Equal Pay Amendment Act 2020

1: Title
This Act is the Equal Pay Amendment Act 2020.
2: Commencement
This Act comes into force 3 months after the date on which it receives the Royal assent.
3: Principal Act
This Act amends the Equal Pay Act 1972 principal Act 2020-11-06 Equal Pay Act 1972
1: Amendments to principal Act
4: New Part 1 heading inserted
After section 1
1: Preliminary provisions
5: Section 2 amended (Interpretation)
1: In section 2(1) employment agreement equal pay claim section 2AAC(a) pay equity claim section 2AAC(b) pay equity claim settlement
a: in a written agreement between the parties as described in section 13ZH(3)
b: in a determination of the Authority or the Court as described in section 13ZH(1)﻿(b)﻿(ii) predominantly performed by female employees section 13F(2)
2: In section 2(1) employee
a: delete ; but does not include—
b: repeal paragraphs (a) and (c).
3: In section 2(1) agricultural workers order apprenticeship order award first increment date industrial agreement instrument waterfront industry order
4: In section 2(2) agreement specified in paragraph (e) of the definition of the term instrument in subsection (1) made between an individual employee and an individual employer, or any decision under paragraph (f) of that definition made in respect of an individual employee, which fixes a rate of remuneration that is special to that employee employment agreement that fixes a rate of remuneration that is special to an employee
5: After section 2(2)
3: Any term or expression used but not defined in this Act has the meaning given to it in the Employment Relations Act 2000.
6: New sections 2AAA and 2AAB inserted
After section 2
2AAA: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1
2AAB: Act binds the Crown
This Act binds the Crown.
7: New section 2AAC and Part 2 heading inserted
Before section 2A
2: Key provisions
2AAC: Differentiation in rates of remuneration prohibited
An employer must ensure that—
a: there is no differentiation, on the basis of sex, between the rates of remuneration offered and afforded by the employer to employees of the employer who perform the same, or substantially similar, work; and
b: there is no differentiation, on the basis of sex, between the rates of remuneration offered and afforded by the employer for work that is exclusively or predominantly performed by female employees and the rate of remuneration that would be paid to male employees who—
i: have the same, or substantially similar, skills, responsibility, and experience; and
ii: work under the same, or substantially similar, conditions, and with the same, or substantially similar, degrees of effort.
8: Section 2A amended (Unlawful discrimination)
Repeal section 2A(2)
9: New section 2B inserted (Choice of proceedings)
After section 2A
2B: Choice of proceedings
1: Where the circumstances giving rise to an unlawful discrimination claim, an equal pay claim, or a pay equity claim by an employee are such that the employee would also be entitled to make a complaint under the Human Rights Act 1993, or pursue a personal grievance under the Employment Relations Act 2000, the employee may take 1, but not more than 1, of the following steps:
a: the employee may pursue a claim under this Act; or
b: the employee may make a complaint under the Human Rights Act 1993; or
c: the employee may apply to the Authority for resolution of a personal grievance under the Employment Relations Act 2000.
2: For the purposes of subsection (1)﻿(a)
a: in the case of an unlawful discrimination claim, the employee makes a complaint under section 2A; and
b: in the case of an equal pay claim, the employee commences proceedings for recovery of remuneration under section 131 of the Employment Relations Act 2000 (as provided for in section 13(2)); and
c: in the case of a pay equity claim raised by an individual employee, the employee—
i: files an application with the Authority under section 13ZY(1)﻿(d)
ii: settles the claim in accordance with section 13ZH(1)﻿(a)
iii: accepts an offer of the benefit of the pay equity claim settlement made under section 13ZL(4)
d: in the case of a pay equity claim raised by 1 or more unions, the employee—
i: is covered by the union-raised claim at the time when the claimant—
A: files an application with the Authority under section 13ZY(1)﻿(d)
B: settles the claim in accordance with section 13ZH(1)﻿(a)
ii: accepts an offer of the benefit of the pay equity claim settlement made under section 13ZL(2) or (5)
3: For the purposes of subsection (1)﻿(b)
4: If an employee pursues a claim under this Act, the employee may not exercise or continue to exercise any rights in relation to the subject matter of that claim that the employee may have under the Human Rights Act 1993 or under the Employment Relations Act 2000.
5: If an employee makes a complaint referred to in subsection (1)﻿(b)
6: If an employee applies to the Authority for resolution of a personal grievance under the Employment Relations Act 2000, the employee may not exercise or continue to exercise any rights in relation to the subject matter of that personal grievance that the employee may have under this Act or under the Human Rights Act 1993.
10: Section 3 amended (Criteria to be applied)
1: In section 3(1) Subject to the provisions of this section, in In
2: In section 3(1) or class of work payable under any instrument, and for the purpose of making the determinations specified in subsection (1) of section (4)
3: In section 3(1)﻿(b) service experience
4: Repeal section 3(2) and (3)
11: Sections 4 to 8 repealed
Repeal sections 4 to 8
12: New section 8A and Part 3 heading inserted
Before section 9
3: Matters relating to equal pay claims
8A: Application of this Part
The provisions in this Part do not apply to—
a: a pay equity claim; or
b: an unlawful discrimination claim under section 2A.
13: Section 9 amended (Court may state principles for implementation of equal pay)
In section 9 for the implementation of equal pay in accordance with the provisions of sections 3 to 8 to achieve equal pay in employment agreements
14: Section 10 amended (Approval by court or Employment Relations Authority of instruments or proposed instruments)
1: In the heading to section 10 instruments or proposed instruments employment agreements or proposed employment agreements
2: In section 10 instrument or proposed instrument employment agreement or proposed employment agreement
3: In section 10 proposed collective agreement proposed or existing collective agreement
4: In section 10 meet the requirements of sections 3 to 6 provide for equal pay
5: In section 10 meet such of the requirements of sections 3 to 7 as are applicable provide for equal pay
6: In section 10(1) meet such of the requirements of sections 3 to 6 as are applicable provide for equal pay
7: In section 10(2)﻿(b)﻿(ii) and , in the case of a proposed collective agreement,
8: In section 10(4)﻿(b)﻿(i) meet those requirements provide for equal pay
9: Replace section 10(4)﻿(b)﻿(ii)
ii: in the case of an existing employment agreement, amend it to the extent necessary to provide for equal pay, and the employment agreement as so amended has effect accordingly.
15: Section 11 repealed (Court may make partial award)
Repeal section 11
16: Section 12 amended (Further powers of Employment Relations Authority)
1: Repeal section 12(a) and (b)
2: In section 12(d) instrument employment agreement
17: Section 13 amended (Recovery of remuneration based on equal pay)
1: Repeal section 13(1)
2: In section 13(2) and (3) instrument employment agreement
18: New Part 4 inserted
After section 13
4: Pay equity claims
13A: Purpose
The purpose of this Part is to facilitate resolution of pay equity claims, by—
a: setting a low threshold to raise a claim (while recognising that entry into the pay equity claim process does not predetermine an outcome); and
b: providing a simple and accessible process to progress a pay equity claim.
13B: Interpretation
In this Part, unless the context otherwise requires,— affected employee claimant
a: an individual employee who raises a pay equity claim:
b: a union that raises a pay equity claim on behalf of the members of that union:
c: multiple unions that jointly raise a pay equity claim on behalf of the members of each union, or that pursue a pay equity claim that is consolidated in accordance with section 13M covered by a pay equity claim settlement
a: is the claimant who raised the pay equity claim to which the settlement relates; or
b: in the case of a claim raised by 1 or more unions, was covered by the union-raised claim at the time that the claim was settled; or
c: has accepted an offer of the benefit of the pay equity claim settlement made under section 13ZL(2), (4), or (5) covered by a union-raised claim
a: is covered by a claim raised by 1 or more unions in accordance with section 13W
b: has not opted out under section 13Y employer multi-employer pay equity claim section 13K section 13N party
a: the claimant:
b: the employer (or each employer, in the case of a multi-employer pay equity claim) union
a: means a union registered under Part 4 of the Employment Relations Act 2000; and
b: if 2 or more unions are joint claimants (whether because they jointly raised a pay equity claim or subsequently consolidated their pay equity claims), means those unions jointly.
13C: Good faith in pay equity claim process
1: The duty of good faith in section 4 of the Employment Relations Act 2000 applies to the parties to a pay equity claim, as if references in that section to a collective agreement were references to a pay equity claim settlement.
