Employment Relations Amendment Act 2014

1: Title
This Act is the Employment Relations Amendment Act 2014
2: Commencement
This Act comes into force 4 months after the date on which it receives the Royal assent.
3: Principal Act
This Act amends the Employment Relations Act 2000 principal Act 2015-03-06 Employment Relations Act 2000 This Act comes into force 4 months after the date on which it receives the Royal assent – date of assent is 2014-11-06.
1: Amendments to principal Act
Amendments to Part 1 (Key provisions)
4: Section 4 amended (Parties to employment relationship to deal with each other in good faith)
Replace section 4(1B) and (1C)
1B: However, subsection (1A)(c) does not require an employer to provide access to confidential information—
a: that is about an identifiable individual other than the affected employee if providing access to that information would involve the unwarranted disclosure of the affairs of that other individual:
b: that is subject to a statutory requirement to maintain confidentiality:
c: where it is necessary, for any other good reason, to maintain the confidentiality of the information (for example, to avoid unreasonable prejudice to the employer's commercial position).
1C: To avoid doubt,—
a: subsection (1B)
i: the Official Information Act 1982 (despite section 52(3) of that Act); or
ii: the Privacy Act 1993 (despite section 7(2) of that Act):
b: an employer must not refuse to provide access to information under subsection (1A)(c)
1D: For the purposes of subsections (1B) and (1C) confidential information
5: Section 5 amended (Interpretation)
In section 5 relevant Acts relevant Acts
a: in sections 223A and 223B, means the Acts specified in section 223(1), except section 69LA
b: in sections 223D to 223F, means the Acts specified in section 223(1), except Part 5 and section 69LA .
6: New section 5A inserted (Provisions affecting application of amendments to this Act)
After section 5
5A: Provisions affecting application of amendments to this Act
Schedule 1AA see section 254 Amendments to Part 5 (Collective bargaining)
7: Section 31 amended (Object of this Part)
Repeal section 31(aa)
8: Section 32 amended (Good faith in bargaining for collective agreement)
Repeal section 32(1)(ca)
9: Section 33 replaced (Duty of good faith requires parties to conclude collective agreement unless genuine reason not to)
Replace section 33
33: Duty of good faith does not require collective agreement to be concluded
1: The duty of good faith in section 4 does not require a union and an employer bargaining for a collective agreement—
a: to enter into a collective agreement; or
b: to agree on any matter for inclusion in a collective agreement.
2: However, an employer does not comply with the duty of good faith in section 4 if—
a: the employer refuses to enter into a collective agreement; and
b: the employer does so because the employer is opposed, or objects in principle, to bargaining for or being a party to a collective agreement.
10: Section 41 amended (When bargaining may be initiated)
Replace section 41(3) and (4)
3: If there is an applicable collective agreement in force, neither a union nor an employer may initiate bargaining earlier than 60 days before the date on which the collective agreement expires.
4: However, if there is more than 1 applicable collective agreement in force that binds 1 or more unions or 1 or more employers, or both, that are intended to be parties to the bargaining, then neither a union nor an employer may initiate bargaining before the later of the following dates:
a: the date that is 120 days before the date on which the last applicable collective agreement expires; and
b: the date that is 60 days before the date on which the first applicable collective agreement expires.
11: Section 43 amended (Employees' attention to be drawn to initiation of bargaining)
1: In section 43 , as soon as possible but not later than 10 days after initiating the bargaining or receiving the notice,
2: In section 43
2: An employer must comply with subsection (1)—
a: as soon as possible; but
b: not later than—
i: 10 days after initiating the bargaining or receiving the notice, if only 1 employer is identified as an intended party to the bargaining:
ii: 15 days after initiating the bargaining or receiving the notice, if 2 or more employers are identified as intended parties to the bargaining.
12: New sections 44A to 44C inserted
After section 44
44A: Employer may opt out of bargaining for collective agreement, or for agreement to join collective agreement, involving 2 or more employers
1: This section applies to an employer that—
a: is an intended party to bargaining—
i: for a single collective agreement involving 2 or more employers; or
ii: for an agreement for the employer to become a party to a concluded collective agreement involving 1 or more employers; and
b: has received a notice initiating bargaining for the agreement.
2: The employer may, not later than 10 days after receiving the notice, opt out of bargaining for the agreement.
44B: How to opt out
1: An employer that wishes to opt out of bargaining under section 44A section 44A(2) opt-out notice
2: An opt-out notice must—
a: be in writing and be signed by the employer or its duly authorised representative; and
b: state that the employer has opted out of the bargaining in accordance with section 44A
3: An opt-out notice takes effect on and from the date on which it is given to all other intended parties identified in the notice initiating bargaining ( see
44C: Effect of opting out
1: An employer that opts out of bargaining under section 44A section 44B(3)
a: to be a party to bargaining for the agreement; and
b: to have any further obligations under this Act in relation to that bargaining.
2: To avoid doubt,—
a: an employer must opt out separately in relation to each notice given under section 42; and
b: an employer that gives an opt-out notice may be included as an intended party in any subsequent notice given under section 42; and
c: nothing in this section or section 44A or 44B
13: New section 50K and cross-heading inserted
After section 50J Authority may determine that bargaining has concluded
50K: Authority may determine that bargaining has concluded
1: A party to bargaining for a collective agreement may apply to the Authority for a determination as to whether bargaining has concluded because of difficulties in concluding bargaining.
2: Where an application is made under subsection (1)
a: must consider whether an attempt has been made to resolve the difficulties by the use of—
i: mediation or further mediation under section 159; or
ii: facilitation under sections 50B to 50I; and
b: may direct the parties to try to resolve the difficulties by mediation or further mediation; but
c: if any of the grounds in section 50C(1) exist, must direct that facilitation be used before the Authority investigates the matter, unless the Authority considers that use of facilitation—
i: will not contribute constructively to resolve the difficulties; or
ii: will not, in all the circumstances, be in the public interest; or
iii: will undermine the urgent nature of the process; or
iv: will be otherwise impractical or inappropriate in the circumstances.
3: If the Authority determines that bargaining has concluded,—
a: the Authority must make a declaration to that effect; and
b: none of the parties to that bargaining may initiate further bargaining earlier than 60 days after the date of the declaration without the agreement of the other party or parties concerned.
4: If the Authority determines that bargaining has not concluded,—
a: the Authority may make a recommendation as to the process that the parties should follow to resolve the difficulties; and
b: none of the parties to that bargaining may make another application under subsection (1)
5: If the Authority determines that bargaining has not concluded, but does not make a recommendation under subsection (4)(a) subsection (1)
6: This section applies subject to section 50KA
14: New section 50KA inserted (Declaration or determination under section 50K not to be made if breach of duty of good faith by party seeking declaration)
After section 50K
50KA: Declaration or determination under section 50K not to be made if breach of duty of good faith by party seeking declaration
1: The Authority must dismiss an application made under section 50K(1) section 50K(3) or (4) subsection (3)
2: However, the Authority is not precluded from making a declaration or determination if the party seeking the declaration has failed to observe good faith, but the Authority is satisfied that the party has rectified the failure.
3: The failures to observe good faith are as follows:
a: a failure to comply with the duty of good faith in section 4, if the failure—
i: relates to the collective bargaining in respect of which the declaration is sought; and
ii: has undermined the collective bargaining:
b: a failure to deal in good faith in any mediation or facilitation directed by the Authority under section 50K(2)
4: To avoid doubt, for the purposes of subsection (3)(a)
5: If the Authority is precluded by subsection (1)
15: Section 53 amended (Continuation of collective agreement after specified expiry date)
1: In section 53(2) the union or the employer
2: After section 53(2)
2A: However, a collective agreement that binds 2 or more employers continues in force in relation to an employer that has opted out of bargaining under section 44A
a: if (after the employer's opt-out notice takes effect and before the collective agreement expires) the employer or the union initiated collective bargaining for the purpose of replacing the collective agreement; and
b: for the period (not exceeding 12 months) during which bargaining continues for a collective agreement to replace the collective agreement that has expired.
3: After section 53(3)
4: However, for the purposes of calculating the period referred to in subsection (2A)(b) section 50K(3)(b)
a: the Authority or the court determines that the collective bargaining has concluded; and
b: the determination has been successfully challenged or appealed against.
16: Section 59B amended (Breach of duty of good faith to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement)
Repeal section 59B(6)(e) Amendments to Part 6 (Individual employees' terms and conditions of employment)
17: Section 62 amended (Employer's obligations in respect of new employee who is not member of union)
Repeal section 62(2)(a)(v)
18: Section 63 repealed (Terms and conditions of employment of new employee who is not member of union)
Repeal section 63
19: Section 63A amended (Bargaining for individual employment agreement or individual terms and conditions in employment agreement)
1: Repeal section 63A(1)(c) and (d)
2: In section 63A(1)(e) for an employee if no collective agreement covers the work done, or to be done, by the employee , including any variations to that agreement
3: In section 63A(1)(g) section 69M or section 69N section 69OJ
4: In section 63A(1)(h) section 69I section 69N
5: Repeal section 63A(6)
20: Section 65 amended (Terms and conditions of employment where no collective agreement applies)
1: Replace the heading to section 65 Form and content of individual employment agreement
2: In section 65(1) whose work is not covered by a collective agreement that binds his or her employer
3: Repeal section 65(3)
21: Section 67A amended (When employment agreement may contain provision for trial period for 90 days or less)
Replace section 67A(5)
5: To avoid doubt, a trial provision may be included in an employment agreement under section 61(1)(a), but subject to section 61(1)(b). Amendments to Part 6AA (Flexible working)
22: Section 69AA amended (Object of this Part)
1: Replace section 69AA(a)
a: provide employees with a statutory right to request a variation of their working arrangements; and .
