Fair Pay Agreements Act 2022

1: Title
This Act is the Fair Pay Agreements Act 2022.
2: Commencement
1: Sections 283 284
2: Section 34(3) and (4)
3: The rest of this Act comes into force on 1 December 2022.
1: Preliminary provisions
3: Purpose
The purpose of this Act is to enable employment terms to be improved for employees by providing—
a: a framework for bargaining for fair pay agreements that specify industry- or occupation-wide minimum employment terms; or
b: in certain circumstances, for the Authority to determine those minimum employment terms.
4: Overview of Act
1: This Act is divided into 13 Parts, and has 4 schedules.
2: This Part contains preliminary provisions, including the purpose of the Act, definitions of terms used in the Act, and a prohibition against contracting out of the Act.
3: Part 2 subpart 1 subpart 2
4: Part 3
5: Part 4
6: Part 5 subpart 1 subpart 2
7: Part 6
8: Part 7
9: Part 8 proposed FPA proposed renewal proposed replacement
a: assessed and approved by the Employment Relations Authority (set out in subpart 1
b: ratified by the employees and employers who would be covered by the proposed agreement (set out in subpart 2
c: verified by the chief executive (set out in subpart 3
d: checked by the chief executive for any coverage overlap with a fair pay agreement (set out in subpart 4
e: brought into force by the chief executive issuing a notice (set out in subpart 5
10: Part 9 subpart 1 subpart 2
11: Part 10
12: Part 11
a: subpart 1
b: subpart 2
c: subpart 3
13: Part 12
14: Part 13
15: The Act contains the following 4 schedules:
a: Schedule 1
b: Schedule 2
c: Schedule 3 Employment Relations Act 2000
d: Schedule 4
5: Interpretation
1: In this Act, unless the context otherwise requires,— Authority section 156 bargaining
a: means all interactions between the bargaining parties that relate to the proposed agreement or the proposed variation; and
b: includes—
i: negotiations that relate to the proposed agreement or the proposed variation; and
ii: communications or correspondence (between or on behalf of the bargaining parties before, during, or after negotiations) that relate to bargaining for the proposed agreement or the proposed variation; and
iii: the ratification process under subpart 2
c: excludes interactions between bargaining parties after a bargaining side applies, in accordance with section 244 section 252 bargaining party
a: an employee bargaining party; or
b: an employer bargaining party bargaining process agreement section 19(3)(a) bargaining side
a: an employee bargaining side; or
b: an employer bargaining side bargaining side lead advocate
a: to represent the bargaining side; and
b: to act as primary spokesperson for the bargaining side; and
c: to perform any other role specified in the bargaining side’s inter-party side agreement chief executive constitution
a: in relation to an employer association, the association’s rules registered under the Incorporated Societies Act 1908 Incorporated Societies Act 2022
b: in relation to a union, the union’s rules registered under the Incorporated Societies Act 1908 Incorporated Societies Act 2022 contact details
a: the employee’s name:
b: the employee’s job title:
c: the site at which the employee works predominantly:
d: if the employee has an email address at work that is not shared with other employees, that email address:
e: if the employee does not have such an email address at work but has a telephone number at work, that telephone number:
f: if the employee does not have a telephone number or such an email address at work but has provided a personal email address to the employer, that personal email address court section 186 coverage coverage overlap covered employee
a: in relation to a proposed agreement, performs work that is within the coverage of the proposed agreement; or
b: in relation to a proposed variation, is a covered employee in relation to the fair pay agreement that is proposed to be varied; or
c: in relation to a fair pay agreement, meets the threshold specified in section 173 covered employer default bargaining party discontinued district Part 2 eligible employer association
a: of which at least 1 member is a covered employer; and
b: that has a constitution that enables the association to represent the collective interests of covered employers for the purposes of—
i: bargaining for a proposed agreement or a proposed variation; and
ii: a fair pay agreement; and
c: that has a constitution that is democratic, not unreasonable, not unfairly discriminatory, not unfairly prejudicial, and not contrary to any law eligible union
a: has at least 1 member who is a covered employee; and
b: has a constitution that enables the union to represent the collective interests of covered employees, whether or not the employees are union members employee section 6 employee bargaining party
a: is an eligible union that has had its application approved under section 33 49 206
b: is the employee default bargaining party and has, in accordance with section 69 employee bargaining side sections 27 to 38 sections 47 to 50 section 82 section 210
a: represents covered employees; and
b: when bargaining takes place, bargains on behalf of covered employees; and
c: is made up of 1 or more of the bargaining parties listed in section 52(1) employee default bargaining party see employer section 5 employer association
a: is an incorporated society registered under the Incorporated Societies Act 1908 Incorporated Societies Act 2022
b: is independent from, and is constituted and operates at arm’s length from, any union or worker organisation employer bargaining party
a: is an eligible employer association that has had its application approved under section 44 206
b: is a specified employer bargaining party that is, in accordance with sections 58 to 62
c: is the employer default bargaining party and has, in accordance with section 69 employer bargaining side sections 43 to 46 section 82 section 209
a: represents covered employers; and
b: when bargaining takes place, bargains on behalf of covered employers; and
c: is made up of 1 or more of the bargaining parties listed in section 53(1) employer default bargaining party see employment agreement section 5 fair pay agreement section 168
a: a fair pay agreement as varied in accordance with this Act:
b: a fair pay agreement that is renewed in accordance with this Act:
c: a fair pay agreement that, in accordance with this Act, replaces an earlier fair pay agreement:
d: a fair pay agreement that, in accordance with this Act, is attached as a schedule to another fair pay agreement FPA meeting Part 5 sections 262 to 264 Health New Zealand section 4 industry-based agreement section 32(1)(b) initiating party section 39 198 199 initiating union initiation test section 28(1) section 29(1) inter-party side agreement section 18(3)(a) section 55(1) Labour Inspector section 5 minimum base wage rate
a: which may include a starting-out rate of wages or a training rate of wages; but
b: excludes any overtime rate or penalty rate payable under the fair pay agreement minimum entitlement provision section 127 non-SEBP employer occupation-based agreement section 32(1)(a) overtime rate penalty rate personal information section 7(1) proposed agreement proposed FPA
a: a union has applied under section 30
b: the chief executive has not validated the proposed fair pay agreement in accordance with section 168 proposed renewal
a: a party listed in section 197(2)
b: the chief executive has not validated the renewal under section 168 proposed replacement
a: a party listed in section 197(2)
b: the chief executive has not validated the replacement under section 168 proposed variation
a: both bargaining sides for the fair pay agreement have agreed to bargain for the proposed variation ( see section 179
b: the chief executive has not validated the variation under section 192 Public Service Commissioner section 42 regulations section 283 SEBP employer
a: a specified employer bargaining party; or
b: an employer represented by a specified employer bargaining party specified employer bargaining party
a: the Chief of Defence Force appointed under section 8
b: the Chief Parliamentary Counsel holding that office under section 135
c: the Commissioner of Police holding office under section 12
d: Health New Zealand:
e: the Public Service Commissioner standard hours union section 5 wages section 5 workplace section 5
2: For the purposes of this Act, coverage
a: in relation to a proposed agreement, means the work or type of work (and, if applicable, the industry) to which the proposed agreement applies as specified,—
i: for a proposed FPA, in the chief executive’s notification under section 37 111
ii: for a proposed renewal or a proposed replacement, in the chief executive’s notification under section 111 207
b: in relation to a proposed variation, means the work or type of work (and, if applicable, the industry) to which the fair pay agreement that is proposed to be varied applies, as specified in the fair pay agreement notice:
c: in relation to a fair pay agreement, means the work or type of work (and, if applicable, the industry) to which the fair pay agreement applies, as specified in the fair pay agreement notice.
3: Before recommending regulations that specify the employee default bargaining party or the employer default bargaining party, the Minister must be satisfied that,—
a: in the case of the employee default bargaining party, it is an organisation that—
i: represents unions; and
ii: is the most representative organisation of unions in New Zealand; and
b: in the case of the employer default bargaining party, it is an organisation that—
i: represents employers; and
ii: is the most representative organisation of employers in New Zealand.
4: Unless the context otherwise requires, any term or expression that is defined in the Employment Relations Act 2000
6: Transitional, savings, and related provisions
The transitional, savings, and related provisions (if any) set out in Schedule 1
7: Act binds the Crown
This Act binds the Crown.
8: No contracting out
The provisions of this Act have effect despite anything to the contrary in any contract, agreement, or other arrangement. 2000 No 24 s 238
2: General principles and obligations
9: Object of this Part
The object of this Part is to establish that, for the purposes of this Act,—
a: a covered employee may only be represented by an employee bargaining party; and
b: a covered employer may only be represented by an employer bargaining party; and
c: no person may unduly influence any other person in relation to joining or not joining a union or an employer association; and
d: the duty of good faith and related obligations apply to the relevant parties.
1: Freedom of association
Voluntary membership
10: Voluntary membership of union or employer association
1: A contract, an agreement, or any other arrangement between persons must not require an employee, for the purpose of bargaining, or for the purpose of an application made in accordance with section 244 section 252
a: to become or remain a member of a union or a particular union; or
b: to stop being a member of a union or a particular union; or
c: not to become a member of a union or a particular union.
2: A contract, an agreement, or any other arrangement between persons must not require an employer, for the purpose of bargaining, or for the purpose of an application made in accordance with section 244 section 252
a: to become or remain a member of an employer association or a particular employer association; or
b: to stop being a member of an employer association or a particular employer association; or
c: not to become a member of an employer association or a particular employer association.
11: Only employee bargaining party may represent covered employees’ interests
1: For the purposes of bargaining, or for the purpose of an application made in accordance with section 244 section 252
2: For the purposes of subsection (1),—
a: an eligible union that is an employee bargaining party may represent covered employees’ collective interests despite some covered employees not being members of the union, or of any other union; and
b: the employee default bargaining party may represent covered employees’ collective interests despite some covered employees not being members of the employee default bargaining party or a union.
12: Only employer bargaining party may represent covered employers’ interests
1: For the purposes of bargaining, or for the purpose of an application made in accordance with section 244 section 252
2: For the purposes of subsection (1),—
a: an eligible employer association that is an employer bargaining party may represent covered employers’ collective interests despite some covered employers not being members of the eligible employer association, or of any employer association; and
b: the employer default bargaining party may represent covered employers’ collective interests despite some covered employers not being members of the employer default bargaining party or an employer association. Prohibition on preference
13: Prohibition on preference: employees
1: A fair pay agreement or any other contract, agreement, or arrangement must not confer on a person, because the person is or is not a member of a union or a particular union,—
a: any preference in obtaining or retaining employment; or
b: any preference in relation to terms of employment (including terms relating to redundancy, fringe benefits, or opportunities for training, promotion, or transfer).
2: However, a fair pay agreement may provide that a union member payment may be paid to a covered employee who is a member of a union or a particular union.
3: Subsection (1) is not breached because an employee’s individual contract differs from those of other employees employed by the same employer.
4: For the purpose of subsection (2), union member payment
a: an employer pays to each of its covered employees who is a member of a union or of a particular union; and
b: is a separate payment from the employer to its employee; and
c: is not part of the employee’s base wage; and
d: is no more, in total, over the period during which the fair pay agreement applies, than the total amount of the employee’s union membership fees (for 1 union only) for that period.
14: Prohibition on preference: employers
A fair pay agreement must not confer any benefit or opportunity on an employer because the employer is or is not a member of an employer association or a particular employer association (for example, a fair pay agreement must not offer an employer a more favourable term on the condition that the employer join an employer association).
15: Fair pay agreements, contracts, agreements, or other arrangements inconsistent with section 13 or 14
A fair pay agreement, contract, agreement, or another arrangement has no force or effect to the extent that it is inconsistent with section 13 14 Undue influence
16: Undue influence
1: A person must not, for the purposes of bargaining, or for the purpose of an application made in accordance with section 244 section 252
a: to become or remain a member of a union, a particular union, an employer association, or a particular employer association; or
b: to stop being a member of a union, a particular union, an employer association, or a particular employer association; or
c: not to become a member of a union, a particular union, an employer association, or a particular employer association; or
d: in the case of an individual who is authorised to act on behalf of employees or employers, not to act on their behalf or to stop acting on their behalf; or
e: to resign from or leave any employment because the other person is or, as the case may be, is not a member of a union or a particular union.
2: Subsection (1) does not limit the application of section 11
3: A person who contravenes subsection (1) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
2: Duty of good faith
17: Duty of good faith
1: The parties to the relationships in subsection (2), when any of the activities listed in subsection (3) are being undertaken,—
a: must deal with each other in good faith; and
b: without limiting paragraph (a), must not, whether directly or indirectly, do anything—
i: to mislead or deceive each other; or
ii: that is likely to mislead or deceive each other.
2: The relationships are between—
a: an employer and an employee employed by the employer:
b: an employer and a union that is an employee bargaining party but not the employee default bargaining party (a union bargaining party
c: a union bargaining party and a member of the union bargaining party:
d: a union bargaining party and a member of another union bargaining party, where both union bargaining parties are bargaining for the same proposed agreement or proposed variation:
e: a union bargaining party and a member of another union bargaining party, where both union bargaining parties are bargaining parties for the same fair pay agreement:
f: an employee bargaining party and another employee bargaining party, where both employee bargaining parties are bargaining for the same proposed agreement or proposed variation:
g: an employee bargaining party and another employee bargaining party, where both employee bargaining parties are bargaining parties for the same fair pay agreement:
h: an employer bargaining party and another employer bargaining party, where both employer bargaining parties are bargaining for the same proposed agreement or proposed variation:
i: an employer bargaining party and another employer bargaining party, where both employer bargaining parties are bargaining parties for the same fair pay agreement:
j: the employee bargaining parties on the employee bargaining side and the employer bargaining parties on the employer bargaining side, where both bargaining sides are bargaining for the same proposed agreement or proposed variation:
k: the employee bargaining parties on the employee bargaining side and the employer bargaining parties on the employer bargaining side, where both bargaining sides are bargaining parties for the same fair pay agreement.
3: The activities are—
a: bargaining for—
i: a proposed FPA:
ii: a proposed variation:
iii: a proposed renewal:
iv: a proposed replacement:
b: any activity under or in relation to a fair pay agreement while the agreement is in force:
c: any activity relating to bargaining for—
i: a proposed FPA:
ii: a proposed variation:
iii: a proposed renewal:
iv: a proposed replacement.
4: The duty of good faith in subsection (1)—
a: is wider in scope than the implied mutual obligations of trust and confidence; and
b: requires the parties to be active and constructive in establishing and maintaining a productive relationship in which the parties are, among other things, responsive and communicative.
5: This section does not prevent an employer from communicating with the employer’s employees during bargaining (including, for example, in relation to an employer’s proposals for a proposed FPA) as long as communication is consistent with the duty of good faith in subsection (1). 2000 No 24 s 4
18: Good faith obligations between bargaining parties on same bargaining side
1: The good faith obligations set out in this section apply as part of (but do not limit) the duty of good faith in section 17
2: The good faith obligations in subsection (3) apply to bargaining parties that—
a: are bargaining for the same proposed agreement; and
b: are on the same bargaining side; and
c: have formed or joined the bargaining side for the proposed agreement at the relevant point in time specified in section 38 46 82 209 210
3: The good faith obligations for the bargaining parties described in subsection (2) are, in accordance with section 54
a: to agree the inter-party side agreement; and
b: to appoint a bargaining side lead advocate for the bargaining side.
19: Good faith obligations between bargaining parties on different bargaining sides
1: The good faith obligations set out in this section apply as part of (but do not limit) the duty of good faith in section 17
2: The good faith obligations in subsection (3) apply to bargaining parties that are bargaining for the same proposed agreement or proposed variation but that are not on the same bargaining side.
3: The good faith obligations for the bargaining parties described in subsection (2) are,—
a: as soon as possible after the chief executive notifies approval of an application to initiate bargaining, to use their best endeavours to enter into an arrangement that sets out a process for conducting the bargaining in an effective and efficient manner; and
b: from time to time, to meet with each other for the purpose of bargaining; and
c: to consider and respond to each proposal made by the other bargaining side; and
d: if the bargaining parties have come to a standstill or reached a deadlock about a matter, to continue to bargain (including doing the things specified in paragraphs (b) and (c)) about any other matter on which they have not reached agreement; and
e: to use their best endeavours to agree the terms of the proposed agreement or the proposed variation in an orderly, timely, and efficient manner; and
f: to recognise the role and authority of each person chosen to be a representative or an advocate for the purposes of bargaining; and
g: not to undermine, or do anything that is likely to undermine, the bargaining or the authority of another bargaining party or another bargaining side; and
h: during bargaining, to provide the other bargaining side, in accordance with the requirements set out in sections 94 95
i: the other bargaining side requests in accordance with section 93(2)
ii: is reasonably necessary to support or substantiate claims, or responses to claims, made for the purpose of the bargaining.
4: Subsection (3)(b) does not require the bargaining parties to continue to meet with each other about proposals that have been considered and responded to.
20: Further application of duty of good faith
1: The duty of good faith set out in this section applies in addition to (but does not limit) the duty of good faith in section 17
2: The parties to the following relationships must comply with the duty of good faith ( see section 17(1) section 252
a: an employer and an employee employed by the employer:
b: an employer and a union that is an employee bargaining party but not the employee default bargaining party (a union bargaining party
c: a union bargaining party and a member of the union bargaining party:
d: a union bargaining party and a member of another union bargaining party, where both union bargaining parties are joint applicants for a determination for the same proposed agreement:
e: an employee bargaining party and another employee bargaining party, where both employee bargaining parties are joint applicants for a determination for the same proposed agreement:
f: an employer bargaining party and another employer bargaining party, where both employer bargaining parties are joint applicants for a determination for the same proposed agreement.
21: Penalty for breach of duty of good faith
1: An employer is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
a: the duty of good faith in section 17
b: the duty of good faith in section 20 section 252
2: A party who fails to comply with the duty of good faith in section 17 section 211
a: is deliberate, serious, and sustained; or
b: is intended to undermine the process of bargaining.