2: The duty of good faith in section 4 of the Employment Relations Act 2000 requires the parties to, at least,—
a: follow the process set out in this Part to resolve the pay equity claim; and
b: in the case of multiple employer parties required by section 13K
c: in the case of multiple union parties required by section 13M
d: use their best endeavours to enter into an arrangement, as soon as possible after the start of pay equity bargaining, that sets out a process for conducting the bargaining in an effective and efficient manner; and
e: use their best endeavours to settle the pay equity claim in an orderly, timely, and efficient manner; and
f: recognise the role and authority of any person chosen by each of the parties to be that person’s representative or advocate, and not (directly or indirectly) bargain about matters relating to the pay equity claim with the person for whom a representative or advocate acts (unless the parties agree otherwise); and
g: not undermine, or do anything that is likely to undermine, the bargaining or the authority of another party in the bargaining.
3: The duty of good faith in section 4 of the Employment Relations Act 2000, which applies to the relationship between a union and a member of the union, also applies to the relationship between a union and an employee who is not a member of the union if the employee is covered by the union-raised claim. 2000 No 24 s 32 Raising pay equity claims
13D: Union right to represent members
A union is entitled to raise a pay equity claim in accordance with section 13E
13E: Unions and employees may raise pay equity claims
1: The following may raise a pay equity claim with an employer if they consider that the claim is arguable:
a: a union, on behalf of 1 or more members of that union who perform the same or substantially similar work for the employer:
b: 2 or more unions, acting jointly on behalf of the members of each union who perform the same or substantially similar work for the employer:
c: an individual employee, other than an employee who—
i: is covered by a union-raised claim; or
ii: is barred from pursuing a pay equity claim under section 2B
iii: is referred to in subsection (6)
2: A union may not raise a pay equity claim with an employer if no employee of the employer who performs the work to which the claim relates is a member of the union.
3: Subsection (2) section 13N
a: performs the work to which the claim relates; and
b: is a member of 1 of the unions that jointly raise the claim.
4: Despite subsection (1)
a: 1 or more of the employers are already parties to a pay equity claim raised by another union or unions in respect of the same or substantially similar work; and
b: 1 or more of the employers are not.
5: A union that is prevented from raising a multi-employer pay equity claim by subsection (4)
a: the union may raise a claim with the employer or employers who are already parties to a union-raised pay equity claim (in which case section 13M
b: the union may raise a separate claim with the employer or employers who are not already parties to a union-raised pay equity claim (in which case section 13N(3)﻿(b)
6: An employee who is covered by a pay equity claim settlement may not raise a pay equity claim in respect of the work to which the settlement relates (unless the Authority or court determines otherwise in accordance with section 13ZY(5)
7: Subsection (6)
a: does not apply to a pay equity claim settlement that has been cancelled by the Authority under section 13ZJ(1)﻿(b)
b: overrides subsection (1)
13F: Meaning of arguable
1: A pay equity claim is arguable
a: the claim relates to work that is or was predominantly performed by female employees; and
b: it is arguable that the work is currently undervalued or has historically been undervalued.
2: For the purposes of this Act, work is or was predominantly performed by female employees
3: In deciding whether it is arguable that work is currently undervalued or has historically been undervalued, consideration may be given to any relevant factor, including the following:
a: the origins and history of the work, including the manner in which wages have been set:
b: any social, cultural, or historical factors:
c: characterisation of the work as women’s work:
d: that the nature of the work requires an employee to use skills or qualities that have been—
i: generally associated with women; and
ii: regarded as not requiring monetary compensation:
e: any sex-based systemic undervaluation of the work as a result of any of the following factors:
i: a dominant source of funding across the relevant market, industry, sector, or occupation:
ii: a lack of effective bargaining in the relevant market, industry, sector, or occupation:
iii: occupational segregation or occupational segmentation in respect of the work:
iv: the failure by the parties to properly assess or consider the remuneration that should have been paid to properly account for the nature of the work, the levels of responsibility associated with the work, the conditions under which the work is performed, and the degree of effort required to perform the work:
v: any other feature of the relevant market, industry, sector, or occupation.
13G: Requirements relating to all pay equity claims
Every pay equity claim must—
a: be in writing; and
b: state that it is a pay equity claim made under this Act. 1990 No 57 s 5J; 2000 No 24 s 69AAC
13H: Requirements for claim raised by individual employee
A pay equity claim raised by an individual employee must—
a: state—
i: the employee’s name and address for service; and
ii: the date on which the claim is made; and
iii: the employee’s occupation, position, and a brief description of the work performed by the employee; and
iv: if the employee has authorised a representative to act on the employee’s behalf in respect of the claim, the name and address for service of that representative ( see
b: briefly set out the information that the employee relies on in support of the elements required for an arguable pay equity claim under section 13F
13I: Requirements for claim raised by union or unions
1: A pay equity claim raised by a union or unions—
a: must—
i: state the name and address for service of the union, or for each of the unions if more than 1 are acting jointly; and
ii: state the date on which the claim is made; and
iii: include a brief description of the work performed by the employees to be covered by the union-raised claim; and
b: must briefly set out the information that the claimant relies on in support of the elements required for an arguable pay equity claim under section 13F
c: in the case of a claim raised with multiple employers, must include a notice to each of the employers of their obligations under section 13K
2: A union that raises a pay equity claim with an employer is not required to name the employees who perform the work to which the claim relates.
3: A pay equity claim raised by 1 or more unions with multiple employers must also include—
a: the name of each employer with whom the claim is raised; and
b: a brief explanation of how the work performed by the employees covered by the union-raised claim is considered to be the same or substantially similar.
13J: Employer must acknowledge receipt of pay equity claim and notify unions
1: An employer who receives a pay equity claim from a claimant must, no later than 5 working days after receiving the claim,—
a: acknowledge receipt of the claim by giving a notice of receipt to the claimant; and
b: give notice of the claim to every union (other than the claimant, if the claimant is a union) to which 1 or more of the employer’s employees belong that represents persons who perform work that is the same as, or substantially similar to, the work to which the claim relates.
2: A notice to a union under subsection (1)﻿(b)
a: be given in writing and expressed in plain language; and
b: have attached to it a copy of the pay equity claim.
3: If the claimant is an individual employee, the notice to a union under subsection (1)﻿(b) Claims involving multiple employers
13K: Union-raised claims raised with multiple employers: employers must enter into pay equity process agreement
1: This section applies if—
a: 1 union has raised a pay equity claim with 2 or more employers in respect of employees who are members of that union and who perform the same, or substantially similar, work; or
b: 2 or more unions have jointly raised a pay equity claim with 2 or more employers in respect of employees who are members of any of those unions and who perform the same, or substantially similar, work.
2: Each employer who receives a pay equity claim raised by a union or unions with multiple employers must enter into a single multi-employer pay equity process agreement for the purposes of deciding whether the claim is arguable and for the purposes of the pay equity bargaining process.
3: The multi-employer pay equity process agreement must set out—
a: whether there will be 1 or more representatives for the employers and who that representative or those representatives will be; and
b: how decisions relating to the claim will be made.
4: If the employers cannot agree on a multi-employer pay equity process agreement, any of them may apply to the Authority for a direction.
13L: Opting out of multi-employer pay equity claim
Employers may individually opt out
1: An employer may opt out of a multi-employer pay equity claim by giving notice to all other parties only if the employer has genuine reasons, based on reasonable grounds, to do so.
2: If an employer opts out of a multi-employer pay equity claim, the claim in respect of that employer must be progressed as a separate claim. Unions may jointly opt out of claim raised with individual employer
3: Subsection (4) section 13M
4: The unions may opt out of the multi-employer pay equity claim raised with the employer by giving notice to all other parties only if—
a: the unions have genuine reasons, based on reasonable grounds, to do so; and
b: the unions act jointly.
5: If 2 or more unions jointly opt out of a multi-employer pay equity claim in respect of an employer under subsection (4) Single union may opt out of claim raised with individual employer
6: A union may opt out of a multi-employer pay equity claim in respect of an employer only if—
a: the union has genuine reasons, based on reasonable grounds, to do so; and
b: the union is the only union that has raised a claim with that employer in respect of the work to which the claim relates.