2: In section 69AA(b) 3 months 1 month
23: Section 69AAA amended (Interpretation)
In section 69AAA non-compliance with section 69AAE
24: Section 69AAB replaced (When employee may make request)
Replace section 69AAB
69AAB: When employee may make request
An employee may make a request at any time.
25: Section 69AAC amended (Requirements relating to request)
Repeal section 69AAC(d)
26: Section 69AAD repealed (Limitation on frequency of requests)
Repeal section 69AAD
27: Section 69AAE replaced (Employer must notify decision as soon as possible)
Replace section 69AAE
69AAE: Employer must notify decision as soon as possible
1: An employer must deal with a request as soon as possible, but not later than 1 month after receiving it, and must notify the employee in writing of whether his or her request has been approved or refused.
2: If the employer refuses an employee's request, the notification given under subsection (1)
a: state that the request is refused because of a ground specified in section 69AAF(2) or (3); and
b: state the ground for refusal; and
c: explain the reasons for that ground.
28: Section 69AAF amended (Grounds for refusal of request by employer)
Replace section 69AAF(1)
1: An employer may refuse a request only if the employer determines that the request cannot be accommodated on 1 or more of the grounds specified in subsection (2).
29: Section 69AAI amended (Application to Authority)
1: Repeal section 69AAI(4)
2: In section 69AAI(5) 3 months 1 month
30: Section 69AAL and cross-heading repealed
Repeal section 69AAL Amendments to Part 6A (Continuity of employment if employees' work affected by restructuring)
31: Section 69A replaced (Object of this subpart)
Replace section 69A
69A: Object of this subpart
1: The object of this subpart is to provide protection to specified categories of employees if, as a result of a proposed restructuring, their work is to be performed by another person.
2: The categories of employees—
a: are the categories of employees specified in Schedule 1A; and
b: are specified in Schedule 1A because they are employees—
i: who are employed in sectors in which restructuring of an employer's business occurs frequently; and
ii: whose terms and conditions of employment tend to be undermined by the restructuring of an employer's business; and
iii: who have little bargaining power.
3: The protection conferred by this subpart gives—
a: the employees a right to elect to transfer to the other person as employees on the same terms and conditions of employment; and
b: the employees who have transferred a right,—
i: subject to their employment agreements, to bargain for redundancy entitlements from the other person if made redundant by the other person for reasons relating to the transfer of the employees or to the circumstances arising from the transfer of the employees; and
ii: if redundancy entitlements cannot be agreed with the other person, to have the redundancy entitlements determined by the Authority.
4: The protection provided by this subpart does not apply if the other person who is to perform the employees' work is an exempt employer.
32: Section 69B amended (Interpretation)
In section 69B associated person section 69DA section 69CA exempt employer section 69CA specified date .
33: New sections 69CA to 69CE inserted
After section 69C
69CA: Exempt employer
1: For the purposes of this subpart, an employer is an exempt employer if—
a: the employer is a person described in subsection (2)
b: the employer, together with any associated person of the employer (as at the date on which the employer provides a warranty under section 69CB
i: has no employees; or
ii: employs 19 or fewer employees; and
c: the employer provides a warranty that complies with section 69CB
2: A person is an employer for the purposes of subsection (1)(a)
a: person A in a contracting in:
b: person B in a contracting out:
c: person C in a subsequent contracting:
d: the person to whom an employer's business (or part of it) is sold or transferred:
e: a subcontractor if the work or part of the work would be performed not by employees of person B in a contracting out or of person C in a subsequent contracting but by employees of the subcontractor.
3: An employer that does not provide a warranty that complies with section 69CB
4: To avoid doubt,—
a: an employer who is an exempt employer is an exempt employer only in relation to the restructuring that the employer provides a warranty for; and
b: if the work concerned is performed by the employees of 2 or more employers and warranties are provided in accordance with this subpart to some but not all of the employers, a failure to provide the other warranty or warranties does not invalidate the warranties provided.
69CB: Warranty
A warranty under section 69CA
a: be in writing; and
b: confirm that, on the date on which the warranty is provided, the employer (together with any associated person of the employer)—
i: has no employees; or
ii: has 19 or fewer employees; and
c: be provided in accordance with sections 69CC to 69CE
69CC: Persons warranty to be provided to
1: The warranty must be provided to the persons as specified in subsections (2) to (5) Contracting in
2: In a contracting in or proposed contracting in, the warranty must be provided by person A to—
a: person B if the work concerned is performed by person B's employees; or
b: a subcontractor if the work concerned is performed by employees of the subcontractor; or
c: person B and the subcontractor if the work concerned is performed partly by employees of person B and partly by employees of the subcontractor. Contracting out
3: In a contracting out or proposed contracting out, the warranty must be provided by—
a: person B to person A if the work concerned is to be performed by person B or employees (if any) of person B; or
b: a subcontractor to person A if the work concerned is to be performed by the subcontractor or employees (if any) of the subcontractor; or
c: person B and the subcontractor to person A if the work concerned is to be performed partly by person B or employees (if any) of person B and partly by the subcontractor or employees (if any) of the subcontractor. Subsequent contracting
4: In a subsequent contracting or proposed subsequent contracting, the warranty must be provided by—
a: person C to person B if the work, or some of the work, concerned—
i: is performed by employees of person B; and
ii: is to be performed by person C or employees (if any) of person C:
b: a subcontractor to person B if the work, or some of the work, concerned—
i: is performed by employees of person B; and
ii: is to be performed by the subcontractor or employees (if any) of the subcontractor:
c: person C to a subcontractor if the work, or some of the work, concerned—
i: is performed by employees of the subcontractor; and
ii: is to be performed by person C or the employees (if any) of person C:
d: a subcontractor to another subcontractor if the work, or some of the work, concerned—
i: is performed by employees of the other subcontractor; and
ii: is to be performed by the subcontractor or employees (if any) of the subcontractor. Sale or transfer of business
5: In the sale or transfer of a business (or part of it), the warranty must be provided by the purchaser or transferee to the seller or transferor.
69CD: Provision of information for purposes of giving warranty
1: The purpose of this section is to provide for the disclosure of information so that a person wishing to provide a warranty under section 69CA
2: An obligation under this section to request or provide information does not apply if, or to the extent that, the person required to make the request or the person to whom information is to be provided already has the information. Contracting in
3: In a contracting in or proposed contracting in, person A may request person B—
a: to confirm whether all the work concerned is performed by the employees of person B; and
b: if some or all of the work concerned has been subcontracted, to provide information that identifies the subcontractor and that contains the contact details of the subcontractor.
4: If person B provides information under subsection (3)(b) subsection (3)
5: The process under subsections (3) and (4) Contracting out
6: In a contracting out or proposed contracting out, if some or all of the work is to be subcontracted, person B must—
a: provide information to person A that identifies the subcontractor and contains the contact details of the subcontractor; and
b: provide information to the subcontractor that identifies person A and contains the contact details of person A.
7: Person B must ask the subcontractor—
a: to confirm whether all the work concerned is to be performed by the employees of the subcontractor; and
b: if some or all of the work concerned is to be further subcontracted, to provide information that identifies the subcontractor and that contains the contact details of the subcontractor.
8: If the subcontractor provides information under subsection (7)(b) subsections (6) and (7)
9: The process under subsections (7) and (8)
10: Person B must provide the information obtained under subsections (7) to (9) Subsequent contracting
11: In a subsequent contracting or proposed subsequent contracting, person A must ask person B—
a: to confirm whether all the work concerned is performed by employees of person B; and
b: if some or all of the work concerned has been subcontracted, to provide information that identifies the subcontractor and contains the contact details of the subcontractor.
12: If person B provides information under subsection (11)(b) subsection (11)
13: The process under subsections (11) and (12)
14: Person A must—
a: advise person C that the work concerned is not performed by employees of person A but by employees of another person; and
b: provide the information obtained under subsections (11) to (13)
15: If some or all of the work is to be subcontracted, person C must provide to the subcontractor information person C obtains under subsection (14) Compliance
16: Information must be sought and provided under this section as follows:
a: in a contracting in, a person who receives a request for information under subsection (3) or (4)
b: in a contracting out—
i: person B must provide and ask for the information under subsections (6) to (10)
ii: a person receiving a request under subsection (7) or (8)
c: in a subsequent contracting—
i: person A must make a request under subsections (11) and (12)
ii: a person receiving a request under subsection (11) or (12)
iii: person A must provide information under subsection (14)(a)
iv: person A must provide information to person C under subsection (14)(b)
v: person C must provide information under subsection (15) Penalty
17: A person who, without reasonable excuse, fails to comply with this section is liable to a penalty imposed by the Authority.
