Support Workers (Pay Equity) Settlements Act 2017

1: Title
This Act is the Support Workers (Pay Equity) Settlements Act 2017 Section 1 amended 7 August 2020 section 4 Support Workers (Pay Equity) Settlements Amendment Act 2020
2: Commencement
This Act comes into force on 1 July 2017
1: Preliminary provisions
3: Purpose
1: The purposes of this Act are—
a: to implement the settlement agreements
b: to apply the terms of those agreements the agreements
c: to set minimum hourly wage rates for work performed by support workers after the expiry of those agreements.
2: The settlement agreements are—
a: the agreement in respect of care and support workers signed on 2 May 2017 by or on behalf of the Crown, ACC, the predecessors of Health New Zealand
b: the agreement in respect of vocational and disability support workers signed on 17 July 2017 by or on behalf of the Crown, E tū Incorporated, the New Zealand Public Service Association Te Pūkenga Here Tikanga Mahi Incorporated, and the New Zealand Council of Trade Unions Te Kauae Kaimahi Incorporated; and
c: the agreement in respect of mental health and addiction support workers signed on 25 July 2018 by or on behalf of the Crown, the predecessors of Health New Zealand Section 3(1)﻿(a) amended 7 August 2020 section 5(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 3(1)﻿(b) amended 7 August 2020 section 5(2)﻿(a) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 3(1)﻿(b) amended 7 August 2020 section 5(2)﻿(b) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 3(1)﻿(b) amended 7 August 2020 section 5(2)﻿(c) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 3(1)﻿(c) inserted 1 July 2022 section 4 Support Workers (Pay Equity) Settlements Amendment Act 2022 Section 3(2) replaced 7 August 2020 section 5(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 3(2)﻿(a) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 3(2)﻿(c) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022
4: Overview
To achieve its purposes, this Act—
a: extinguishes existing claims and bars future claims by Equal Pay Act 1972
b: specifies minimum hourly wage rates payable by employers to 31 December 2023
c: requires employers to provide support for
d: provides for the funders Section 4(a) amended 7 August 2020 section 6(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 4(b) amended 1 July 2022 section 5 Support Workers (Pay Equity) Settlements Amendment Act 2022 Section 4(b) amended 7 August 2020 section 6(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 4(c) amended 7 August 2020 section 6(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 4(d) amended 7 August 2020 section 6(2) Support Workers (Pay Equity) Settlements Amendment Act 2020
5: Interpretation
In this Act, unless the context otherwise requires,— ACC section 259 care and support services
a: means—
i: services that are funded by Health New Zealand, the Māori Health Authority
A: assisting the person to continue to live in the person’s home or in the community (such as personal care and household management services); or
B: assisting a person who has a disability to work in the community; or
C: in respect of a person with an injury covered by the Accident Compensation Act 2001
ii: long-term residential care in a hospital or a rest home that is assessed as required under section 137 or sections 27 to 29
b: does not include mental health and addiction support services, vocational and disability support services, or services provided by a health practitioner care and support worker
a: means a person—
i: who is an employee of an employer; and
ii: whose work for that employer primarily involves providing care and support services; and
b: for the purposes of section 8
i: who was previously an employee of an employer; and
ii: whose work for that employer primarily involved providing care and support services continuous employment
a: includes any period during which the worker is—
i: on paid holidays or leave under the Holidays Act 2003
ii: on parental leave under the Parental Leave and Employment Protection Act 1987
iii: on volunteers leave (within the meaning of that term in section 2(1)
iv: receiving weekly compensation under the Accident Compensation Act 2001
v: on unpaid sick leave or unpaid bereavement leave; or
vi: on unpaid leave for any other reason for a period of no more than 1 week; or
vii: continuously employed by a previous employer, if—
A: the worker transferred from the previous employer to the current employer; and
B: the transfer was a result of restructuring (within the meaning of that term in section 69B
b: unless otherwise agreed between the worker and the worker’s employer, does not include unpaid leave that is not referred to in paragraph (a)﻿(v) or (vi) Department of Corrections employee section 6(1)﻿(a) or (b)﻿(i) employer
a: means—
i: a person, trust, or partnership that receives funding from a funder to provide support services; and
ii: the person or persons who have the legal authority to make decisions on behalf of an employer to which subparagraph (i) applies, if the employer does not itself have separate legal personality; and