7: If a union opts out of a multi-employer pay equity claim in respect of an employer under subsection (6) Notice of opting out
8: A notice opting out of a multi-employer pay equity claim may be given by an employer under subsection (1) subsection (4) subsection (6)
9: A notice opting out of a multi-employer pay equity claim must be given in writing and must state the party’s genuine reasons for opting out and the reasonable grounds on which those reasons are based. Consolidation of claims
13M: Multiple union claims raised with single employer: unions must consolidate
1: This section applies if a union raises (or multiple unions jointly raise) a pay equity claim with an employer (the first claim subsequent claim
2: The unions must consolidate the claims.
3: The employer must, within 5 working days of receiving the subsequent claim, give notice to each union that has raised a claim with the employer of the requirement to consolidate.
4: If the unions cannot agree on how the consolidated claim will be progressed, any of them may apply to the Authority for a direction.
13N: Consolidation of claim raised with additional or new employer with existing union-raised claim
1: This section applies if 1 or more unions have raised a pay equity claim with 1 or more employers who have decided that the claim is arguable (an existing claim
2: If the union or unions that raised the existing claim subsequently raise a claim with another employer that relates to work that is the same as, or substantially similar to, the work covered by the existing claim and the other employer decides that the claim is arguable (an additional employer
3: If 1 or more other unions subsequently raise a pay equity claim with 1 or more employers that relates to work that is the same as, or substantially similar to, the work covered by the existing claim (a new claim
a: if the new claim is raised with 1 or more employers who are already parties to the existing claim, section 13M
b: if the new claim is raised with 1 or more employers who are not parties to the existing claim, and who decide that the claim is arguable (a new employer)
4: If the consent of all parties is not obtained to consolidate a claim raised with an additional employer or a new employer with an existing claim as required by subsection (2) or (3)﻿(b)
13O: Process to request consent to consolidate
1: This section applies to a request to consolidate a claim raised by a union with an additional employer ( see section 13N(2) see section 13N(3)﻿(b)
2: A request to consolidate may be made by—
a: a union who raised either of the claims; or
b: an employer with whom either of the claims is raised.
3: A request to consolidate may be made at any time before the first of the claims is settled.
4: A request to consolidate must be made in writing and must include—
a: a brief description of the work performed by the employees who are covered by each of the claims; and
b: a brief explanation of how the work performed by the employees who are covered by each of the claims is considered to be the same or substantially similar.
13P: Effect of consolidation
1: This section applies if—
a: multiple union claims raised with a single employer are consolidated as required by section 13M
b: all parties consent to a request under section 13O
2: The parties to each of the claims that are to be consolidated must carry out the assessment required by section 13ZD
3: The parties to each of the claims that are to be consolidated must identify appropriate comparators as required by section 13ZE Employers’ obligations to give notice of arguable claims
13Q: Employer must form view as to whether pay equity claim is arguable
1: An employer who receives a pay equity claim must, as soon as is reasonably practicable and not later than 45 working days after receiving it, decide whether, in the employer’s view, the pay equity claim is arguable. ( See section 13T
2: An employer must act in a manner that is consistent with the purpose of this Part (to set a low threshold for raising a claim) by taking a light-touch approach when making the decision required under subsection (1)
3: An employer’s decision that a pay equity claim is arguable does not mean that—
a: the employer agrees that there is a pay equity issue; or
b: there will be a pay equity claim settlement as a result of following the pay equity claim process.
4: The employer must give notice of the employer’s decision to the claimant in accordance with section 13S
a: as soon as is reasonably practicable, and not later than 45 working days after receiving the claim; or
b: by a later date specified in a notice under section 13R
5: The employer is deemed to have accepted that a pay equity claim is arguable if the employer fails to give notice to the claimant under section 13S
a: within 45 working days of receiving the claim; or
b: by the date specified in a notice under section 13R 1990 No 57 s 5I; 2000 No 24 s 69AAE
13R: Notice extending time limit for employer’s decision as to whether claim arguable
1: Despite section 13Q
2: A notice extending the time limit must—
a: be given as soon as is reasonably practicable and not later than 45 working days after the employer receives the claim; and
b: specify the extended date by which the employer will notify the claimant of the employer’s decision; and
c: set out the grounds for requiring the extension.
3: A notice extending the time limit must not extend the time limit by more than—
a: 20 working days in the case of a claim raised with a single employer; or
b: 80 working days in the case of a claim raised with multiple employers, unless all parties agree to a longer extension.
13S: Employer’s obligations after deciding whether claim is arguable
1: This section applies to an employer who makes the decision required by section 13Q(1) section 13Q(5)
2: An employer who decides that the claim is arguable must—
a: give notice to the claimant advising that the employer has decided that the claim is arguable; and
b: provide information to the claimant about the pay equity bargaining process under sections 13ZC to 13ZZE
c: enter into the pay equity bargaining process with the claimant.
3: An employer who decides that the claim is not arguable must give notice to the claimant that—
a: sets out the reasons for the employer’s decision; and
b: explains the steps that the claimant may take to challenge the employer’s decision, including advice that—
i: the claimant may seek further details of the reasons for the employer’s decision:
ii: the claimant may refer the question of whether the claim is arguable to mediation under section 13ZO
iii: the parties may refer the question of whether the claim is arguable to the Authority for facilitation under sections 13ZP to 13ZX section 13ZR(2)
iv: the claimant may apply to the Authority under section 13ZY
4: An employer must, as soon as is practicable after becoming aware that they have been deemed to have accepted that a pay equity claim is arguable under section 13Q(5)
a: give notice to the claimant advising that the employer is deemed to have accepted that the pay equity claim is arguable under section 13Q(5)
b: provide information to the claimant about the pay equity bargaining process under sections 13ZC to 13ZZE
c: enter into the pay equity bargaining process with the claimant.
13T: Deciding if multi-employer pay equity claim is arguable
Sections 13Q to 13S and 13V section 13K
a: the employers must make a joint decision under section 13Q(1) section 13S(2)﻿(a) or (3)
b: the employers may give joint notice to the claimant under section 13R
c: if the employers decide the claim is arguable, or are deemed to have decided the claim is arguable,—
i: each employer must individually give notice to affected employees as required by section 13V
ii: the employers must jointly enter into the pay equity bargaining process in accordance with the multi-employer pay equity process agreement.
13U: Employer must give notice of first arguable pay equity claim raised by individual employee
1: If an employer decides that a pay equity claim raised by an individual employee in respect of work performed by the employee is arguable, the employer must give notice of that claim to each affected employee.
2: Subsection (1)
3: A notice to affected employees under subsection (1)
a: contain the information set out in Part 1 of Schedule 2
b: state the date on which it is given; and
c: be given in writing and expressed in plain language; and
d: be given as soon as is reasonably practicable and not later than 20 working days after the date on which the employer decides that the claim is arguable.
4: Despite subsection (3)﻿(d)
5: A notice extending the time limit must not extend the time limit by more than 25 working days, and must—
a: be given as soon as is reasonably practicable and not later than 20 working days after the date on which the employer decides that the claim is arguable; and
b: specify the extended date by which the employer will notify affected employees of the claim; and
c: set out the grounds for requiring the extension.
13V: Employer must give notice of first arguable pay equity claim raised by union
1: If an employer decides that a pay equity claim raised by 1 or more unions in respect of work performed by 1 or more of the employer’s employees is arguable, the employer must give notice of that claim to each affected employee.
2: Subsection (1) section 13M
3: A notice to affected employees under subsection (1)
a: contain the information set out in Part 2 of Schedule 2
b: state the date on which it is given; and
c: be given in writing and expressed in plain language; and
d: be given as soon as is reasonably practicable and not later than 20 working days after the date on which the employer decides that the claim is arguable.
4: Despite subsection (3)﻿(d)
5: A notice extending the time limit must not extend the time limit by more than 25 working days, and must—
a: be given as soon as is reasonably practicable and not later than 20 working days after the date on which the employer decides that the claim is arguable; and
b: specify the extended date by which the employer will notify affected employees of the claim; and
c: set out the grounds for requiring the extension. Affected employees automatically covered by union claims
13W: Affected employees automatically covered by union claims
1: If a union raises a pay equity claim with an employer, every employee of the employer who performs work that is the same as, or substantially similar to, the work to which the claim relates is covered by the union-raised claim on and from the date specified in subsection (2)
2: The date is—
a: the date on which the claim is raised, if the employee is employed by the employer and is a member of the union on that date; or
b: the date on which the employee is notified of the claim under section 13V(1) or 13ZA(2)
3: Subsection (1)
a: is barred from raising a pay equity claim under section 2B
b: has already, before receiving notice of the claim raised by the union,—
i: raised or settled a pay equity claim with the employer in respect of the work to which the union claim relates; or
ii: accepted an offer of the benefit of a pay equity settlement from the employer in respect of the work to which the union claim relates under section 13ZL(2), (4), or (5)
4: This section overrides section 236(1) and (3) of the Employment Relations Act 2000.
