Employment Relations Amendment Act 2016

1: Title
This Act is the Employment Relations Amendment Act 2016.
2: Commencement
This Act comes into force on 1 April 2016
3: Principal Act
This Act amends the Employment Relations Act 2000 principal Act 2016-04-01 Employment Relations Act 2000
4: Section 3 amended (Object of this Act)
1: Replace section 3(a)﻿(v)
v: by promoting mediation as the primary problem-solving mechanism other than for enforcing employment standards; and
2: After section 3(a)
ab: to promote the effective enforcement of employment standards, in particular by conferring enforcement powers on Labour Inspectors, the Authority, and the court; and
5: New section 4B and cross-heading inserted
After section 4A Records relating to minimum entitlement provisions
4B: Employer’s general obligation to keep records relating to minimum entitlement provisions
1: An employer must keep records in sufficient detail to demonstrate that the employer has complied with minimum entitlement provisions.
2: The obligation in subsection (1)
6: Section 5 amended (Interpretation)
1: In section 5 agreed hours of work section 67C(1) employment standards
a: the requirements of any of sections 64, 69Y, 69ZD, 69ZE, and 130:
b: the provisions of the Equal Pay Act 1972:
c: the minimum entitlements and payment for those under the Holidays Act 2003:
d: the requirements of sections 81 and 82 of the Holidays Act 2003:
e: the minimum entitlements under the Minimum Wage Act 1983:
f: the provisions of the Wages Protection Act 1983
2: In section 5 minimum entitlements minimum entitlement provisions
a: the minimum entitlements and payment for those under the Holidays Act 2003; and
b: the minimum entitlements under the Minimum Wage Act 1983; and
c: the provisions of the Wages Protection Act 1983
7: Section 64 amended (Employer must retain copy of individual employment agreement or individual terms and conditions of employment)
In section 64(4) Labour Inspector or the employee concerned
8: Section 65 amended (Form and content of individual employment agreement)
1: In section 65(2)﻿(a)﻿(iv) an indication any agreed hours of work specified in accordance with section 67C
2: In section 65(4) Labour Inspector or the employee concerned
9: New sections 67C to 67H inserted
After section 67B
67C: Agreed hours of work
1: Hours of work agreed by an employer and employee must be specified as follows:
a: in the case of an employee covered by a collective agreement,—
i: in the collective agreement; and
ii: if section 61 applies, in the employee’s additional terms and conditions of employment included under that section; or
b: in the case of an employee covered by an individual employment agreement, in the employee’s individual employment agreement.
2: In subsection (1) hours of work
a: the number of guaranteed hours of work:
b: the days of the week on which work is to be performed:
c: the start and finish times of work:
d: any flexibility in the matters referred to in paragraph (b) or (c)
67D: Availability provision
1: In this section and section 67E availability provision
a: the employee’s performance of work is conditional on the employer making work available to the employee; and
b: the employee is required to be available to accept any work that the employer makes available.
2: An availability provision may only—
a: be included in an employment agreement that specifies agreed hours of work and that includes guaranteed hours of work among those agreed hours; and
b: relate to a period for which an employee is required to be available that is in addition to those guaranteed hours of work.
3: An availability provision must not be included in an employment agreement unless—
a: the employer has genuine reasons based on reasonable grounds for including the availability provision and the number of hours of work specified in that provision; and
b: the availability provision provides for the payment of reasonable compensation to the employee for making himself or herself available to perform work under the provision.
4: An availability provision that is not included in an employment agreement in accordance with subsection (3)
5: In considering whether there are genuine reasons based on reasonable grounds for including an availability provision, an employer must have regard to all relevant matters, including the following:
a: whether it is practicable for the employer to meet business demands for the work to be performed by the employee without including an availability provision:
b: the number of hours for which the employee would be required to be available:
c: the proportion of the hours referred to in paragraph (b)
6: Compensation payable under an availability provision must be determined having regard to all relevant matters, including the following:
a: the number of hours for which the employee is required to be available:
b: the proportion of the hours referred to in paragraph (a)
c: the nature of any restrictions resulting from the availability provision:
d: the rate of payment under the employment agreement for the work for which the employee is available:
e: if the employee is remunerated by way of salary, the amount of the salary.
7: For the purposes of subsection (3)﻿(b)
67E: Employee may refuse to perform certain work
An employee is entitled to refuse to perform work in addition to any guaranteed hours specified in the employee’s employment agreement if the agreement does not contain an availability provision that provides for the payment of reasonable compensation to the employee for making himself or herself available to perform work under the availability provision.
67F: Employee not to be treated adversely because of refusal to perform certain work
1: An employer must not treat adversely an employee who refuses to perform work under section 67E
2: In this section, an employer treats an employee adversely
a: refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially the same 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: For the purposes of subsection (2)﻿(b) detriment
67G: Cancellation of shifts
1: This section applies in relation to an employee who is required under the employee’s employment agreement to undertake shift work.