3: A party who fails to comply with the duty of good faith in section 20 section 252 section 211
a: is deliberate, serious, and sustained; or
b: is intended to undermine the process of applying for, or receiving, a determination under section 252
4: A party who fails to comply with the duty of good faith in section 17 section 212
3: General obligations
22: Engaging employee under contract for services
1: An employer must not engage a person under a contract for services if—
a: the real nature of the relationship is that the person is the employer’s employee; and
b: the employer engages the person under a contract for services, rather than as an employee, to prevent the person being, in relation to a fair pay agreement, a covered employee.
2: An employer who fails to comply with subsection (1) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 212
3: For the purposes of subsection (2), the presumption in subsection (4) applies if, in any matter before the Authority or the court, a person establishes that—
a: the person’s employer engaged the person under a contract for services despite the real nature of the relationship being that the person is the employer’s employee; and
b: if the person had been treated as the employer’s employee, the person would have been, in relation to a fair pay agreement, a covered employee.
4: The rebuttable presumption is that the employer engaged the person under a contract for services for the purpose of preventing the person being, in relation to a fair pay agreement, a covered employee.
23: Obligations imposed on bargaining sides
1: If this Act imposes an obligation on a bargaining side, each bargaining party on that bargaining side is responsible for ensuring that at least 1 bargaining party complies with the obligation on behalf of the bargaining side.
2: If a bargaining side fails to comply with an obligation imposed on the bargaining side by a provision of this Act, each bargaining party on the bargaining side may be liable for the bargaining side’s failure, to the extent specified in the provision.
24: Strikes and lockouts
1: Participation in a strike or lockout that relates to bargaining for a proposed agreement or a proposed variation is unlawful, unless the strike or lockout is otherwise lawful under section 84
2: In this section, strike lockout Part 8
3: Preliminary requirements: initiating bargaining and forming bargaining sides
25: Overview
1: Bargaining for a proposed FPA must be between—
a: an employee bargaining side; and
b: an employer bargaining side.
2: A union that wishes to initiate bargaining for a proposed FPA must apply to the chief executive for approval to do so.
3: Once the chief executive has approved a union to initiate bargaining, a union that wishes to be an additional bargaining party on the employee bargaining side, or an employer association that wishes to be an employer bargaining party on an employer bargaining side, must apply to the chief executive for approval to do so.
4: Once a bargaining side is formed, it has obligations that include—
a: the requirement to comply with the duty of good faith specified in Part 2
b: obligations relating to representation; and
c: the requirement to agree an inter-party side agreement under section 54(2)(a)
d: the requirement to appoint a bargaining side lead advocate under section 54(2)(b) Guidance note
This Part provides preliminary requirements for proposed FPAs. However,—
a: subpart 1 section 181
b: subpart 2 sections 206 to 210
1: Process for initiating bargaining and forming bargaining sides
26: Limit on initiating bargaining
Bargaining for a proposed FPA may be initiated only in accordance with this subpart. Union to apply for approval to initiate bargaining for proposed FPA
27: Criteria for union to initiate bargaining for proposed FPA
1: A union may initiate bargaining for a proposed FPA if—
a: the union is an eligible union; and
b: in respect of the proposed FPA, the union’s application meets one of the following initiation tests:
i: the representation test ( see section 28(1)
ii: the public interest test ( see section 29(1)
c: the chief executive has notified, under section 37
2: Despite subsection (1), a union is not permitted to initiate bargaining if all of the work or each type of work that would be within the coverage of the proposed FPA is already within the coverage of 1 fair pay agreement or 1 proposed FPA for which bargaining has already been initiated.
28: Test for initiating bargaining: representation test
1: For the purposes of section 27(1)(b)(i)
a: at least 1,000 employees who would be within the coverage of the proposed FPA support the application to initiate bargaining for the proposed FPA; or
b: at least 10% of all employees who would be within the coverage of the proposed FPA support the application to initiate bargaining for the proposed FPA.
2: A union that seeks to rely on the representation test must provide evidence to the chief executive that the relevant number of employees who would be within the coverage of the proposed FPA support initiating bargaining ( see section 31
3: Demonstrating that an employee who would be within the coverage of the proposed FPA is a member of the union that is initiating bargaining is not, of itself, sufficient evidence that the employee supports initiating bargaining for the proposed FPA.
29: Test for initiating bargaining: public interest test
1: For the purposes of section 27(1)(b)(ii)
a: receive low pay for their work; and
b: meet 1 or more of the following criteria:
i: they have little bargaining power in their employment:
ii: they have a lack of pay progression in their employment (for example, pay rates only increase to comply with minimum wage requirements):
iii: they are not adequately paid, taking into account factors such as—
A: working long or unsocial hours (for example, working weekends, night shifts, or split shifts):
B: contractual uncertainty, including performing short-term seasonal work or working on an intermittent or irregular basis.
2: Subsection (1) must be applied in accordance with any regulations, which may specify 1 or more of the following:
a: the portion of employees that must, to satisfy the public interest test, meet the criteria specified in subsection (1)(a) and (b):
b: further details as to how the criteria specified in subsection (1)(a) and (b) may be satisfied.
30: Application for approval for union to initiate bargaining
1: A union’s application to the chief executive for approval to initiate bargaining for a proposed FPA must—
a: be in writing; and
b: state the following details:
i: the name of the union:
ii: the name of a primary contact person for the union:
iii: the email address of the primary contact person; and
c: specify the coverage of the proposed FPA ( see section 32
i: for a proposed occupation-based agreement, a description of the work or the type of work that is intended to be within the coverage of the proposed FPA; or
ii: for a proposed industry-based agreement, a description of—
A: the industry or type of industry that is intended to be within the coverage of the proposed FPA; and
B: the occupation, including the work or the type of work, that is intended to be within the coverage of the proposed FPA; and
d: specify which initiation test the union’s application relies on; and
e: provide evidence of—
i: the applicant being an eligible union; and
ii: how the application meets the relevant initiation test; and
f: be signed by an authorised representative of the union; and
g: include any other information required by regulations.
2: Evidence provided in support of an application must be provided in accordance with section 31
3: In this section, relevant initiation test section 28(1) section 29(1)
4: A union that intentionally or recklessly provides inaccurate information as part of an application is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
31: Evidence provided in support of application
1: Evidence provided to demonstrate that an application under section 30
a: the representation test under section 28(1)
i: align with, and be representative of, the coverage of the proposed FPA; and
ii: for each employee who would be within the coverage and that is claimed to support initiating bargaining for the proposed FPA, include the information specified in subsection (2); and
iii: if the application is made, in accordance with section 28(1)(b)
b: the public interest test under section 29(1)
i: align with, and be representative of, the coverage of the proposed FPA; and
ii: demonstrate that the relevant criteria listed in section 29(1)(a) and (b)
2: For the purposes of subsection (1)(a)(ii), the information that must be provided for each employee that supports initiating bargaining is—
a: the employee’s name; and
b: the employee’s occupation; and
c: the name of the employee’s employer; and
d: the date on which the employee agreed to support initiating bargaining; and
e: if the application is for an industry-based agreement, the industry in which the employee is employed.
3: Information provided under subsection (2) must be no more than 12 months old as at the date on which the union submits the application.
32: Coverage of proposed FPA
1: The coverage of a proposed FPA must be described according to—
a: the occupation, including the work or the type of work, that the proposed FPA would cover (an occupation-based agreement
b: the industry and the occupations, including the work or the type of work within that industry, that the proposed FPA would cover (an industry-based agreement
2: An occupation-based agreement must apply to—
a: all covered employees who are employed in the occupation covered by the agreement; and
b: all covered employers in relation to the agreement.
3: An industry-based agreement must apply to—
a: all covered employees who are employed in the occupation and industry covered by the agreement; and
b: all covered employers in relation to the agreement.
4: The coverage of a proposed FPA—
a: must be specified with sufficient clarity so that all employees and employers are able to determine whether they are within the coverage of the proposed FPA; and
b: must be specified in accordance with any regulations; and
c: must include any other information required by regulations. Chief executive assesses application for approval to initiate bargaining
33: Chief executive must assess application for approval to initiate bargaining
1: After receiving a union’s application for approval to initiate bargaining for a proposed FPA, the chief executive must—
a: assess the application; and
b: notify the applicant in writing—
i: whether the chief executive has approved the application; and
ii: if the chief executive has approved the application, the coverage of the proposed FPA that the chief executive has approved.
2: If, after considering any additional information or evidence provided under section 35
3: The chief executive must approve the application only if satisfied that the application meets the following requirements:
a: the application complies with the requirements in section 30(1)
b: based on the information provided in the application, any additional information or evidence the chief executive receives under section 35(2) section 36
i: the coverage of the proposed FPA is defined with sufficient clarity (as required by section 32(4)
ii: the applicant has met one of the initiation tests for the proposed FPA; and
iii: all of the work or each type of work that is within the coverage of the proposed FPA is not already within the coverage of 1 fair pay agreement or 1 proposed FPA for which bargaining has already been initiated.
4: The chief executive must decline an application if,—
a: after assisting the union under subsection (2), the chief executive considers the application does not define the coverage of the proposed FPA with sufficient clarity; or
b: after considering any additional information or evidence the chief executive receives under section 35(2) section 36
5: If the chief executive declines an application, the chief executive must also, by written notice, advise the applicant of the reasons for declining the application.
34: Time frame for chief executive
1:
2:
3: The chief executive must comply with section 33(1)
a: as soon as practicable; but
b: no later than 30 working days after receiving—
i: any additional information or evidence required to be provided under section 35(2)
ii: any information required to be provided under section 35(3)
4: However, the time frame in subsection (3)(b) is subject to the following:
a: if the chief executive invites public submissions under section 36
b: the chief executive may extend the 30-working-day period to 45 working days if satisfied that it is appropriate to do so in the circumstances. 2023-06-01 Fair Pay Agreements Act 2022 Section 34(1) and (2) expire 6 months after section 33 comes into force; see section 34(2). Section 34(1) expired 1 June 2023 Section 34(2) expired 1 June 2023
35: Chief executive may require applicant to provide further information
1: This section applies when the chief executive is considering whether to approve an application to initiate bargaining.
2: The chief executive may require the applicant to provide additional information or evidence if the chief executive considers the application does not contain enough information for the chief executive to decide whether to approve the application.
3: The chief executive may, for the purpose of verifying information that the applicant has provided under section 31(1)(a)(ii)
a: all employees who would be covered by the proposed FPA; or
b: a sample of the employees who would be covered by the proposed FPA.
36: Chief executive may invite submissions when considering application
1: When considering whether to approve an application for approval to initiate bargaining, the chief executive may invite public submissions on whether the application meets—
a: the representation test specified in section 28(1)(b)
b: the public interest test specified in section 29(1)
2: An invitation to make submissions must specify the date by which the chief executive must receive any submissions, which must be at least 20 working days, but no more than 30 working days, after the chief executive invites submissions.
3: The chief executive must consider any submissions received by the specified date before deciding whether to approve the application.
4: If the chief executive receives an application that includes personal information, the chief executive must not disclose that personal information to any other person, except in a form that does not identify the individual.
37: Chief executive to publicly notify decision
1: Within 5 working days after approving an application to initiate bargaining for a proposed FPA, the chief executive must publicly notify the following information:
a: the fact that the chief executive has approved the application:
b: the name of the applicant:
c: whether the application relied on the representation test or the public interest test for initiating bargaining ( see sections 28 29
d: the reasons why the chief executive is satisfied that the application meets the public interest test or the representation test (as applicable):
e: the coverage of the proposed FPA.
2: The public notice issued under subsection (1) must also state—
a: that each covered employee and each covered employer (as at the date on which the chief executive approved the application to initiate bargaining) may be represented in the bargaining for the proposed FPA; and
b: that, unless the coverage of the proposed FPA changes during bargaining, the fair pay agreement will apply to—
i: each employee who, in relation to the fair pay agreement, will be a covered employee; and
ii: each employer who, in relation to the fair pay agreement, will be a covered employer; and
c: where to find a plain language explanation of the next steps for bargaining. Guidance note
If the chief executive approves an application to initiate bargaining for a proposed FPA with coverage that overlaps with the coverage of another proposed FPA or a fair pay agreement, sections 113 to 120 Formation of employee bargaining side
38: Formation of employee bargaining side
An employee bargaining side for a proposed FPA is formed 3 months after the date on which the chief executive notifies, under section 37 Initiating union must notify approval to initiate bargaining
39: Initiating union to notify unions and employers of approval to initiate bargaining
1: Within 15 working days after receiving notice that the chief executive has approved its application to initiate bargaining, an initiating union must—
a: use its best endeavours to identify each other union that the initiating union considers is likely to have members who are covered employees, and notify it that the initiating union has received approval to initiate bargaining; and
b: use its best endeavours to identify each employer that the initiating union considers is likely to be a covered employer, and—
i: notify it that the initiating union has received approval to initiate bargaining; and
ii: provide it with an email address to which the employer is required to send the employer’s covered employees’ contact details; and
c: publish a notice—
i: on an Internet site that is administered by or on behalf of the initiating union, publicly available, and free of charge; and
ii: in the daily newspapers circulating in Auckland, Hamilton, Tauranga, Wellington, Christchurch, and Dunedin.
2: A notification under subsection (1)(a) or (b) must—
a: be in writing; and
b: state where to find the notice issued by the chief executive under section 37
c: include a statement for an employer to provide to each of its covered employees; and
d: include a form, approved and issued by the chief executive under section 284
i: that an employer is required to provide contact details for each of the employer’s covered employees to the initiating union, unless the employee elects not to have their contact details provided:
ii: the process by which an employee who does not want their contact details to be provided to the initiating union can elect not to have their contact details provided:
iii: the reason for providing the employee’s contact details to the initiating union:
iv: an explanation of to whom the initiating union is able to provide the employee’s contact details:
v: an explanation of the purposes for which the employee’s contact details may be used:
vi: the consequences of the employee electing not to have their contact details provided:
vii: how an employee who has elected not to have their contact details provided can rescind that election so that the employer must provide the employee’s contact details to the initiating union.
3: A notice published—
a: under subsection (1)(c)(i) must—
i: state that approval has been given to initiate bargaining for a proposed FPA; and
ii: include the information specified in subsection (2)(b), (c), and (d):
b: under subsection (1)(c)(ii) must state—
i: that approval has been given to initiate bargaining for a proposed FPA; and
ii: where to find the notice issued by the chief executive under section 37
iii: where to find the notice published under subsection (1)(c)(i).
4: A statement provided under subsection (2)(c) must—
a: be in writing; and
b: be drafted in plain language; and
c: be drafted in such a way that the employer is able to provide it to their covered employees without needing to redraft it; and
d: advise the covered employee about the proposed FPA, including at least the following information:
i: that the initiating union has been approved to initiate bargaining for a proposed FPA and that the employee is within the coverage of the proposed FPA:
ii: the name of the initiating union:
iii: how the proposed FPA could affect the employee and the work they do:
iv: that, when bargaining for a proposed FPA, the initiating union and any other employee bargaining parties represent all employees within the coverage of the proposed FPA, including employees who are not members of the initiating union or of any other union:
v: where to find further information about the proposed FPA and the bargaining process:
vi: how to contact the initiating union to request any further information.
40: Employer to notify employees and unions of bargaining being initiated
1: Within 15 working days after receiving notice from an initiating union under section 39
a: that the chief executive has approved initiating bargaining for the proposed FPA; and
b: where to find the notice issued by the chief executive under section 37
2: As soon as possible, but no later than 30 working days after being advised (whether in accordance with this Act or otherwise) that the chief executive has approved initiating bargaining for the proposed FPA, a covered employer must provide each of its covered employees with a copy of the form provided under section 39(2)(d)
a: a copy of the statement provided under section 39(2)(c)
b: if the employer has not received a statement from the union, the information required to be contained in that statement ( see section 39(4)(d)
3: An employer must provide the information required by subsection (2) in writing and individually to each covered employee (for example, by emailing the information to each covered employee, but not by posting the information on a staff intranet).
4: If a union provides an employer with a statement under section 39(2)(c)
a: must not amend the wording of the statement or the form before providing it to the employer’s covered employees; but
b: may provide information to the covered employees that is additional to the information contained in the statement and the form.
5: An employer that intentionally or recklessly fails to comply with subsection (2), (3), or (4)(a) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
41: Union to notify employers of bargaining being initiated
1: Within 15 working days after being notified under section 39(1) 40(1)
2: The notice to the employer must—
a: advise the employer that the chief executive has approved initiating bargaining for the proposed FPA; and
b: advise the employer where to find the notice issued by the chief executive under section 37
c: include the statement provided under section 39(2)(c)
d: include the form provided under section 39(2)(d)
3: If a union provides an employer with a statement under subsection (2)(c) and a form under subsection (2)(d), the union—
a: must not amend the wording of the statement or the form before providing it to the employer; but
b: may provide information to the employer that is additional to the information contained in the statement and the form. Employee contact details
42: Employer to provide employee contact details to employee bargaining side
1: Subject to subsection (3), an employer who is advised (whether in accordance with this Act or otherwise) that the chief executive has approved initiating bargaining for a proposed FPA must provide the contact details for each of the employer’s covered employees to the initiating union (or, if applicable, to the contact address for the employee bargaining side provided under section 106
2: The employer must provide the contact details in an electronic format and—
a: as soon as practicable after the date that is 20 working days after the date on which the employer provides the relevant information to its employees under section 40(2)
b: no later than 30 working days after the date on which the employer provides the relevant information.
3: The employer must not provide the contact details of an employee who has elected, in accordance with section 39(2)(d)(ii)
4: An employer who intentionally or recklessly fails to comply with this section is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211 Employer bargaining side
43: Employer association may apply to be employer bargaining party
1: If the chief executive notifies, under section 37
2: An application must—
a: be in writing; and
b: state the following details:
i: the name of the employer association:
ii: the name of a primary contact person for the employer association:
iii: the email address of the primary contact person; and
c: contain evidence that the employer association is an eligible employer association; and
d: be signed by an authorised representative of the employer association; and
e: include any other information required by regulations.