69CE: When warranty must be provided
1: A warranty must be provided on the date or dates specified in this section. Contracting in
2: If section 69CC(2)
a: the date on which person A informs person B that the agreement relating to the work concerned is or will be terminated:
b: the date on which the agreement relating to the work concerned expires. Contracting out
3: If section 69CC(3)
a: the date on which a tender (if any) relating to the work concerned is provided by person B to person A; and
b: the date on which the agreement relating to the work concerned is signed. Subsequent contracting
4: If section 69CC(4)
a: the date on which a tender (if any) relating to the work concerned is provided by person C to person A; and
b: the date on which the agreement relating to the work is signed. Sale or transfer of business
5: If section 69CC(5)
a: the date on which a tender (if any) is submitted to the seller or transferor of the business; and
b: the date on which the agreement for sale and purchase is entered into or the agreement to transfer is entered into.
34: New section 69DA inserted (Associated person)
After section 69D
69DA: Associated person
1: For the purposes of this subpart, a person is an associated person of a person providing a warranty under section 69CA
a: the person is a holding company or subsidiary of the person providing the warranty:
b: the person and the person providing the warranty are both subsidiaries of the same body corporate:
c: the person providing the warranty—
i: is a subcontractor of the person; and
ii: was engaged, either before the restructuring or on the date on which the restructuring takes effect, to perform the work concerned:
d: the person (not being a person to which paragraph (a), (b), or (c)
2: However, subsection (1)(d)
3: In subsection (1) holding company subsidiary
35: Section 69E amended (Examples of contracting in, contracting out, and subsequent contracting)
Replace section 69E(2)
2: Whether, in the following examples, an employee has the right to elect to transfer to a new employer depends on whether—
a: section 69F applies to the employee; and
b: the new employer is an exempt employer.
36: New section 69FA inserted (Employer's breach of obligations not to affect employee's rights and new employer's obligations)
After section 69F
69FA: Employer's breach of obligations not to affect employee's rights and new employer's obligations
To avoid doubt, any failure by an employee's employer to comply with the obligations imposed on employers by this subpart does not limit or affect the rights of an employee under this subpart or the obligations of a new employer under this subpart.
37: Section 69G replaced (Notice of right to make election)
Replace section 69G
69G: Notice of right to make election
1: As soon as practicable, but no later than 15 working days before the date on which a restructuring takes effect, the employer of the employees who will be affected by a restructuring must provide the affected employees with—
a: information about whether the employees have a right to make an election under section 69I; and
b: if the employees have a right to make an election under section 69I, an opportunity to exercise that right; and
c: information sufficient for the employees to make an informed decision about whether to exercise any right to make an election; and
d: the date by which any right to make an election must be exercised, which is—
i: the date that is 5 working days after the day on which the employees are provided with the information described in paragraphs (a) to (c)
ii: if the employees' employer and the new employer agree to a later date, that agreed date.
2: Without limiting the information to be provided under subsection (1)(c)
a: the name of the new employer:
b: the nature and scope of the restructuring:
c: the date on which the restructuring is to take effect:
d: a statement to the effect that an election must be made in writing, signed by the employee, and sent to the employee’s employer:
e: notice that—
i: certain information will be provided to the new employer about employees who elect to transfer; and
ii: those employees are entitled to access the information, and to request correction of the information, in accordance with the Privacy Act 1993.
3: A notice under subsection (1)
4: If the employees do not have any right to make an election under section 69I, the employees’ employer must also provide the following information to the employees:
a: that the new employer has provided a written warranty that, on the date of giving the warranty, the new employer is an exempt employer; and
b: that the employees therefore do not have any right to transfer to the new employer; and
c: that, if the warranty is false, the employees may raise a personal grievance against the new employer as if the employees—
i: had elected to transfer to the new employer under subsection (1)
ii: were unjustifiably dismissed (as provided for in section 103(1)(a)); but
d: that the remedies available in respect of a personal grievance referred to in paragraph (c)
5: In subsection (4) exempt employer section 69CA(1)(a) and (b) new employer
6: The employees' employer must send an election that complies with subsections (1)(d) and (2)(d)
7: If an employee sends an election that complies with subsection (2)(d) subsection (1)(d)
8: If the employee’s employer sends an election to the new employer by post or electronic means before the date that is 5 working days after the day on which the employee’s employer received that election, the employee’s employer must be treated as having met the deadline specified in subsection (6)
9: If the restructuring is a contracting in or a subsequent contracting, person A in the definition that applies must give the employer sufficient notice of, and information about, the restructuring to enable the employer to comply with subsection (1)
10: In subsection (9) sufficient notice
a: as soon as practicable; but
b: no later than 20 working days before the date on which the restructuring takes effect.
11: An employer or other person who fails to comply with this section is liable to a penalty imposed by the Authority.
38: Section 69H amended (Employee bargaining for alternative arrangements)
In section 69H(1) with section 69G and before deciding whether with section 69G(1)
39: Section 69I amended (Employee may elect to transfer to new employer)
1: In the heading to section 69I new employer in certain circumstances
2: In section 69I(1) section 69G(1)(b) section 69G(1)(d)
3: After section 69I(1)
1A: However, subsection (1) does not apply if the new employer is an exempt employer.
4: In section 69I(3) The second independent contractor did not provide, under section 69CA(1)
40: New sections 69LA to 69LC inserted
After section 69L
69LA: Liability for costs of service-related entitlements of transferring employee
1: This section applies if—
a: an employee elects to transfer to a new employer; and
b: on the specified date, the employee has not taken, or been paid for, service-related entitlements (whether legislative or otherwise) that relate to the employee’s period of employment before the specified date.
2: Liability for the costs of service-related entitlements (whether legislative or otherwise) of the employee must be apportioned between the employee’s employer and the new employer.
3: If the employee’s employer and the new employer cannot agree before the specified date on how to apportion those costs, the costs must be apportioned as follows:
a: the employee’s employer is liable for the costs that the employer would have been liable to pay to the employee if the employee had resigned and ceased employment with the employer on the day before the specified date (for example, costs related to annual holidays or alternative holidays not taken before the specified date); and
b: the new employer is liable for the costs of any service-related entitlements that accrued before the specified date but would not have been paid to the employee if the employee had resigned and ceased employment with his or her previous employer on the day before the specified date (for example, costs relating to sick leave not taken before the specified date).
4: The employee’s employer must pay to the new employer—
a: the amount agreed before the specified date by the employee’s employer and the new employer; or
b: if no amount is agreed, the costs described in subsection (3)(a)
5: The employee’s employer must comply with subsection (4)
a: by the specified date; or
b: if the employee’s employer and the new employer agree to a later date, by that agreed date.
6: If the new employer does not receive payment from the employee’s employer by the specified date or the agreed date (if any), the new employer may recover the payment, in any court of competent jurisdiction, as a debt due from the employee’s employer.
7: To avoid doubt,—
a: if only part of the employee’s work is affected by the restructuring, the apportionment of costs described in subsection (3)
b: if the work performed by the employee will be performed for, or on behalf of, more than 1 new employer, the apportionment of costs described in subsection (3)
c: on and from the specified date, the new employer is liable to pay the employee for all service-related entitlements (whether legislative or otherwise), including those referred to in subsection (3)(a)
69LB: Resolving disputes about apportioning liability for costs of service-related entitlements
1: This section applies to a dispute between an employee’s employer and the new employer (or, if more than 1 new employer is involved, all or any of the new employers) about apportioning liability for the costs of service-related entitlements under section 69LA(3)
2: If the dispute cannot be resolved between the employee’s employer and the new employer or employers,—
a: the parties may access mediation services as if the dispute were an employment relationship problem:
b: proceedings to resolve the dispute may be commenced before the Authority as if the dispute were an employment relationship problem.
3: For the purposes of subsection (2)(a)
a: provided under section 144 (in which case, sections 145 to 153 apply, with any necessary modifications); or
b: referred to in section 154.
4: If proceedings are commenced before the Authority, the Authority must determine the apportionment of the costs of the service-related entitlements in accordance with section 69LA(3)
69LC: Implied warranty by employer of transferring employees
1: This section applies if 1 or more employees of an employer elect to transfer to a new employer, as provided for in section 69I.
2: There is an implied warranty by the employees’ employer to the new employer that the employees' employer has not, without good reason, changed—
a: the work affected by the restructuring; or
b: the employees who perform the work affected by the restructuring (for example, replacing employees with employees who are less experienced or less efficient); or
c: the terms and conditions of employment of 1 or more of those employees.
3: The warranty implied by this section applies in relation to changes occurring in the period—
a: beginning on the day on which the employees' employer is informed about the proposed restructuring; and
b: ending on the day before the specified date.