13X: Union may not require fees from non-members
1: A union may not require an employee who is not a member of the union, but who is covered by a union-raised claim, to pay a fee to the union to be covered by the union-raised claim or to have the benefit of the settlement of the claim offered to them.
2: Subsection (1)
13Y: Employees may opt out of pay equity claim raised by union
1: An employee who is covered by a union-raised claim and is not a member of the union (or of any of the unions) that raised the claim may opt out by giving notice in writing—
a: to the employee’s employer within 20 working days after the date of the notice under section 13V(1) or 13ZA(2)
b: to both the employee’s employer and the claimant after that time.
2: A notice opting out must be given before the earlier of—
a: the final date for voting on a proposed pay equity claim settlement ( see section 13ZF(4)﻿(c)﻿(ii)
b: the day before the date on which the claimant applies to the Authority for a determination under section 13ZY(1)﻿(d)
3: An employee who is a member of the union may not opt out of a claim raised by the union with the employee’s employer while remaining a member of the union (but may cancel membership of the union and then opt out).
13Z: Employer must notify union of employees covered by union-raised claim
1: This section applies if—
a: 1 or more unions raise a pay equity claim with an employer; and
b: 1 or more employees are covered by the union-raised claim and do not opt out under section 13Y section 13V(1)
2: The employer must provide the union or unions with the following information about each employee who is covered by the union-raised claim:
a: the employee’s name; and
b: the employee’s contact details for the provision of written information.
3: The employer must provide the information in subsection (2) section 13V(1)
13ZA: New employees covered by union-raised claim
1: This section applies if—
a: 1 or more unions raise a pay equity claim with an employer; and
b: the claim has not been settled; and
c: a person (the new employee
2: The employer must give notice of the pay equity claim to the new employee as soon as practicable and no later than 20 working days after the new employee commences employment.
3: The notice must—
a: contain the information set out in Part 2 of Schedule 2
b: state the date on which it is given; and
c: be given in writing and expressed in plain language.
4: If the new employee does not opt out by giving the employer notice in writing under section 13Y subsection (2) Pay equity bargaining process
13ZB: Process applies to arguable claims
Sections 13ZC to 13ZZE
a: the employer decides, or is deemed to have accepted, that the claim is arguable; or
b: the Authority or the court determines that the claim is arguable.
13ZC: Duty to provide information
1: The parties to a pay equity claim must provide to each other, on request, information that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes of the bargaining.
2: A request by a party to another party for information must—
a: be in writing; and
b: specify the nature of the information requested in sufficient detail to enable the information to be identified; and
c: specify the claim, or the response to a claim, in respect of which information to support or substantiate the claim, or the response, is requested; and
d: specify a reasonable time within which the information must be provided.
3: A party who receives an information request may provide the information to an independent reviewer, instead of to the requesting party, if the party reasonably considers that the information requested should be treated as confidential information.
4: If information is provided to an independent reviewer, section 34(4) to (9) of the Employment Relations Act 2000 applies as if references in those provisions to the union and employer were references to the parties. 2000 No 24 s 34
13ZD: Matters to be assessed
1: The parties to a pay equity claim must determine whether the employee’s work is undervalued by assessing—
a: the nature of the work to which the claim relates, and the nature of comparators, including, in each case, the following:
i: the skills required:
ii: the responsibilities imposed:
iii: the conditions of work:
iv: the degree of effort required to perform the work:
v: the level of experience required to perform the work:
vi: any other relevant work features; and
b: terms and conditions of employment (other than remuneration) of the persons who perform the work to which the claim relates; and
c: terms and conditions of employment (other than remuneration) of persons who perform comparable work; and
d: the remuneration that is paid to the persons who perform the work to which the claim relates; and
e: the remuneration that is paid to persons who perform comparable work; and
f: any other matters prescribed by regulations made under section 19 for the purpose of this section.
2: In making the assessments required by subsection (1)
a: must consider matters objectively and without assumptions based on sex (and prevailing views as to the value of work must not be assumed to be free of assumptions based on sex); and
b: must recognise the importance of skills, responsibilities, effort, and conditions that are or have been commonly overlooked or undervalued in female-dominated work (for example, social and communication skills, taking responsibility for the well-being of others, cultural knowledge, and sensitivity); and
c: must consider the list of factors in section 13F(3)
13ZE: Identifying appropriate comparators
1: For the purpose of identifying 1 or more appropriate comparators against which to assess a pay equity claim as required by section 13ZD comparable work
a: work performed by male comparators that is the same as, or substantially similar to, the work to which the claim relates:
b: work performed by male comparators that is different to the work to which the claim relates, if the comparators’ work involves 1 or more of the following:
i: skills and experience that are the same as, or substantially similar to, those required to perform the work to which the claim relates:
ii: responsibilities that are the same as, or substantially similar to, those involved in the work to which the claim relates:
iii: working conditions that are the same as, or substantially similar to, those involved in the work to which the claim relates:
iv: degrees of effort that are the same as, or substantially similar to, those involved in the work to which the claim relates:
c: work performed by any other comparators that the parties or the Authority or court considers useful and relevant, including comparators who perform work that has previously been the subject of a pay equity claim settlement.
2: Despite subsection (1) section 13ZD(1)
a: has been historically undervalued for 1 or more of the reasons set out in section 13F(3)﻿(a) to (d)
b: continues to be undervalued for the reasons set out in section 13F(3)﻿(e)
3: When identifying appropriate comparators against which to assess a pay equity claim, the parties must take into account any matters prescribed by regulations made under section 19 for the purpose of this section. Settling pay equity claim
13ZF: Requirement for union to obtain mandate before settling pay equity claim
1: This section applies to—
a: a union that is the claimant in a pay equity claim; and
b: each employee who is covered by the union-raised claim ( proposed settlement employee
2: The union must establish a process for proposed settlement employees to vote on whether to approve or decline a proposed pay equity claim settlement.
3: The union must, before the process begins, give notice of the process to—
a: the proposed settlement employees; and
b: the employer or employers who are parties to the claim.
4: The process must ensure that—
a: each proposed settlement employee is entitled to vote and all votes have equal weight; and
b: each proposed settlement employee is provided with a copy of a proposed pay equity claim settlement within a reasonable time before voting starts; and
c: each proposed settlement employee is given reasonable notice—
i: that they are entitled to vote; and
ii: of the final date by which their vote must be cast; and
iii: of the method by which votes may be cast; and
iv: that, if the proposed pay equity claim settlement is approved, the union must sign it; and
v: of the consequences of the union entering into the settlement (including that the employee’s employment contract will be varied and the employee will lose the ability to bring their own claim relating to pay equity); and
vi: that the final date by which their vote must be cast is also the final date on which employees who are not members of the union may opt out under section 13Y
5: A union may not enter into a pay equity claim settlement unless—
a: a vote has been taken in accordance with the process established under subsection (2)
b: a simple majority of those proposed settlement employees who voted, voted in favour of approving the proposed pay equity claim settlement.
13ZG: Application of section 63A of Employment Relations Act 2000 to pay equity bargaining
1: The obligations in section 63A of the Employment Relations Act 2000 apply to pay equity bargaining only if—
a: an employer is bargaining for settlement of a pay equity claim raised by an individual employee; or
b: an employer offers the benefit of a pay equity claim settlement to an individual employee under section 13ZL(2), (4), or (5)
2: If subsection (1)
13ZH: Settling pay equity claim
1: A pay equity claim is settled
a: when—
i: remuneration is determined that the parties agree does not differentiate between male and female employees in the manner set out in section 2AAC(b)
ii: a process is agreed to review the employee’s remuneration to ensure that pay equity is maintained, including the agreed frequency of reviews; and
iii: those matters are recorded in writing in accordance with subsection (3)
b: when the Authority or the court—
i: determines that an employee’s remuneration does not differentiate between male and female employees in the manner set out in section 2AAC(b)
ii: issues a determination that,—
A: if the parties have agreed a review process but have not agreed remuneration, fixes remuneration that does not differentiate between male and female employees in the manner set out in section 2AAC(b)
B: if the parties have agreed remuneration but have not agreed a review process, specifies a process to review that remuneration to ensure that pay equity is maintained, including the frequency of reviews; or
C: fixes remuneration that does not differentiate between male and female employees in the manner set out in section 2AAC(b)
2: A pay equity claim settlement may also include terms and conditions of employment other than remuneration, if the parties agree, but an employer may not reduce any terms and conditions of employment of an employee who has raised a pay equity claim or who is covered by a union-raised claim for the purpose of settling that claim.
