 8
5: Section 20(5) section 9
6: Section 32(1)(ca) section 11
7: Section 33 section 12
8: Sections 50A to 50J section 14
a: apply whether the bargaining started before or after the commencement of this Act; but
b: do not apply in relation to grounds that exist before the commencement of this Act.
9: Section 56(1A) section 16
10: Section 56A section 17
11: Section 59B(2) section 18
12: Section 59B(4) section 18
13: Section 59C(2) section 18
14: Section 59C(4) section 18
15: Section 65A section 26
16: Section 78(3A) section 34
17: Section 149(3)(ab) section 51
18: Section 149(4) section 51
19: Section 150(4) section 52
20: Section 194A section 65
a: applies whether the exercise, refusal to exercise, or proposed or purported exercise of the statutory power of decision was made before or after the commencement of this Act; but
b: does not apply if an application or proceedings of the type referred to in section 194(1)