4: If the employees' employer breaches the implied warranty, and that breach adversely affects the new employer, the new employer may commence proceedings for damages, in any court of competent jurisdiction, against that employer.
5: For the purposes of subsection (2)
41: New section 69OAA inserted (False warranty: exempt employer)
After section 69O
69OAA: False warranty: exempt employer
1: A person who provides a false warranty is liable to a penalty imposed by the Authority.
2: An employee affected by the restructuring may raise a personal grievance against the person who provided the false warranty as if the employee had—
a: elected to transfer to the person under section 69I; and
b: been unjustifiably dismissed (within the meaning given in section 103(1)(a)).
3: However, where the Authority or the court determines that the employee has a personal grievance, neither the Authority nor the court may make an order for reinstatement under sections 123(1)(a) and 125 in relation to that employee.
4: An employer to whom the false warranty was provided under section 69CC
5: In this section, false warranty section 69CA
a: that confirms, on the date that the warranty is provided, the employer (together with any associated person or persons, if applicable) employs 19 or fewer employees; but
b: where, on the date that the warranty is provided, the employer (together with any associated person or persons, if applicable) employs more than 19 employees.
6: To avoid doubt, whether or not the person giving the warranty, or any other person, knew, or ought reasonably to have known, that the warranty was a false warranty is irrelevant.
42: Subpart 2 heading in Part 6A replaced
In Part 6A
2: Disclosure of information relating to transfer of employees
.
43: Section 69OA replaced (Object of this subpart)
Replace section 69OA
69OA: Object of this subpart
The object of this subpart is to make provision for the disclosure of employee transfer costs information and individualised employee information relating to employees who have elected to transfer to a new employer under section 69I.
44: Section 69OB amended (Interpretation)
Replace section 69OB(1)
1: In this subpart,— employee transfer costs information
a: means information about employment-related entitlements of the employees who would be eligible to elect, under section 69I, to transfer to a new employer if the proposed restructuring were to proceed and the new employer were not an exempt employer; and
b: includes—
i: the number of employees who would be eligible to make an election; and
ii: the wages or salary payable in a stated period (for example, a week, fortnight, or month) to the employees for performing the work that would be subject to the proposed restructuring; and
iii: the total number of hours the employees spend in a stated period (for example, a week, fortnight, or month) performing the work that would be subject to the proposed restructuring; and
iv: the cost of service-related entitlements of the employees, whether legislative or otherwise; and
v: the cost of any other entitlements of the employees in their capacity as employees, including any entitlements already agreed but not due until a future date or time individualised employee information—
a: means information about an employee kept by the employee’s employer for employment-related purposes, including—
i: any personnel records relating to the employee; and
ii: information about any disciplinary matters relating to the employee; and
iii: information about any personal grievances raised by the employee against the employer; and
iv: information about an employee that the employee’s employer is required to keep under this Act or any other enactment, for example,—
A: the employee’s individual employment agreement, the current terms and conditions of employment that make up the employee’s individual terms and conditions of employment, or the relevant collective agreement (as the case may be); and
B: a copy of the wages and time record; and
C: a copy of the holiday and leave record; and
D: a copy of the employee’s tax code declaration; and
E: details of any employer contribution (as defined in section 4(1) of the KiwiSaver Act 2006) and any deductions of contributions from the employee’s wages for the purposes of the KiwiSaver Act 2006; and
F: details of any deductions from the employee’s wages made under section 36 of the Student Loan Scheme Act 2011; and
G: details of any deductions from the employee’s wages made under Part 10 of the Child Support Act 1991; but
b: does not include any information about the employee that is subject to a statutory or contractual requirement to maintain confidentiality.
45: Section 69OC amended (Disclosure of employee transfer costs information)
1: Replace section 69OC(1) and (2)
1: A request for the disclosure of employee transfer costs information may be made either—
a: where—
i: disclosure is sought for the purpose of—
A: deciding whether to terminate an agreement or let it expire; or
B: negotiating an agreement; or
C: deciding whether to enter into an agreement; or
D: tendering for an agreement; and
ii: a restructuring would result if the agreement were to be—
A: terminated or to expire; or
B: concluded; or
C: entered into; or
D: awarded; or
b: where—
i: the restructuring referred to in paragraph (a)(ii)
ii: a subcontractor is engaged, before or at the same time as the restructuring, to perform the work, or some of the work, affected by the restructuring.
2: The persons who may make the request are—
a: the persons who would (if they were parties to the restructuring and the restructuring were to proceed) be—
i: person A in a contracting in:
ii: person B in a contracting out:
iii: person C in a subsequent contracting:
iv: the person to whom an employer’s business (or part of it) is sold or transferred:
b: the persons who would (if the restructuring were to proceed and if the work were to be subcontracted before or at the same time as the restructuring) be—
i: a subcontractor engaged to perform the work for person B in a contracting out:
ii: a subcontractor engaged to perform the work for person C in a subsequent contracting.
2A: However, an employer or other person that would be an exempt employer if the proposed restructuring were to take effect cannot make a request for disclosure of employee transfer costs information.
2: After section 69OC(3)
3A: A request for disclosure of employee transfer costs information must be accompanied by a written warranty stating that, on the date on which the warranty is provided, the person making the request is not an exempt employer.
3B: If a request is not accompanied by the warranty described in subsection (3A)
3C: A person to whom a request is made for a purpose described in subsection (1)(a)
3: Repeal section 69OC(5)
4: After section 69OC(6)
7: In subsections (2A) and (3A) exempt employer section 69CA(1)(a) and (b)
46: Section 69OD amended (Provision of employee transfer costs information by other persons)
In section 69OD(6)(a)(ii) and (b)(ii) section 69OC(5) section 69OC(3C)
47: New section 69OEA inserted (Disclosure of individualised employee information)
After section 69OE
69OEA: Disclosure of individualised employee information
1: This section applies if an employee elects to transfer under section 69I to a new employer.
2: The employee’s employer must provide the new employer with individualised employee information about the employee.
3: The employee's employer must provide the individualised employee information—
a: as soon as practicable; but
b: no later than—
i: the date on which the restructuring takes effect; or
ii: any later date agreed to by the employee's employer and the new employer.
4: Subsection (5)
a: individualised employee information has been provided under subsection (2)
b: after the provision of the information, there is a change in the matters or circumstances that the information relates to; and
c: the change makes the information provided out of date.
5: The employee’s employer must, immediately after the change in the matters or circumstances, provide the new employer with the information details, specifying—
a: the information that is out of date; and
b: what the up-to-date information is.
6: Every employer who fails to comply with subsections (2) to (5)
7: To avoid doubt, the new employer may keep, use, or disclose individualised employee information only in accordance with the Privacy Act 1993.
48: Subpart 4 of Part 6A repealed
Repeal subpart 4 Amendments to Part 6D (Rest breaks and meal breaks)
49: Section 69ZC replaced (Interpretation)
Replace section 69ZC
69ZC: Interpretation
In this Part, unless the context otherwise requires,— compensatory measure
a: means a measure that is designed to compensate an employee for a failure to provide rest breaks or meal breaks in accordance with section 69ZD(1); and
b: includes (without limitation) a measure that provides the employee with time off work at an alternative time during the employee's work period, for example, by allowing a later start time, an earlier finish time, or an accumulation of time off work that may be taken on 1 or more occasions work period—
a: means the period—
i: beginning with the time when, in accordance with an employee's terms and conditions of employment, an employee starts work; and
ii: ending with the time when, in accordance with an employee's terms and conditions of employment, an employee finishes work; and
b: to avoid doubt, includes all authorised breaks (whether paid or not) provided to an employee or to which an employee is entitled during the period specified in paragraph (a)
50: Sections 69ZD and 69ZE replaced
Replace sections 69ZD 69ZE
69ZD: Employee's entitlement to rest breaks and meal breaks
1: An employee is entitled to, and an employer must provide the employee with, rest breaks and meal breaks that—
a: provide the employee with a reasonable opportunity, during the employee's work period, for rest, refreshment, and attention to personal matters; and
b: are appropriate for the duration of the employee's work period.
2: The employee's entitlement to rest breaks and meal breaks may be subject to restrictions, but only if the restrictions—
a: are—
i: reasonable and necessary, having regard to the nature of the employee's work; or
ii: if subparagraph (i) does not apply, reasonable and agreed to by the employer and employee (whether in an employment agreement or otherwise); and
b: relate to 1 or more of the following:
i: the employee continuing to be aware of his or her work duties or, if required, continuing to perform some of his or her work duties, during the break:
ii: the circumstances when an employee's break may be interrupted:
iii: the employee taking his or her break in the workplace or at a specified place within the workplace.
3: An employee's entitlement to rest breaks under this section is to paid rest breaks.
69ZE: Timing and duration of rest breaks and meal breaks
1: An employee must take his or her rest breaks and meal breaks—
a: at the times and for the duration agreed between the employee and his or her employer; but
b: in the absence of such agreement, at the reasonable times and for the reasonable duration specified by the employer.