2: The employer must not cancel a shift of the employee unless the employee’s employment agreement specifies—
a: a reasonable period of notice that must be given before the cancellation of a shift; and
b: reasonable compensation that must be paid to the employee if the employer cancels a shift of the employee without giving the specified notice.
3: In cancelling a shift of an employee, the employer must—
a: give the employee the notice specified in the employee’s employment agreement under subsection (2)﻿(a)
b: if that notice is not given, pay to the employee the compensation specified in the employee’s employment agreement under subsection (2)﻿(b)
4: The period of notice specified under subsection (2)﻿(a)
a: the nature of the employer’s business, including the employer’s ability to control or foresee the circumstances that have given rise to the proposed cancellation; and
b: the nature of the employee’s work, including the likely effect of the cancellation on the employee; and
c: the nature of the employee’s employment arrangements, including whether there are agreed hours of work in the employee’s employment agreement and, if so, the number of guaranteed hours of work (if any) included among those agreed hours.
5: Compensation specified under subsection (2)﻿(b)
a: the period of notice specified in the employee’s employment agreement under subsection (2)﻿(a)
b: the remuneration that the employee would have received for working the shift:
c: whether the nature of the work requires the employee to incur any costs in preparing for the shift.
6: Without limiting subsection (5)
a: the shift is cancelled and the employee’s employment agreement does not comply with this section; or
b: the shift is cancelled, but the employee has not been notified of the cancellation until the commencement of the shift; or
c: the remainder of a shift is cancelled after the shift has begun.
7: If an employee whose shift is cancelled is entitled, under his or her employment agreement or under subsection (6) Holidays Act 2003
8: To avoid doubt, nothing in this section enables an employer to cancel an employee’s shift if that cancellation would breach the employee’s employment agreement.
9: In this section, shift
a: are continuous or effectively continuous; and
b: may occur at different times on different days of the week.
67H: Secondary employment provisions
1: In this section, a secondary employment provision
a: prohibits or restricts the employee from performing work for another person; or
b: prohibits or restricts the employee from performing work for another person without the employer’s consent.
2: A secondary employment provision must not be included in an employee’s employment agreement unless—
a: the employer has genuine reasons based on reasonable grounds for including the provision; and
b: the reasons are stated in the employee’s employment agreement.
3: For the purposes of subsection (2)﻿(a) genuine reason
a: protecting an employer’s commercially sensitive information; or
b: protecting an employer’s intellectual property rights; or
c: protecting an employer’s commercial reputation; or
d: preventing a real conflict of interest that cannot be managed without including a secondary employment provision.
4: A secondary employment provision in an employee’s employment agreement must not—
a: prohibit the employee from performing work for another person unless it is necessary having regard to the reasons for which the provision is included; or
b: restrict the employee from performing work for another person to a greater extent than is necessary having regard to the reasons for which the provision is included.
5: This section does not limit or affect the law relating to restraint of trade provisions.
10: Section 103 amended (Personal grievance)
After section 103(1)﻿(g)
h: that the employee has been disadvantaged by the employee’s employment agreement not being in accordance with section 67C, 67D, 67G, or 67H
i: that the employee’s employer has contravened section 67F or 67G(4)
11: Section 130 amended (Wages and time record)
1: Replace section 130(1)﻿(g)
g: the number of hours worked each day in a pay period and the pay for those hours:
2: After section 130(1)
1A: The wages and time record must be kept—
a: in written form; or
b: in a form or in a manner that allows the information in the record to be easily accessed and converted into written form.
1B: If an employee’s number of hours worked each day in a pay period and the pay for those hours are agreed and the employee works those hours (the usual hours subsection (1)﻿(g)
a: the wages and time record; or
b: the employment agreement; or
c: a roster or any other document or record used in the normal course of the employee’s employment.
1C: In subsection (1B) usual hours
1D: Despite subsection (1C) section 4B(1)
3: Repeal section 130(3)
4: After section 130(4)
5: An action to recover a penalty under subsection (4) may also be brought by a Labour Inspector.
12: New section 133A inserted (Matters Authority and court to have regard to in determining amount of penalty)
After section 133
133A: Matters Authority and court to have regard to in determining amount of penalty
In determining an appropriate penalty for a breach referred to in section 133, the Authority or court (as the case may be) must have regard to all relevant matters, including—
a: the object stated in section 3; and
b: the nature and extent of the breach or involvement in the breach; and
c: whether the breach was intentional, inadvertent, or negligent; and
d: the nature and extent of any loss or damage suffered by any person, or gains made or losses avoided by the person in breach or the person involved in the breach, because of the breach or involvement in the breach; and
e: whether the person in breach or the person involved in the breach has paid an amount of compensation, reparation, or restitution, or has taken other steps to avoid or mitigate any actual or potential adverse effects of the breach; and
f: the circumstances in which the breach, or involvement in the breach, took place, including the vulnerability of the employee; and
g: whether the person in breach or the person involved in the breach has previously been found by the Authority or the court in proceedings under this Act, or any other enactment, to have engaged in any similar conduct.