3: An employer association may only apply to be an employer bargaining party on the employer bargaining side between—
a: the date on which the chief executive approves the initiation of bargaining for the proposed FPA; and
b: the earliest of the following dates:
i: the date on which the chief executive validates the proposed FPA under section 168
ii: the date on which a bargaining party applies, in accordance with section 244 section 252
iii: the date on which bargaining for the proposed FPA is discontinued.
44: Chief executive to assess application for approval to be employer bargaining party
1: The chief executive may require an applicant for approval to be an employer bargaining party on an employer bargaining side to provide further information or evidence if the chief executive considers the application does not contain sufficient information for the chief executive to decide whether to approve the application.
2: The chief executive must, as soon as practicable,—
a: assess each application and,—
i: if satisfied that the application is from an eligible employer association, approve the application; or
ii: if not satisfied (after considering the application and any further information or evidence provided in response to a request under subsection (1)) that the application is from an eligible employer association, decline the application; and
b: notify the applicant of the chief executive’s decision.
3: If the chief executive declines an application, the chief executive must also, by written notice, advise the employer association of the reasons for declining the application.
4: If the chief executive declines an application, the employer association may make another application.
45: Chief executive must notify decision to approve employer bargaining party
1: Within 5 working days after approving an eligible employer association’s application to be an employer bargaining party, the chief executive must—
a: publicly notify that it has approved the application to be an employer bargaining party on the employer bargaining side (including the name of the employer association); and
b: notify each other employer bargaining party on the bargaining side that it has approved the application (including the name of the employer association).
2: A notice under subsection (1)(a) must state where to find the notice issued by the chief executive under section 37
46: Formation of employer bargaining side for proposed FPA
1: If the chief executive publicly notifies, under section 37
a: if, within 3 months of the chief executive’s notification under section 37
b: if (in accordance with section 69
2: A specified employer bargaining party may be the only employer bargaining party on an employer bargaining side for a proposed FPA only if the proposed FPA—
a: covers an SEBP employer; and
b: does not cover a non-SEBP employer.
3: There is no limit to the number of eligible employer associations that may be approved to be employer bargaining parties on an employer bargaining side. Other union may apply to be additional employee bargaining party
47: Other union may apply for approval to be additional employee bargaining party on employee bargaining side
1: If the chief executive notifies, in accordance with section 37
2: A union may make an application only if it is an eligible union.
3: A union may only apply to be an employee bargaining party on the employee bargaining side between—
a: the date on which the chief executive approves the initiation of bargaining for the proposed FPA under section 37
b: the earliest of the following dates:
i: the date on which the chief executive validates the proposed FPA under section 168
ii: the date on which a bargaining party applies, in accordance with section 244 section 252
iii: the date on which bargaining for the proposed FPA is discontinued.
4: There is no limit to the number of eligible unions that may be approved to be employee bargaining parties on an employee bargaining side.
48: Application for approval for union to be additional employee bargaining party
A union’s application for approval to be an additional employee bargaining party on the employee bargaining side for a proposed FPA must—
a: be in writing; and
b: state the following details:
i: the name of the union:
ii: the name of a primary contact person for the union:
iii: the email address of the primary contact person; and
c: contain evidence that the union is an eligible union; and
d: be signed by an authorised representative of the union; and
e: include any other information required by regulations.
49: Chief executive to assess application for approval to be additional employee bargaining party
1: The chief executive must, as soon as practicable, assess each application for approval to be an additional employee bargaining party on an employee bargaining side for a proposed FPA.
2: The chief executive may require a union to provide further information or evidence if the chief executive considers the application does not contain enough information for the chief executive to decide whether to approve the application.
3: The chief executive must approve the union to be an additional employee bargaining party on the employee bargaining side only if satisfied that the application complies with section 48
4: The chief executive must decline an application if, after considering the application and any further information or evidence provided in response to a request made under subsection (2), the chief executive is not satisfied that the application complies with section 48
5: If the chief executive declines an application, the union may make another application.
50: Chief executive to notify decision on application for approval to be additional employee bargaining party
1: As soon as practicable after receiving an application to be an additional employee bargaining party on an employee bargaining side, the chief executive must, by written notice, advise the union whether its application has been approved or declined.
2: If the chief executive declines an application, the chief executive must also, by written notice, advise the union of the reasons for declining the application.
3: Within 5 working days after approving an eligible union’s application to be an additional employee bargaining party, the chief executive must—
a: publicly notify that it has approved the application to be an additional bargaining party on the employee bargaining side (including the name of the union and where to find the notice issued by the chief executive under section 37
b: notify each other employee bargaining party on the bargaining side that it has approved the application (including the name of the union).
2: General provisions for initiating bargaining
Notification of bargaining parties
51: Notification of bargaining parties
The chief executive must provide to each bargaining party for a proposed FPA the name of each other bargaining party for the proposed FPA on the first working day that is 3 months after the date on which the chief executive publicly notifies approval of an eligible union’s application to initiate bargaining for the proposed FPA. Bargaining sides
52: Employee bargaining side
1: The employee bargaining side for a proposed FPA consists of the following bargaining parties:
a: the eligible union that is approved under section 33
b: any other eligible union that is approved under section 49
c: any other eligible union that joins the bargaining side as a result of 2 proposed FPAs being consolidated in accordance with section 116
d: the employee default bargaining party if it becomes a bargaining party under subpart 2
2: The bargaining parties of an employee bargaining side are not able to prevent an additional eligible union that has been approved under section 49
3: An employee bargaining party that joins the employee bargaining side for a proposed FPA remains a bargaining party until—
a: bargaining for the proposed FPA is discontinued; or
b: the bargaining party ceases to be a bargaining party in the circumstances described in section 101
c: the chief executive issues a fair pay agreement notice in respect of the proposed FPA ( see section 168
53: Employer bargaining side
1: The employer bargaining side for a proposed FPA consists of the following parties:
a: each eligible employer association that is approved, under section 44
b: any other eligible employer association that joins the bargaining side as a result of 2 proposed FPAs being consolidated in accordance with section 116
c: each specified employer bargaining party that has, in accordance with section 58 60 61
d: the employer default bargaining party if it becomes a bargaining party under subpart 2
2: The bargaining parties of an employer bargaining side are not able to prevent an additional eligible employer association that has been approved under section 44
3: An employer bargaining party that joins the employer bargaining side for a proposed FPA remains a bargaining party until—
a: bargaining for the proposed FPA is discontinued; or
b: the bargaining party ceases to be a bargaining party in the circumstances described in section 101
c: the chief executive issues a fair pay agreement notice in respect of the proposed FPA ( see section 168
54: Requirements for each bargaining side
1: Each bargaining side for a proposed FPA must comply with subsection (2) no later than 20 working days after the date on which the bargaining side is formed in accordance with section 38 46 82
2: Each bargaining side must—
a: agree an inter-party side agreement; and
b: appoint a bargaining side lead advocate to—
i: represent the bargaining side in bargaining; and
ii: chair the bargaining parties on the bargaining side, when bargaining for the proposed FPA; and
iii: be the primary spokesperson for the bargaining side.
3: If, for any reason and at any time during bargaining, a bargaining side lead advocate stops performing that role, the bargaining side must appoint a new bargaining side lead advocate within 20 working days after the first bargaining side lead advocate stops performing that role.
55: Inter-party side agreement
1: An inter-party side agreement must include details of the process the bargaining side will follow to make decisions relating to bargaining for the proposed FPA.
2: As soon as practicable after the date by which a bargaining side must comply with section 54(2)
a: a copy of the inter-party side agreement; and
b: a copy of any amendment to the inter-party side agreement.
56: When bargaining party subsequently joins bargaining side
If the chief executive approves an eligible union or an eligible employer association to be a bargaining party on a bargaining side after the bargaining side has provided its inter-party side agreement to the chief executive, the bargaining side—
a: is not required to amend its inter-party side agreement; but
b: must consider whether to amend the inter-party side agreement as a result of the bargaining party joining the bargaining side.
4: Specified employer bargaining parties and default bargaining parties
Subpart 1: Specified employer bargaining parties
57: Interpretation
In sections 58 to 61 Civil Staff section 2(1) education service section 10(7) institution section 10(1) Police employee section 4 public service agency section 10 public service chief executive section 5 Secretary for Education section 10(1) State enterprise section 2 State services section 5
58: Public Service Commissioner
1: The Public Service Commissioner is an employer bargaining party if—
a: the coverage of a proposed agreement, a proposed variation, or a fair pay agreement includes at least 1 covered employee who is an employee of a public service agency or the education service; and
b: in the case of a proposed agreement, the chief executive has publicly notified, in accordance with section 37 207
2: The Public Service Commissioner may, under clause 6
a: a public service chief executive of a department if at least 1 employee of the department is a covered employee in relation to the proposed agreement, the proposed variation, or the fair pay agreement:
b: the Secretary for Education if at least 1 employee of the education service is a covered employee in relation to the proposed agreement, the proposed variation, or the fair pay agreement.
3: The Public Service Commissioner must consult—
a: the chief executive of a public service agency when acting as an employer bargaining party on behalf of that chief executive; or
b: the Secretary for Education when acting as an employer bargaining party on behalf of an employer in the education service.
59: Specified State employers
Section 60
a: the Chief of Defence Force (appointed under section 8
b: the Chief Parliamentary Counsel (holding that office under section 135 section 136 138
c: the Commissioner of Police (holding office under section 12
d: Health New Zealand, in relation to a proposed agreement, a proposed variation, or a fair pay agreement if at least 1 employee of Health New Zealand is a covered employee.
60: Options for specified State employer
1: An employer listed in section 59
a: the coverage of the proposed agreement, the proposed variation, or the fair pay agreement includes at least 1 covered employee who is employed by the employer; and
b: in the case of a proposed agreement, the chief executive has publicly notified, in accordance with section 37 207
2: An employer listed in section 59
3: If an employer listed in section 59(a), (b), or (c)
4: If an employer listed in section 59
5: Subsection (4) applies despite section 99
61: Other specified State employers
1: This section applies to—
a: a State enterprise:
b: an employer in the State services, other than—
i: an employer in the education service:
ii: a chief executive of a public service agency.
2: Subsection (3) applies to an employer described in subsection (1) if—
a: the coverage of a proposed agreement, a proposed variation, or a fair pay agreement includes at least 1 covered employee who is employed by the employer; and
b: in the case of a proposed agreement, the chief executive has publicly notified, in accordance with section 37 207
3: An employer described in subsection (1) may ask the Public Service Commissioner to act as an employer bargaining party on the employer’s behalf, but the Public Service Commissioner is not obliged to act as an employer bargaining party if asked to do so.
62: Specified employer bargaining parties
1: Despite section 99
a: the specified employer bargaining party must not represent the interests of any other covered employers; and
b: another employer bargaining party that is a member of the same bargaining side must not represent the interests of the SEBP employer.
2: To avoid doubt, a specified employer bargaining party may, in accordance with sections 58 to 61
63: Specified employer bargaining party to notify chief executive
A specified employer bargaining party must notify the chief executive if it is an employer bargaining party for a proposed agreement.
64: Chief executive must publicly notify if specified employer bargaining party is employer bargaining party
1: Within 5 working days after the date on which a specified employer bargaining party notifies the chief executive that it is an employer bargaining party, the chief executive must publicly notify—
a: that a specified employer bargaining party is an employer bargaining party; and
b: the name of the specified employer bargaining party; and
c: the proposed agreement for which the specified employer bargaining party is a bargaining party.
2: A notice under subsection (1) must state where to find the notice issued by the chief executive under section 37 207
2: Default bargaining parties
65: Overview: when default bargaining party may elect to be bargaining party
1: The circumstances in which a default bargaining party may elect to be a bargaining party include the following:
a: an employee bargaining party initiates bargaining for a proposed agreement that covers a covered employer that is a non-SEBP employer, but no employer bargaining party (other than a specified employer bargaining party, if applicable) forms an employer bargaining side:
b: an employer bargaining side initiates bargaining for a proposed renewal or a proposed replacement, but no employee bargaining party forms an employee bargaining side:
c: a specified employer bargaining party initiates bargaining for a proposed renewal or a proposed replacement, and—
i: the proposed renewal or the proposed replacement covers a covered employer that is a non-SEBP employer; but
ii: no other employer bargaining party (other than another specified employer bargaining party) joins the employer bargaining side:
d: bargaining for a proposed agreement has commenced, but each bargaining party (other than a specified employer bargaining party, if applicable) on a bargaining side ceases to be a bargaining party:
e: a fair pay agreement is in force, and—
i: each bargaining party on the employee bargaining side ceases to be a bargaining party; or
ii: the agreement covers a covered employer that is a non-SEBP employer and each bargaining party (other than a specified employer bargaining party, if applicable) on the employer bargaining side ceases to be a bargaining party.
2: A default bargaining party may elect to be a bargaining party despite not otherwise being an eligible union or an eligible employer association (as applicable) and therefore not otherwise being eligible to join a bargaining side.
66: Limit on employer default bargaining party electing to be bargaining party
Despite anything to the contrary in this subpart, the employer default bargaining party must not elect to be an employer bargaining party for a proposed agreement, a proposed variation, or a fair pay agreement unless the proposed agreement, the proposed variation, or the fair pay agreement covers a non-SEBP employer.
67: Chief executive’s notification: bargaining side not formed
1: Subsection (2) applies if the chief executive—
a: has notified under section 37 section 44
b: has notified under section 207
c: has notified under section 207
i: the proposed renewal or the proposed replacement does not cover a covered employer that is a non-SEBP employer but, within 2 months of the chief executive’s notification, the chief executive has not approved an eligible union to be an employee bargaining party on an employee bargaining side; or
ii: the proposed renewal or proposed replacement covers a covered employer that is a non-SEBP employer but, within 2 months of the chief executive’s notification, the chief executive has not approved an eligible employer association to be an employer bargaining party on the employer bargaining side.
2: If this subsection applies, the chief executive must notify—
a: the bargaining party that the chief executive approved to initiate bargaining that the chief executive has not approved a bargaining party for the relevant bargaining side; and
b: the relevant default bargaining party—
i: that the chief executive has not approved a bargaining party for its bargaining side, and that the default bargaining party has 1 month in which it may elect to be a bargaining party for the proposed agreement; and
ii: whether a specified employer bargaining party is a bargaining party for the bargaining.
68: Chief executive’s notification: all bargaining parties on bargaining side cease to be bargaining parties
1: Subsection (2) applies if the chief executive—
a: grants approval under section 102(2)
i: there are no other bargaining parties on the bargaining side ( bargaining side A
ii: in the case of an employer bargaining side for a proposed agreement or a fair pay agreement, there are no other bargaining parties other than, if applicable, a specified employer bargaining party; or
b: otherwise becomes aware, and has confirmed, that there is no longer a bargaining party on bargaining side A other than (in the case of an employer bargaining side for a proposed agreement or a fair pay agreement that covers a covered employer that is a non-SEBP employer, if applicable) a specified employer bargaining party.
2: If this subsection applies, the chief executive must notify—
a: the bargaining side lead advocate for the other bargaining side for the proposed agreement or the fair pay agreement ( bargaining side B
i: if applicable, that the only bargaining party on bargaining side A is a specified employer bargaining party; or
ii: in all other cases, that there is no bargaining party on bargaining side A; and
b: if applicable, the bargaining side lead advocate for bargaining side A that there is no longer a bargaining party on that side other than a specified employer bargaining party; and
c: the relevant default bargaining party that, in respect of the proposed agreement or the fair pay agreement, there is no bargaining party on bargaining side A and the default bargaining party may elect to be a bargaining party,—
i: in relation to a proposed agreement, no later than 1 month after the chief executive’s notification under this section; or
ii: in relation to a fair pay agreement, no later than the date on which the fair pay agreement expires.
69: Default bargaining party elects to be bargaining party
1: A default bargaining party elects to be a bargaining party by notifying the chief executive of its election—
a: in writing; and
b: either,—
i: in relation to a proposed agreement, no later than 1 month after the chief executive’s notification to the default bargaining party under section 67(2)(b) 68(2)(c)
ii: in relation to a fair pay agreement, no later than the date on which the fair pay agreement expires.
2: A default bargaining party that elects to be a bargaining party remains a bargaining party—
a: despite another bargaining party joining the bargaining side on which the default bargaining party is a bargaining party; and
b: until—
i: the chief executive approves the default bargaining party ceasing to be a bargaining party under section 102
ii: it ceases to be eligible to be a bargaining party under section 103
iii: bargaining for the proposed agreement is discontinued; or
iv: the chief executive issues a fair pay agreement notice in respect of the proposed FPA ( see section 168 Default bargaining parties for proposed agreements: when bargaining side not formed
70: Employer default bargaining party for proposed agreement
1: The employer default bargaining party may elect to be an employer bargaining party for a proposed FPA that covers a covered employer that is a non-SEBP employer if—
a: the employee bargaining side initiates bargaining for the proposed FPA; and
b: within 3 months of the chief executive’s notice of approval under section 37
2: The employer default bargaining party may elect to be an employer bargaining party for a proposed renewal or a proposed replacement that covers a covered employer that is a non-SEBP employer if—
a: the proposed renewal or the proposed replacement is initiated by the employee bargaining side or a specified employer bargaining party; and
b: within 2 months of the chief executive’s notice of approval under section 207
3: If the employer default bargaining party does not elect to be an employer bargaining party for—
a: a proposed agreement that was initiated by the employee bargaining side, a bargaining party on the employee bargaining side may apply, in accordance with section 244 section 252
b: a proposed renewal or a proposed replacement that was initiated by a specified employer bargaining party, the specified employer bargaining party may apply, in accordance with section 244 section 252
71: Employee default bargaining party for proposed renewal or proposed replacement
1: The employee default bargaining party may elect to be an employee bargaining party for a proposed renewal or a proposed replacement if—
a: the employer bargaining side initiates bargaining for the proposed renewal or the proposed replacement; and
b: within 2 months of the chief executive’s notice of approval, an eligible union has not been approved to be an employee bargaining party on an employee bargaining side to bargain for the proposed renewal or the proposed replacement.