2: For the purposes of subsection (1)(b), an employer may specify reasonable times and durations that, having regard to the employer's operational environment or resources and the employee's interests, enable the employer to maintain continuity of service or production.
3: An employer must provide an employee with a reasonable opportunity to negotiate with the employer and reach agreement under subsection (1)(a) on the times when the employee's rest breaks and meal breaks are to be taken and on the duration of the breaks.
4: To avoid doubt, subsection (3) does not limit the requirement of the employer and employee to deal with each other in good faith as set out in section 4.
69ZEA: Compensatory measures
1: An employer is exempt from the requirement to provide rest breaks and meal breaks in accordance with section 69ZD(1)—
a: to the extent that the employer and the employee agree that the employee is to be provided with compensatory measures; or
b: if paragraph (a) does not apply, only to the extent that, having regard to the nature of the work performed by the employee, the employer cannot reasonably provide the employee with rest breaks and meal breaks.
2: To the extent that an employer is not required to provide rest breaks and meal breaks under subsection (1), an employee is entitled to, and the employee's employer must provide the employee with, compensatory measures.
69ZEB: Compensatory measure must be reasonable
1: A compensatory measure provided to an employee under section 69ZEA must be reasonable.
2: To avoid doubt, if an employer provides an employee with a compensatory measure that involves time off work at an alternative time during the employee's work period, that measure is to be treated as complying with subsection (1) if—
a: the employee is provided with an equivalent amount of time off work (that is, the same amount of time that the employee would otherwise have taken as a rest break or meal break); and
b: the time off work at an alternative time is provided on the same basis as the rest break or meal break that the employee would have otherwise taken.
51: Section 69ZF amended (Penalty)
In section 69ZF sections 69ZD and 69ZE any of sections 69ZD to 69ZEB
52: Sections 69ZG and 69ZH replaced
Replace sections 69ZG 69ZH
69ZG: Relationship between Part and employment agreements
1: This Part does not prevent an employer from providing an employee with enhanced or additional entitlements to rest breaks and meal breaks (whether specified in an employment agreement or otherwise) on a basis agreed with the employee.
2: An employment agreement that excludes or reduces an employee's entitlement to rest breaks and meal breaks under section 69ZD(1) or (3) or 69ZE or to compensatory measures under section 69ZEA—
a: has no effect to the extent that it does so; but
b: is not an illegal contract under the Illegal Contracts Act 1970.
3: An employment agreement that restricts an employee's rest breaks or meal breaks otherwise than in accordance with section 69ZD(2)—
a: has no effect to the extent that it does so; but
b: is not an illegal contract under the Illegal Contracts Act 1970.
69ZH: Relationship between Part and other enactments
Where an employee is a person who is required to take rest breaks or meal breaks by, or under, an enactment other than this Part, the requirement for rest breaks or meal breaks defined by, or under, the other enactment applies instead of this Part. Amendments to Part 8 (Strikes and lockouts)
53: Section 80 amended (Object of this Part)
After section 80(b)
ba: to provide notice requirements for all strikes and lockouts; and
bb: to provide for specified pay deductions, and to specify how the amount of such deductions must be calculated; and .
54: Section 86 amended (Unlawful strikes or lockouts)
After section 86(1)(b)
ba: occurs in a situation where,—
i: in the case of a strike, the employee has failed to comply with the notice requirements in section 86A
ii: in the case of a lockout, the employer has failed to comply with the notice requirements in section 86B .
55: New sections 86A and 86B and cross-heading inserted
After section 86 Notice of strike or lockout
86A: Notice of strike
1: No employees may strike—
a: unless participation in the strike is lawful under section 83 or 84; and
b: without having given to the employees' employer and to the chief executive notice of the employees' intention to strike; and
c: before the date and time specified in the notice as the date and time on which the strike will begin.
2: The notice required under subsection (1)
a: be in writing; and
b: specify the following information:
i: the period of notice given; and
ii: the nature of the proposed strike, including whether or not it will be continuous; and
iii: the place or places where the proposed strike will occur; and
iv: the date and time on which the strike will begin; and
v: the date and time on which, or an event on the occurrence of which, the strike will end.
3: The notice—
a: must be signed by a representative of the employees' union on the employees' behalf:
b: need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who—
i: are members of a union that is a party to the bargaining; and
ii: are covered by the bargaining; and
iii: are employed in the relevant part of the workplace or at any particular place or places where the work is carried on.
4: To avoid doubt, this section does not apply if notice is required under any of the following provisions:
a: section 90 (strikes in essential services):
b: section 93 (procedure to provide public with notice before strike in certain passenger transport services):
c: section 74AC of the State Sector Act 1988 (strikes in schools to be notified).
86B: Notice of lockout
1: No employer may lock out any employees—
a: unless participation in the lockout is lawful under section 83 or 84; and
b: without having given to the employees' union or unions and to the chief executive notice of the employer's intention to lock out; and
c: before the date and time specified in the notice as the date and time on which the lockout will begin.
2: The notice required under subsection (1)
a: be in writing; and
b: specify the following information:
i: the period of notice given; and
ii: the nature of the proposed lockout, including whether or not it will be continuous; and
iii: the place or places where the proposed lockout will occur; and
iv: the date and time on which the lockout will begin; and
v: the date and time on which, or an event on the occurrence of which, the lockout will end; and
vi: the names of the employees who will be locked out.
3: The lockout notice must be signed by the employer or on the employer's behalf.
4: To avoid doubt, this section does not apply if notice is required under any of the following provisions:
a: section 91 (lockouts in essential services):
b: section 94 (procedure to provide public with notice before lockout in certain passenger transport services).
56: Section 90 amended (Strikes in essential services)
1: Replace section 90(1)(b)(ii)
ii: before the date and time specified in the notice as the date and time on which the strike will begin.
2: Replace section 90(3)(d)
d: the date and time on which the strike will begin; and
e: the date and time on which, or an event on the occurrence of which, the strike will end.
57: Section 91 amended (Lockouts in essential services)
1: Replace section 91(1)(b)(ii)
ii: before the date and time specified in the notice as the date and time on which the lockout will begin.
2: Replace section 91(3)(d)
d: the date and time on which the lockout will begin; and .
3: After section 91(3)(d)
da: the date and time on which, or an event on the occurrence of which, the lockout will end; and .
58: Section 93 amended (Procedure to provide public with notice before strike in certain passenger transport services)
Replace section 93(2)(d)
d: the date and time on which the strike will begin; and
e: the date and time on which, or an event on the occurrence of which, the strike will end.
59: Section 94 amended (Procedure to provide public with notice before lockout in certain passenger transport services)
1: Replace section 94(2)(d)
d: the date and time on which the lockout will begin; and .
2: After section 94(2)(d)
da: the date and time on which, or an event on the occurrence of which, the lockout will end; and .
60: Section 95 replaced (Penalty for breach of section 93 or section 94)
Replace section 95
95: Penalty for breach of section 93(4) or 94(4)
1: An employer who fails to comply with section 93(4) or 94(4) is liable to a penalty imposed by the court under this Act.
2: Except as provided in this section, an employer is under no liability (whether under this Act or the general law) for a failure to comply with section 93(4) or 94(4).
61: New section 95AA and cross-heading inserted
After section 95 Withdrawal of notice of strike or lockout
95AA: Withdrawal of notice of strike or lockout
1: A strike notice given under section 86A
a: the employees' employer; and
b: the chief executive.
2: A lockout notice given under section 86B
a: the employees' union or unions; and
b: the chief executive.
62: New sections 95A to 95H and cross-headings inserted
After section 95 Interpretation
95A: Meaning of partial strike and specified pay deduction
In this Act,— partial strike
a: means an act of the employees who are a party to the strike in continuing to perform some work for their employer or employers during the strike instead of wholly discontinuing their employment during the strike, and includes without limitation—
i: a partial discontinuance of work through a refusal or failure to accept engagement for work that forms part of the employees' normal duties:
ii: a reduction in the employees' normal performance of work, normal output, or normal rate of work:
b: means an act of the employees who are a party to the strike in breaking their employment agreement, whether or not the act involves any reduction in the employees' normal duties, normal performance of work, normal output, or normal rate of work specified pay deduction
a: made, or to be made, from an employee's salary or wages in accordance with section 95B
b: either—
i: calculated in accordance with section 95D(1) and (2)
ii: imposed at a flat rate of 10% under section 95D(3) Specified pay deductions in relation to partial strike
95B: Employer may make specified pay deductions in relation to partial strike
1: Where there is a partial strike, the employer may make specified pay deductions from the salary or wages of an employee who is a party to the strike.
2: However, the employer must not make a specified pay deduction—
a: if the partial strike is lawful on the grounds referred to in section 84 (which relates to lawful strikes on the grounds of safety or health); or
b: if—
i: the employee is paid by piecework; and
ii: the partial strike results in the employee reducing his or her normal output; or
c: if the partial strike involves—
i: a refusal to work overtime; or
ii: a refusal to perform call-out work if the employee would otherwise receive a special payment for performing that work.