13: Section 135 amended (Recovery of penalties)
After section 135(5)
6: Despite subsection (5), if a court refuses to make a pecuniary penalty order under section 142E
14: New section 135A inserted (Chief executive or Labour Inspector may enforce payment of penalty)
After section 135
135A: Chief executive or Labour Inspector may enforce payment of penalty
The chief executive or a Labour Inspector may recover in the District Court New section 135A amended 1 March 2017 section 261 District Court Act 2016
15: Section 139 amended (Power of court to order compliance)
1: After section 139(1)
1A: This section also applies to a person in relation to whom the court has made a declaration of breach under section 142B
2: In section 139(2) or requirement requirement, or (in the case of a declaration of breach) the provision that the declaration relates to
16: New section 140AA inserted (Sanctions for breaches without compliance order)
After section 140
140AA: Sanctions for breaches without compliance order
1: This section applies in relation to an order, determination, direction, or requirement referred to in section 137(1)﻿(b) or 139(1)﻿(b).
2: If, after the order, determination, direction, or requirement is made or given, there has been non-observance of or non-compliance with the order, determination, direction, or requirement, the court may, on the application of a Labour Inspector, do 1 or more of the things specified in section 140(6)﻿(a) to (e) without first making a compliance order.
3: However, the court must not do any of the things specified in section 140(6)﻿(a) to (e) unless the court—
a: has provided the person in default with the opportunity to make submissions to the court; and
b: is satisfied that—
i: the matter arises from a breach of employment standards and relates to the payment of wages or other money owed, or penalties ordered, as a result of the breach; and
ii: the matter involves a breach that was not minor or inadvertent; and
iii: there was no reasonable excuse for the breach; and
iv: there are reasonable grounds for believing that, if a compliance order were made, the person in default would not comply with it.
17: Section 140 amended (Further provisions relating to compliance order by court)
After section 140(6)
7: An order under subsection (6)﻿(d) may direct that the whole or any part of the fine must be paid to the employee concerned.
18: Section 141 amended (Enforcement of order)
1: In section 141 this Act any of the Acts referred to in section 223(1)
2: In section 141
2: To avoid doubt, an order imposing a fine is enforceable under Part 3 of the Summary Proceedings Act 1957
19: New Part 9A inserted
After section 142
9A: Additional provisions relating to enforcement of employment standards
142A: Object of this Part
1: The object of this Part is to provide additional enforcement measures to promote the more effective enforcement of employment standards (especially minimum entitlement provisions) by—
a: providing for a Labour Inspector to apply to the court for—
i: declarations of breach in relation to breaches of minimum entitlement provisions that are serious:
ii: pecuniary penalty orders for breaches of minimum entitlement provisions that are serious:
iii: compensation orders for serious breaches of minimum entitlement provisions to compensate employees who have suffered or are likely to suffer loss or damage as a result:
iv: banning orders based on certain grounds, including persistent breach of employment standards; and
b: making insurance for pecuniary penalties unlawful; and
c: providing for—
i: what is meant by being involved in a breach of employment standards; and
ii: when states of mind or conduct by certain persons are to be attributed to bodies corporate and principals; and
d: providing certain defences to breaches of minimum entitlement provisions.
2: The provisions in this Part are in addition to the provisions in—
a: sections 133 to 142; and
b: sections 223 to 235. Declarations of breach
142B: Court may make declarations of breach
1: A Labour Inspector (but no other person) may apply to the court for a declaration of breach.
2: The court may make a declaration of breach if the court is satisfied that—
a: a person has—
i: breached a minimum entitlement provision; or
ii: been involved in a breach of a minimum entitlement provision; and
b: the breach of the minimum entitlement provision is serious.
3: Whether a breach of a minimum entitlement provision is serious is a question of fact.
4: In determining whether a breach of a minimum entitlement provision is serious, the court may take into account—
a: the amount of money involved:
b: whether the breach comprises a single instance or a series of instances:
c: if the breach comprises a series of instances,—
i: how many instances it comprises; and
ii: the period over which they occurred:
d: whether the breach was intentional or reckless:
e: whether the employer concerned has complied with any relevant record-keeping obligations imposed by any Act:
f: any other relevant matter.
142C: Purpose and effect of declarations of breach
1: The purpose of a declaration of breach is to enable an applicant for an order against a person under this Part to rely on the declaration of breach made against the person in the proceedings for that order and not be required to prove the breach or involvement in the breach.