2: If the employee default bargaining party does not elect to be an employee bargaining party for the proposed renewal or the proposed replacement, a bargaining party on the employer bargaining side may apply, in accordance with section 244 section 252 Default bargaining parties for proposed agreement: when bargaining side ceases
72: Default bargaining parties when bargaining for proposed agreement initiated by employee bargaining party
1: This section applies if an employee bargaining party initiates bargaining for a proposed agreement and, during bargaining,—
a: every employee bargaining party ceases to be a bargaining party for the proposed agreement; or
b: every employer bargaining party, other than a specified employer bargaining party, ceases to be a bargaining party for the proposed agreement, and the proposed agreement covers a covered employer that is a non-SEBP employer.
2: In the situation described in subsection (1)(a),—
a: the employee default bargaining party may elect, in accordance with section 69
b: if the employee default bargaining party does not elect to be an employee bargaining party for the proposed agreement, bargaining for the proposed agreement is discontinued.
3: In the situation described in subsection (1)(b),—
a: the employer default bargaining party may elect, in accordance with section 69
b: if the employer default bargaining party does not elect to be an employer bargaining party for the proposed agreement, a bargaining party on the employee bargaining side may apply, in accordance with section 244 section 252
73: Default bargaining parties when bargaining for proposed renewal or proposed replacement initiated by employer bargaining party
1: This section applies if an employer bargaining party (other than a specified employer bargaining party) initiates bargaining for a proposed renewal or a proposed replacement but, during bargaining,—
a: every employee bargaining party on the employee bargaining side ceases to be a bargaining party for the proposed renewal or the proposed replacement; or
b: every employer bargaining party on the employer bargaining side (other than a specified employer bargaining party, if applicable) ceases to be a bargaining party, and the proposed renewal or the proposed replacement covers a covered employer that is a non-SEBP employer.
2: In the situation described in subsection (1)(a),—
a: the employee default bargaining party may elect to be an employee bargaining party for the proposed renewal or the proposed replacement; or
b: if the employee default bargaining party does not elect to be an employee bargaining party for the proposed renewal or the proposed replacement, a bargaining party on the employer bargaining side (other than a specified employer bargaining party) may apply, in accordance with section 244 section 252
3: In the situation described in subsection (1)(b),—
a: the employer default bargaining party may elect, in accordance with section 69
b: if the employer default bargaining party does not elect to be an employer bargaining party for the proposed renewal or the proposed replacement, bargaining for the proposed renewal or proposed replacement is discontinued.
74: Default bargaining parties when bargaining for proposed renewal or proposed replacement initiated by specified employer bargaining party
1: This section applies if a specified employer bargaining party initiates bargaining for a proposed renewal or a proposed replacement and, during bargaining,—
a: every employee bargaining party ceases to be a bargaining party for the proposed renewal or the proposed replacement; or
b: every employer bargaining party, other than a specified employer bargaining party, ceases to be a bargaining party for the proposed renewal or the proposed replacement and the proposed renewal or the proposed replacement covers a covered employer that is a non-SEBP employer.
2: In the situation described in subsection (1)(a),—
a: the employee default bargaining party may elect, in accordance with section 69
b: if the employee default bargaining party does not elect to be an employee bargaining party for the proposed renewal or the proposed replacement, the specified employer bargaining party may apply, in accordance with section 244 section 252
3: In the situation described in subsection (1)(b),—
a: the employer default bargaining party may elect, in accordance with section 69
b: if the employer default bargaining party does not elect to be an employer bargaining party for the proposed renewal or the proposed replacement, the specified employer bargaining party may apply, in accordance with section 244 section 252 Default bargaining party ceases to be bargaining party
75: Default bargaining party ceases to be bargaining party
1: This section applies if the chief executive approves, under section 102
2: If the default bargaining party ceases to be a bargaining party on the bargaining side that initiated bargaining for a proposed agreement that covers a covered employer that is a non-SEBP employer,—
a: if there is another bargaining party on the bargaining side (other than a specified employer bargaining party, if applicable), bargaining continues; or
b: if there is no other bargaining party on the bargaining side (other than a specified employer bargaining party, if applicable), and bargaining for the proposed agreement was initiated by a bargaining party other than a specified employer bargaining party, bargaining is discontinued; or
c: if there is no other bargaining party on the bargaining side (other than a specified employer bargaining party, if applicable) and bargaining for the proposed renewal or proposed replacement was initiated by a specified employer bargaining party, the specified employer bargaining party may apply, in accordance with section 244 section 252
3: If the default bargaining party ceases to be a bargaining party on the bargaining side that did not initiate bargaining for a proposed agreement that covers a covered employer that is a non-SEBP employer,—
a: if there is another bargaining party on the bargaining side (other than a specified employer bargaining party, if applicable), bargaining continues; or
b: if there is no other bargaining party on the bargaining side, a bargaining party on the bargaining side that initiated bargaining may apply, in accordance with section 244 section 252
4: If the employee default bargaining party ceases to be a bargaining party for a proposed renewal or a proposed replacement that was initiated by a specified employer bargaining party, and that does not cover a covered employer that is a non-SEBP employer,—
a: if there is another bargaining party on the employee bargaining side, bargaining continues; or
b: if there is no other bargaining party on the employee bargaining side, the specified employee bargaining party may apply, in accordance with section 244 section 252 Default bargaining parties for proposed variations
76: Default bargaining party may initiate bargaining for proposed variation
If there is no other bargaining party on the relevant bargaining side (other than a specified employer bargaining party, if applicable), the default bargaining party may,—
a: in accordance with section 69
b: in accordance with Part 9
i: request the other bargaining side’s agreement to initiate bargaining for a proposed variation:
ii: agree to initiate bargaining for a proposed variation:
iii: if both bargaining sides agree to initiate bargaining, bargain for the proposed variation.
77: Default bargaining party may withdraw from bargaining for proposed variation
A default bargaining party that is a bargaining party for a proposed variation may withdraw from bargaining for the proposed variation at any time, in which case section 179(2)
3: Consequences of default bargaining party not electing to be bargaining party
78: Default bargaining party does not elect to be bargaining party
1: If a default bargaining party is eligible, under subpart 2 bargaining side A section 69(1)(b) bargaining side B
a: if bargaining side B initiated bargaining for the proposed agreement, complies with subsections (2) and (3); or
b: if bargaining side A initiated bargaining for the proposed agreement, complies with subsections (2) and (4).
2: A notice to the bargaining side lead advocate for bargaining side B must specify that—
a: the default bargaining party did not elect to be a bargaining party on bargaining side A; and
b: as a consequence, there is no bargaining party on bargaining side A (other than any specified employer bargaining party if bargaining side A is an employer bargaining side).
3: If bargaining side B initiated bargaining for the proposed agreement, the notice must also specify that—
a: a bargaining party on bargaining side B may, no later than 3 months after the date of the notice, apply, in accordance with section 244 section 252
b: despite paragraph (a), the Authority will not make a determination under section 252
i: the chief executive approves an application to be a bargaining party on bargaining side A; or
ii: the chief executive approves initiating bargaining for a proposed FPA in the same industry as the proposed agreement; and
c: if a bargaining party on bargaining side B does not apply, in accordance with section 244 section 252
4: If bargaining side A initiated bargaining for the proposed agreement, the notice must state that bargaining for the proposed agreement was discontinued on the day after the time frame specified in section 69(1)(b)
5: However, if a specified employer bargaining party initiates bargaining for a proposed renewal or a proposed replacement,—
a: subsections (1) to (4) do not apply; and
b: section 79
79: Default bargaining party does not elect to be bargaining party when bargaining initiated by specified employer bargaining party
1: The chief executive must provide a notice to the bargaining side lead advocate if—
a: a specified employer bargaining party initiates bargaining for a proposed renewal or a proposed replacement; and
b: a default bargaining party is eligible under subpart 2 section 69(1)(b)
2: A notice provided under subsection (1) must specify that—
a: the relevant default bargaining party did not elect to be a bargaining party; and
b: as a consequence, there is either no employee bargaining side or no other employer bargaining party; and
c: no later than 3 months after the date of the notice, the specified employer bargaining party may apply, in accordance with section 244 section 252
d: despite paragraph (c), the Authority will not make a determination under section 252
i: the chief executive approves an application to be a bargaining party on the bargaining side on which the default bargaining party was eligible to elect to be a bargaining party; or
ii: the chief executive approves initiating bargaining for a proposed FPA in the same industry as the proposed agreement; and
e: if a specified employer bargaining party does not apply, in accordance with section 244 section 252
80: Bargaining discontinued if bargaining party does not apply for determination
Bargaining for a proposed agreement is discontinued on the day after the last day of the period specified in section 244(3)
a: a bargaining party may apply, in accordance with section 244 section 252
b: the bargaining party does not apply for a determination by the last day of the period specified in section 244(3)
81: Chief executive to publicly notify that bargaining has been discontinued
No later than 5 working days after a proposed agreement is discontinued in the circumstances described in section 78(3)(c) or (4) 79(2)(e)
a: the coverage of the proposed agreement:
b: the fact that bargaining for the proposed agreement has discontinued, and the reason why bargaining has discontinued:
c: the date on which bargaining for the proposed agreement was discontinued:
d: where to find the information that the chief executive publicly notified under section 37 207 Subsequent formation of bargaining side
82: Subsequent period when bargaining side may be formed
1: This section applies only if, in relation to a proposed agreement,—
a: a default bargaining party is eligible, under subpart 2
b: a bargaining party is entitled to apply, in accordance with section 244 section 252
2: Despite sections 38 46 209 210 section 43 47
a: a default bargaining party elects to be a bargaining party for the proposed agreement; or
b: a bargaining party applies, in accordance with section 244 section 252
3: If the chief executive approves an application under section 43 47
5: FPA meetings and union access to workplaces
1: FPA meetings
83: Requirements for arranging FPA meeting
1: An employee bargaining party on an employee bargaining side for a proposed agreement may arrange an FPA meeting only if—
a: the chief executive has publicly notified, in accordance with section 37 207
b: both bargaining sides for the proposed agreement have been formed; and
c: the employee bargaining party has received approval from the employee bargaining side to hold the meeting on behalf of the employee bargaining side.
2: An employee bargaining party may arrange an FPA meeting in relation to a proposed variation only if—
a: the employee bargaining party is a member of the employee bargaining side for the fair pay agreement; and
b: the employee bargaining party has received approval from the employee bargaining side to hold the meeting on behalf of the employee bargaining side.
3: Before holding an FPA meeting, the employee bargaining party must—
a: give at least 14 days’ notice of the date and time of the meeting to each employer who has employees who are eligible to attend the meeting; and
b: make arrangements with each employer to ensure that the employer’s business is maintained during the FPA meeting, including, where appropriate, an arrangement for sufficient employees to remain available during the meeting to enable the employer’s operations to continue.
84: Entitlement to attend FPA meetings
1: An employer must allow each covered employee—
a: to attend 2 FPA meetings in relation to a proposed FPA; and
b: to attend 1 FPA meeting in accordance with subsection (3) in relation to a proposed variation to a fair pay agreement; and
c: to attend 2 FPA meetings in relation to a proposed renewal or a proposed replacement.
2: Each FPA meeting must—
a: last no longer than 2 hours; and
b: relate to the proposed agreement or the proposed variation (as applicable); and
c: take place during bargaining for the proposed agreement or the proposed variation; and
d: be arranged in accordance with section 83
3: A covered employee in relation to a fair pay agreement is entitled to attend only 1 FPA meeting under subsection (1)(b) in respect of the fair pay agreement, regardless of the number of variations that are bargained for during the term of the agreement.
4: A covered employee is entitled to attend an FPA meeting despite not being a member of—
a: the union that arranges the meeting; or
b: a union on the employee bargaining side; or
c: any other union.
5: A covered employee’s entitlement to attend an FPA meeting under this Act is in addition to any entitlement to attend a union meeting under section 26
6: An employer who fails to comply with this section is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
85: Payment for attending FPA meeting
1: The employer of a covered employee, in relation to a proposed agreement or a proposed variation that will be discussed at an FPA meeting, must allow the employee to attend the meeting on ordinary pay, to the extent that the employee would otherwise be working for the employer during the meeting.
2: For the purposes of subsection (1), the employee bargaining party that arranges the FPA meeting must—
a: supply to the employer a list of the employer’s employees who attended the meeting; and
b: advise the employer of the duration of the meeting.
3: An employee must resume work as soon as practicable after attending an FPA meeting.
4: An employee who is absent from work for more than 2 hours to attend an FPA meeting is entitled to ordinary pay for a maximum of 2 hours.
5: An employer who fails to comply with this section is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
86: Entitlement to attend additional FPA meeting
1: An employer must allow each covered employee who is within the coverage of a proposed agreement to attend 1 additional FPA meeting in relation to the proposed agreement if—
a: the employee has already attended 2 FPA meetings under section 84(1)(a) or (c)
b: in relation to the proposed agreement, the result of either the first ratification vote of the covered employees, or the first ratification vote of the covered employers, is against ratification ( see subpart 2
2: The following sections apply to an FPA meeting held under this section, with all necessary modifications:
a: section 83(1) and (3)
b: section 84(2), (4), (5), and (6)
c: section 85
3: An employer who fails to comply with this section is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
2: Employee bargaining party may access workplaces
87: Workplace does not include dwellinghouse
1: For the purposes of sections 88 to 92 workplace
2: In this section, dwellinghouse section 5
88: Access to workplaces
1: A representative of an employee bargaining party is entitled, in accordance with this subpart, to enter a workplace without the employer’s consent if the primary purpose of entering the workplace is to discuss with a covered employee (or an employee who may be affected by) 1 or more of the following:
a: bargaining for a proposed FPA:
b: bargaining for a proposed variation:
c: bargaining for a proposed renewal:
d: bargaining for a proposed replacement:
e: a fair pay agreement.
2: A purpose for entering a workplace under subsection (1)(a), (b), (c), or (d) includes a purpose that relates to—
a: communicating to employees any progress in bargaining for the proposed agreement or the proposed variation; or
b: seeking feedback from covered employees about any aspect of the proposed agreement or the proposed variation.
3: A purpose for entering a workplace under subsection (1)(e) includes a purpose that relates to—
a: communicating the terms of the fair pay agreement; or
b: seeking information from covered employees about the implementation of the fair pay agreement; or
c: seeking feedback from covered employees about key issues relating to the fair pay agreement; or
d: identifying any issues relating to complying with the fair pay agreement or this Act; or
e: seeking feedback from covered employees about renewing or replacing the fair pay agreement.
4: However, the representative is entitled to enter a workplace in accordance with subsection (1) only if—
a: 1 or more employees at the workplace are covered employees (whether or not the employees are members of a union); and
b: the employee bargaining party is a bargaining party for the proposed agreement, the proposed variation, or the fair pay agreement.
5: A discussion in a workplace between an employee and a representative of an employee bargaining party who is entitled under this subpart to enter the workplace for the purpose of the discussion—
a: must not exceed a reasonable duration; and
b: must not be treated as—
i: a union meeting under section 26
ii: an FPA meeting under section 84 86
6: An employer must not deduct from an employee’s wages any amount in respect of the period during which the employee is engaged in a discussion referred to in subsection (5).
7: In this section and sections 89 to 92 2000 No 24 s 20
89: Conditions relating to access
1: A representative of an employee bargaining party exercising the right to enter a workplace—
a: may do so only at reasonable times during any period when any covered employee is employed to work in the workplace; and
b: must do so in a reasonable way, having regard to normal business operations in the workplace; and
c: must comply with any existing reasonable procedures and requirements applying in respect of the workplace that relate to—
i: safety or health; or
ii: security.
2: A representative of an employee bargaining party who is exercising the right to enter a workplace must, at the time of the initial entry and, if requested by the employer, a representative of the employer, or a person in control of the workplace, at any time after entering the workplace,—
a: state the purpose of the entry; and
b: produce evidence of the representative’s identity and authority to represent the employee bargaining party.
3: If a representative of an employee bargaining party exercises the right to enter a workplace and is unable, despite reasonable efforts, to find the employer, a representative of the employer, or the person in control of the workplace, the representative of the employee bargaining party must leave in a prominent place in the workplace a written statement of—
a: the identity of the person who entered the premises; and
b: the employee bargaining party that the person represents; and
c: the date and time of entry; and
d: the purpose or purposes of the entry.
4: Nothing in subsections (1) to (3) allows an employer, a representative of the employer, or the person in control of a workplace to unreasonably deny a representative of an employee bargaining party access to a workplace. 2000 No 24 s 21
90: When access to workplaces may be denied
1: A representative of an employee bargaining party may be denied access to a workplace if entry to the premises or any part of the premises might prejudice—
a: the security or defence of New Zealand; or
b: the investigation or detection of offences.
2: A certificate given in accordance with subsection (3) is conclusive evidence that grounds exist under subsection (1) for denying entry to the premises or part of the premises.
3: A certificate is given in accordance with this subsection if—
a: it is given by the Attorney-General; and
b: it certifies, in respect of the premises or part of the premises concerned, that permitting entry under section 88
i: the security or defence of New Zealand; or
ii: the investigation or detection of offences. 2000 No 24 s 22
91: When access to workplaces may be denied on religious grounds
A representative of an employee bargaining party may be denied access to a workplace if—
a: all the employees employed in the workplace are employed by an employer who holds a current certificate of exemption issued under section 24
b: none of the employees employed in the workplace is a member of a union; and
c: there are no more than 20 employees employed to work in the workplace. 2000 No 24 s 23
92: Duties in relation to accessing workplace
1: A person must not—
a: refuse to permit a representative of an employee bargaining party to enter a workplace; or
b: obstruct a representative of an employee bargaining party from entering a workplace, or from doing anything reasonably necessary for, or incidental to, the purpose of entering the workplace; or
c: wilfully fail to comply with section 89
2: Subsection (1) is subject to sections 90 91
3: A person who fails, without lawful excuse, to comply with subsection (1) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211 2000 No 24 s 25
6: Bargaining
1: Good faith obligation to provide information
93: Providing information when bargaining
1: This section and sections 94 95 section 19(3)(h)
2: During bargaining, a request under section 19(3)(h)
a: be in writing; and
b: specify the nature of the information requested in sufficient detail to enable the information to be identified; and
c: specify the claim, or the response to a claim, in respect of which information to support or substantiate the claim, or the response, is requested; and
d: specify a reasonable time within which the information must be provided. 1972 No 118 s 13ZC
94: Bargaining side must provide requested information to requester or independent reviewer
1: A bargaining side that receives a request for information under section 19(3)(h)
a: directly to the bargaining side that requested the information; or
b: to an independent reviewer if the bargaining side providing the information reasonably considers that it should be treated as confidential information.