iii: a person, trust, or partnership that provides
iv: Health New Zealand; but
b: does not include a natural person who receives funding directly from ACC, Health New Zealand, or the Māori Health Authority towards the cost of care and support services for the person or a family member of the person funder Ministry for Children, Health New Zealand, the Māori Health Authority, or ACC funding agreement
a: in relation to funding agreements to which a funder other than ACC between the funder
b: in relation to funding agreements to which ACC is a party, an agreement between ACC and an employer that is titled—
i: Home and Community Support Services; or
ii: Individual Residential Support Services; or
iii: Residential Support Services Health New Zealand section 4 health practitioner section 5(1) level 2 qualification
a: a level 2 New Zealand Certificate in Health and Wellbeing issued by NZQA; or
b: a qualification (whether from New Zealand or overseas) that is recognised by the relevant workforce development council (as defined in section 10(1) level 3 qualification
a: a level 3 New Zealand Certificate in Health and Wellbeing issued by NZQA; or
b: a qualification (whether from New Zealand or overseas) that is recognised by the relevant workforce development council (as defined in section 10(1) level 4 qualification
a: a level 4 New Zealand Certificate in Health and Wellbeing issued by NZQA; or
b: a qualification (whether from New Zealand or overseas) that is recognised by the relevant workforce development council (as defined in section 10(1) mental health and addiction support services
a: means services that are funded under a funding agreement and that are provided to—
i: a person who has a mental health need or an addiction need for the purpose of assisting them to—
A: continue to live in their home or in the community (such as personal care and household management services); or
B: work or volunteer in the community; or
C: participate in activities in, and contribute to, their community; or
D: learn new skills to manage their lives and achieve overall well-being; or
E: maintain and develop social and support networks; or
ii: a person with a mental injury covered by the Accident Compensation Act 2001
A: supporting their rehabilitation from the injury; or
B: supporting them to achieve and sustain their maximum level of participation in everyday life; but
b: does not include—
i: care and support services; or
ii: vocational and disability support services; or
iii: services provided by a health practitioner; or
iv: services provided at a location other than the following:
A: the person’s home (including a residential care facility, a retirement village, and a rest home):
B: the person’s workplace:
C: an employer facility:
D: a community facility mental health and addiction support worker
a: means a person—
i: who is an employee of an employer; and
ii: whose work for that employer primarily involves providing support services; and
iii: who, of the support services that the person provides, primarily provides mental health and addiction support services; and
b: for the purposes of Part 2
i: who was previously an employee of an employer; and
ii: whose work for that employer primarily involved providing support services; and
iii: who, of the support services that the person provided, primarily provided mental health and addiction support services Ministry of Health public service Ministry of Social Development NZQA continued by section 430 Oranga Tamariki—Ministry for Children ordinary hourly wage
a: means the worker’s wage for an hour’s work in the worker’s substantive position; and
b: does not include any other amounts paid, including an amount paid for working overtime, for working at night or on a weekend, or for acting in a position for which there is a higher hourly wage. relevant date
a: in relation to a care and support worker, means 1 July 2017; and
b: in relation to all other support workers, means the date on which the Support Workers (Pay Equity) Settlements Amendment Act 2020 support services support worker
a: means an employee of an employer whose work for that employer primarily involves providing support services; and
b: for the purposes of section 8 Part 2 vocational and disability support services
a: means services that are funded by the Ministry of Social Development or Oranga Tamariki—Ministry for Children under a funding agreement that are provided to a person with a disability for the purposes of assisting them to—
i: continue to live in their home or in the community (such as personal care and household management services); or
ii: work or volunteer in the community; or
iii: participate in activities in, and contribute to, their community; or
iv: learn new skills to manage their lives and achieve overall well-being; or
v: maintain and develop social and support networks; but
b: does not include care and support services, mental health and addiction support services, or services provided by a health practitioner vocational and disability support worker