3: A pay equity claim settlement agreed between the parties must—
a: be in writing; and
b: state—
i: that it is a pay equity claim settlement for the purposes of this Act; and
ii: the name of the employer; and
iii: the name of the claimant to whom the settlement relates; and
iv: in the case of a settlement of a union-raised pay equity claim, a description of the work to which the settlement relates; and
v: in the case of a pay equity claim settlement with an individual employee, the employee’s occupation and position; and
vi: the remuneration that the parties agree does not differentiate between male and female employees in the manner set out in section 2AAC(b)
vii: terms and conditions of employment other than remuneration that the parties have agreed to include (if any); and
viii: the process for reviewing that remuneration (which may include requirements to reconsider the matters set out in sections 13F(3) 13ZD 13ZE
ix: the frequency of those reviews, which must be—
A: aligned with any applicable collective bargaining rounds; or
B: if no collective bargaining round applies, at least every 3 years; and
c: include a summary of the method used to assess the pay equity claim and a description of the comparators that were considered by the parties.
4: Settlement of a multi-employer pay equity claim must be recorded in a single multi-employer pay equity claim settlement that is signed by each union and each employer who is a party to the claim at the time of the settlement.
5: Settlement of a pay equity claim raised by multiple unions with a single employer must be recorded in a single pay equity claim settlement that is signed by the employer and by each union that is a party to the claim at the time of the settlement.
13ZI: Unfair bargaining for pay equity claim settlement
1: Bargaining for a pay equity claim settlement is unfair if—
a: the pay equity claim was raised by an individual employee (not by a union); and
b: 1 or more of paragraphs (a) to (d) of subsection (2)
c: the employer, or the employer’s representative,—
i: knows of the circumstances described in the paragraph or paragraphs that apply to the employee; or
ii: ought to know of the circumstances in the paragraph or paragraphs that apply to the employee because the employer or the employer’s representative is aware of facts or other circumstances from which it can be reasonably inferred that the paragraph or paragraphs apply to the employee.
2: The circumstances are that the employee, at the time of bargaining for or entering into the pay equity claim settlement,—
a: is unable to understand adequately the provisions or implications of the settlement by reason of diminished capacity due (for example) to—
i: age; or
ii: sickness; or
iii: mental or educational disability; or
iv: a disability relating to communication; or
v: emotional distress; or
b: reasonably relies on the skill, care, or advice of the employer or a person acting on the employer’s behalf; or
c: is induced to enter into the settlement by oppressive means, undue influence, or duress; or
d: had not been given a reasonable opportunity to seek independent advice about the agreement.
3: In this section, pay equity claim settlement
4: Except as provided in this section, an employee must not challenge or question a pay equity claim settlement on the ground that it is unfair or unconscionable. 2000 No 24 s 68
13ZJ: Remedies for unfair bargaining
1: If an employer or employer’s representative is found to have bargained unfairly under section 13ZI
a: make an order that the employer pay to the employee such sum, by way of compensation, as the Authority thinks fit:
b: make an order cancelling or varying the pay equity claim settlement:
c: make such other order as it thinks fit in the circumstances.
2: The Authority must not make an order under subsection (1)﻿(b) 2000 No 24 s 69
13ZK: Copy of pay equity claim settlement to be delivered to chief executive
1: This section applies if a pay equity claim settlement is reached (whether that settlement is reached by the parties recording an agreement in writing as described in section 13ZH(3) section 13ZH(1)﻿(b)﻿(ii)
2: Each employer who is a party to a pay equity claim settlement must ensure that, as soon as practicable after the settlement is reached, a copy of the settlement agreement or determination (as applicable) is delivered to the chief executive of the department of State that is responsible for the administration of this Act.
3: The copy of the settlement delivered to the chief executive must include any document referred to, or incorporated by reference, in the settlement, unless the document is publicly available.
4: The information contained in the copies of pay equity claim settlements delivered to the chief executive under subsection (2)
13ZL: Offers of benefit of pay equity claim settlement to other employees
1: In this section, offered the benefit of a settlement
a: offered the same remuneration (and other terms and conditions of employment included in the settlement, if any) as the other employee or employees who are covered by the pay equity claim settlement; and
b: offered the same offer of remuneration for past work, if remuneration for past work is included in the settlement, and if the employee would qualify for that offer; and
c: advised that acceptance of the offer will have the effect that the employee is barred from raising a claim in relation to pay equity in accordance with sections 2B and 13E(6) Existing employees
2: An employer who is a party to a pay equity claim settlement with a union must offer the benefit of that settlement to each employee of the employer who, on the date of the settlement,—
a: is employed to perform the same, or substantially similar, work as the work to which the pay equity claim settlement relates; and
b: is not covered by the union-raised claim; and
c: is not barred from raising a pay equity claim under section 2B
d: has not already—
i: settled a pay equity claim with the employer in respect of the work to which the union claim relates; or
ii: accepted an offer of the benefit of a pay equity settlement from the employer in respect of the work to which the union claim relates.
3: The offer of the benefit of the settlement under subsection (2)
4: An employer who is a party to a pay equity claim settlement with an individual employee may offer the benefit of that settlement to 1 or more other employees who, on the date of the settlement,—
a: are employed to perform the same, or substantially similar, work as the work to which the pay equity claim settlement relates; and
b: are not barred from raising a pay equity claim under section 2B
c: have not already—
i: settled a pay equity claim with the employer in respect of the work to which the claim relates; or
ii: accepted an offer of the benefit of a pay equity settlement from the employer in respect of the work to which the claim relates. New employees
5: An employer who is a party to a pay equity claim settlement with a union must offer the benefit of that settlement to each new employee who, after the date of the settlement, is employed to perform the same, or substantially similar, work as the work to which the pay equity claim settlement relates.
6: The offer of the benefit of the settlement under subsection (5)
7: An employer who is a party to a pay equity claim settlement with an individual employee may offer the same remuneration and other terms and conditions of employment agreed in that settlement to a new employee, but that offer is not an offer of the benefit of a settlement for the purposes of this Act. General
8: Nothing in this section prevents an employer and an employee from agreeing to a term or condition of employment in an employment agreement that is more favourable to the employee than the terms and conditions of employment in a pay equity claim settlement.
13ZM: Effect of pay equity claim settlement on employment agreements
1: A pay equity claim settlement binds—
a: every employer who was a party to the claim; and
b: every employee who is covered by the pay equity claim settlement.
2: The employment agreement (whether individual or collective) of an employee who is covered by a pay equity claim settlement is deemed to be varied to—
a: require the employer to pay the employee the remuneration agreed in the pay equity claim settlement, if that remuneration exceeds the amount specified in the employment agreement before the variation required by this section; and
b: include any other terms or conditions that are included in the pay equity claim settlement and that are more favourable to the employee than the terms and conditions of employment in the employee’s employment agreement before the variation required by this section.
3: The variation referred to in subsection (2)
a: the date of the pay equity claim settlement; or
b: in the case of an employee who accepts an offer of the benefit of the pay equity claim settlement, the date on which the employee accepts that offer.
4: A pay equity claim settlement that contains a term or condition that excludes, restricts, or reduces an employee’s entitlements under the employee’s employment agreement has no effect to the extent that it does so.
5: Nothing in this Act prevents an employer and an employee from agreeing to a term or condition of employment in an employment agreement that is more favourable to the employee than the terms and conditions of employment in a pay equity claim settlement.
13ZN: Relationship between pay equity claims and collective bargaining
1: The entry into a collective agreement in accordance with the collective bargaining provisions of the Employment Relations Act 2000 by an employer and a union does not settle or extinguish an unsettled pay equity claim to which the employer is a party.