2: A person must not act as an independent reviewer unless—
a: appointed by mutual agreement of the employee bargaining side and the employer bargaining side; or
b: appointed by the Authority making a determination, if the bargaining sides are unable to agree on whom to appoint.
3: For the purposes of subsection (2), if the bargaining sides are unable to agree on whom to appoint as an independent reviewer, either bargaining side may apply to the Authority under section 229
4: As soon as practicable after receiving information under subsection (1)(b), an independent reviewer must—
a: decide whether, and if so to what extent, the information should be treated as confidential; and
b: advise the bargaining sides of its decision.
5: If an independent reviewer decides that information should be treated as confidential, the independent reviewer must—
a: decide whether, and if so to what extent, the information supports or substantiates the claim, or the response to a claim, in respect of which the information is requested; and
b: advise the bargaining sides of its decision in a way that maintains the confidentiality of the information; and
c: answer any questions from the bargaining side that requested the information in a way that maintains the confidentiality of the information.
95: Limits on use of information provided during bargaining
1: Unless the employee bargaining side and the employer bargaining side agree, information provided under section 94(1)(a)
a: must be used only for the purposes of the bargaining concerned; and
b: must be treated as confidential by the persons conducting the bargaining concerned; and
c: must not be disclosed by those persons to anyone else, including persons who would be covered employees or covered employers in relation to the proposed agreement or the proposed variation to which the bargaining relates.
2: Nothing in section 93 94 Privacy Act 2020
3: Nothing in the Official Information Act 1982 section 6 section 19(3)(h)
2: Representation
96: Entitlement and obligation to represent covered employees
1: When bargaining for a proposed FPA, an employee bargaining side for the proposed FPA is entitled to represent, and must use its best endeavours to represent, the collective interests of all covered employees, whether or not each employee is a member of a union.
2: To comply with subsection (1), an employee bargaining side must use its best endeavours to, at least,—
a: provide regular updates about the bargaining to all covered employees; and
b: give all covered employees the opportunity to provide feedback to the employee bargaining side in relation to the bargaining; and
c: consider, during bargaining, all feedback received from covered employees; and
d: advise all covered employees of any ratification vote ( see section 154
e: consider whether all interest groups of covered employees are recognised and given the opportunity to provide feedback to the employee bargaining side in relation to the bargaining.
3: An employee bargaining party must not, whether directly or indirectly, do anything—
a: to mislead or deceive a covered employee; or
b: that is likely to mislead or deceive a covered employee.
4: A union’s role as a member of an employee bargaining side is in addition to, and does not detract from, its right to represent its members’ interests under section 18
97: Obligation to ensure representation of Māori employees
Each employee bargaining side for a proposed FPA must use its best endeavours to ensure that Māori employees are represented effectively in the bargaining process, including by—
a: seeking and considering feedback from representatives of Māori employees; and
b: considering whether the bargaining side should include a person to represent the interests of Māori employees.
98: Union may provide members’ views to employee bargaining side
If a union is not a bargaining party for a proposed FPA but has members that are within the coverage of the proposed FPA,—
a: the union may provide its members’ feedback to the employee bargaining side; and
b: the employee bargaining side must consider that feedback when bargaining for the proposed FPA.
99: Entitlement and obligation to represent covered employers
1: When bargaining for a proposed FPA, the employer bargaining side for the proposed FPA is entitled to represent, and must use its best endeavours to represent, the collective interests of all covered employers, whether or not each employer is a member of an employer association.
2: To comply with subsection (1), the employer bargaining side must use its best endeavours to, at least,—
a: provide regular updates about bargaining to all covered employers; and
b: give all covered employers the opportunity to provide feedback to the employer bargaining side in relation to the bargaining; and
c: consider, during bargaining, all feedback received from covered employers; and
d: advise all covered employers of any ratification vote ( see section 154
e: consider whether all interest groups of covered employers are recognised and given the opportunity to provide feedback to the employer bargaining side in relation to bargaining; and
f: if the proposed FPA covers employees of a private sector employer and an employer bargaining party on the bargaining side is aware that the private sector employer regularly receives—
i: local government funding to deliver local government services, provide regular updates about bargaining to the local authority responsible for that funding:
ii: central government funding to deliver central government services, provide regular updates about bargaining to the department responsible for that funding.
3: However, the employer bargaining side is not required to provide regular updates for the purposes of subsection (2)(f) if it does not know which local authority or department (as applicable) is responsible for the funding.
4: An employer bargaining party must not, whether directly or indirectly, do anything—
a: to mislead or deceive a covered employer; or
b: that is likely to mislead or deceive a covered employer.
5: In subsection (2)(f),— department section 5 local authority section 5
100: Obligation to ensure representation of Māori employers
The employer bargaining side for a proposed FPA must use its best endeavours to ensure that Māori employers are represented effectively in the bargaining process, including by—
a: seeking and considering feedback from representatives of Māori employers; and
b: considering whether the bargaining side should include a person to represent the interests of Māori employers.
3: Ceasing to be bargaining party
101: When bargaining party ceases to be bargaining party
A bargaining party ceases to be a bargaining party if—
a: the chief executive has approved the bargaining party ceasing to be a bargaining party by meeting one of the criteria in section 102(1)
b: the bargaining party is no longer eligible to be a bargaining party ( see section 103
102: Bargaining party may apply to cease being bargaining party
1: A bargaining party (including a default bargaining party) may apply to the chief executive for approval to cease being a bargaining party if—
a: all other bargaining parties on the bargaining side agree that the bargaining party may cease to be a bargaining party; or
b: it ceases to be a bargaining party in accordance with a process specified in the inter-party side agreement; or
c: other than any specified employer bargaining party, it is the final bargaining party on the bargaining side.
2: A bargaining party that wishes to cease being a bargaining party must apply to the chief executive in writing for approval to cease being a bargaining party.
3: An application to the chief executive must include—
a: details of the proposed agreement, the proposed variation, or the fair pay agreement for which it is a bargaining party; and
b: the reason for the bargaining party’s application to cease being a bargaining party (which must be a criterion set out in subsection (1)); and
c: whether there are any other bargaining parties remaining on the bargaining side for the proposed agreement, the proposed variation, or the fair pay agreement; and
d: whether any of the remaining bargaining parties is a specified employer bargaining party; and
e: any other information required by regulations.
4: A bargaining party ceases to be a bargaining party on the date on which the chief executive approves the application.
5: A specified employer bargaining party is not permitted to apply for approval to cease being a bargaining party.
103: Bargaining party ceases to be eligible
1: A bargaining party is no longer eligible to be a bargaining party if,—
a: in the case of an employee bargaining party that is not a default bargaining party, it ceases to be an eligible union; or
b: in the case of an employer bargaining party that is not a default bargaining party, it ceases to be an eligible employer association; or
c: in the case of a specified employer bargaining party, the specified employer bargaining party no longer represents any covered employers; or
d: in the case of a default bargaining party, the default bargaining party no longer represents any covered employees or covered employers (as applicable).
2: A bargaining party must notify the chief executive that it is no longer eligible to be a bargaining party—
a: as soon as practicable after it becomes aware that it will cease to be eligible; but
b: no later than 5 working days after it ceases, or becomes aware that it has ceased, to be eligible.
3: A bargaining party’s notification to the chief executive must include—
a: details of the proposed agreement, the proposed variation, or the fair pay agreement for which it is a bargaining party; and
b: the reason that the bargaining party is no longer eligible to be a bargaining party; and
c: whether there are any other bargaining parties remaining on the bargaining side for the proposed agreement, the proposed variation, or the fair pay agreement; and
d: whether any of the remaining bargaining parties is a specified employer bargaining party.
4: A bargaining party ceases to be a bargaining party on the date on which it ceases to be eligible.
104: Appointment of new bargaining side lead advocate
If a bargaining side lead advocate for a proposed agreement, a proposed variation, or a fair pay agreement is a representative of a bargaining party that ceases to be a bargaining party for the proposed agreement, the proposed variation, or the fair pay agreement, the relevant bargaining side must appoint a new bargaining side lead advocate under section 54
4: Provision of information
105: Modification to requirement to provide employees’ contact details
If an employer is required to provide its covered employees’ contact details to the initiating union, but the employee bargaining side has, under section 106
106: Employee bargaining side must update contact address
1: The employee bargaining side for a proposed agreement must ensure that the employer bargaining side for the proposed agreement has a current contact email address to which an employer must send its employees’ contact details when required to do so under this subpart.
2: The employer bargaining side must ensure that it provides the current contact email address provided under subsection (1) to each covered employer that it is aware of, within 5 working days of receiving the email address.
107: Provision of information: coverage changes or new employers identified
1: This section applies if,—
a: as a result of the coverage of a proposed agreement changing during the bargaining process, an additional employee comes within the coverage of the proposed agreement; or
b: during bargaining, the employer bargaining side becomes aware of a new employer that employs 1 or more employees who are within the coverage of a proposed agreement.
2: In the circumstances described in subsection (1),—
a: the employer bargaining side must provide a statement that complies with section 39(4) newly covered employee
b: an employer with a newly covered employee must,—
i: unless it has already done so in respect of the proposed agreement, comply with each requirement in section 40(1)
ii: no later than 30 working days after the change to the coverage or the new employer employing at least 1 covered employee (as applicable), comply with section 40(2), (3), and (4)
c: an employer must provide, in an electronic format, the contact details of each newly covered employee (except for the details of an employee who elects not to have their contact details provided) to the initiating union—
i: as soon as practicable after the date that is 20 working days after providing the information required under section 40(2)
ii: no later than 30 working days after providing the information.
3: The employer bargaining side must comply with subsection (2)(a) within 5 working days of,—
a: in the circumstances described in subsection (1)(a), the date on which the chief executive approves the changed coverage; or
b: in the circumstances described in subsection (1)(b), the date on which the employer bargaining side becomes aware of the new employee.
4: This section does not apply after the fair pay agreement has been validated.
5: An employer that intentionally or recklessly fails to comply with subsection (2)(b) or (c) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
108: Provision of information: new employees within coverage
1: This section applies if, during bargaining, a new employee commences employment in a role that is within the coverage of the proposed agreement.
2: In the circumstances described in subsection (1),—
a: an employer with a new employee described in subsection (1) must,—
i: unless it has already done so in respect of the proposed agreement, comply with each requirement in section 40(1)
ii: no later than 30 working days after the new employee commences the employment, comply with section 40(2), (3), and (4)
b: an employer must provide, in an electronic format, the contact details of each new employee (except for the details of an employee who elects not to have their contact details provided) to the initiating union—
i: no earlier than 20 working days after providing the information required under section 40(2)
ii: no later than 60 working days after providing the information.
3: This section does not apply after the fair pay agreement has been validated.
4: An employer that intentionally or recklessly fails to comply with subsection (2) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
5: Coverage change, coverage overlap, consolidation, and addition of occupation
Coverage changed during bargaining
109: Bargaining party must apply for approval to bargain with changed coverage
1: This section applies when—
a: the chief executive has publicly notified, in accordance with section 37 207
b: bargaining has started and, as part of that bargaining, the bargaining sides have agreed to change the coverage of the proposed agreement.
2: In the circumstances described in subsection (1),—
a: the initiating party (or if that party has ceased to be a bargaining party, another bargaining party on the same bargaining side as the initiating party) must apply to the chief executive for approval to continue bargaining with the changed coverage; and
b: the application must include evidence that the other bargaining side supports the changed coverage; and
c: the application must include further evidence of how the proposed agreement, if its coverage is changed, meets an initiation test ( see sections 28 29
110: Chief executive must assess application made under section 109
1: As soon as practicable after receiving an application for approval under section 109
a: assess the application; and
b: notify the applicant in writing—
i: whether the chief executive has approved the application; and
ii: if the chief executive has approved the application, the coverage of the proposed agreement that the chief executive has approved.
2: The chief executive may require the applicant to provide further information or evidence if the chief executive considers that the application does not contain sufficient information to decide whether to approve the application.
3: The chief executive must approve the application only if satisfied, on the basis of the information provided in the application and any further information or evidence provided under subsection (2), that—
a: both bargaining parties have agreed to the changed coverage of the proposed agreement; and
b: the changed coverage is defined with sufficient clarity; and
c: all the covered employees in relation to the proposed agreement are not already covered employees in relation to 1 fair pay agreement or 1 proposed agreement for which bargaining has already been initiated; and
d: the proposed agreement, if its coverage is changed, meets 1 of the initiation tests specified in section 28 29 205
4: If, after considering any further information or evidence provided under subsection (2), the chief executive considers that the application does not define the changed coverage with sufficient clarity, the chief executive must assist the applicant to define the changed coverage more clearly.
5: The chief executive must decline the application if, after assessing the application and considering any further information or evidence provided under subsection (2), the chief executive is not satisfied that the application meets the requirements listed in subsection (3).
6: If the chief executive declines an application, the chief executive must also, by written notice, advise the applicant of the reasons for declining the application.
111: Chief executive to publicly notify changed coverage
1: Within 5 working days after approving an application made under section 109
a: the fact that the chief executive has approved the application:
b: the change to the coverage:
c: whether the application relied on the initiation test specified in section 28 29 205
d: the reasons why the chief executive remains satisfied, despite the changed coverage, that the application meets the applicable initiation test:
e: where to find the notice issued by the chief executive under section 37 207
2: The public notice issued under subsection (1) must also state—
a: that each covered employee and each covered employer (as at the date on which the chief executive approved the application to change coverage) may be represented in the bargaining for the proposed agreement; and
b: that unless the coverage of the proposed agreement changes again during bargaining, the fair pay agreement will apply to—
i: each employee who, in relation to the fair pay agreement, will be a covered employee; and
ii: each employer who, in relation to the fair pay agreement, will be a covered employer; and
c: where to find a plain language explanation of the next steps for bargaining. Guidance note
If the chief executive approves an application to change the coverage of a proposed agreement so that there is coverage overlap with another proposed FPA or a fair pay agreement,—
a: the chief executive must also comply with section 113
b: section 114 Coverage overlap between proposed agreement and fair pay agreement
112: Application of sections 113 and 114
Sections 113 114
a: the chief executive has publicly notified, in accordance with section 37 207
i: an eligible union’s application to initiate bargaining for a proposed FPA; or
ii: an initiating party’s application to initiate bargaining for a proposed renewal or a proposed replacement; and
b: there is coverage overlap between a fair pay agreement and the proposed agreement.
113: Chief executive must notify initiating party of coverage overlap
1: If the chief executive approves bargaining for a proposed agreement for which there is coverage overlap, the chief executive must notify the initiating party of the proposed agreement—
a: that the coverage of the proposed agreement will result in coverage overlap; and
b: of the consequences of the coverage overlap ( see section 114
2: The initiating party must, after being notified of the coverage overlap under subsection (1), notify—
a: each employee bargaining party on the employee bargaining side; and
b: each employer bargaining party on the employer bargaining side.
114: Consequences of coverage overlap
The consequences of coverage overlap are that—
a: before the chief executive validates a proposed agreement under section 168 sections 146 149
i: review the terms of the proposed agreement and the fair pay agreement; and
ii: determine which agreement provides the better terms overall for the covered employees who are within the coverage of both agreements; and
b: depending on whether the Authority determines that the proposed agreement or the fair pay agreement provides the better terms overall, either section 166 167 Consolidation of bargaining
115: Application of sections 116 to 120
1: Sections 116 to 120
a: bargaining is taking place for a proposed industry-based agreement, or for a proposed renewal or a proposed replacement of an industry-based agreement (the first proposed agreement
b: the chief executive approves an application to initiate bargaining for a proposed industry-based agreement, or for a proposed renewal or a proposed replacement of an industry-based agreement, that covers an additional occupation group within the industry that the first proposed agreement covers (the second proposed agreement
2: However, if a bargaining party has applied, in accordance with section 244 section 252
a: sections 116 to 119 120(1)
b: the bargaining sides for the second proposed agreement must bargain for the second proposed agreement separately from the first proposed agreement; and
c: the chief executive—
i: must not verify the later of the 2 proposed agreements to be submitted under section 159
ii: may verify the later proposed agreement, and validate it under section 168
3: In sections 116 to 120 first proposed agreement second proposed agreement the 2 proposed agreements
116: When bargaining for fair pay agreements is consolidated
1: After the chief executive approves the application to initiate bargaining for the second proposed agreement,—
a: bargaining for the 2 proposed agreements must be consolidated, and section 118
i: the chief executive approves the application to initiate bargaining for the second proposed agreement less than 6 months after the chief executive approved the application to initiate bargaining for the first proposed agreement; or
ii: the chief executive approves the application to initiate bargaining for the second proposed agreement 6 months or more after the chief executive approved the application to initiate bargaining for the first proposed agreement, and the bargaining side that initiated bargaining for the first proposed agreement is entitled to apply, in accordance with section 244 section 252
b: except as provided in paragraph (a)(ii), if the chief executive approves the application to initiate bargaining for the second proposed agreement 6 months or more after the chief executive approved the application to initiate bargaining for the first proposed agreement, the bargaining sides for the first proposed agreement must decide whether bargaining for the 2 proposed agreements will be consolidated.