a: means a person—
i: who is an employee of an employer; and
ii: whose work for that employer primarily involves providing support services; and
iii: who, of the support services that the person provides, primarily provides vocational and disability support services; and
b: for the purposes of Part 2
i: who was previously an employee of an employer; and
ii: whose work for that employer primarily involved providing support services; and
iii: who, of the support services that the person provided, primarily provided vocational and disability support services. Section 5 care and support services amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 5 care and support services amended 7 August 2020 section 7(1)﻿(a) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 care and support services replaced 7 August 2020 section 7(1)﻿(b) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 care and support services amended 26 November 2018 section 459 Social Security Act 2018 Section 5 care and support services replaced 7 August 2020 section 7(1)﻿(c) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 continuous employment amended 7 August 2020 section 7(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 Department of Corrections inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 DHB repealed 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 5 employer replaced 7 August 2020 section 7(4)﻿(a) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 employer amended 7 August 2020 section 7(4)﻿(b) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 employer replaced 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 5 employer replaced 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 5 funder replaced 7 August 2020 section 7(5) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 funder amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 5 funding agreement amended 7 August 2020 section 7(6)﻿(a) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 funding agreement amended 7 August 2020 section 7(6)﻿(b) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 funding agreement amended 7 August 2020 section 7(6)﻿(c) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 Health New Zealand inserted 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 5 health practitioner inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 level 2 qualification amended 1 August 2020 section 668 Education and Training Act 2020 Section 5 level 2 qualification amended 1 April 2020 section 78(1) Education (Vocational Education and Training Reform) Amendment Act 2020 Section 5 level 3 qualification amended 1 August 2020 section 668 Education and Training Act 2020 Section 5 level 3 qualification amended 1 April 2020 section 78(1) Education (Vocational Education and Training Reform) Amendment Act 2020 Section 5 level 4 qualification amended 1 August 2020 section 668 Education and Training Act 2020 Section 5 level 4 qualification amended 1 April 2020 section 78(1) Education (Vocational Education and Training Reform) Amendment Act 2020 Section 5 mental health and addiction support services inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 mental health and addiction support worker inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 Ministry of Health amended 7 August 2020 section 135 Public Service Act 2020 Section 5 Ministry of Social Development inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 NZQA amended 1 August 2020 section 668 Education and Training Act 2020 Section 5 Oranga Tamariki—Ministry for Children inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 ordinary hourly wage amended 7 August 2020 section 7(7) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 relevant date inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 support services inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 support worker inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 vocational and disability support services inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 5 vocational and disability support worker inserted 7 August 2020 section 7(3) Support Workers (Pay Equity) Settlements Amendment Act 2020
6: Transitional, savings, and related provisions
The transitional, savings, and related provisions (if any) set out in Schedule 1
7: Act binds the Crown
This Act binds the Crown.
2: Support Part 2 heading amended 7 August 2020 section 8 Support Workers (Pay Equity) Settlements Amendment Act 2020 Extinguishing and barring claims under Equal Pay Act 1972 by Heading amended 7 August 2020 section 9 Support Workers (Pay Equity) Settlements Amendment Act 2020
8: Existing claims extinguished and potential claims barred
1: This section applies to—
a: any claim by or on behalf of a support worker under the Equal Pay Act 1972
b: any potential claim by or on behalf of a Equal Pay Act 1972
2: The claim or potential claim cannot be pursued and must be treated as if it had been withdrawn or is incapable of being lodged.
