Employment Relations Amendment Act 2010

1: Title
This Act is the Employment Relations Amendment Act 2010.
2: Commencement
1: Section 11
2: The rest of this Act comes into force on 1 April 2011.
3: Principal Act amended
This Act amends the Employment Relations Act 2000 2011-04-01 Employment Relations Act 2000 All of this Act except section 11 2011-07-01 Employment Relations Act 2000 Section 11 only
1: Amendments to principal Act
4: Interpretation
Section 5 intended agreement minimum entitlements relevant Acts
a: in sections 223A and 223B
b: in sections 223D to 223F .
5: Access to workplaces
Section 20 section 21 sections 20A
6: New section 20A inserted
The following section is inserted after section 20
20A: Representative of union must obtain consent to enter workplace
1: Before entering a workplace under section 21, a representative of a union must request and obtain the consent of the employer or a representative of the employer.
2: If a representative of a union makes a request under subsection (1)
a: the employer or representative of the employer must not unreasonably withhold consent; and
b: the employer or representative of the employer must advise the representative of the union of the employer's or representative of the employer's decision as soon as is reasonably practicable but no later than the working day after the date on which the request was received; and
c: the consent of the employer or representative of the employer (as the case may be) must be treated as having been obtained if the employer or representative of the employer does not respond to the request within 2 working days after the date on which the request was received.
3: If an employer or a representative of an employer withholds consent under subsection (2)
4: This section is subject to sections 22 and 23 (which specify when access to workplaces may be denied).
7: Conditions relating to access to workplaces
Section 21(5)
8: Penalty for certain acts in relation to entering workplace
Section 25
a: contravenes section 20A(2)(a) section 20A(1)
ab: fails to give reasons in writing for withholding consent to access to a workplace in accordance with section 20A(3) .
9: Good faith in bargaining for collective agreement
Section 32
6: To avoid doubt, this section does not prevent an employer from communicating with the employer's employees during collective bargaining (including, without limitation, the employer's proposals for the collective agreement) as long as the communication is consistent with subsection (1)(d) of this section and the duty of good faith in section 4.
10: Bargaining for individual employment agreement or individual terms and conditions in employment agreement
1: Section 63A(2)(a) , or the part of the intended agreement,
2: Section 63A(2)(b) or any part of the intended agreement
11: New section 64 inserted
The following section is inserted after section 63A
64: Employer must retain copy of individual employment agreement or individual terms and conditions of employment
1: When section 63A applies, the employer must retain a signed copy of the employee's individual employment agreement or the current terms and conditions of employment that make up the employee's individual terms and conditions of employment (as the case may be).
2: If an employer has provided an employee with an intended agreement under section 63A(2)(a), the employer must retain a copy of that intended agreement even if the employee has not—
a: signed the intended agreement; or
b: agreed to any of the terms and conditions specified in the intended agreement.
3: If requested by the employee, the employer must, as soon as is reasonably practicable, provide the employee with a copy of the employee's—
a: individual employment agreement or current terms and conditions of employment retained under subsection (1)
b: intended agreement retained under subsection (2)
4: An employer who fails to comply with subsection (1), (2), or (3)
5: Before bringing an action under subsection (4)
a: give the employer written notice of the breach of this section; and
b: give the employer 7 working days to remedy the breach.
6: To avoid doubt, an intended agreement must not be treated as the employee's employment agreement if the employee has not—
a: signed the intended agreement; or
b: agreed to any of the terms and conditions specified in the intended agreement.
12: Terms and conditions of employment where no collective agreement applies
Section 65
4: An employer who fails to comply with this section is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.
13: When employment agreement may contain provision for trial period for 90 days or less
1: Section 67A(1) as defined in subsection (4)
2: Section 67A(4)
14: Object of this Part
Section 101(c)
15: New section 103A substituted
Section 103A
103A: Test of justification
1: For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2)
2: The test is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
3: In applying the test in subsection (2)
a: whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
b: whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
c: whether the employer gave the employee a reasonable opportunity to respond to the employer's concerns before dismissing or taking action against the employee; and
d: whether the employer genuinely considered the employee's explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
4: In addition to the factors described in subsection (3)
5: The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were—
a: minor; and
b: did not result in the employee being treated unfairly.