2: Accordingly, a declaration of breach made against a person is conclusive evidence in relation to the person of the matters that must be stated in it under section 142D
142D: What declaration of breach must state
A declaration of breach must state the following:
a: the minimum entitlement provision that the breach or involvement in the breach relates to; and
b: the person the declaration applies to; and
c: the conduct that constituted the breach or the involvement in the breach. Pecuniary penalty orders
142E: Pecuniary penalty orders
1: The court may make a pecuniary penalty order against a person in respect of whom the court has made a declaration of breach.
2: An application for a pecuniary penalty order may be made—
a: only by a Labour Inspector; and
b: at the following times:
i: when application is made for a declaration of breach; or
ii: subsequently, whether before or after the application for a declaration of breach is determined.
142F: Matters court to have regard to in determining amount of pecuniary penalty
In determining an appropriate pecuniary penalty under section 142E
a: the object stated in section 3; and
b: the nature and extent of the breach or involvement in the breach; and
c: whether the breach was intentional, inadvertent, or negligent; and
d: the nature and extent of any loss or damage suffered by any person, or gains made or losses avoided by the person in breach or the person involved in the breach, because of the breach or involvement in the breach; and
e: whether the person in breach or the person involved in the breach has paid an amount of compensation, reparation, or restitution, or has taken other steps to avoid or mitigate any actual or potential adverse effects of the breach; and
f: the circumstances in which the breach, or involvement in the breach, took place, including the vulnerability of the employee; and
g: whether the person in breach or the person involved in the breach has previously been found by the Authority or the court in proceedings under this Act or any other enactment to have engaged in any similar conduct.
142G: Maximum amount of pecuniary penalty
If the court determines that it should make a pecuniary penalty order, the maximum amount it may specify in the order is,—
a: in the case of an individual, $50,000:
b: in the case of a body corporate, the greater of—
i: $100,000; or
ii: 3 times the amount of the financial gain made by the body corporate from the breach.
142H: Chief executive or Labour Inspector may enforce payment of pecuniary penalty
The chief executive or a Labour Inspector may recover in the District Court section 142E
142I: Limitation period for actions for pecuniary penalty orders
An application for a pecuniary penalty order under this Part must be made within 12 months after the earlier of—
a: the date when the breach first became known to a Labour Inspector; and
b: the date when the breach should reasonably have become known to a Labour Inspector. Compensation orders
142J: Court may make compensation orders
1: The court may make a compensation order against a person if—
a: the court has made a declaration of breach in respect of the person; and
b: the court is satisfied that the employee concerned (the aggrieved employee
2: The court may not make a compensation order against a person involved in a breach for wages or other money payable to an employee except to the extent that the employee’s employer is unable to pay the wages or other money.
3: An application for a compensation order may be made—
a: only by a Labour Inspector or the aggrieved employee; and
b: at one of the following times:
i: the same time as the application for a declaration of breach; or
ii: subsequently, whether before or after the application for a declaration of breach is determined.
142K: Application of section 132 of this Act and section 83 of Holidays Act 2003
Section 132 of this Act and section 83 of the Holidays Act 2003 apply for the purposes of section 142J
142L: Terms of compensation orders
1: If section 142J
2: An order under this section may include an order to direct a relevant person to pay to the aggrieved employee the amount of the loss or damage (in whole or in part).
3: Subsection (2) subsection (1)
4: In this section, relevant person
a: any person in breach; or
b: any person involved in the breach. Banning orders
142M: Banning orders
1: The court may make a banning order against a person if—
a: the court has made a declaration of breach in respect of the person; or
b: the court is satisfied that the person has persistently breached, or persistently been involved in the breach of, 1 or more employment standards; or
c: the person has been convicted of an offence under section 351 of the Immigration Act 2009.
2: The persons who may apply for a banning order are—
a: a Labour Inspector:
b: an immigration officer under the Immigration Act 2009.
3: For the purposes of subsection (1)﻿(b) section 142ZC or 142ZD
142N: Terms of banning order
1: If the court makes a banning order, the order must prohibit the person from doing 1 or more of the following:
a: entering into an employment agreement as an employer:
b: being an officer of an employer:
c: being involved in the hiring or employment of employees.
2: A person who is subject to a banning order may do something prohibited by the order if the person first obtains the leave of the court to do so.
3: In this section, officer
a: a person occupying the position of a director of a company if the employer is a company:
b: a partner if the employer is a partnership:
c: a general partner if the employer is a limited partnership:
d: a person occupying a position comparable with that of a director of a company if the employer is not a company, partnership, or limited partnership:
e: any other person occupying a position in the employer if the person is in a position to exercise significant influence over the management or administration of the employer.
142O: Duration of banning order
A banning order under section 142M
a: 10 years; or
b: any shorter period specified in the order.