2: The bargaining sides for the first proposed agreement must notify the bargaining parties of the second proposed agreement whether the bargaining sides have decided to consolidate bargaining for the 2 proposed agreements, within 20 working days of the chief executive publicly notifying in accordance with section 37
3: However, if the bargaining sides for the first proposed agreement do not notify the bargaining parties of the second proposed agreement within 20 working days of whether they have decided to consolidate bargaining for the 2 proposed agreements,—
a: the bargaining sides for the first proposed agreement are deemed to have decided not to consolidate bargaining for the 2 proposed agreements; and
b: section 120
117: Chief executive to notify parties
1: When the chief executive publicly notifies, in accordance with section 37
a: the initiating party for the second proposed agreement—
i: that the chief executive has already approved bargaining for the first proposed agreement; and
ii: that the first proposed agreement is an industry-based agreement; and
iii: that the second proposed agreement covers an additional occupation group within the industry that the first proposed agreement covers; and
iv: whether 6 months or more have passed since the chief executive publicly notified the approval of the initiating party’s application to initiate bargaining for the first proposed agreement; and
b: if the chief executive publicly notified the approval of the application to initiate bargaining for the first proposed agreement less than 6 months before notifying the approval of the application to initiate bargaining for the second proposed agreement, both bargaining sides for the first proposed agreement and the initiating party for the second proposed agreement that the 2 proposed agreements must be consolidated; and
c: if the chief executive publicly notified the approval of the application to initiate bargaining for the first proposed agreement 6 months or more before notifying the approval of the initiating party’s application to initiate bargaining for the second proposed agreement, both bargaining sides for the first proposed agreement that they must—
i: decide whether to consolidate bargaining for the 2 proposed agreements; and
ii: notify the initiating party for the second proposed agreement of that decision within 20 working days of the chief executive notifying the bargaining parties under section 37
iii: notify the initiating party for the second proposed agreement that bargaining for the first proposed agreement has already been initiated, so that the bargaining sides for the first proposed agreement may decide to consolidate the bargaining for the 2 proposed agreements.
2: The chief executive’s notification must explain the effects of—
a: consolidating bargaining ( see section 118
b: not consolidating bargaining ( see section 120
118: Effect of decision to consolidate
1: If a first proposed agreement and a second proposed agreement are consolidated into 1 consolidated proposed agreement (the consolidated proposed agreement
a: the coverage of the consolidated proposed agreement is the coverage of the first proposed agreement, but extended to include the coverage of the second proposed agreement (unless both bargaining sides for each of the 2 proposed agreements agree otherwise); and
b: any employee bargaining parties for the first proposed agreement and any employee bargaining parties for the second proposed agreement combine into 1 employee bargaining side for the consolidated proposed agreement; and
c: any employer bargaining parties for the first proposed agreement and any employer bargaining parties for the second proposed agreement combine into 1 employer bargaining side for the consolidated proposed agreement; and
d: new bargaining parties may join the combined employee bargaining side or the combined employer bargaining side (as applicable); and
e: the obligations in sections 39 to 42
2: Bargaining for the first proposed agreement may continue while the first proposed agreement and the second proposed agreement are in the process of being consolidated.
3: If 2 proposed agreements are consolidated, the consolidation takes effect,—
a: if the chief executive notified the chief executive’s approval to initiate bargaining for the second proposed agreement under section 37 section 37 section 117(1)(b)
b: on the date on which the bargaining sides for the first proposed agreement notify the initiating party for the second proposed agreement of the bargaining sides’ decision to consolidate bargaining (under section 117(1)(c)(ii)
4: No later than 5 working days after 2 proposed agreements are consolidated,—
a: the employee bargaining side for the first proposed agreement must provide a copy of its inter-party side agreement to the employee bargaining side for the second proposed agreement; and
b: the employer bargaining side for the first proposed agreement must provide a copy of its inter-party side agreement to the employer bargaining side for the second proposed agreement.
119: Bargaining party may request negotiation of inter-party side agreement
1: When a bargaining side for a first proposed agreement and a bargaining side for a second proposed agreement combine into a bargaining side for a consolidated proposed agreement, a bargaining party on the bargaining side for the second proposed agreement may make a request to the bargaining side for the first proposed agreement that the combined bargaining side negotiate an inter-party side agreement for the combined bargaining side.
2: If a bargaining party decides to make a request referred to in subsection (1),—
a: it must make the request within 20 working days of—
i: the date on which the chief executive provides notice under section 117(1)(b)
ii: the date on which a bargaining side for the first proposed agreement notifies, under section 117(1)(c)(ii)
b: the bargaining parties on the bargaining side for the consolidated proposed agreement must agree whether they will amend the inter-party side agreement and, if so, how.
120: Effect of decision not to consolidate
1: If the bargaining sides for the first proposed agreement decide not to consolidate bargaining for the 2 proposed agreements ( see section 116(1)(b)
a: the bargaining sides for the second proposed agreement must bargain for the second proposed agreement separately from the bargaining for the first proposed agreement; and
b: the chief executive—
i: must not verify the later of the 2 proposed agreements to be submitted under section 159
ii: may verify the later proposed FPA, and validate it under section 168
2: Before validating a later proposed FPA as a schedule of an earlier fair pay agreement, the chief executive must—
a: check the proposed FPA for coverage overlap in accordance with section 163
b: be satisfied that the later proposed FPA—
i: meets all of the requirements for a fair pay agreement; and
ii: does not alter the terms of the fair pay agreement of which it is a schedule; and
iii: has the same expiry date as the fair pay agreement of which it is a schedule.
3: For the purposes of subsection (2)(b)(i), the chief executive may be satisfied that a later proposed FPA meets all of the requirements for a fair pay agreement despite it applying, contrary to section 123(2)(a)
4: If the chief executive is not satisfied that the later proposed FPA meets the requirements set out in subsection (2)(b), the chief executive must, by written notice, advise the bargaining sides for the later proposed FPA of the reasons for not being satisfied. Addition of occupation to fair pay agreement
121: Proposed FPA that adds occupation to fair pay agreement
1: This section applies if—
a: an industry-based agreement has been validated under section 168
b: an initiating union initiates bargaining for an additional industry-based agreement that covers employees in 1 or more other occupations within the same industry.
2: In the circumstances described in subsection (1), the chief executive—
a: must not validate the additional agreement as a stand-alone fair pay agreement under section 168
b: may validate the additional agreement under section 168
3: Before validating the additional agreement as a schedule of the earlier fair pay agreement, the chief executive must be satisfied that the additional agreement—
a: meets all of the requirements for a fair pay agreement; and
b: does not alter the terms of the fair pay agreement of which it will become a schedule; and
c: has the same expiry date as the fair pay agreement of which it will become a schedule.
4: For the purposes of subsection (3)(a), the chief executive may be satisfied that the additional agreement meets all of the requirements for a fair pay agreement despite it applying, contrary to section 123(2)(a)
5: In this section and section 122 additional agreement
122: Chief executive to notify parties of existing fair pay agreement
When an initiating union initiates bargaining for an additional agreement in the circumstances set out in section 121(1)
a: notify the initiating union for the additional agreement—
i: that a fair pay agreement has already been validated for the industry intended to be covered by the additional agreement; and
ii: that the additional agreement, once verified under section 160 section 168
b: explain to the union that section 121
7: Content of fair pay agreements
Content of fair pay agreements
123: Mandatory content for each fair pay agreement
1: Each fair pay agreement must specify the following:
a: the date on which the agreement comes into force:
b: the coverage of the agreement (with sufficient clarity to determine the work or type of work that is covered by the agreement):
c: for each type of work covered by the agreement, and for each class of covered employees, the standard hours:
d: the following details of wages to be paid for each type of work covered by the agreement, and to each class of covered employees:
i: a minimum base wage rate, and when it applies:
ii: an overtime rate, and when it applies:
iii: a penalty rate, and when it applies:
iv: in relation to each rate in subparagraphs (i) to (iii),—
A: the specified amount by which it must be adjusted; or
B: the calculation that must be used to adjust it:
e: for each type of work covered by the agreement, and for each class of covered employees, the arrangements for training and development:
f: for each type of work covered by the agreement, and for each class of covered employees, the leave entitlements:
g: the governance arrangements that will apply, in addition to the requirements set out in this Act, to the bargaining sides when the agreement is in force:
h: the process for each bargaining side to engage with the other bargaining side if a bargaining side requests agreement to bargain for a proposed variation or if bargaining to vary the agreement in accordance with Part 9
i: the date on which the agreement expires.
2: For the purpose of determining the dates required under subsection (1)(a) and (i),—
a: a fair pay agreement must apply for a period that is no less than 3 years, but no more than 5 years; and
b: a fair pay agreement must specify—
i: 1 commencement date, which must apply to each provision in the fair pay agreement; and
ii: 1 date on which it expires, which must apply to each provision in the fair pay agreement.
3: For the purposes of subsection (1)(c), and subject to section 124(3)
4: Subsection (1)(d) applies subject to section 124
5: The mandatory content listed in subsection (1) must—
a: be specified in the form required in regulations; and
b: include all details required in regulations.
6: Subsection (2)(b)(i) is subject to the bargaining sides approving an employer’s application for delayed commencement under section 141
124: Mandatory content: details of wages
1: Despite section 123(1)(d) section 5 Minimum Wage Act 1983 Holidays Act 2003
2: For the purpose of section 123(1)(d) sections 4A 4B
3: A fair pay agreement must provide that—
a: an employee is entitled to be paid the relevant overtime rate for any hours worked in excess of the maximum hours of work in a day or in a week for which the minimum base wage rate is payable, regardless of whether the hours worked are within the standard hours of work; and
b: if both an overtime rate and a minimum base wage rate are payable in respect of the same hours worked by a covered employee (but not a penalty rate), the employee is entitled to be paid the higher of the 2 rates; and
c: if both a penalty rate and a minimum base wage rate are payable in respect of the same hours worked by a covered employee (but not an overtime rate), the employee is entitled to be paid the higher of the 2 rates; and
d: if both an overtime rate and a penalty rate are payable in respect of the same hours worked by a covered employee, the employee is entitled to be paid the higher of the 2 rates; and
e: if a minimum base wage rate, an overtime rate, and a penalty rate are payable in respect of the same hours worked by a covered employee, the employee is entitled to be paid the highest of the 3 rates.
125: Topics that bargaining sides must discuss
1: When bargaining for a proposed agreement, the bargaining sides must discuss whether the proposed agreement will specify the following topics:
a: the objectives of the proposed agreement:
b: health and safety requirements:
c: arrangements relating to flexible working:
d: arrangements relating to any redundancy.
2: A fair pay agreement is not required to include a provision that relates to a topic listed in subsection (1), but may include such a provision if—
a: the bargaining parties to the proposed agreement agree to include it; or
b: the Authority determines under section 230
126: Limit on what fair pay agreement may include
1: The bargaining parties to a proposed agreement or a proposed variation may agree to include a term that is not related to mandatory content listed in section 123 section 125
2: However, any term of a fair pay agreement that does not relate to the employment of covered employees, that is contrary to law, or that is inconsistent with this Act is void and has no application. Minimum entitlement provisions
127: Minimum entitlement provisions
A term of a fair pay agreement that relates to 1 or more of the following topics is, in relation to a covered employee, a minimum entitlement provision for the purposes of the Employment Relations Act 2000
a: minimum base wage rates:
b: increases to the minimum entitlements provided under the Holidays Act 2003
c: payment for any increases to the minimum entitlements provided under the Holidays Act 2003
d: overtime rates:
e: penalty rates.
128: How minimum entitlement provisions must be expressed
A minimum entitlement provision in a fair pay agreement must—
a: be expressed as either—
i: a specified amount; or
ii: a method of calculating the rate of the entitlement; and
b: be specified in the form required in regulations; and
c: include all details required in regulations.
129: How minimum entitlement provisions relate to other legislation
1: A minimum entitlement provision in a fair pay agreement must not be contrary to a provision of, or an entitlement under, any of the following Acts:
a: the Holidays Act 2003
b: the Minimum Wage Act 1983
c: the Wages Protection Act 1983
2: However, if a minimum entitlement provision in a fair pay agreement provides a level of entitlement that is below the level required under an Act listed in subsection (1),—
a: the level of entitlement in the fair pay agreement does not apply; and
b: the level of entitlement in the relevant listed Act applies.
3: If a fair pay agreement provides a minimum base wage rate that is higher than the minimum wage payable under the Minimum Wage Act 1983
4: If a fair pay agreement provides a leave entitlement that is higher than the leave entitlement under the Holidays Act 2003 Example
Relationship between minimum entitlement and entitlement under fair pay agreement If the Minimum Wage Act 1983 However, if the minimum wage under the Minimum Wage Act 1983 Minimum wage rates
130: Minimum wage exemption permits
1: If a Labour Inspector issues, under section 8
a: the minimum rate of wages prescribed under the Minimum Wage Act 1983
b: the relevant minimum base wage rate set under the fair pay agreement.
2: However, subsection (3) applies if—
a: an employee was issued, before the date on which this Act came into force, with a minimum wage exemption permit under section 8
b: the employee is a covered employee in relation to a fair pay agreement; and
c: the fair pay agreement sets a minimum base wage rate that is equal to or greater than the minimum adult wage rate set under section 4
3: In the circumstances described in subsection (2) and while the permit remains in force,—
a: if the permit is expressed as a percentage of the minimum adult wage rate set under section 4
b: in all other cases, the rate of wages stated in the permit is the minimum rate of wages payable to the employee for the purpose of the Minimum Wage Act 1983
131: Differing minimum base wage rates
1: Subject to sections 132(1) and (3) 133
a: a starting-out rate of wages; and
b: a training rate of wages.
2: The minimum base wage rates payable under a fair pay agreement are not payable to—
a: an employee who is receiving a starting-out rate of wages specified under the fair pay agreement:
b: an employee who is receiving a training rate of wages specified under the fair pay agreement:
c: an employee who has been issued a minimum wage exemption permit under section 8
132: Differing minimum base wage rates: starting-out rate
1: A fair pay agreement may specify a starting-out rate of wages if the rate—
a: is payable only to an employee described in section 4A(1)
b: is not less than 80% of the minimum base wage rate that is specified in the agreement and that would otherwise be payable to the employee.
2: If a fair pay agreement specifies a starting-out rate of wages by reference to a factor specified in section 4A(1)(c)(i) or (ii)
a: may pay the employee in accordance with that rate only until the earlier of—
i: the date on which the employee has completed 6 months’ continuous employment (or any shorter period of continuous employment specified in the fair pay agreement) with any employer or the employee’s current employer (as the case requires):
ii: the day before the date on which the employee ceases to satisfy one or both of the criteria in section 4A(1)(a) and (b)
b: after the date determined under paragraph (a), must pay the employee no less than the minimum base wage rate specified in the fair pay agreement.
3: To avoid doubt, if more than 1 starting-out rate specified in a fair pay agreement applies to an employee, only the higher or highest rate applies.
4: In subsection (2), continuous employment
a: means a continuous period of employment starting on the employee’s first day of work; and
b: includes any employment undertaken by the employee before—
i: the employee turns 16:
ii: the commencement of this Act.
133: Differing minimum base wage rates: training rate
A fair pay agreement may specify a minimum training rate only if the rate—
a: is payable only to an employee described in section 4B(1)
b: is not less than 80% of the minimum base wage rate that is specified in the fair pay agreement and that would otherwise be payable to the employee. Differentiation of application and entitlement
134: Fair pay agreement may include differentiation
1: Subject to sections 13 135 137 138
2: Despite subsection (1), a fair pay agreement must not include a term that applies differently to different classes of covered employees if the term relates to any of the following:
a: the objectives of the agreement:
b: the date from which the agreement applies:
c: the coverage of the agreement:
d: the process for amending the agreement:
e: the date on which the agreement expires.
135: Fair pay agreement may include district variation for some provisions
1: A fair pay agreement may include terms that apply to employees in a district that are different from the terms that apply to employees in another district.
2: Subsection (1) applies only to a term of a fair pay agreement that relates to any of the following:
a: the minimum base wage rates and when the rates apply:
b: the process by which minimum base wage rates, overtime rates, or penalty rates may be adjusted:
c: for each type of work covered by the agreement, and for each class of covered employees, the standard hours:
d: an overtime rate, and when it applies:
e: a penalty rate, and when it applies:
f: leave entitlements:
g: arrangements relating to any redundancy:
h: arrangements relating to training and development:
i: health and safety requirements:
j: arrangements relating to flexible working.
3: Subsection (1) does not apply to a term of a fair pay agreement that relates to—
a: the objectives of the agreement; or
b: the date from which the agreement applies; or
c: the coverage of the agreement; or
d: the process for each bargaining side to engage with the other bargaining side if a bargaining side requests agreement to bargain for a proposed variation or if bargaining to vary the agreement in accordance with Part 9
e: the date on which the agreement expires; or
f: the governance arrangements that will apply to the bargaining sides when the fair pay agreement applies.
4: A term that is included in a fair pay agreement in accordance with subsection (2)(a), (b), (c), (d), (e), (f), or (h) must—
a: be specified in the form required in regulations; and
b: include all details required in regulations.
136: Application of fair pay agreement with district variation
1: This section applies if a fair pay agreement includes terms that apply to a specific district.
2: The terms of a fair pay agreement that apply in a specific district apply to a covered employee who works in the district for the majority of the time that the covered employee is performing the work covered by the fair pay agreement.
3: An employer and employee may agree which district’s terms apply to the employee, but such an agreement is not binding and is not conclusive evidence of which district’s terms apply in the circumstances.
137: Permitted differentiation in minimum entitlement provision
A fair pay agreement may include a minimum entitlement provision that applies differently to an employee or class of employees, but only if the difference is based on—
a: the district in which the employee or class of employees is employed (for example, terms may differ depending on whether the employee is employed in a role or occupation in the South Taranaki district or in the same role or occupation in the Whanganui district); or
b: the occupation of the employee or class of employees (for example, if an agreement applies to all hospital employees, the terms may differ depending on whether an employee is employed as a nurse or a cook); or
c: the role of the employee or class of employees within an occupation (for example if an agreement applies to all sales staff, the terms may differ depending on whether an employee is employed as an assistant sales consultant, a senior sales consultant, or a sales manager).
138: Prohibited differentiation
Section 137
a: the Employment Relations Act 2000 see sections 103 104 105 106
b: the Equal Pay Act 1972
c: the Human Rights Act 1993 see sections 21 to 35 Delayed commencement of term in fair pay agreement
139: When delayed commencement can be considered
1: This section and sections 140 141
a: after the bargaining sides for a proposed agreement have agreed that bargaining is complete; but
b: before the bargaining sides jointly submit the proposed agreement to the Authority for a compliance assessment under section 143
2: This section and sections 140 141
a: to consider applications from employers that wish to delay the commencement date of 1 or more terms of the proposed agreement for the employer; and
b: a process by which an employer may apply for the commencement date of 1 or more terms of the proposed agreement to be delayed for the employer. Guidance note
Sections 139 to 141 section 182(3)(a)
140: Topics to which delayed commencement can relate
An employer may apply for the commencement date of a term to be delayed for the employer if the term relates to 1 or more of the following topics:
a: minimum base wage rates, and when the rates apply:
b: how minimum base wage rates, overtime rates, or penalty rates may be adjusted by applying a calculation or a specified amount:
c: an overtime rate, and when it applies:
d: a penalty rate, and when it applies:
e: leave entitlements.