16: New section 125 substituted
Section 125
125: Remedy of reinstatement
1: This section applies if—
a: it is determined that the employee has a personal grievance; and
b: the remedies sought by or on behalf of an employee in respect of a personal grievance include reinstatement (as described in section 123(1)(a)).
2: The Authority may, whether or not it provides for any of the other remedies specified in section 123, provide for reinstatement if it is practicable and reasonable to do so.
17: New section 134A inserted
The following section is inserted after section 134
134A: Penalty for obstructing or delaying Authority investigation
1: Every person is liable to a penalty under this Act who, without sufficient cause, obstructs or delays an Authority investigation, including failing to attend as a party before an Authority investigation (if required).
2: The power to award a penalty under subsection (1)
a: of its own motion; or
b: on the application of any party to the investigation.
18: Recovery of penalties
1: Section 135(2)(a) $5,000 $10,000
2: Section 135(2)(b) $10,000 $20,000
3: Section 135
4B: In determining whether to give judgment for a penalty, and the amount of that penalty, the Authority or the court must consider whether the person against whom the penalty is sought has previously failed to comply with an improvement notice issued under section 223D
19: Power of Authority to order compliance
Section 137(1)(a)
iiia: an enforceable undertaking that section 223C(1)
iiib: an improvement notice that section 223D(6) .
20: Further provisions relating to compliance order by Authority
Section 138(1)(b)
iii: in the case of sections 223C, 223D(6)
21: Procedure in relation to mediation services
Section 147(2)
ac: may assist the parties to resolve a problem at an early stage, including, at the request of a party, discussing the problem with that party without any representative of that party being present; and .
22: New section 148A inserted
The following section is inserted after section 148
148A: Minimum entitlements
1: Minimum entitlements may be the subject of—
a: mediation under this Part; and
b: agreed terms of settlement under section 149(1).
2: Despite subsection (1)
23: Settlements
Section 149
3A: For the purposes of subsection (3)
24: New section 149A inserted
The following section is inserted after section 149
149A: Recommendation to parties
1: The parties to a problem may agree in writing—
a: to confer the power to make a written recommendation in relation to the matters in issue on a person employed or engaged by the chief executive to provide mediation services; and
b: on the date on which that person's recommendation will become final, unless the parties do not accept the recommendation.
2: The person on whom the power is conferred must, before making and signing a recommendation under that power,—
a: explain to the parties the effect of subsections (4) and (5)
b: be satisfied that, knowing the effect of those subsections, the parties affirm their agreement.
3: Where, following the affirmation referred to in subsection (2) subsection (1) subsection (1)(b)
4: If a party gives notice under subsection (3)
a: further mediation services may be provided in order to attempt to resolve the problem; and
b: either party to the problem may request those services be provided by a person other than the person who made the recommendation.
5: If a party does not give notice under subsection (3)
a: the recommendation becomes final and binding on, and enforceable by, the parties; and
b: a party may not seek to bring that recommendation before the Authority or the court, whether by action, appeal, application for review, or otherwise, except for enforcement purposes.
25: New section 151 substituted
Section 151
151: Enforcement of terms of settlement agreed or authorised
1: This section applies to—
a: any agreed terms of settlement that are enforceable by the parties under section 149(3):
b: any recommendation that is enforceable by the parties under section 149A(5)
c: any decision that is enforceable by the parties under section 150(3).
2: A matter referred to in subsection (1)
a: by compliance order under section 137; or
b: in the case of a monetary settlement, in 1 of the following ways:
i: by compliance order under section 137:
ii: by using, as if the settlement, recommendation, or decision were an order enforceable under section 141, the procedure applicable under section 141.
26: Role of Authority
Section 157
3: The Authority must act as it thinks fit in equity and good conscience, but may not do anything that is inconsistent with—
a: this Act; or
b: any regulations made under this Act; or
c: the relevant employment agreement.
27: Duty of Authority to consider mediation
1: Section 159(1)(b) ; and ; or
iv: will be otherwise impractical or inappropriate in the circumstances; and .