3: Before making any deduction, the employer must comply with the notice requirements in section 95C
4: The amount of the deduction must be calculated in accordance with section 95D
5: To avoid doubt,—
a: deductions under this section may only relate to the employee's salary or wages that would have been payable for the work performed by that employee had the partial strike not occurred:
b: an employer may make deductions under this section without having to suspend or lock out the employee.
95C: Notice of specified pay deduction
1: Where an employer has received notice of a partial strike, and the employer intends to make specified pay deductions in relation to that strike, the employer must give notice to each employee who is a party to the strike that the employer will make those deductions.
2: A notice under subsection (1)
a: be given—
i: before the deduction is made; and
ii: within the pay period during which the deduction or (if the deductions are to be ongoing) the first deduction is to be made; and
b: specify the pay period or periods during which deductions will be made.
3: Where 2 or more of the employer's employees are parties to a partial strike, the employer may, instead of giving notice to each of those employees, give notice under this section by—
a: providing a single notice to all those employees or their union; or
b: providing a notice, with the same wording, to each of those employees.
4: To avoid doubt,—
a: an employer may choose the method of giving notice under this section:
b: the validity of a notice is not affected merely because it is also given to employees who are not subject to the specified pay deduction (for example, non-striking employees):
c: where the partial strike continues over more than 1 pay period, the employer is not required to give notice more than once:
d: a notice under this section is not required to specify the amount or proportion of the pay deduction.
95D: Calculation of specified pay deduction
1: An employer must calculate the amount of a specified pay deduction by—
a: identifying, for the employee or group of employees, the usual hours of work for the day of the partial strike; and
b: identifying the work that the employee or employees will not be performing because of that strike (which must be by reference to the information contained in the relevant strike notice); and
c: estimating how much time the employee or employees would, but for the strike, have spent performing the work referred to in paragraph (b)
d: calculating the time referred to in paragraph (c) paragraph (a)
2: The percentage referred to in subsection (1)(d)
3: However, despite subsections (1) and (2) subsection (1)
4: An employer may make a specified pay deduction under subsection (1) or (3)
95E: Relationship between specified pay deduction and minimum wage
1: Section 6 of the Minimum Wage Act 1983 must be read as not applying to an employee who receives payment at less than the applicable minimum rate of wages prescribed under section 4, 4A, or 4B of that Act if the payment—
a: is the result of a specified wage deduction; or
b: is, in the case of an employee who is paid by piecework, the result of—
i: the employee being party to a partial strike; and
ii: the employee's normal output being reduced because of the employee being party to that partial strike.
2: Subsection (1)(a) sections 95B to 95D Rights of union in relation to specified pay deductions
95F: Union may request information about specified pay deduction
1: Where an employee or a group of employees considers that the employer has incorrectly made a specified pay deduction in relation to that employee or those employees, the union representing that employee or those employees may request that the employer provide the union with information relied on to make the specified pay deduction under section 95D
2: A request under subsection (1)
a: be in writing; and
b: be made as soon as is reasonably practicable after the pay day on which the deduction was first made.
3: To avoid doubt, this section does not permit an employee, or a group of employees, to request the information from the employee's, or employees', employer.
95G: Employer must respond to request for information about specified pay deduction
1: Where an employer has received a request under section 95F
a: all information relied on by the employer to make the specified pay deduction under section 95D
b: an explanation of how the calculation under section 95D(1) and (2) section 95D(3) section 95B
2: The information and explanation required under subsection (1)
a: in writing; and
b: as soon as is reasonably practicable after the employer receives the request.
95H: Resolution of problem relating to specified pay deduction
1: Where, having considered the information and explanation provided under section 95G
2: The notice under subsection (1)
a: in writing; and
b: as soon as is reasonably practicable after the union receives the information and explanation.
3: Where the employer and the union are unable to resolve the problem (including by way of mediation), the union may lodge an application with the Authority in accordance with section 158.
63: Section 100 amended (Jurisdiction of court in relation to injunctions)
1: In section 100(1)(b) threatened picketing related to a strike or lockout ; or
2: After section 100(1)(b)
c: to stop a specified pay deduction that is being, or is to be, made.
3: In section 100(2)(b) threatened picketing related to a strike or lockout ; or
4: After section 100(2)(b)
c: to stop a specified pay deduction that is being, or is to be, made.
5: After section 100(3)
4: Subsection (5)
a: notice has been given in accordance with section 95C
b: the deduction has been correctly calculated in accordance with section 95D
5: Where the court is satisfied of the matters specified in subsection (4)(a) and (b)
a: the court must dismiss that action or those proceedings; and
b: no proceedings seeking the grant of an injunction to stop that specified pay deduction being made may be commenced in the District Court or the High Court. Amendment to Part 9 (Personal grievances, disputes, and enforcement)
64: Section 140A amended (Compliance order in relation to disclosure of employee transfer costs information)
1: In the heading to section 140A employee transfer costs information and individualised employee information
2: In section 140A(1)(a) and (b), (2)(a) and (b), (5), and (8) or 69OE 69OE, or 69OEA
3: After section 140A(4)(b)
ba: the new employer to whom individualised employee information must be provided under section 69OEA
bb: the employee to whom the individualised employee information referred to in section 69OEA . Amendments to Part 10 (Institutions)
65: Section 159A amended (Duty of Authority to prioritise previously mediated matters)
After section 159A(2)
3: Despite subsection (2), the Authority may give priority to proceedings referred to in section 161(1)(la)
66: Section 161 amended (Jurisdiction)
1: After section 161(1)(cb)
cba: determining whether bargaining has concluded under section 50K .
2: After section 161(1)(g)
ga: determining the apportionment of liability for the costs of service-related entitlements under section 69LB(4) .
3: After section 161(1)(l)
la: any proceedings related to the application of section 95D .
4: In section 161(2) (cb), ( cba
67: New section 166B inserted
After section 166A
166B: Delegation of Chief of Authority’s functions, duties, or powers
1: The Chief of the Authority must ensure that an appropriate delegation is at all times in place under this section to enable 1 member of the Authority to act in place of the Chief of the Authority during—
a: any absence or incapacity of the Chief of the Authority; or
b: any vacancy in the office of Chief of the Authority.
2: A delegation under this section—
a: must be in writing; and
b: may be made subject to any restrictions and conditions that the Chief of the Authority thinks fit; and
c: may include a power to subdelegate any function, duty, or power to any other member of the Authority; and
d: is revocable at any time, by notice in writing.
3: The person to whom any functions, duties, or powers are delegated under this section may perform or exercise them in the same manner and with the same effect as if they had been conferred on the person directly by this Act and not by delegation.
4: A person purporting to act under any delegation under this section is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.
5: No delegation under this section affects or prevents the performance or exercise of any function, duty, or power by the Chief of the Authority, or affects the responsibility of the Chief of the Authority for the actions of any person acting under the delegation.
6: A delegation, until it is revoked, continues to have effect according to its terms even if the Chief of the Authority by whom it was made has ceased to hold office.
68: Section 173A amended (Recommendation to parties)
In section 173A(6) section 174(a) section 174E(a)
69: Section 174 replaced (Determinations)
Replace section 174
174: Authority must give oral determination or oral indication of preliminary findings wherever practicable
At the conclusion of an investigation meeting, the Authority must, wherever practicable,—
a: give its determination on the matter orally; or
b: give an oral indication of its preliminary findings on the matter.
174A: Oral determinations
1: If the Authority gives an oral determination under section 174(a)
a: express its conclusions on the matters or issues it considers require determination in order to dispose of the matter; and
b: state any relevant findings of fact or law to the extent that it considers it necessary to do so in order to explain its conclusions; and
c: specify what orders (if any) it is making.
2: The Authority must record an oral determination in writing as soon as practicable and not later than 1 month after the date on which the investigation meeting concluded.
3: However, the Authority may record an oral determination later than the date specified in subsection (2)
4: The Authority may amend an oral determination when it is recorded under subsection (2)
174B: Oral indication of preliminary findings
1: If the Authority gives an oral indication of its preliminary findings under section 174(b)
a: must—
i: give an indication of its likely conclusions on the matters or issues it considers require determination in order to dispose of the matter; and
ii: state any likely relevant findings of fact or law to the extent that it considers it necessary to do so in order to explain its likely conclusions; and
b: may express the oral indication of its preliminary findings as being subject to any further evidence or information from the parties or any other person.
2: The Authority must provide a written determination in respect of a matter for which it has given an oral indication of its preliminary findings as soon as practicable and not later than the later of the following dates:
a: the day that is 3 months after the date on which the investigation meeting concluded; and
b: the day that is 3 months after the date on which the Authority received the last evidence or information from the parties or other person referred to in subsection (1)(b)
3: However, the Authority may provide a written determination in respect of a matter for which it has given an oral indication of its preliminary findings later than the latest date specified in subsection (2)
174C: Authority may reserve determination
1: Despite section 174
2: If the Authority reserves its determination of a matter under subsection (1) subsection (3)
3: If the Authority reserves its determination of a matter under subsection (1)
a: the day that is 3 months after the date on which the investigation meeting concluded; and
b: the day that is 3 months after the date on which the Authority received the last evidence or information from the parties or any other person.