2: The existence of an unsettled pay equity claim between an employer and an employee, or of an uncompleted review of a pay equity claim settlement, is not a genuine reason for failing to conclude collective bargaining between that employer and a union representing the employer’s employees for the purposes of section 33 of the Employment Relations Act 2000. Mediation
13ZO: Parties may refer issues to mediation
1: Any party to a pay equity claim may refer any 1 or more issues relating to that claim to mediation services provided under Part 10 of the Employment Relations Act 2000.
2: Issues that may be referred to mediation services include, but are not limited to, the following:
a: a dispute as to whether the pay equity claim is arguable ( see section 13F
b: a dispute as to whether an employee’s work is the same as, or substantially similar to, work that is the subject of a pay equity claim raised by a union with the employee’s employer, for the purposes of determining whether or not the employee is, or is to be, covered by the union-raised claim:
c: a dispute as to whether work performed by others is comparable work for the purposes of the assessment required by section 13ZD
d: a dispute as to whether proposed remuneration no longer differentiates between male and female employees in the manner set out in section 2AAC(b)
e: a dispute as to whether exceptional circumstances exist for the purposes of section 13ZY(5)﻿(b) section 13E(6)
3: If an issue relating to a pay equity claim is referred to mediation services, sections 145 to 154 of the Employment Relations Act 2000 apply, with all necessary modifications. Facilitation
13ZP: Purpose of facilitating pay equity claim
1: The purpose of sections 13ZQ to 13ZX
2: Sections 13ZQ to 13ZX
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. 2000 No 24 s 50A
13ZQ: Reference to Authority
1: Any party to a pay equity claim may refer any 1 or more issues relating to that claim to the Authority for facilitation to assist in resolving the claim.
2: Issues that may be referred to the Authority include, but are not limited to, the following:
a: a dispute as to whether an employee’s work is the same as, or substantially similar to, work that is the subject of a pay equity claim raised by a union with the employee’s employer, for the purposes of determining whether or not the employee is, or is to be, covered by the union-raised claim:
b: a dispute as to whether work performed by others is comparable work for the purposes of the assessment required by section 13ZD
c: a dispute as to whether proposed remuneration no longer differentiates between male and female employees in the manner set out in section 2AAC(b)
3: Despite subsections (1) and (2)
a: a dispute as to whether a pay equity claim is arguable:
b: a dispute as to whether exceptional circumstances exist for the purposes of section 13ZY(5)﻿(b) section 13E(6)
4: A reference for facilitation must be made on 1 or both of the grounds specified in section 13ZR(2) 2000 No 24 s 50B
13ZR: When Authority may accept reference
1: The Authority must not accept a reference for facilitation unless—
a: the Authority is satisfied that facilitation may be useful to resolve the issue referred; and
b: 1 or both of the grounds in subsection (2)
2: The grounds are—
a: that a party has failed to comply with the duty of good faith in section 4 of the Employment Relations Act 2000 and the failure—
i: was serious and sustained; and
ii: has undermined the progress of the pay equity claim:
b: that sufficient efforts (including mediation) have failed to resolve an issue relating to the claim.
3: The Authority must not accept a reference for facilitation in relation to a pay equity claim for which the Authority has already acted as a facilitator unless—
a: the earlier facilitation related only to the issue of whether the claim is arguable and the subsequent reference relates to the pay equity bargaining process; or
b: the circumstances relating to the pay equity claim have changed; or
c: the bargaining since the previous facilitation has been protracted. 2000 No 24 s 50C
13ZS: Limitation on which member of Authority may provide facilitation
A member of the Authority who facilitates resolution of an issue relating to a pay equity claim must not be the member of the Authority who accepted the reference for facilitation. 2000 No 24 s 50D
13ZT: Process of facilitation
1: The process to be followed during facilitation—
a: must be conducted in private; and
b: is otherwise determined by the Authority.
2: During facilitation, any pay equity bargaining in respect of the claim to which the facilitation relates continues subject to the process determined by the Authority.
3: During facilitation, the Authority—
a: is not acting as an investigative body; and
b: may not exercise the powers it has for investigating matters.
4: The provision of facilitation by the Authority may not be challenged or called in question in any proceedings on the ground—
a: that the nature and content of the facilitation were inappropriate; or
b: that the manner in which the facilitation was provided was inappropriate. 2000 No 24 s 50E
13ZU: Statements made by parties during facilitation
1: A statement made by a party for the purposes of facilitation is not admissible against the party in proceedings under this Act or under the Employment Relations Act 2000.
2: A party may make a public statement about facilitation only if—
a: it is made in good faith; and
b: it is limited to the process of facilitation or the progress being made. 2000 No 24 s 50F
13ZV: Proposals made or positions reached during facilitation
1: A proposal made by a party or a position reached by parties to a pay equity claim during facilitation is not binding on a party after facilitation has come to an end.
2: This section—
a: applies to avoid doubt; and
b: is subject to any agreement of the parties. 2000 No 24 s 50G
13ZW: Recommendation by Authority
1: While assisting parties to resolve an issue related to a pay equity claim, the Authority may make a recommendation about any matter that relates to the pay equity claim, including, but not limited to, recommendations as to the following:
a: whether the pay equity claim is arguable:
b: the process the parties should follow to reach agreement:
c: remuneration that would no longer differentiate between male and female employees in the manner set out in section 2AAC(b)
2: The Authority may give public notice of a recommendation in any manner that the Authority determines.
3: A recommendation made by the Authority is not binding on a party, but a party must consider a recommendation before deciding whether to accept it. 2000 No 24 s 50H
13ZX: Parties must deal with Authority in good faith
During facilitation, the parties must deal with the Authority in good faith. 2000 No 24 s 50I Determination by Authority
13ZY: Parties may apply for determination by Authority
1: A party to a pay equity claim may apply to the Authority for determination of any matter that relates to the pay equity claim, including, but not limited to, the following:
a: a determination as to whether the pay equity claim is arguable ( see section 13F
b: a determination as to whether an employee’s work is the same as, or substantially similar to, work that is the subject of a pay equity claim raised by a union with the employee’s employer, for the purposes of determining whether or not the employee is, or is to be, covered by the union-raised claim:
c: a determination as to whether the work to which the claim relates is undervalued:
d: a determination that—
i: fixes remuneration that does not differentiate between male and female employees in the manner set out in section 2AAC(b)
ii: specifies a process to review that remuneration to ensure that pay equity is maintained, including the frequency of reviews.
2: Where an application is made under subsection (1)
a: must first consider whether an attempt has been made to resolve the difficulties by the use of—
i: mediation or further mediation under section 13ZO
ii: facilitation under sections 13ZQ to 13ZX
b: may direct the parties to try to resolve the difficulties by mediation or further mediation; and
c: may, if 1 or both of the grounds in section 13ZR(2)
i: will not contribute constructively to resolve the difficulties; or
ii: will not, in all the circumstances, be in the public interest; or
iii: will undermine the urgent nature of the process; or
iv: will be otherwise impractical or inappropriate in the circumstances.
3: Subsection (2)﻿(c)
a: whether a pay equity claim is arguable; or
b: whether exceptional circumstances exist for the purposes of subsection (5)﻿(b)
4: If an application for a determination relates to whether the work to which the claim relates is undervalued, the Authority or the court may take into account the list of factors set out in sections 13F(3) and 13ZD
5: If an application for a determination relates to whether a claim may be raised despite section 13E(6)
a: having regard to the existing pay equity claim settlement that covers the employee; and
b: only if it is satisfied that there are exceptional circumstances. 2000 No 24 s 50K
13ZZ: Union must notify employees covered by union-raised claim before applying for determination by Authority
1: Before a union applies to the Authority for a determination under section 13ZY(1)﻿(d)
2: The notice must—
a: specify the date on which the union proposes to file the application for a determination; and
b: advise the employee—
i: of the consequences of the Authority making a determination fixing remuneration (including that the employee’s employment agreement will be varied and the employee will lose the right to bring their own claim relating to pay equity); and
ii: that the day before the date on which the union proposes to file the application for a determination is the final date on which the employee may opt out under section 13Y
3: The notice must be given a reasonable time before the date on which the union proposes to file the application.
13ZZA: If Authority or court determines pay equity claim is arguable
If the Authority or the court determines that a pay equity claim is arguable, the parties must enter into the pay equity bargaining process in accordance with sections 13S to 13ZZE
13ZZB: Process on application to fix remuneration
1: If the Authority receives an application under section 13ZY(1)﻿(d)
a: direct the parties to try to resolve the difficulties by mediation or further mediation; or
b: recommend another process that the parties must follow to try to resolve the difficulties.