141: Delayed commencement provision
1: The bargaining sides must approve an employer’s application for delayed commencement of 1 or more terms only if satisfied that—
a: declining the employer’s application would result in a less favourable overall outcome for the employer’s employees than approving the application; and
b: delaying commencement of the term or terms will allow the employer to arrange its business so that applying the proposed agreement will no longer result in a less favourable outcome for the employer’s employees.
2: A delay to the commencement of 1 or more terms of a proposed agreement must be for less than 12 months.
3: If the bargaining sides approve an employer’s application, the proposed agreement must be amended so that the commencement term specifies,—
a: for each term to which the approval relates,—
i: the name of the employer; and
ii: the date on which the term will commence for the employer; and
b: the commencement date for the remainder of the proposed agreement.
8: Finalisation of proposed agreement
142: Overview
1: This Part sets out the process to bring a proposed agreement into force either—
a: after the bargaining process is completed, in which case subparts 1 to 5
b: after the Authority has determined the terms of the proposed agreement, in which case subparts 4 5
2: Subpart 1
3: Subpart 2
4: Subpart 3
5: Subpart 4
6: Subpart 5 Guidance note
This Part does not relate to proposed variations because sections 188 to 193
1: Compliance assessment
143: Bargaining sides to submit proposed agreement for compliance assessment
1: When the bargaining sides for a proposed agreement agree that bargaining for the proposed agreement is complete, the bargaining side lead advocate for each bargaining side must—
a: jointly submit the proposed agreement to the Authority for a compliance assessment; and
b: ensure that they submit the proposed agreement in the form prescribed in regulations.
2: A bargaining side lead advocate must not submit the proposed agreement for a compliance assessment unless—
a: the bargaining side lead advocate is satisfied that—
i: both bargaining sides have agreed to the wording of the proposed agreement; and
ii: the wording of the proposed agreement is in the form prescribed in any regulations; and
b: the proposed agreement—
i: is in writing; and
ii: is signed by the bargaining side lead advocate for each bargaining side.
144: Authority to assess proposed agreement for compliance
1: The Authority must assess a proposed agreement that is submitted to the Authority, and must approve the proposed agreement only if—
a: it is satisfied that the terms of the proposed agreement comply with—
i: the requirements of this Act; and
ii: employment standards (as defined in section 5
iii: any other relevant employment law requirements; and
b: it has not identified any terms that are contrary to any other law.
2: There is no right of appeal from the Authority’s decision whether or not to approve a proposed agreement.
3: However, despite the Authority approving a proposed agreement, a term of the proposed agreement may still be legally challenged on the basis that it is contrary to any other law.
145: Consequences if Authority does not approve proposed agreement
1: If the Authority does not approve a proposed agreement, it must advise the bargaining sides for the proposed agreement—
a: that it has not approved the proposed agreement; and
b: of the reasons for not approving the proposed agreement, including details of which part or parts of the proposed agreement do not comply with the requirements in section 144
c: that the bargaining sides may resubmit the proposed agreement for another compliance assessment, once the bargaining sides are satisfied that they have addressed the reasons for the Authority not approving the proposed agreement.
2: The bargaining sides may resubmit the proposed agreement as many times as necessary until the Authority approves the proposed agreement.
146: Authority to assess whether coverage overlap exists
1: The Authority must, when a proposed agreement is submitted for a compliance assessment, assess whether there is coverage overlap between the proposed agreement and any fair pay agreement.
2: The Authority must, after fixing the terms of a proposed agreement under section 234 252
3: If the Authority decides that there is coverage overlap, it must determine which agreement provides the better terms overall.
147: Time frame for Authority to assess proposed agreement
1: The Authority must assess whether there is coverage overlap and notify the bargaining sides for a proposed agreement whether or not it has approved the proposed agreement—
a: as soon as practicable after it receives the proposed agreement; but
b: no later than 20 working days after it receives the proposed agreement.
2: If the Authority approves the proposed agreement but also considers that there is coverage overlap, it must notify the bargaining sides for the proposed agreement that the Authority has provisionally approved the proposed agreement, subject to determining which agreement provides the better terms overall.
3: However, the Authority may advise the bargaining sides later than the date specified in subsection (1) if the Chief of the Authority decides that exceptional circumstances exist.
148: Time frame for Authority to determine which agreement provides better terms overall
1: The Authority must notify the bargaining sides for a proposed agreement which agreement provides the better terms overall—
a: as soon as practicable after it receives the proposed agreement; but
b: no later than 20 working days after it notifies the bargaining sides that it has provisionally approved the proposed agreement under section 147(2)
2: However, the Authority may advise the bargaining sides later than the date specified in subsection (1) if the Chief of the Authority decides that exceptional circumstances exist.
149: How Authority determines which agreement provides better terms overall
1: To determine whether the proposed agreement or the fair pay agreement provides the better terms overall, the Authority must—
a: consider only those terms that apply to the covered employees who are within the coverage of both agreements (the overlapping terms
b: assess which agreement’s overlapping terms, when considered overall, provide the better terms for the majority of the covered employees who are within the coverage of both agreements.
2: The Authority’s determination that an agreement provides better terms overall does not mean that each of its overlapping terms is better than each of the overlapping terms of the other agreement.
150: Consequences of Authority’s determination
1: If a fair pay agreement ( agreement A agreement B
2: If the Authority determines that agreement A provides better terms overall,—
a: the Authority must advise both bargaining sides for agreement B—
i: of the need to change the coverage of agreement B; and
ii: of the requirements set out in paragraphs (b) to (f); and
b: the bargaining sides for agreement B must amend the coverage of agreement B to remove the work that is within the coverage of both agreement A and agreement B; and
c: each employee who, as a result of paragraph (b), is no longer within the coverage of agreement B—
i: is not entitled to vote in the ratification process for agreement B; and
ii: remains a covered employee within the coverage of agreement A; and
d: each employer who, as a result of paragraph (b), no longer employs a covered employee who is within the coverage of agreement B—
i: is not entitled to vote in the ratification process for agreement B; and
ii: remains a covered employer within the coverage of agreement A; and
e: the employee bargaining side for agreement B must use its best endeavours to advise each employee who, as a result of paragraph (b), is no longer within the coverage of agreement B (other than an employee who has elected, in accordance with section 39(2)(d)(ii)
f: the employer bargaining side for agreement B must use its best endeavours to advise each employer who, as a result of paragraph (b), no longer employs an employee who is within the coverage of agreement B that the employer is not entitled to vote in the ratification process for agreement B.
3: If the Authority determines that agreement B provides better terms overall,—
a: the Authority must advise both bargaining sides for agreement B—
i: that the proposed coverage of agreement B remains as proposed; and
ii: of the requirements set out in paragraphs (b) to (h); and
b: the Authority must advise both bargaining sides for agreement A—
i: that it has determined that agreement B provides better terms overall; and
ii: of the requirements set out in paragraphs (c) and (d); and
c: each covered employee who is within the coverage of agreement B is entitled to vote in the ratification process, despite also being a covered employee within the coverage of agreement A; and
d: each covered employer in relation to agreement B is entitled to vote in the ratification process, despite also being a covered employer in relation to agreement A; and
e: on the date on which agreement B comes into force, the work that is within the coverage of both agreement A and agreement B will be removed from the coverage of agreement A; and
f: the employee bargaining side for agreement B must use its best endeavours to advise each covered employee who is within the coverage of both agreement A and agreement B (other than an employee who has elected, in accordance with section 39(2)(d)(ii)
i: the Authority has determined that agreement B provides better terms overall; and
ii: as a result of the determination, the employee is entitled to vote in the ratification process for agreement B; and
iii: if agreement B is validated, the employee would no longer be a covered employee within the coverage of agreement A but would be a covered employee within the coverage of agreement B; and
g: the employer bargaining side for agreement B must use its best endeavours to advise each covered employer in relation to both agreement A and agreement B that—
i: the Authority has determined that agreement B provides better terms overall; and
ii: as a result of the determination, the covered employer is entitled to vote in the ratification process for agreement B; and
iii: if agreement B is validated, the covered employer’s employees who were within the coverage of both agreement A and agreement B would no longer be covered employees in relation to agreement A but would be covered employees in relation to agreement B; and
h: if the chief executive validates agreement B (in accordance with subpart 5
2: Ratification
151: Approved proposed agreement to be ratified
1: This subpart applies in relation to a proposed agreement if the Authority—
a: has approved the proposed agreement under section 144
b: has assessed, under section 146
2: Before the bargaining side lead advocates for each bargaining party for the proposed agreement jointly submit the proposed agreement to the chief executive for verification, it must be ratified in accordance with—
a: this subpart; and
b: the ratification process set by the relevant bargaining side.
152: Provision of information prior to ratification
1: No later than 5 working days after the Authority has approved a proposed agreement under section 144 section 148
a: the employee bargaining side must use its best endeavours to notify all covered employees (other than employees who have elected, in accordance with section 39(2)(d)(ii)
b: the employer bargaining side must use its best endeavours to notify all covered employers that a ratification vote will soon be held.
2: No later than 15 working days after being notified under subsection (1)(b), each covered employer must—
a: advise each of its covered employees—
i: that a ratification vote for the proposed agreement will soon be held; and
ii: that a previous election not to have their contact details provided to the employee bargaining side does not apply for the purposes of this section; and
iii: that the employee may, within 5 working days of being advised, elect not to have their details provided under this section by completing and returning the form provided by the employer under paragraph (b); and
iv: of the name and contact details of the initiating union or the name and updated contact address of the employee bargaining side if provided to the employer under section 106
b: provide a form approved and issued by the chief executive under section 284
i: that an employer is required to provide contact details for each of the employer’s covered employees to the employee bargaining side, unless the employee elects not to have their contact details provided; and
ii: the process by which an employee who does not want their contact details to be provided to the employee bargaining side can elect not to have their contact details provided; and
iii: the reason for providing the employee’s contact details to the employee bargaining side; and
iv: an explanation of to whom the employee bargaining side is able to provide the employee’s contact details; and
v: an explanation of the purposes for which the employee’s contact details may be used; and
vi: the consequences of the employee electing not to have their contact details provided; and
vii: how an employee who has elected not to have their contact details provided can rescind that election so that the employer must provide the employee’s contact details to the employee bargaining side; and
viii: how to determine whether the employee is entitled to vote in the ratification vote.
3: The employer must provide the contact details of each of its covered employees to the email address provided by the employee bargaining side, except for the details for those employees who, after receiving the form required under subsection (2)(b), have elected not to have their contact details provided.
4: The employer must provide the contact details to the employee bargaining side—
a: in an electronic format; and
b: no later than 10 working days after the date on which the employer complies with subsection (2).
5: At least 5 working days before the covered employees and covered employers vote whether to ratify a proposed agreement,—
a: the employee bargaining side must ensure that all covered employees for whom the bargaining side has contact details have access to—
i: a copy of the proposed agreement; and
ii: a plain language summary of the proposed agreement; and
b: the employer bargaining side must ensure that all covered employers that the bargaining side is aware of have access to—
i: a copy of the proposed agreement; and
ii: a plain language summary of the proposed agreement.
6: An employer who intentionally or recklessly fails to comply with subsection (2), (3), or (4) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
153: Time frame for holding ratification vote
1: The employee bargaining side must, when setting the date on which covered employees will vote whether to ratify a proposed agreement, ensure that the vote takes place—
a: as soon as practicable; but
b: on a date that is at least 40 working days after the date on which the Authority notifies the bargaining sides—
i: that it has approved the proposed agreement under section 147(1)
ii: of the outcome of the coverage overlap assessment under section 148
2: The employer bargaining side must, when setting the date on which covered employers will vote whether to ratify a proposed agreement, ensure that the vote takes place—
a: as soon as practicable; but
b: on a date that is at least 10 working days after the date on which the Authority notifies the bargaining sides—
i: that it has approved the proposed agreement under section 147(1)
ii: of the outcome of the coverage overlap assessment under section 148
154: Bargaining sides to notify of ratification vote
1: At least 10 working days before the date on which a ratification vote for a proposed agreement is to take place,—
a: the employee bargaining side must provide the information set out in subsection (3) to each covered employee for whom the bargaining side has contact details; and
b: the employer bargaining side must use its best endeavours to provide the information set out in subsection (3) to each covered employer.
2: The bargaining side must provide the information—
a: in writing; and
b: to each covered employee or each covered employer (as applicable) individually (for example, it could be emailed to all covered employees, but could not be posted on a staff intranet page).
3: The following information must be provided:
a: advice that the recipient of the information may be entitled to vote for or against ratifying the proposed agreement; and
b: how the employee or employer can determine whether they are entitled, in accordance with section 155
c: the first date on which the recipient is able to cast their vote; and
d: the final date by which the recipient may cast their vote; and
e: the methods by which the recipient is able to cast their vote; and
f: the consequences of the ratification vote for the proposed agreement.
4: For the purpose of subsection (3)(e), at least one method for casting a vote must enable the recipient to vote other than at the recipient’s workplace (for example, postal voting or online voting).
155: Entitlement to vote in ratification vote
1: An employee is entitled to vote in a ratification vote if, when the ratification vote takes place, the employee considers that, if the proposed agreement is validated under section 168
a: the employee will perform work or a type of work that will be within the coverage of the fair pay agreement; and
b: 25% or more of the work that the employee performs will be within the coverage of the fair pay agreement.
2: For the purposes of determining whether an employee is entitled to vote in a ratification vote,—
a: if 25% or more of the employee’s work will be within the coverage of the fair pay agreement but the employee’s work is within the coverage of another fair pay agreement, the employee is entitled to vote only if the proposed agreement covers a greater portion of the employee’s work than the other fair pay agreement; and
b: the percentage of the work that the employee works must be assessed based on the work the employee has performed during a reasonable period prior to the date of the assessment, taking into account the employee’s particular circumstances.
3: An employer is entitled to vote if, when the ratification vote takes place, the employer considers that, if the proposed agreement is validated under section 168
156: Ratification process
1: For a proposed agreement to be ratified, there must be—
a: a vote of the covered employees; and
b: a vote of the covered employers.
2: For the purpose of subsection (1)(a),—
a: each covered employee who is entitled to vote is entitled to 1 vote:
b: the covered employees ratify the proposed agreement if more than half of the employees who vote, vote in favour of ratification.
3: For the purpose of subsection (1)(b),—
a: a covered employer who has—
i: fewer than 21 employees who the employer considers are entitled to vote is entitled to the number of votes set out in the second column of Schedule 2
ii: 21 or more employees who the employer considers are entitled to vote is entitled to 1 vote for each of those employees (for example, if a covered employer has 25 employees who the employer considers are entitled to vote, the employer has 25 votes):
b: the covered employers ratify the proposed agreement if more than half of the votes from those employers are in favour of ratification.
157: Notification of outcome of ratification vote
1: A bargaining side must, no later than 5 working days after the results of its ratification vote are finalised, inform the other bargaining side for the proposed agreement of the outcome of the ratification vote.
2: If the results of both the ratification vote of the covered employees and the ratification vote of the covered employers are in favour of ratification, each bargaining side must submit evidence of the results of its ratification vote to the chief executive under section 159
3: If the result of the ratification vote of the covered employees or the ratification vote of the covered employers is against ratification,—
a: if the ratification vote is the first ratification vote for the proposed agreement, the bargaining sides must restart bargaining for the proposed agreement; or
b: if the ratification vote is the second ratification vote for the proposed agreement, the bargaining side lead advocate for either bargaining side may apply to the Authority for a determination to fix the terms of the proposed agreement.
158: Obligation to keep records of ratification
1: Each bargaining side for a proposed agreement must keep records of—
a: the process followed to vote on whether to ratify the proposed agreement; and
b: the votes cast on whether to ratify the proposed agreement.
2: A bargaining side must ensure that its records are adequate to demonstrate that—
a: the bargaining side held the ratification vote in accordance with this Act and any process agreed by the bargaining side; and
b: each vote was cast by a person who was entitled to vote.
3: Verification
159: Bargaining sides must submit evidence of ratification for verification
1: Subsection (2) applies if—
a: each bargaining side for a proposed agreement has completed a ratification vote, including counting all eligible votes; and
b: the ratification vote of each bargaining side is in favour of ratifying the proposed agreement.
2: Each bargaining side for the proposed agreement must, as soon as practicable, submit—
a: evidence of the following to the chief executive:
i: the ratification process followed; and
ii: the results of the ratification vote; and
iii: if the bargaining side is an employer bargaining side,—
A: for each employer who voted, the number of the employer’s employees who the employer considers to be entitled to vote under section 155
B: the number of votes cast by each employer; and
b: a statutory declaration to the chief executive that the bargaining side held its ratification vote in accordance with a process agreed by the bargaining side; and
c: a copy of the proposed agreement, which must include the title of the proposed agreement.
160: Chief executive to verify ratification
1: The chief executive must, after receiving the evidence submitted under section 159
a: each bargaining side has followed the ratification process—
i: required under this Act; and
ii: agreed by the bargaining parties on the bargaining side; and
b: each vote was cast by a person who was entitled to vote; and
c: each covered employer cast the number of votes determined under section 156(3)
d: the result of each ratification vote is to ratify the proposed agreement.
2: The chief executive may, if not satisfied that a bargaining side has submitted sufficient evidence to enable the chief executive to decide whether to verify the proposed agreement, require the bargaining side to provide further evidence (for example, further evidence that each employer or employee who voted in the ratification vote was entitled to vote).
3: A bargaining side, if required to provide further evidence, must provide the evidence in writing and as soon as practicable.
4: Before deciding whether to verify a proposed agreement, the chief executive must—
a: not take into account any evidence provided by a bargaining side, if the chief executive reasonably believes that evidence to be inaccurate; and
b: decide whether to verify the proposed agreement based on the remaining evidence.