142P: Variation of banning order
A banning order may be—
a: made subject to the terms and conditions that the court thinks fit; and
b: cancelled or varied at any time by the court.
142Q: General provisions for banning orders
1: A Registrar of the court must, as soon as practicable after making a banning order,—
a: give notice to the chief executive that the order has been made; and
b: publish a notice in the Gazette
i: the name of the person against whom the banning order has been made; and
ii: the terms of the order; and
iii: the period or dates for which the order applies.
2: A person intending to apply for the leave of the court under section 142N(2)
3: The department, and any other person the court thinks fit, may attend and be heard at the hearing of an application for leave.
142R: Offence to breach banning order
A person who breaches a banning order commits an offence and is liable on conviction by the District Court Standard of proof
142S: Standard of proof
To avoid doubt, in proceedings under this Part for a declaration of breach, pecuniary penalty order, compensation order, or banning order, the standard of proof is the standard of proof that applies in civil proceedings. Interrelationship of orders
142T: More than one kind of order may be made for same breach
1: The court may make one kind of order under this Part against a person even though the court has made another kind of order, whether under this Part or another Part, against the person in relation to the same breach.
2: Without limiting subsection (1)
a: a pecuniary penalty order and a compliance order may be made against a person for the same breach:
b: a compensation order and a banning order may be made against a person for the same breach.
142U: No pecuniary penalty and criminal sanction or other penalty for same conduct
1: A person cannot be ordered to pay a pecuniary penalty and be liable to a fine or term of imprisonment under this Act or the Immigration Act 2009 for the same conduct.
2: A person cannot be ordered to pay a pecuniary penalty and be liable to another penalty under this Act for the same breach of employment standards. Insurance against pecuniary penalties unlawful and of no effect
142V: Insurance against pecuniary penalties unlawful
1: To the extent that an insurance policy or a contract of insurance indemnifies or purports to indemnify a person for the person's liability to pay a pecuniary penalty under this Act,—
a: the policy or contract is of no effect; and
b: no court or tribunal has jurisdiction to grant relief in respect of the policy or contract, whether under section 7 of the Illegal Contracts Act 1970 or otherwise.
2: A person must not—
a: enter into, or offer to enter into, a policy or contract described in subsection (1)
b: indemnify, or offer to indemnify, another person for the other person's liability to pay a pecuniary penalty under this Act; or
c: be indemnified, or agree to be indemnified, by another person for that person's liability to pay a pecuniary penalty under this Act; or
d: pay to another person, or receive from another person, an indemnity for a pecuniary penalty under this Act. Liability of persons involved in breach, bodies corporate, and principals
142W: Involvement in breaches
1: In this Act, a person is involved in a breach
a: has aided, abetted, counselled, or procured the breach; or
b: has induced, whether by threats or promises or otherwise, the breach; or
c: has been in any way, directly or indirectly, knowingly concerned in, or party to, the breach; or
d: has conspired with others to effect the breach.
2: However, if the person in breach is a company, partnership, limited partnership, or sole trader, a person holding a position in relation to the person in breach may be treated as a person involved in a breach only if the person is an officer of the person in breach.
3: For the purposes of subsection (2)
a: a person occupying the position of a director of a company if the person in breach is a company:
b: a partner if the person in breach is a partnership:
c: a general partner if the person in breach is a limited partnership:
d: a person occupying a position comparable with that of a director of a company if the person in breach is not a company, partnership, or limited partnership:
e: any other person occupying a position in relation to the person in breach if the person is in a position to exercise significant influence over the management or administration of the person in breach.
4: This section does not apply to proceedings for offences.
142X: Person involved in breach liable to penalty
1: A person involved in a breach is liable to a penalty under this Act if—
a: the person is involved in the breach within the meaning of section 142W
b: this Act provides a penalty for the breach.
2: An application for a penalty against a person involved in a breach may be made only by a Labour Inspector.
142Y: When person involved in breach liable for default in payment of wages or other money due to employee
1: A Labour Inspector or an employee may recover from a person who is not the employee’s employer any wages or other money payable to the employee if—
a: there has been a default in the payment of wages or other money payable to the employee; and
b: the default is due to a breach of employment standards; and
c: the person is a person involved in the breach within the meaning of section 142W
2: However, arrears in wages or other money may be recovered under subsection (1)
a: in the case of recovery by an employee, with the prior leave of the Authority or the court; and
b: to the extent that the employee’s employer is unable to pay the arrears in wages or other money.
142Z: State of mind of directors, employees, or agents attributed to body corporate or other principal
1: If, in a proceeding under this Act in respect of any conduct engaged in by a body corporate, being conduct in relation to which any provision of this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, an employee, or an agent of the body corporate, acting within the scope of his or her actual or apparent authority, had that state of mind.