4: However, the Authority may provide a written determination of its findings later than the latest date specified in subsection (3)
174D: Authority may determine matter without holding investigation meeting
1: Despite sections 174 and 174C
2: If the Authority determines a matter without holding an investigation meeting, it must provide a written determination of its findings as soon as practicable and not later than the day that is 3 months after the date on which the Authority received the last evidence or information from the parties or any other person.
3: However, the Authority may provide a written determination of its findings later than the latest date specified in subsection (2)
174E: Content of written determinations
A written determination provided by the Authority in accordance with section 174A(2), 174B(2), 174C(3), or 174D(2)
a: must—
i: state relevant findings of fact; and
ii: state and explain its findings on relevant issues of law; and
iii: express its conclusions on the matters or issues it considers require determination in order to dispose of the matter; and
iv: specify what orders (if any) it is making; but
b: need not—
i: set out a record of all or any of the evidence heard or received; or
ii: record or summarise any submissions made by the parties; or
iii: indicate why it made, or did not make, specific findings as to the credibility of any evidence or person; or
iv: record the process followed in investigating and determining the matter.
70: Section 179 amended (Challenges to determinations of Authority)
1: Replace sections 179(1) and (2)
1: A party to a matter before the Authority who is dissatisfied with a written determination of the Authority under section 174A(2), 174B(2), 174C(3), or 174D(2)
2: An election under subsection (1)
2: Before section 179(5)(a)
aa: to an oral determination or an oral indication of preliminary findings given by the Authority under section 174(a) or (b) .
71: Section 181 amended (Report in relation to good faith)
In section 181(2) section 174 section 174A(2), 174B(2), 174C(3), or 174D(2)
72: Section 184 amended (Restriction on review)
In section 184(1A)(a) final determinations a determination under section 174A(2) 174B(2) 174C(3) 174D(2) Amendments to Part 11 (General provisions)
73: New section 237AA inserted (Chief executive may approve forms)
After section 237
237AA: Chief executive may approve forms
1: The chief executive may approve and issue any forms that the chief executive considers necessary for the purposes of this Act, not being forms prescribed by regulations made under this Act.
2: Every document purporting to be in a form approved and issued by the chief executive under and for the purposes of this Act is deemed to have been so approved and issued unless the chief executive certifies otherwise.
74: Section 237A repealed (Amendments to Schedule 1A)
Repeal section 237A Schedule 1 amended (Essential services)
75: Schedule 1 amended
In Part B, replace clause 1
1: The holding and preparation of an animal that—
a: is a mammal or bird; and
b: is held and prepared for the purposes of commercial slaughter and subsequent processing of its meat and offal for human or animal consumption, whether in the domestic market or the export market.
2: Application, savings, transitional, and consequential provisions
76: New section 254 inserted (Application, savings, and transitional provisions relating to amendments to Act)
After section 253
254: Application, savings, and transitional provisions relating to amendments to Act
The application, savings, and transitional provisions set out in Schedule 1AA
77: New Schedule 1AA inserted
Before Schedule 1 Schedule 1AA Schedule 1
78: Consequential amendments to other Acts
Amend the Acts specified in Schedule 2 2015-03-06 State Sector Act 1988 Wages Protection Act 1983 This Act comes into force 4 months after the date on which it receives the Royal assent – date of assent is 2014-11-06.


Auditor Regulation Amendment Act 2014

1: Title
This Act is the Auditor Regulation Amendment Act 2014.
2: Commencement
1: This Act comes into force on a date appointed by the Governor-General by Order in Council; and 1 or more orders may be made bringing different provisions into force on different dates.
2: To the extent that it has not previously been brought into force under subsection (1), the rest of this Act comes into force on 1 April 2017. Section 2(1) brought into force 1 July 2015 Auditor Regulation Amendment Act 2014 Commencement Order 2015
3: Principal Act
This Act amends the Auditor Regulation Act 2011 principal Act OIC LI 2015/115 2015-07-01 Auditor Regulation Act 2011
4: Section 6 amended (Interpretation)
1: In section 6(1) engagement partner partner or director
2: In section 6(1) engagement partner means the partner , director,
3: In section 6(1) limited partnership
b: an overseas limited partnership within the meaning of the Limited Partnerships Act 2008
4: In section 6(1) overseas audit firm overseas audit firm
a: a partnership where a majority of the partners are ordinarily resident in a country, state, or territory outside New Zealand; or
b: an overseas company
5: In section 6(1) company overseas company
5: Section 9 amended (Audit firms engaged or appointed to act as auditor in respect of FMC audits must be registered)
1: In section 9(1) a partnership that is
2: Replace section 9(2)
2: If an audit firm is engaged or appointed to act as the auditor in respect of an FMC audit, the audit firm must ensure that each engagement partner or director is a licensed auditor whose licence authorises him or her to act as the auditor in respect of that kind of FMC audit.
2A: If an audit firm that is a partnership is engaged or appointed to act as the auditor in respect of an FMC audit, each partner of the audit firm, from time to time, who is a licensed auditor and whose licence authorises him or her to act as the auditor in respect of that kind of FMC audit must, for the purposes of this Act, be treated as acting as the auditor in respect of the FMC audit.
2B: If an audit firm that is a company or an overseas company is engaged or appointed to act as the auditor in respect of an FMC audit, the company or overseas company must, for the purposes of this Act, be treated as acting as the auditor in respect of the FMC audit.
2C: Nothing in this section or section 10 limits the power of the Institute or any other accredited body to make, maintain, and enforce any rules relating to the investigation and hearing of complaints against, and disciplining of, a member or former member in connection with the carrying out of an audit (for example, if a company is treated as acting as the auditor, a director or an employee of that company may be subject to disciplinary action in respect of the audit).
3: In section 9(3) (2)(b) (2)
6: Section 10 amended (Partners who are responsible if FMC audit not carried out in accordance with requirements)
1: In the heading to section 10 Partners or directors
2: In section 10(2) Despite section 9(2)(a), a partner Despite section 9(2A) and (2B), a partner or director
3: In section 10(2) only if if, and only if,
4: In section 10(2)(a) engagement partner engagement partner or director
5: After section 10(2)
3: For the purposes of subsection (2), sections 20(1)(c) and 21(1)(b) apply as if the FMC audit is carried out by the partner or director to which subsection (2)(a), (b), or (c) applies.
7: Section 25 amended (Accredited body may authorise registration of audit firms)
Replace section 25(1)
1: An accredited body may, on an application made by an audit firm that is a partnership or a company, authorise the Registrar to register the audit firm if the accredited body is satisfied that,—
a: in the case of a partnership,—
i: 1 or more of the partners of the firm are licensed auditors; and
ii: the firm meets the prescribed minimum standards:
b: in the case of a company,—
i: 1 or more of the directors of the firm are licensed auditors; and
ii: the firm meets the prescribed minimum standards; and
iii: the firm satisfies the requirements prescribed for the purposes of this subparagraph.
8: Section 26 amended (FMA may authorise registration of overseas audit firms)
Replace section 26(1)(a)
a: in the case of a partnership, 1 or more of the partners of the firm are licensed auditors; and
ab: in the case of an overseas company,—
i: 1 or more of the directors of the firm are licensed auditors; and
ii: the firm is eligible to act as an auditor in the country, State, or territory in which it is incorporated; and
iii: the firm is required, under the law or the regulatory requirements of the country, State, or territory in which it is incorporated, to comply with requirements for maintaining the firm's independence as an auditor, and that those requirements are equivalent to, or as satisfactory as, the requirements that apply to New Zealand auditors; and
iv: the firm satisfies the requirements prescribed for the purposes of this subparagraph; and
9: Section 29 amended (Cancellation of registration)
1: In the heading to section 29 Cancellation or suspension
2: In section 29(1) cancel or suspend
3: Replace section 29(1)(a)
a: no longer has at least 1 partner or director who is a licensed auditor; or
4: After section 29(1)(c)
ca: no longer satisfies the requirements prescribed for the purposes of section 25(1)(b)(iii) or 26(1)(ab)(iv); or
cb: no longer satisfies the requirements of section 26(1)(ab)(ii) or (iii) (in the case of an overseas company); or
5: Replace section 29(2)
2: A suspension under subsection (1) is for the period that the relevant body thinks fit or until the audit firm satisfies any requirements specified by the relevant body (and that period or those requirements must be specified in the notice given under subsection (1)).
3: After receiving a notification under subsection (1), the Registrar must—
a: cancel or suspend the registration of the audit firm; and
b: give written notice of the cancellation or suspension to the audit firm.
4: The Registrar must, after receiving notification of an order under subpart 7 of the cancellation or suspension of the registration of an audit firm, cancel or suspend the registration of the audit firm.
5: The registration of an audit firm may also be treated as cancelled or suspended under section 61(6).