2: The Authority may accept an application for a determination that fixes remuneration only if—
a: the parties have first tried to resolve the difficulties by mediation, or by any other process recommended by the Authority; and
b: the Authority is satisfied that—
i: all other reasonable alternatives for settling the pay equity claim have been exhausted; or
ii: a reasonable period has elapsed within which the parties have used their best endeavours to identify and use reasonable alternatives to settle the pay equity claim.
13ZZC: Limitation on challenge to determination of Authority fixing remuneration
1: This section applies to an application for a determination of the Authority that fixes remuneration under section 13ZY(1)﻿(d)﻿(i)
2: A party may not elect, under section 179(1) of the Employment Relations Act 2000 section 13ZZB(2)
13ZZD: Determination may provide for recovery of remuneration for past work
1: A determination by the Authority fixing remuneration may also provide for recovery of an amount of remuneration that relates to work performed before the date of the determination ( past work
2: When deciding whether to provide for recovery of an amount of remuneration for past work, and the amount to provide, the Authority or the court must take into account the following factors:
a: the conduct of the parties; and
b: the ability of the employer to pay; and
c: the nature and extent of resources (for example, information and advice) available to the employer and the claimant in respect of the claim; and
d: any other factors the Authority or the court considers appropriate.
3: See section 13ZZE
13ZZE: Limitation periods for recovery of remuneration for past work
1: A determination may provide for recovery of an amount of remuneration that relates to work performed in the period—
a: beginning on the applicable start date for the claim to which the determination relates; and
b: ending on the date of the determination.
2: However, no determination may provide for recovery of an amount of remuneration that relates to a period that is longer than 6 years.
3: The applicable start date The following table is small in size and has 2 columns. Column 1 is headed When claim raised or notified. Column 2 is headed Applicable start date. When claim raised or notified Applicable start date Existing pay equity claim as defined in Schedule 1, clause 1(1) clause 2(2)﻿(a) clause 3 of that schedule The earlier of—
a: the date on which the existing pay equity claim was notified to the employer; and
b: the date on which the proceedings discontinued under Schedule 1, clause 2(1) Claim raised on or after the date on which this section comes into force, but no more than 5 years after the date on which this section comes into force The date on which the claim is raised Claim raised more than 5 years after the date on which this section comes into force The date that is 5 years after the date on which this section comes into force
4: In this section, a claim is notified
a: have the same, or substantially similar, skills, responsibility, and experience; and
b: work under the same, or substantially similar, conditions, and with the same, or substantially similar, degrees of effort. Example 1
Employee A notifies their employer of a pay equity claim as set out in subsection (4) Part 4 (see Schedule 1, clause 2(2)﻿(a) Example 2
Employee B formally files an application in respect of a pay equity claim with the Authority on 1 February 2019 (before the commencement of this section), without having first notified Employee B’s employer of the claim. That claim remains unresolved on the date of commencement of this section, and it is discontinued under Schedule 1, clause 2 Part 4 see Schedule 1, clause 2(2)﻿(a) Part 4 Example 3
Union C raises a claim 2 months after the commencement of this section, and that claim is resolved by a determination made 2 years later. That determination may provide for recovery of an amount of remuneration that relates to the 2-year period that runs back from the date of determination to the date on which the claim was raised. Example 4
Employee D raises a claim 4 years and 11 months after the commencement of this section, and that claim is resolved by a determination made 2 years later. That determination may provide for recovery of an amount of remuneration that relates to the 2-year period that runs back from the date of determination to the date on which the claim was raised. Example 5
Employee E raises a claim 6 years after the commencement of this section, and that claim is resolved by a determination made 2 years later. That determination may provide for recovery of an amount of remuneration that relates to the 3-year period that runs back from the date of determination to the date that is 5 years after the date of commencement of this section. Example 6
Union F raises a claim 11 years after the commencement of this section, and that claim is resolved by a determination made 1 year later. That determination may provide for recovery of an amount of remuneration that relates to the 6-year period that runs back from the date of determination (being the maximum period allowed under subsection (2)
5: The examples in subsection (4) subsections (1) to (3) Obligation on employers to keep pay equity records
13ZZF: Pay equity records
Every employer who has received 1 or more pay equity claims must keep a record showing—
a: every pay equity claim lodged by a claimant; and
b: in relation to each pay equity claim,—
i: the employer’s decision as to whether the claim is arguable and the consequent notice to the claimant; and
ii: the outcomes of any pay equity bargaining; and
iii: all notifications to affected employees under section 13V
iv: any recommendation by the Authority during facilitation. Pay equity claims by employees in education service
13ZZG: Pay equity claims by employees in education service
Employees other than employees of tertiary education institutions
1: For the purposes of a pay equity claim by 1 or more employees in the education service (other than employees of a tertiary education institution), or by a union representing those employees, (an education service claimant
a: must be treated as the employer; and
b: has the same rights, duties, and obligations under this Act as the Commissioner would have if the Commissioner were the employer.
2: If the Commissioner decides that a pay equity claim by an education service claimant is arguable, or if the Authority or the court determines that such a claim is arguable, the Commissioner must enter into the pay equity bargaining process described in sections 13ZC to 13ZZE
a: with the education service claimant; and
b: in consultation with—
i: the chief executive of the Ministry of Education; and
ii: representatives of the employer or employers who will be bound by the pay equity claim settlement agreement (which representatives must be employers, or organisations of employers, of persons employed in the education service).
3: Every pay equity claim settlement agreement entered into between the Commissioner and an education service claimant is binding on the employer or employers of the persons whose work is covered by the agreement.
4: An employer who is bound by a pay equity claim settlement agreement under subsection (3) Employees of tertiary education institutions
5: For the purposes of a pay equity claim by 1 or more employees of a tertiary education institution or by a union representing those employees, the chief executive of the tertiary education institution is responsible (either individually or jointly through an organisation of employers of persons employed in tertiary education institutions) for determining whether the claim is arguable and, if so, entering into the pay equity bargaining process described in sections 13ZC to 13ZZE
6: Before entering into a pay equity claim settlement, the chief executive of a tertiary education institution, or an organisation of employers of persons employed in tertiary education institutions, must consult with the Public Service Commissioner. Interpretation
7: In this section,— education service section 10(7) of the Education and Training Act 2020 Public Service Commissioner Commissioner section 42 of the Public Service Act 2020 tertiary education institution section 10 of the Education and Training Act 2020 1988 No 20 s 74
19: Section 14 repealed (Procedure and jurisdiction of Employment Relations Authority)
Repeal section 14
20: New section 14A and Part 5 heading inserted
Before section 15
5: General provisions
Notices, penalties, and enforcement
14A: Notices
1: A notice under this Act that is required to be given to a claimant must,—
a: if the claimant is an employee who has authorised a representative to act on the employee’s behalf in respect of the claim, be given to that representative at the address for service of the representative; or
b: if the claimant is an employee who has not authorised a representative to act on the employee’s behalf in respect of the claim, be—
i: delivered to the employee in person; or
ii: sent to the employee by any form of electronic communication that is ordinarily used for formal communications; or
iii: notified to the employee in any manner specified in the employee’s employment agreement; or
c: if the claimant is a union, be given to the union at the union’s address for service.
2: A notice under this Act that is required to be given to an employee’s employer must be—
a: delivered in person to the employee’s employer; or
b: sent to the employee’s employer by any form of electronic communication that is ordinarily used for formal communications; or
c: notified to the employer in any manner specified in the employee’s employment agreement.
21: Section 15 replaced (When dismissal or reduction of employee an offence)
Replace section 15
15: Claimant employee must not be treated adversely
1: An employer must not treat adversely any employee who raises or is covered by a claim under this Act (including an employee who is covered by a union-raised claim).
2: In this section, an employer treats an employee adversely if the employer—
a: refuses or omits to offer or provide to that employee the same terms and conditions of employment (including the same remuneration, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer) as are offered or provided to other employees of the same, or substantially similar, qualifications, experience, or skills employed in the same, or substantially similar, circumstances; or
b: dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or
c: retires that employee, or requires or causes that employee to retire or resign.