2: If, in a proceeding (other than a proceeding for an offence) under this Act in respect of any conduct engaged in by a person other than a body corporate, being conduct in relation to which any provision of this Act applies, it is necessary to establish the state of mind of the person, it is sufficient to show that an employee or agent of the person, acting within the scope of his or her actual or apparent authority, had that state of mind.
3: In this Act, state of mind
142ZA: Conduct of directors, employees, or agents attributed to body corporate or other principal
1: Conduct engaged in on behalf of a body corporate by any of the following must be treated, for the purposes of this Act, as having been engaged in also by the body corporate:
a: a director, an employee, or an agent of the body corporate who is acting within the scope of his, her, or its actual or apparent authority:
b: any other person at the direction or with the consent or agreement (whether express or implied) of a director, an employee, or an agent of the body corporate, given within the scope of the actual or apparent authority of the director, employee, or agent.
2: Conduct engaged in on behalf of a person other than a body corporate ( A
a: an employee or an agent of A who is acting within the scope of his, her, or its actual or apparent authority:
b: any other person who is acting at the direction or with the consent or agreement (whether express or implied) either of A or of an employee or an agent of A, given within the scope of the actual or apparent authority of the employee or agent. Defences relating to breach of minimum entitlement provisions
142ZB: Proceedings in which defences apply
The defences described in sections 142ZC and 142ZD
a: an action to recover wages or other money under section 142Y section 77A Holidays Act 2003 section 11AA Minimum Wage Act 1983 section 11A Wages Protection Act 1983
b: an action to recover a penalty under section 135 of this Act, section 76 of the Holidays Act 2003 Minimum Wage Act 1983 Wages Protection Act 1983
c: an application under section 142E
d: an application under section 142J
e: an application under section 142M(1)﻿(a)
142ZC: Defences for person in breach
1: In a proceeding referred to in section 142ZB A
a: A's breach was due to reasonable reliance on information supplied by another person; or
b: both of the following apply:
i: A's breach was due to the act or default of another person, or to an accident or to some other cause beyond A's control; and
ii: A took reasonable precautions and exercised due diligence to avoid the breach.
2: In a proceeding referred to in section 142ZB(d) subsection (1)
3: For the purposes of subsection (1)﻿(a) and (b) another person
142ZD: Defences for person involved in breach
1: This section applies if—
a: a person ( A
b: another person ( B
2: In a proceeding referred to in section 142ZB
a: B's involvement in the breach was due to reasonable reliance on information supplied by another person; or
b: B took all reasonable and proper steps to ensure that A complied with the provision.
3: For the purposes of subsection (2)﻿(a) another person New section 142H amended 1 March 2017 section 261 District Court Act 2016 New section 142R amended 1 March 2017 section 261 District Court Act 2016
20: Section 148A amended (Minimum entitlements)
1: Replace the heading to section 148A Certain entitlements may be subject to mediation and agreed terms of settlement
2: In section 148A(1) Minimum entitlements The entitlements specified in subsection (3)
3: In section 148A(2) minimum entitlements entitlements specified in subsection (3)
4: After section 148A(2)
3: This section applies to wages or holiday pay or other money payable by the employer to the employee under the Minimum Wage Act 1983, the Holidays Act 2003, or the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016.
21: Section 159 amended (Duty of Authority to consider mediation)
1: Repeal section 159(1A)
2: After section 159(2)
3: This section applies subject to section 159AA
22: New section 159AA inserted (When mediation in relation to breach of employment standards is appropriate)
After section 159
159AA: When mediation in relation to breach of employment standards is appropriate
If a matter before the Authority relates principally to an alleged breach of employment standards relating to an employee, the Authority must not give a direction that the parties use mediation or further mediation unless—
a: the Authority is satisfied that mediation will be a cheaper and quicker way to clarify disputed facts or otherwise assist the Authority in considering the matter; or
b: the alleged breach appears to be minor and inadvertent; or
c: both parties agree; or
d: the Authority is satisfied that, in the circumstances and having regard to section 3(ab)
23: Section 187 amended (Jurisdiction of court)
After section 187(1)﻿(g)
ga: to hear and determine proceedings for a declaration of breach, pecuniary penalty order, compensation order, or banning order under Part 9A
24: Section 188 amended (Role in relation to jurisdiction)
After section 188(4)
5: This section applies subject to section 188A
25: New section 188A inserted (When mediation in relation to breach of employment standards is appropriate)
After section 188
188A: When mediation in relation to breach of employment standards is appropriate
1: If an application is made for a declaration or an order under section 142B, 142E, 142J, or 142M
2: However, if the matter relates principally to an alleged breach of employment standards relating to an employee (other than an application under section 142B, 142E, 142J, or 142M
a: the court is satisfied that mediation will be a cheaper and quicker way to clarify disputed facts or otherwise assist the court in considering the application; or
b: the alleged breach appears to be minor and inadvertent; or
c: both parties agree; or
d: the court is satisfied that, in the circumstances and having regard to section 3(ab)
26: Section 212 amended (Court may make rules)
After section 212(2)
3: To the extent that the court does not make rules under subsection (1) regulating the practice and procedure of the court under—
a: section 142B
b: section 142E
c: section 142J
d: section 142M proceedings in the court under those sections are to be regulated by the rules applicable to civil proceedings in the High Court, as far as they are applicable and with all necessary modifications.