2: Section 159
1A: If the matter before the Authority was brought by a Labour Inspector and relates to an employee's minimum entitlements, the Authority must, before giving a direction under subsection (1)(b) or (c), consider whether it is appropriate to direct that mediation or further mediation be used in order to prevent the matter being resolved in a manner that involves a reduction of those minimum entitlements.
28: New section 159A inserted
The following section is inserted after section 159
159A: Duty of Authority to prioritise previously mediated matters
1: This section applies if a matter comes before the Authority for investigation and determination and an attempt has been made to resolve the matter by mediation.
2: The Authority must give priority to investigating and determining the matter referred to in subsection (1) or (1A)
29: Powers of Authority
1: Section 160
2A: The Authority must allow cross-examination of a party or a person to the extent that is consistent with subsection (2).
2: Section 160
4: The Authority may not make a freezing order or search order as provided for in the High Court Rules.
30: Membership of Authority
Section 166(3)
31: New section 166A inserted
The following section is inserted after section 166
166A: Role of Chief of Authority
1: In addition to deciding matters as a member of the Authority, the Chief of the Authority is responsible for—
a: making any arrangements that are practicable to ensure that the members of the Authority discharge their functions—
i: in an orderly and expeditious way; and
ii: in a way that meets the objects of this Act; and
b: directing the education, training, and professional development of members of the Authority.
2: Without limiting subsection (1)
a: issue instructions (not inconsistent with this Act or regulations made under it) that outline expectations in respect of the process, timeliness, or any other matter relating to the hearing and determination of matters before the Authority; and
b: require particular members of the Authority to investigate particular matters.
3: For the purposes of section 169(3) subsection (2)(a)
32: Term of office
Section 169
3: Before recommending the reappointment of a member of the Authority under section 167, the Minister must, if the Chief of the Authority has provided a report in respect of the member under section 166A(3)
33: New sections 173 and 173A substituted
Section 173
173: Procedure
1: The Authority, in exercising its powers and performing its functions, must—
a: comply with the principles of natural justice; and
b: act in a manner that is reasonable, having regard to its investigative role.
2: The Authority may exercise its powers under section 160 in the absence of 1 or more of the parties.
3: However, if the Authority acts under subsection (2)
a: any material it receives that is relevant to the case of the absent party; and
b: an opportunity to comment on the material before the Authority takes it into account.
4: To avoid doubt, subsections (2) and (3) ex parte
5: The Authority may meet with the parties at the times and places fixed by a member of the Authority or an officer of the Authority.
6: Meetings of the Authority may be adjourned from time to time and from place to place by a member of the Authority or an officer of the Authority designated for the purpose by the chief executive, whether at any meeting or at any time before the time fixed for the meeting.
173A: Recommendation to parties
1: The parties to an employment relationship problem may agree in writing—
a: to confer the power to make a written recommendation in relation to the matters in issue on a member of the Authority; and
b: on the date on which the member's recommendation will become final, unless the parties do not accept the recommendation.
2: The member must, before making and signing a recommendation under that power,—
a: explain to the parties the effect of subsections (4) and (5)
b: be satisfied that, knowing the effect of those subsections, the parties affirm their agreement.
3: Where, following the affirmation referred to in subsection (2) subsection (1) subsection (1)(b)
4: If a party gives notice under subsection (3)
a: the Authority must continue to investigate and determine the matter; and
b: either party to the problem may request that the matter be further investigated and determined by a member other than the member who made the recommendation.
5: If a party does not give notice under subsection (3)
6: However, a recommendation under subsection (5)
34: Removal to court
1: Section 178
1: The Authority may, on its own motion or on the application of a party to a matter, order the removal of the matter, or any part of it, to the court to hear and determine the matter without the Authority investigating it.
2: Section 178(3) any matter any matter on application under subsection (1)
35: New section 178A inserted
The following section is inserted after section 178
178A: Challenge in respect of dismissal of frivolous or vexatious proceedings
1: A party to a matter before the Authority that was dismissed because the Authority determined it was frivolous or vexatious under clause 12A of Schedule 2
2: A challenge under this section must be made in the prescribed manner within 28 days after the date that the matter is dismissed by the Authority.