3: An employee may raise a claim against the employee’s employer or former employer for a contravention of subsection (1)
4: A claim referred to in subsection (3) subsection (2)
5: For the purposes of subsection (2)﻿(b) detriment 1990 No 57 s 5K; 2000 No 24 s 67F
22: Sections 16 to 17A repealed
Repeal sections 16 to 17A
23: Section 18 replaced (Offences)
Replace section 18
18: Penalty for non-compliance
1: A person who fails to comply with a provision listed in subsection (2)
a: if the person is an individual, to a penalty not exceeding $10,000:
b: if the person is a company or another body corporate, to a penalty not exceeding $20,000.
2: The provisions are as follows:
a: section 2AAC(a)
b: section 2A (which relates to unlawful discrimination):
c: section 13S(2)﻿(c) or 13ZZA
d: section 13C
e: section 13ZZF
3: The penalties specified in subsection (1)
a: an employer who, knowingly or recklessly,—
i: fails to comply with the duty under section 13V
ii: provides misleading information in a notice given under section 13V
b: a union that knowingly or recklessly fails to comply with the requirements of section 13ZF(3)
4: Any action for the recovery of a penalty may be brought,—
a: in the case of a breach described in subsection (2)﻿(a) or (b)
i: by the employee in relation to whom the breach is alleged to have taken place; or
ii: by a Labour Inspector; or
b: in the case of a breach described in subsection (2)﻿(d)
c: in the case of a breach described in subsection (2)﻿(c) or (e) or (3)
5: For the purposes of subsection (1)
18A: Proceedings by Labour Inspector or employee concerned for penalty
1: An Inspector and the employee concerned are the only persons who may bring an action in the Authority against an employer to recover a penalty under section 18
2: However, only a Labour Inspector may bring an action in the Authority against a person involved in a failure to comply in order to recover a penalty under section 18
3: A claim for 2 or more penalties against the same employer may be joined in the same action.
4: A claim for a penalty may be heard in conjunction with any other claim under this Act.
5: In determining whether to give judgment for a penalty, and the amount of that penalty, the Authority must consider whether the person against whom the penalty is sought has previously failed to comply with an improvement notice issued under section 223D of the Employment Relations Act 2000.
6: After hearing an action for recovery of a penalty, the Authority may—
a: give judgment for the amount claimed; or
b: give judgment for an amount that is less than the amount claimed; or
c: dismiss the action.
7: The Authority may order payment of a penalty by instalments, but only if the financial position of the person paying the penalty requires it.
8: An action for the recovery of a penalty must be commenced within 12 months after the earlier of when the cause of action became known, or should reasonably have become known, to the Labour Inspector or employee concerned.
9: A penalty that is recovered must be paid,—
a: if, and to the extent, ordered by the Authority, to any person the Authority specifies; or
b: in any other case, into court and then into a Crown Bank Account. 2003 No 129 s 76; 2000 No 24 s 135 Powers of Inspectors and procedure and jurisdiction of Employment Relations Authority and Employment Court
18B: Powers of Inspectors
For the purposes of this Act, every Inspector has, in addition to any powers conferred by this Act, all the powers that the Inspector has under the Employment Relations Act 2000
18C: Procedure and jurisdiction of Employment Relations Authority and Employment Court
In performing its functions under this Act, or in respect of any breach of this Act,—
a: the Employment Relations Authority has all the powers and functions it has under the Employment Relations Act 2000
b: the Employment Court has all the powers and functions it has under the Employment Relations Act 2000 Regulations
24: Section 19 amended (Regulations)
1: In section 19 administration , including regulations for the following purposes:
a: prescribing matters that must be taken into account when assessing a pay equity claim; and
b: prescribing matters that must be taken into account when identifying comparable work under section 13ZE
2: Section 24(2) repealed 30 November 2022 section 36 Statutes Amendment Act 2022
25: New Schedules 1 and 2 inserted
Insert the Schedules 1 and 2 Schedule 1
2: Related amendments and repeals
Amendments to Employment Relations Act 2000
26: Related amendments to Employment Relations Act 2000
Sections 27 28 Employment Relations Act 2000 2020-11-06 Employment Relations Act 2000 Sections 27 & 28
27: Section 100A amended (Codes of employment practice)
1: In section 100A(4) this Act any of the Acts specified in section 223(1) or any regulations made under those Acts
2: After section 100A(4)
5: A code of employment practice approved under this section is not a legislative instrument but is a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
28: Section 100C replaced (Authority or court may have regard to code of practice)
Replace section 100C
100C: Authority or court may have regard to code of employment practice
1: A code of employment practice is admissible in any civil or criminal proceedings as evidence of whether the enactment to which it relates has been complied with.
2: The Authority or a court may—
a: have regard to the code as evidence of compliance with the provisions of the enactment to which it relates; and
b: rely on the code in determining what is required to comply with those provisions. 2015 No 70 s 226 Amendments to Public Service Act 2020
29: Related amendments to Public Service Act 2020
Sections 30 to 32 Public Service Act 2020 2020-11-06 Public Service Act 2020 Sections 30 to 32
30: Sections 81 to 83 replaced
Replace sections 81 to 83
81: Interpretation
In sections 82 to 83B facilitation of bargaining sections 13ZP to 13ZX pay equity claim pay equity claim settlement
82: Pay equity claims
1: The Commissioner is responsible for dealing with a pay equity claim as if the Commissioner were the employer.
2: When a pay equity claim is raised with the chief executive of a department or the board of an interdepartmental venture, the chief executive or board must, as soon as practicable, give notice in writing of the pay equity claim to the Commissioner.
3: The Commissioner’s responsibility under subsection (1)
a: includes, without limiting that subsection, responsibility for acknowledging receipt of and giving notice of the claim, forming a view on whether the claim is arguable, conducting the pay equity bargaining process, and settling a pay equity claim; but
b: does not include responsibility for the following, unless the Commissioner thinks it appropriate to continue the Commissioner’s responsibility during that time:
i: attendance in mediation under the Employment Relations Act 2000 in relation to the claim or any aspect of the claim; or
ii: participation in any facilitation of bargaining or participation in relation to any application lodged in the Employment Relations Authority or filed in a tribunal or a court in relation to the claim or any aspect of the claim.
4: The Commissioner’s responsibility under this section arises in relation to a pay equity claim—
a: on the date on which the Commissioner receives notice under subsection (2)
b: on any later date that the Commissioner notifies to the chief executive or board.
5: Subsection (3) subsection (4)
83: Application of section 13K of Equal Pay Act 1972 where more than 1 department or interdepartmental venture involved in pay equity claim
1: In relation to the requirements under section 13K
a: if a pay equity claim involves more than 1 department or interdepartmental venture but there are no other employers involved in the claim, the Commissioner is not required (and the departments or interdepartmental ventures involved in the claim are not required) to enter into a multi-employer pay equity process agreement:
b: if a pay equity claim involves more than 1 department or interdepartmental venture and there are also other employers involved in the claim, the Commissioner must enter into a multi-employer pay equity process agreement in the Commissioner’s name (and the departments and interdepartmental ventures involved are not required to enter into the agreement).
2: If the Commissioner has delegated the powers to negotiate a pay equity claim to any chief executive of a department or board of an interdepartmental venture involved in the claim,—
a: subsection (1)
b: the requirements in section 13K
83A: Commissioner to enter negotiations in consultation with affected department or interdepartmental venture
When the Commissioner enters into the pay equity bargaining process under sections 13ZC to 13ZZE
83B: Pay equity settlement binding on chief executive or board affected
1: Every pay equity claim settlement agreement entered into between the Commissioner and 1 or more unions or between the Commissioner and 1 or more employees of the public service is binding on the chief executive of each department and the board of each interdepartmental venture in which any of the employees are employed.
2: A chief executive of a department who, or board of an interdepartmental venture that, is bound by a pay equity claim settlement agreement under subsection (1)
3: Responsibility for giving effect to any pay equity claim settlement between the Commissioner and 1 or more public service employees lies with the chief executive of each department and the board of each interdepartmental venture in which any of the employees are employed.
31: Section 84 amended (Delegation of Commissioner’s function and powers to negotiate pay equity claim)
In section 84 81 81 and 83
32: Section 77 amended (Personal grievances and disputes)
In section 77 Consequential amendments to Employment Relations Act 2000
33: Consequential amendments to Employment Relations Act 2000
Amend the Employment Relations Act 2000 Schedule 2 2020-11-06 Employment Relations Act 2000 Repeal
34: Repeal of Government Service Equal Pay Act 1960
The Government Service Equal Pay Act 1960 2020-11-06 Government Service Equal Pay Act 1960