27: New section 214AA inserted (Appeals against decisions under Part 9A)
After section 214
214AA: Appeals against decisions under Part 9A
1: A party to a proceeding for a declaration of breach, pecuniary penalty order, compensation order, or banning order under Part 9A
2: An appeal under subsection (1)
3: Section 56 of the Senior Courts Act 2016 subsection (1)
4: In determining an appeal, the Court of Appeal may confirm, modify, or reverse the decision, or any part of the decision, appealed against.
5: An appeal under subsection (1) New section 214AA(3) amended 1 March 2017 section 183(b) Senior Courts Act 2016
28: Section 217 amended (Appeal to Court of Appeal against conviction or order or sentence in respect of contempt of court)
1: In section 217 of this Act or section 11A(7) of the Minimum Wage Act 1983
2: At the end of section 217
2: Subsection (1) does not apply to an offence under section 142R Criminal Procedure Act 2011
29: New section 223AAA and cross-heading inserted
After the Part 11 Chief executive
223AAA: Functions of chief executive
The functions of the chief executive under this Act are—
a: to promote the objects of this Act by, among other things,—
i: providing information and advice about employment relationships, including the rights and obligations of employees, employers, and other interested parties; and
ii: promoting the effective resolution of employment relationship problems by providing problem and dispute resolution services; and
iii: publishing information, reports, and guidelines about employment relationships; and
iv: publishing comments about employment relationship matters in relation to particular persons; and
b: to maintain a strategy for promoting compliance with, and enforcement of, the Acts specified in section 223(1); and
c: to perform any other functions and duties conferred on the chief executive by or under the Acts specified in section 223(1).
30: Section 223A amended (Functions of Labour Inspector)
Replace section 223A(c) to (e)
c: monitoring and enforcing compliance with employment standards; and
d: performing any other functions conferred by or under the relevant Acts.
31: Section 228 amended (Actions by Labour Inspector)
In section 228(1) in the name and
32: Section 229 amended (Powers of Labour Inspectors)
1: After section 229(1)﻿(c)﻿(ii)
iii: any other document that the Labour Inspector reasonably believes may assist in determining whether the requirements of the Acts referred to in section 223(1) have been complied with:
2: After section 229(5)
5A: A person is not excused from answering a Labour Inspector’s questions under subsection (1) Part 9A
33: Section 233 amended (Obligations of Labour Inspectors)
Repeal section 233(5)
34: New sections 233A and 233B inserted
After section 233
233A: Obligation of Labour Inspector and department not to disclose information
1: Neither a Labour Inspector who inspects, or is supplied with a copy of, a document under section 229 nor the department may disclose to any person any information obtained as a result of the inspection of the document or the supply of the copy, unless the disclosure is for the purposes of an Act specified in section 223(1).
2: This section applies subject to section 233B
233B: Information sharing
1: A Labour Inspector and the department may provide to a regulatory agency any information, or a copy of any document, that the Labour Inspector or department—
a: holds in relation to the performance or exercise of its functions, duties, or powers under or in relation to the Acts specified in section 223(1); and
b: considers may assist the regulatory agency in the performance or exercise of the regulatory agency’s functions, duties, or powers under or in relation to any enactment.
2: A regulatory agency may provide a Labour Inspector or the department with any information, or a copy of any document, that the regulatory agency—
a: holds in relation to the performance or exercise of its functions, duties, or powers under or in relation to any enactment; and
b: considers may assist the Labour Inspector or department in the performance or exercise of its functions, duties, or powers under or in relation to any of the Acts specified in section 223(1).
3: A Labour Inspector, the department, or a regulatory agency who provides information or a copy of a document under this section may impose conditions relating to the provision of the information, including conditions relating to—
a: the storage and use of, or access to, anything provided:
b: the copying, returning, or disposing of any documents provided.
4: This section applies subject to any other enactment, including the Privacy Act 1993.
5: This section overrides provisions in contracts, deeds, and other documents that are inconsistent with this section.
6: In this section, regulatory agency
a: an immigration officer under the Immigration Act 2009:
b: the Inland Revenue Department:
c: the Ministry of Social Development:
d: the Ministry for Primary Industries:
e: the New Zealand Police:
f: the Registrar of Companies:
g: WorkSafe New Zealand and any agency designated under section 28B of the Health and Safety in Employment Act 1992:
h: any other department of State, person, or organisation defined in regulations as a regulatory agency for the purposes of this section.