3: To avoid doubt, this section does not affect—
a: any claim or potential claim under the Equal Pay Act 1972
b: any claim or potential claim under the Equal Pay Act 1972 Section 8(1)﻿(a) replaced 7 August 2020 section 10(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 8(1)﻿(b) amended 7 August 2020 section 10(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 8(3)﻿(a) amended 7 August 2020 section 10(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 8(3)﻿(b) amended 7 August 2020 section 10(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Wage rates
9: Minimum hourly wage rates
1: An employer must pay a
a: the applicable hourly wage set out in Schedule 2
b: the ordinary hourly wage that the employer was required to pay the worker under the terms and conditions of employment in place between the employer and the worker immediately before the relevant date
2: This section does not apply in respect of—
a: time spent by the worker in providing excluded services; or
b: time spent by the worker in travel between clients within the meaning of that term in section 4
c: a period of time spent by a worker overnight during which the worker, under the terms of the worker’s employment agreement, is—
i: required to be at the worker’s workplace; and
ii: allowed to sleep at the workplace while on duty; and
iii: required to be available to attend to the worker’s duties during the course of the night as necessary.
3: In this section,— excluded services
a:
b: services for which the employer receives funding from a funder other than funding under a funding agreement or under section 18
c: workplace section 5 Section 9(1) amended 7 August 2020 section 11(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 9(1)﻿(b) amended 7 August 2020 section 11(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 9(3) excluded services repealed 7 August 2020 section 11(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 9(3) excluded services repealed 7 August 2020 section 11(3) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 9(3) Ministry for Vulnerable Children, Oranga Tamariki repealed 7 August 2020 section 135 section 11(4) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 9(3) Ministry of Social Development repealed section 135 7 August 2020 section 11(4) Support Workers (Pay Equity) Settlements Amendment Act 2020
9A: Minimum hourly wage rates for mental health and addiction support services provided to individual clients
1: This section applies to a person (an individually funded client
a: receives funding directly from a funder towards the cost of mental health and addiction support services for that person; and
b: employs a person (a worker
2: The individually funded client must pay the worker, for the provision of the services, no less than the greater of—
a: the applicable hourly wage set out in Schedule 2
b: the ordinary hourly wage that the client was required to pay the worker under the terms and conditions of employment in place between the client and the worker immediately before the commencement of the Support Workers (Pay Equity) Settlements Amendment Act 2020
3:
4: This section does not apply in respect of a period of time spent by a worker overnight during which the worker, under the terms of the worker’s employment agreement, is—
a: required to be at the worker’s workplace; and
b: allowed to sleep at the workplace while on duty; and
c: required to be available to attend to the worker’s duties during the course of the night as necessary. Section 9A inserted 7 August 2020 section 12 Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 9A(3) repealed 30 September 2020 section 5(3) New Zealand Public Health and Disability Amendment Act 2020
10: Weekend and night penal rates
1: This section applies to a term or condition of an employment agreement that—
a: was agreed before the relevant date
b: requires an employer to pay a
2: For work to which section 9 relevant date relevant date Example
Before the relevant date On and from the relevant date relevant date Section 10(1)﻿(a) amended 7 August 2020 section 13(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 10(1)﻿(b) amended 7 August 2020 section 13(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 10(2) amended 7 August 2020 section 13(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 10(2) example amended 7 August 2020 section 13(1) Support Workers (Pay Equity) Settlements Amendment Act 2020
11: Previous agreements that require allowances for service or qualifications unenforceable
1: This section applies to a term or condition of an employment agreement that—
a: was agreed before the relevant date
b: requires an employer to pay a
2: To the extent that the term or condition applies to work to which section 9 Section 11(1)﻿(a) amended 7 August 2020 section 14(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 11(1)﻿(b) amended 7 August 2020 section 14(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Support for training
12: Employers must ensure
1: An employer must take all reasonably practicable steps to ensure that a
a: a level 2 qualification within the first 12 months of the worker’s continuous employment with the employer; and
b: a level 3 qualification within the first 36 months of the worker’s continuous employment with the employer; and
c: a level 4 qualification within the first 72 months of the worker’s continuous employment with the employer.
2: If a Section 12 heading amended 7 August 2020 section 15(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 12(1) amended 7 August 2020 section 15(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 12(2) amended 7 August 2020 section 15(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Enforcement
13: Compliance dispute is employment relationship problem
A dispute about whether an employer is complying, or has complied, with this Act—
a: is an employment relationship problem within the meaning of that term in section 5
b: must be resolved in accordance with that Act.