3: The court must determine whether it considers the matter to be frivolous or vexatious.
4: If the court does not determine that the matter is frivolous or vexatious, it must order the Authority to investigate and determine the matter.
36: Application of other provisions
Section 190
3: In addition to the powers described in subsection (1), the court has the same powers of the High Court to make a freezing order and a search order as provided for in the High Court Rules.
37: New sections 223A to 223G inserted
The following sections are inserted after section 223
223A: Functions of Labour Inspector
The functions of a Labour Inspector include—
a: determining whether the provisions of the relevant Acts have been complied with; and
b: taking all reasonable steps to ensure that the relevant Acts are complied with; and
c: supporting employers, employees, and other persons in complying with the relevant Acts by providing information and education; and
d: preventing non-compliance with the relevant Acts by assisting employers to implement systems and practices that comply with the provisions of the relevant Acts; and
e: providing any other services that assist employers and employees to resolve, promptly and effectively, employment relationship problems arising under the relevant Acts. Enforceable undertakings
223B: Enforceable undertakings
1: A Labour Inspector and an employer may agree in writing that the employer will undertake by a specified date (an enforceable undertaking
a: rectify the breach of any provision of the relevant Acts; or
b: pay money owed to an employee under a provision of the relevant Acts; or
c: take any other action that the Labour Inspector determines is appropriate having regard to the nature of the breach of the provision of the relevant Act.
2: The employer may withdraw or vary an enforceable undertaking agreed under subsection (1)
223C: Enforcement of undertakings
1: An enforceable undertaking may be enforced by the Authority making a compliance order under section 137.
2: An employer who fails to comply with an enforceable undertaking that remains in force is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.
3: If the enforceable undertaking relates to a monetary settlement, the enforceable undertaking may be enforced by using, as if the undertaking were an order enforceable under section 141, the procedure applicable under section 141. Improvement notices
223D: Labour Inspector may issue improvement notice
1: A Labour Inspector who believes on reasonable grounds that any employer is failing, or has failed, to comply with any provision of the relevant Acts may issue the employer with an improvement notice that requires the employer to comply with the provision.
2: An improvement notice issued under subsection (1)
a: the provision that the Labour Inspector reasonably believes that the employer is failing, or has failed, to comply with; and
b: the Labour Inspector's reasons for believing that the employer is failing, or has failed, to comply with the provision; and
c: the nature and extent of the employer's failure to comply with the provision; and
d: the steps that the employer could take to comply with the provision; and
e: the date before which the employer must comply with the provision.
3: An improvement notice may state the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).
4: An improvement notice may be issued—
a: by giving it to the employer concerned; or
b: if the employer does not accept the improvement notice, by leaving it in the employer’s presence and drawing the employer’s attention to it.
5: An improvement notice may not be issued in the period commencing on 17 December and ending with the close of 8 January in the following year.
6: An improvement notice may be enforced by the making by the Authority of a compliance order under section 137.
223E: Objection to improvement notice
1: An employer may, within 28 days after the improvement notice is issued to the employer, lodge with the Authority an objection to the notice.
2: The function of the Authority in respect of an objection is to determine—
a: whether the employer is failing, or has failed, to comply with the specified provision of the relevant Acts; and
b: the nature and extent of the employer's failure to comply with the provision; and
c: the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).
3: The Authority may confirm, vary, or rescind the improvement notice as the Authority thinks fit.
223F: Penalty
1: An employer who fails to comply with an improvement notice issued under section 223D
2: If subsection (1)
223G: Withdrawal of improvement notice
An improvement notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of an improvement notice does not prevent another improvement notice being served in relation to the same matter.
38: Actions by Labour Inspectors
Section 228
2: If a Labour Inspector commences an action under subsection (1), the Labour Inspector must not issue an improvement notice under section 223D
39: Amendments to Schedules 2 and 3
1: Schedule 2 Part 1
2: Schedule 3 Part 2
2: Consequential amendments and transitional provision
40: Consequential amendments to other enactments
The enactments specified in Schedule 2 2011-04-01 Holidays Act 2003 Minors' Contracts Act 1969
41: Transitional provision
Section 64 section 11