35: Section 234 repealed (Circumstances in which officers, directors, or agents of company liable for minimum wages and holiday pay)
Repeal section 234
36: New sections 235A to 235G and cross-heading inserted
After section 235 Infringement offences
235A: Interpretation
In sections 235B to 235F infringement offence
a: a failure by an employer to comply with the requirements of section 64(1) or (2) or 130(1) of this Act or section 81(2) of the Holidays Act 2003:
b: breaches of this Act that are prescribed by regulations as infringement offences.
235B: Infringement offences
1: If a person is alleged to have committed an infringement offence, the person may—
a: be proceeded against by filing a charging document under section 14 of the Criminal Procedure Act 2011; or
b: be served with an infringement notice as provided in section 235D
2: Proceedings commenced in the way described in subsection (1)﻿(a)
235C: Infringement notices
1: An infringement notice may be issued to a person if there are reasonable grounds for believing that the person is committing, or has committed, an infringement offence.
2: Only a Labour Inspector may issue an infringement notice.
235D: Procedural requirements for infringement notices
1: An infringement notice may be served on a person who the Labour Inspector believes has committed the infringement offence—
a: by delivering it, or a copy of it, personally to the person; or
b: by sending it, or a copy of it, by post, addressed to the person at the person’s last known place of residence or business.
2: An infringement notice sent under subsection (1)﻿(b)
3: An infringement notice must be in the prescribed form and must contain—
a: details of the alleged infringement offence that are sufficient to fairly inform a person of the time, place, and nature of the alleged offence; and
b: the amount of the infringement fee; and
c: an address at which the infringement fee may be paid; and
d: the time within which the infringement fee must be paid; and
e: a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957; and
f: a statement that the person served with the notice has a right to request a hearing; and
g: a statement of what will happen if the person served with the notice does not pay the fee and does not request a hearing; and
h: any other prescribed matters.
4: If an infringement notice has been issued, proceedings in respect of the infringement offence to which the notice relates may be commenced in accordance with section 21 of the Summary Proceedings Act 1957 and, in that case,—
a: reminder notices may be prescribed; and
b: in all other respects, section 21 of the Summary Proceedings Act 1957 applies with all necessary modifications.
5: Reminder notices must contain the prescribed information.
235E: Infringement fees
1: The infringement fee payable for an infringement offence is—
a: $1,000 for an infringement offence specified in section 235A(a)
b: the infringement fee specified in regulations for an infringement offence prescribed by regulations under section 235A(b)
2: However, the maximum aggregate infringement fees an employer is liable to pay in a 3-month period is $20,000, whether for breaches of the same provision or breaches of different provisions.
235F: Payment of infringement fee
All infringement fees received must be paid into a Crown Bank Account.
235G: Infringement fee and penalty not payable for the same conduct
A person is not liable to pay an infringement fee and penalty under this Act for the same conduct.
37: Section 237 amended (Regulations)
After section 237(f)
fa: prescribing regulatory agencies for the purposes of section 233B(6)
fb: prescribing infringement offences for the purposes of section 235A(b)
fc: prescribing infringement fees (not exceeding $1,000) for the purposes of section 235E(1)﻿(b)
38: Schedule 1AA amended
1: In Schedule 1AA
1: Interpretation
In this schedule,— 2014 Act 2016 Act Employment Relations Amendment Act 2016
2: In Schedule 1AA
3: Application, savings, and transitional provisions arising from
2016 Act
1: The amendments made by the 2016 Act
2: If a collective agreement (the previous agreement 2016 Act sections 67C to 67H section 9
a: any collective agreement that replaces the previous agreement, on the commencement of the replacement agreement; and
b: an individual employment agreement that comes into force under section 61(2)﻿(a), based on the previous agreement and any additional terms and conditions agreed under section 61(1), on the commencement of the individual employment agreement.
3: If an individual employment agreement has been entered into, or has come into force under section 61(2)﻿(a) 2016 Act sections 67C to 67H section 9
4: Subclause (1) subclauses (5) to (7)
5: The amendment to section 140 (made by section 17 of the 2016 Act 2016 Act
6: Sections 159AA section 22 of the 2016 Act 188A section 25 of the 2016 Act
a: apply only to proceedings filed after the commencement of the 2016 Act
b: may apply to conduct whether it occurred before, on, or after the commencement of the 2016 Act
7: Section 234 (which relates to the circumstances in which officers, directors, or agents of a company are liable for minimum wages and holiday pay) continues to apply (despite its repeal by section 35 of the 2016 Act 2016 Act
39: Consequential amendments
Amend the enactments specified in the Schedule 2016-04-01 Companies Act 1993 Employment Relations Amendment Act 2015 Sleepover Wages (Settlement) Act 2011 Summary Proceedings Act 1957