14: Support An employer’s failure to pay a section 131 Section 14 heading amended 7 August 2020 section 16(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 14 amended 7 August 2020 section 16(2) Support Workers (Pay Equity) Settlements Amendment Act 2020
15: Failure to comply with training obligations constitutes grounds for personal grievance
An employer’s failure to comply with section 12 section 103(1)﻿(b) Relationship between this Act and employment agreements
16: This Act overrides terms and conditions of employment agreements
1: An employment agreement that contains a term or condition that excludes, restricts, or reduces a
a: has no effect to the extent that it does so, regardless of whether the term or condition was agreed before or after the relevant date
b: is not an illegal contract under the Illegal Contracts Act 1970 Contract and Commercial Law Act 2017
2: Each employment agreement between an employer and a relevant date sections 9 to 12 Section 16(1) amended 7 August 2020 section 17(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 16(1)﻿(a) amended 7 August 2020 section 17(2) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 16(2) amended 7 August 2020 section 17(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 16(2) amended 7 August 2020 section 17(2) Support Workers (Pay Equity) Settlements Amendment Act 2020
17: Employer and
Nothing in this Act prevents an employer and a
a: pay the worker more than is required under this Act; or
b: provide more support for the worker to gain a qualification than is required by this Act. Section 17 heading amended 7 August 2020 section 18(1) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 17 amended 7 August 2020 section 18(2) Support Workers (Pay Equity) Settlements Amendment Act 2020
3: Funding of employers and miscellaneous provisions
1: Funding of employers
18: Funding amounts increased
1: A funder must pay an employer with whom the funder has a funding agreement additional amounts over and above the amounts required by the funding agreement towards offsetting the additional costs faced by the employer as a result of this Act.
2: The funder must determine the additional amounts, taking into account—
a: the increased wage costs faced by the employer as a result of this Act; and
b: the increased training costs faced by the employer as a result of this Act; and
c: any other matter that the funder considers appropriate.
3: The funder’s determination of the additional amounts is final.
4: This section applies only in respect of funding agreements entered into before,—
a: in relation to care and support services and vocational and disability support services, 1 July 2017; and
b: in relation to mental health and addiction support services, 1 July 2018. Section 18(4) replaced 7 August 2020 section 19 Support Workers (Pay Equity) Settlements Amendment Act 2020
19: Records to support additional funding
1: An employer must keep a record, for each
a: the qualifications, if any, held by the worker; and
b: the length of time that the worker has been continuously employed by the employer.
2: An employer must, on the request of a funder with whom the employer has a funding agreement, provide to the funder—
a: the records kept under subsection (1); and
b: the wages and time record kept by the employer for each section 130
3: An employer who fails to comply with subsection (1) or (2)﻿(a) is liable to a penalty imposed by the Employment Relations Authority under the Employment Relations Act 2000 Section 19(1) amended 7 August 2020 section 20 Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 19(2)﻿(b) amended 7 August 2020 section 20 Support Workers (Pay Equity) Settlements Amendment Act 2020
2: Consequential amendments and repeal of this Act
20: Amendments to Employment Relations Act 2000
1: This section amends the Employment Relations Act 2000
2: In section 148A(3) or the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016, or the Care and Support Workers (Pay Equity) Settlement Act 2017
3: After section 161(1)﻿(m)﻿(ii)
iia: under the Care and Support Workers (Pay Equity) Settlement Act 2017:
4: After section 223(1)﻿(a)
ab: the Care and Support Workers (Pay Equity) Settlement Act 2017; and
5: After section 236(4)﻿(b)
ba: the Care and Support Workers (Pay Equity) Settlement Act 2017: 2017-07-01 Employment Relations Act 2000
21: Repeal of this Act
1: Sections 9 to 20 Schedule 2 1 January 2024
2: The remainder of this Act is repealed on 1 July 2028. 2024-01-01 Care and Support Workers (Pay Equity) Settlement Act 2017 refer s 21(1) 2028-07-01 Care and Support Workers (Pay Equity) Settlement Act 2017 refer s 21(2) Section 21(1) amended 1 July 2022 section 6 Support Workers (Pay Equity) Settlements Amendment Act 2022