10: Section 30 amended (Relevant body must give notice before exercising power)
In section 30(a) partners or directors
11: Section 31 amended (Appeals in respect of registration matters)
In section 31(1)(c) cancel or suspend
12: Section 34 amended (Minimum standards for registration of audit firm)
After section 34(2)
3: Nothing in regulations made under section 84(1)(ca) limits the FMA's power to prescribe minimum standards for the registration of an audit firm.
13: Section 40 amended (Purpose of register)
In section 40(a)(ii) partnership , a company, or an overseas company
14: Section 41 amended (Contents of register)
In section 41(2)(d) partners , directors,
15: Section 61 amended (Effect of cancellation or suspension on licences issued and registrations authorised by accredited body or former accredited body)
Replace section 61(6)
6: If A was the relevant body under subpart 2 in respect of a registered audit firm,—
a: the registration of the audit firm must be treated as cancelled if A's accreditation is cancelled under section 59; and
b: the registration of the audit firm must be treated as suspended during the period in which A's accreditation is suspended (if A's accreditation is suspended under section 59); but
c: the FMA may order that paragraph (a) or (b) does not apply in respect of 1 or more classes of audit firm.
7: If 1 or more classes of audit firm continue to be registered as the result of an order under subsection (6)(c), the FMA may order, on the terms and conditions that it thinks fit, that another accredited body may act as the relevant body under subpart 2 (and that other accredited body may be the FMA acting under section 91).
16: Section 63 amended (Appeals)
1: Replace section 63(1)(e)
e: to decline to make an order under section 61(2) or (6)(c) in respect of the person's licence or registration.
2: After section 63(2)
3: The High Court may make an order, or otherwise exercise a power, on an appeal under subsection (1)(e) only in respect of 1 or more of the parties to the proceedings.
17: Section 71 amended (Consequences of failing to comply with directions)
In section 71(1)(c) cancel or suspend
18: Section 75 amended (FMA may start or take over investigation or investigate in conjunction with accredited body)
Replace section 75(3)
3: In this subpart, an investigation
a: a licensed auditor in respect of 1 or more FMC audits (whether he or she holds a licence issued under section 11 or 12):
b: a registered audit firm in respect of 1 or more FMC audits (whether the firm's registration is authorised under section 25 or 26).
19: Section 77 amended (Accredited body must give reasonable assistance)
Replace section 77(1)
1: An accredited body must, in respect of the following kinds of investigation, give all reasonable assistance to the FMA to enable the investigation to be carried out:
a: an investigation by the FMA involving a member of the accredited body:
b: an investigation by the FMA involving a registered audit firm that has 1 or more partners, directors, or employees who are members of the accredited body.
20: Section 78 amended (Disciplinary powers of FMA)
Replace section 78(1) to (3)
1: The FMA may, after acting under section 75, make 1 or more of the orders specified in subsection (2) if it is satisfied on reasonable grounds that 1 or more FMC audits carried out by the licensed auditor ( A B
a: in accordance with—
i: the requirements imposed by or under this Act or any other enactments that relate to the conduct of FMC audits; or
ii: auditing and assurance standards; or
b: with reasonable care, diligence, and skill.
2: The orders are—
a: an order that A's licence be cancelled:
b: an order that B's registration be cancelled:
c: an order that the person whose licence or registration is cancelled may not apply to be relicensed or reregistered, whether with the same or a different accredited body, before the expiry of a specified period:
d: an order that A's licence be suspended for the period that the FMA thinks fit:
e: an order that B's registration be suspended for the period that the FMA thinks fit:
f: an order prohibiting A or B (or both) from acting in respect of a specified FMC audit, or a specified class or classes of FMC audit,—
i: permanently; or
ii: for any period that the FMA thinks fit:
g: an order that A or B (or both) pay to the FMA any sum that the FMA considers just and reasonable towards the costs and expenses of, and incidental to, the FMA's investigation and the proceedings.
3: The FMA must not exercise a power referred to in this section in relation to A or B unless—
a: the FMA gives A or B at least 10 working days' written notice of the following matters before it exercises the power:
i: that the FMA may exercise a power under this section; and
ii: the reasons why it is considering exercising that power; and
b: the FMA gives A or B or his, her, or its representative an opportunity to make written submissions and to be heard on the matter within that notice period.
21: Section 79 amended (Miscellaneous matters relating to orders)
Replace section 79(2)(a) and (b)
a: the licensed auditor or audit firm against which the order is made; and
b: the accredited body that issued the licence to that licensed auditor or authorised the registration of that audit firm; and
22: Section 80 amended (FMA may take over and perform regulatory functions)
Replace section 80(a)
a: the accredited body asks the FMA to act in that manner in relation to—
i: a class of its members; or
ii: a class of audit firms that the accredited body has authorised the registration of under section 25; and
23: Section 84 amended (Regulations)
1: After section 84(1)(c)
ca: prescribing requirements for the purposes of section 25(1)(b)(iii) or 26(1)(ab)(iv), including (without limitation) requirements relating to a company's or an overseas company's—
i: ownership, including requirements relating to who may be a shareholder or member and who may exercise voting rights (for example, requiring all or a majority of voting rights to be held by members of the Institute or an accredited body):
ii: governance, including requirements relating to who may be a director or senior manager (for example, requiring all or a majority of directors to be members of the Institute or an accredited body):
iii: legal structure:
iv: systems, policies, and procedures that relate to any of the following:
A: promoting compliance with the requirements imposed by or under any enactment that relates to the conduct of FMC audits:
B: promoting compliance with auditing and assurance standards:
C: otherwise promoting reasonable care, diligence, and skill in the carrying out of FMC audits:
v: professional indemnity insurance:
2: After section 84(1)
1A: Any regulations made under subsection (1)(ca) relating to professional indemnity insurance may, without limitation,—
a: specify the terms and conditions upon which insurance is to be available, and any circumstances in which insurance cover may be excluded or modified:
b: specify the minimum terms and conditions that an insurance policy must satisfy:
c: specify circumstances in which a body corporate or any class of bodies corporate is exempt from the requirements:
d: require a body corporate to have arrangements in place that ensure that an accredited body can ascertain whether the insurance is being maintained in accordance with the regulations.


Charities Amendment Act 2014

1: Title
This Act is the Charities Amendment Act 2014.
2: Commencement
1: This Act comes into force on a date appointed by the Governor-General by Order in Council; and 1 or more orders may be made bringing different provisions into force on different dates.
2: To the extent that it has not previously been brought into force under subsection (1), the rest of this Act comes into force on 1 April 2017. Section 2(1) brought into force 1 April 2015 Charities Amendment Act 2014 Commencement Order 2014
3: Principal Act
This Act amends the Charities Act 2005 principal Act OIC LI 2014/352 2015-04-01 Charities Act 2005
4: New section 6A inserted (Transitional, savings, and related provisions)
After section 6
6A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.
5: New sections 42C to 42F inserted
After section 42B
42C: When financial statements must be audited or reviewed
1: This section applies to—
a: every charitable entity that is large; and
b: every charitable entity that is of medium size.
2: Every charitable entity to which this section applies ( A
a: audited by a qualified auditor if A is large in respect of the accounting period to which the financial statements relate:
b: audited or reviewed by a qualified auditor if A is of medium size in respect of the accounting period to which the financial statements relate.
3: If financial statements are prepared on a consolidated basis in respect of a single entity under section 46(1A)(a),—
a: the parent entity must ensure that the financial statements of the single entity that accompany an annual return under section 41 are—
i: audited by a qualified auditor if the single entity is large in respect of the accounting period to which the financial statements relate:
ii: audited or reviewed by a qualified auditor if the single entity is of medium size in respect of the accounting period to which the financial statements relate; and
b: for the purposes of paragraph (a) subsection (1) sections 42D(1) and 42F
42D: Meaning of large and medium size
1: In section 42C
a: a charitable entity is large
b: a charitable entity is of medium size
i: it is not large under paragraph (a)
ii: in each of the 2 preceding accounting periods of the entity, the total operating expenditure of the entity and all entities it controls (if any) is $500,000 or more:
c: qualified auditor
2: A financial reporting standard (within the meaning of the Financial Reporting Act 2013), or a part of such a standard, that is expressed as applying for the purposes of subsection (1)(a) or (b)
42E: Offence relating to audit or review
If a charitable entity fails to comply with section 42C
42F: Audit or review must be carried out in accordance with auditing and assurance standards
1: An auditor must, in carrying out an audit or a review of the financial statements of a charitable entity, comply with all applicable auditing and assurance standards.
2: The auditor's report must comply with the requirements of all applicable auditing and assurance standards.
3: This section does not apply in respect of a charitable entity that is a public entity (within the meaning of the Public Audit Act 2001).
4: In this section, applicable auditing and assurance standards
6: Section 46 amended (Board or chief executive may treat parent entity and 1 or more other entities as forming part of single entity on certain terms and conditions)
Before section 46(2)
1C: If terms and conditions referred to in subsection (1A) relate to the financial statements of an entity, those terms and conditions must be treated as including a requirement for the financial statements to disclose, in the statement of accounting policies section, a brief description of the terms and conditions that apply under subsection (1A).
7: New Schedule inserted
Before Schedule 1 Schedule 1AA Schedule