5: For the purposes of subsection (1), the chief executive is not required to consider each vote cast, but may be satisfied by considering a sample of votes cast.
6: The chief executive must decide whether to verify a proposed agreement by the later of—
a: 20 working days after the date on which the chief executive receives the evidence required under section 159
b: 20 working days after the date on which the chief executive receives any further evidence required to be provided under subsection (2).
161: Consequences if chief executive declines to verify ratification
1: If the chief executive declines to verify a proposed agreement, the chief executive must require 1 or both bargaining sides to undertake the ratification process again, in accordance with—
a: this Act; and
b: the ratification process agreed by the bargaining parties on the relevant bargaining side.
2: If required to undertake the ratification process again, a bargaining side must resubmit the evidence required under section 159
3: If a bargaining side resubmits evidence for verification, the chief executive must consider the evidence in accordance with this subpart.
162: Penalty for providing inaccurate information
1: A bargaining party that intentionally or recklessly provides inaccurate information to the chief executive under this subpart is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
2: A covered employer is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
a: the number of covered employees that the employer employs:
b: the number of votes that the employer is entitled to cast or has cast.
4: Chief executive to check for overlapping coverage
163: Chief executive to check whether coverage overlap exists
1: The chief executive must, after verifying a proposed agreement under section 160 section 168
2: If the chief executive concludes that there is no coverage overlap, the chief executive may validate the proposed agreement in accordance with subpart 5
164: Consequences if coverage overlap may exist
If the chief executive concludes that there may be coverage overlap between a proposed agreement and a fair pay agreement, the chief executive must advise the bargaining parties for the proposed agreement that—
a: the chief executive has concluded that there may be coverage overlap between the proposed agreement and the fair pay agreement; and
b: the bargaining side lead advocate for each bargaining side must submit the proposed agreement to the Authority for the Authority to make the determinations specified in section 165(1)
165: Authority to make determinations relating to coverage overlap
1: The Authority must, when a proposed agreement is submitted under section 164
a: whether there is coverage overlap between the proposed agreement and the fair pay agreement; and
b: if it determines that there is coverage overlap, in accordance with section 149
2: The Authority must make its determination—
a: under subsection (1)(a) no later than 10 working days after the proposed agreement is submitted; or
b: under subsection (1)(b) in accordance with the time frame specified in section 148
166: Consequences of Authority’s determination: proposed agreement provides better terms overall
1: If the Authority determines, in accordance with section 165(1)
2: After being notified under subsection (1), the chief executive—
a: must notify the bargaining sides for the proposed agreement and the fair pay agreement that—
i: the Authority has determined that the proposed agreement provides the better terms overall; and
ii: as a result of that determination, the chief executive will amend the coverage of the fair pay agreement so that the work or type of work that is within the coverage of the proposed agreement and the fair pay agreement will only be within the coverage of the proposed agreement when it is validated; and
b: must issue a fair pay agreement notice that amends the coverage of the fair pay agreement so that it no longer covers the work or type of work that is covered by the proposed agreement; and
c: after amending the coverage of the fair pay agreement, may validate the proposed agreement in accordance with subpart 5
3: The employee bargaining side for the proposed agreement must inform each covered employee who is also a covered employee in relation to the fair pay agreement—
a: that the Authority has determined that the proposed agreement provides better terms overall than the fair pay agreement; and
b: of the consequences of that determination.
4: The employer bargaining side for the proposed agreement must inform each covered employer that is also a covered employer in relation to the fair pay agreement—
a: that the Authority has determined that the proposed agreement provides better terms overall than the fair pay agreement; and
b: of the consequences of that determination.
5: For the purposes of subsection (2)(a), (b), and (c), the date on which the coverage of the fair pay agreement is amended must be the same date as the date on which the proposed agreement is validated and comes into force.
167: Consequences of Authority’s determination: fair pay agreement provides better terms overall
1: If the Authority determines, in accordance with section 165(1)
2: After being notified under subsection (1), the chief executive—
a: must notify the bargaining sides for the proposed agreement that—
i: the Authority has determined that the fair pay agreement provides the better terms overall; and
ii: as a result of that determination, the chief executive will amend the coverage of the proposed agreement so that it no longer covers the work or type of work that is covered by the fair pay agreement; and
b: must amend the coverage of the proposed agreement so that it no longer covers the work or type of work that is covered by the fair pay agreement; and
c: after amending the coverage of the proposed agreement, may validate the proposed agreement in accordance with subpart 5
3: The employee bargaining side for the proposed agreement must inform each covered employee who is also a covered employee under the fair pay agreement—
a: that the Authority has determined that the fair pay agreement provides better terms overall than the proposed agreement; and
b: of the consequences of that determination.
4: The employer bargaining side for the proposed agreement must inform each covered employer that is also a covered employer under the fair pay agreement—
a: that the Authority has determined that the fair pay agreement provides better terms than the proposed agreement; and
b: of the consequences of that determination.
5: Issuing fair pay agreement notice
Chief executive to issue fair pay agreement notice
168: Chief executive to issue fair pay agreement notice
1: Subject to subsection (2), the chief executive must, if satisfied that it complies with this Act,—
a: validate the terms of a proposed agreement by issuing a fair pay agreement notice in accordance with this subpart; or
b: for the purpose of section 150 166
2: The chief executive must not issue a fair pay agreement notice unless—
a: the chief executive—
i: has verified the ratification process and ratification vote for the proposed agreement in accordance with subpart 3
ii: has checked whether there is coverage overlap between the proposed agreement and any other fair pay agreement; and
iii: is satisfied that the chief executive and the Authority have complied with the requirements of subpart 4
b: the Authority has fixed the terms of the proposed agreement in accordance with section 234 252
3: If the chief executive is not satisfied that the requirements of subpart 4
4: A notice issued under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)(aa) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act.
169: Form and content of notice
1: Each notice issued under section 168(1)(a)
a: for the purpose of section 168(2)(a) subpart 3
b: for the purpose of section 168(2)(b)
2: However, a notice issued under section 168(1)(b)
a: is not required to set out the terms of the fair pay agreement; but
b: must be in the form prescribed in regulations.
170: Notification to bargaining sides
1: If the chief executive issues a notice under section 168(1)(a)
2: If the chief executive issues a notice under section 168(1)(b)
171: Chief executive may make editorial changes
1: The chief executive may make the following changes to a fair pay agreement that the chief executive has validated under section 168
a: a reference to the name or title of a body, an office, a person, a place, or a thing that has been changed may be replaced with a reference to the name or title as changed:
b: a reference to a body, an office, a person, a place, or a thing that has been replaced by another body, office, person, place, or thing may be changed to a reference to the replacement body, office, person, place, or thing:
c: changes may be made to words in the Māori language (te reo Māori) to reflect current orthographic conventions:
d: obvious errors of the following kinds may be corrected:
i: typographical and clerical errors:
ii: grammatical and spelling errors, and errors of punctuation:
iii: errors in numbering, cross-referencing, and alphabetical ordering:
iv: any other errors of a similar nature:
e: changes may be made that are purely consequential on any other change authorised by this section:
f: changes may be made to the format of a fair pay agreement so that the format is easier to read or use.
2: This section does not permit the chief executive to change the effect of a fair pay agreement. Application and effect of fair pay agreement
172: Application of notice and fair pay agreement
1: A notice issued under section 168
a: the date set out in the fair pay agreement as the date on which the agreement comes into force (excluding any delayed commencement approved under section 141
b: the date on which the chief executive issues the notice.
2: From the date on which the notice comes into force, a fair pay agreement specified in the notice applies to—
a: each covered employee who is within the coverage of the agreement (whether or not the employee is a union member); and
b: each covered employer that employs at least 1 employee described in paragraph (a).
3: After the date on which the notice comes into force, a fair pay agreement also applies to—
a: an employee who was not within the coverage of the fair pay agreement on the date on which the notice came into force but who subsequently becomes a covered employee, in which case the agreement applies to the employee from the date on which the employee becomes a covered employee:
b: an employer who on the date on which the notice came into force did not employ any covered employees, but who subsequently employs an employee who is a covered employee in relation to the fair pay agreement, in which case the agreement applies to the employer from the date on which the employee becomes a covered employee:
c: a covered employer who has a delayed commencement date specified for 1 or more terms in the fair pay agreement, in which case each term of the agreement applies to the covered employer and the employer’s covered employees from the relevant date specified in the fair pay agreement for that employer.
4: However, if, after the date on which the notice comes into force,—
a: an employee ceases to be a covered employee, the agreement ceases to apply to the employee from the date on which they cease to be a covered employee:
b: an employer ceases to employ any covered employees, the fair pay agreement ceases to apply to the employer from the date on which they cease to employ any covered employees.
173: Threshold to be covered employee for fair pay agreement
1: An employee meets the threshold to be a covered employee in relation to a fair pay agreement if—
a: the employee performs work or a type of work that is within the coverage of the fair pay agreement; and
b: 25% or more of the work that the employee performs is within the coverage of the fair pay agreement.
2: For the purposes of determining whether an employee meets the threshold,—
a: if 2 or more fair pay agreements cover 25% or more of the work that the employee performs, the employee is a covered employee only in relation to the fair pay agreement that covers the greater percentage of the work that the employee performs; and
b: the percentage of the work that the employee performs must be assessed based on the work the employee has performed during a reasonable period prior to the date of the assessment, taking into account the employee’s particular circumstances.
3: For the purpose of subsection (2)(b), the percentage of the work that an employee described in section 172(3)(a)
174: Obligation to comply with fair pay agreement
1: Subject to section 175
2: Subject to subsection (4), a failure by a covered employer to comply with subsection (1) is deemed to be a breach of this Act.
3: Subject to subsection (4), a covered employer for a fair pay agreement that fails to comply with the fair pay agreement—
a: is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 212
b: is not liable to a penalty under section 134
4: A covered employer in relation to a fair pay agreement that fails to comply with a minimum entitlement provision that, in accordance with section 129(2)
a: is not liable to a penalty under this Act in relation to that failure; but
b: is liable to a penalty under the relevant Act listed in section 129(1)
5: A bargaining party for a fair pay agreement must comply with any obligations imposed on the bargaining party by the fair pay agreement.
6: A failure by a bargaining party to comply with subsection (5) is deemed to be a breach of this Act.
7: A bargaining party that fails to comply with a fair pay agreement is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 212
8: A person who incites, instigates, aids, or abets any breach of a fair pay agreement is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 212 Employment Relations Act 2000
175: Effect of fair pay agreement on employment agreements
1: To the extent that a fair pay agreement provides a term that is more favourable to a covered employee than a corresponding term in the employee’s employment agreement (whether the employment agreement is agreed before or after the date on which the fair pay agreement comes into force),—
a: the term of the fair pay agreement prevails; and
b: the corresponding term in the employee’s employment agreement is deemed, from the date on which the fair pay agreement applies to the employee, to have been amended accordingly.
2: However, subsection (1) does not prevent an employer and a covered employee from agreeing a term in an employment agreement that is more favourable to the employee than the corresponding term provided in the fair pay agreement (in which case the term in the employment agreement prevails).
176: Relationship between fair pay agreements and collective agreements
1: Entering into, or bargaining for, a collective agreement in accordance with the collective bargaining provisions of the Employment Relations Act 2000
2: The existence of bargaining for a proposed agreement or a proposed variation, or the existence of a fair pay agreement, in relation to which an employer is a covered employer, is not a genuine reason for failing to conclude collective bargaining between the employer and a union representing the employer’s employees for the purposes of section 33
9: Variation, renewal, and replacement of fair pay agreements
1: Variation
177: Application
1: This subpart applies if one of the bargaining sides for a fair pay agreement proposes that the fair pay agreement is varied.
2: A fair pay agreement may be varied only in accordance with—
a: the process set out in this Act; and
b: the terms of the fair pay agreement that specify how the agreement may be varied (subject to section 126(2)
178: Who may propose agreement to bargain for proposed variation
A request for agreement to bargain for a proposed variation may be made only by—
a: a bargaining party that is a member of a bargaining side for the fair pay agreement on the date on which the request is made; or
b: if permitted by section 76
179: Agreement required before bargaining for proposed variation may start
1: If a bargaining side requests agreement to bargain for a variation of a fair pay agreement, bargaining for the proposed variation may start only if both bargaining sides for the fair pay agreement agree to do so.
2: If either bargaining side for a proposed variation withdraws its agreement at any stage of the bargaining, the bargaining for the proposed variation is discontinued.
180: Notification requirements relating to agreement to bargain for proposed variation
1: If, in accordance with section 179(1)
2: The bargaining side lead advocate for a bargaining side that withdraws its agreement to bargain for a proposed variation must notify the following parties of the bargaining side’s withdrawal:
a: the chief executive; and
b: the bargaining side lead advocate for the other bargaining side.
3: If either bargaining side withdraws its agreement to bargain for a proposed variation,—
a: the employee bargaining side must notify all employees for whom it has contact details and who are covered employees in relation to the fair pay agreement that bargaining for the proposed variation has been discontinued; and
b: the employer bargaining side must notify all employers that it considers may be covered employers in relation to the fair pay agreement that bargaining for the proposed variation has been discontinued.
181: Ability to join bargaining side during bargaining for proposed variation
1: A new bargaining party may join a bargaining side at any time after bargaining for a proposed variation has started if it makes an application and the application is approved in accordance with the following sections (with all necessary modifications):
a: sections 47(2) 48 to 50
b: sections 43(2) 44
2: If a bargaining party joins a bargaining side after bargaining for a proposed variation has started, section 56
3: During bargaining for a proposed variation,—
a: sections 52 96 97 98
b: sections 53 62 99 100
182: Limitations on requesting variations
1: A bargaining party must not request agreement to bargain for a variation of a fair pay agreement—
a: before the fair pay agreement has commenced:
b: after a bargaining party has requested that the fair pay agreement be renewed ( see section 197
c: if the bargaining sides for the fair pay agreement are bargaining to renew the agreement:
d: after the agreement has expired.
2: If bargaining for a proposed variation has not been completed by the date on which the fair pay agreement expires, bargaining for the proposed variation is discontinued on that date.
3: A variation of a fair pay agreement may relate to any term of the agreement, except for a term that specifies—
a: the date from which the fair pay agreement applies; or
b: the coverage of the agreement; or
c: the date on which the agreement expires.
183: Notice to employers of agreement to bargain for proposed variation
1: If the bargaining sides for a fair pay agreement agree to bargain for a proposed variation, the employer bargaining side must provide written notice, to each employer that it considers may have at least 1 covered employee, that bargaining for the proposed variation has started.
2: A bargaining party on the employer bargaining side must comply with subsection (1) no later than 15 working days after the bargaining sides agree to bargain for the proposed variation.
184: Employee bargaining side must update contact address
1: The employee bargaining side for a proposed variation must ensure that the employer bargaining side for the proposed variation has a current contact email address to which an employer must send its employees’ contact details when required to do so under this subpart.
2: The employer bargaining side must ensure that it provides the current contact email address provided under subsection (1) to each covered employer that it is aware of, within 5 working days after receiving the email address.
185: Obligations to provide information relating to proposed variation
1: Within 10 working days of the bargaining sides for a fair pay agreement agreeing to bargain for a proposed variation, the employee bargaining side must provide the employer bargaining side with—
a: the information listed in subsection (6) (the information
b: the email address to which an employer must provide its employees’ contact details under subsection (4) (the address
c: a form, approved and issued by the chief executive under section 284 section 152(2)(b)
2: The employer bargaining side—
a: must, within 5 working days of receiving the information, the address, and the form from the employee bargaining side, provide them to each employer that it considers may employ at least 1 covered employee; but
b: must not amend the wording of the information, the address, or the form before providing it to an employer.
3: Each employer that receives the information, the address, and the form—
a: must, within 15 working days of receiving them, provide them to each of its covered employees; but
b: must not amend the wording of the information, the address, or the form before providing them to a covered employee.
4: After providing the information, the address, and the form to its covered employees, each employer must provide, in an electronic format, each covered employee’s contact details to the address provided by the employee bargaining side, except for the contact details of an employee who has elected not to have their details provided.
5: An employer must comply with subsection (4) no earlier than 5 working days after the date on which it provides the information to its covered employees, but no later than 10 working days after that date.
6: The information is—
a: that the employee bargaining side and the employer bargaining side have agreed to bargain for a proposed variation; and
b: how the proposed variation could affect the terms of employment of each covered employee; and
c: that the employee bargaining side represents all covered employees, whether the employee is a member of a union or not; and
d: how each covered employee will be able to participate in the process of bargaining for the proposed variation; and
e: the address to which the employer is required to send the covered employee’s contact details; and
f: where a covered employee can access further relevant information; and
g: who, on the employee bargaining side, a covered employee can contact for further relevant information.
7: An employer who intentionally or recklessly fails to comply with subsection (3), (4), or (5) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
186: Employer must provide information to new employee
1: This section applies in relation to a covered employee who commences employment—
a: in a role that is within the coverage of a fair pay agreement; and
b: during the bargaining process for a proposed variation of the fair pay agreement.
2: The employer of a covered employee described in subsection (1)—
a: must, within 15 working days of the employee commencing employment in the role, provide the employee with—
i: the information specified in section 185(6)
ii: the form specified in section 185(1)(c)
b: must not amend the wording of the information or the form before providing the information and the form to the employee; and
c: must, unless the employee elects not to have their contact details provided, provide the employee’s contact details, in an electronic format, to—
i: the email address provided by the employer bargaining side under section 185(2)(a)
ii: if the employee bargaining party has provided the employer with the email address of another employee bargaining party to which the employer must send the contact details, to that address.
3: An employer must comply with subsection (2)(c)—
a: no earlier than 5 working days after providing the information required under subsection (2)(a) to the employee; but
b: no later than 60 working days after providing the information.
4: An employer who intentionally or recklessly fails to comply with this section is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
187: Employer bargaining side must provide information to new employer
1: If, after the bargaining sides for a fair pay agreement have agreed to bargain for a variation of the fair pay agreement, the employer bargaining side becomes aware of a new employer that may employ 1 or more covered employees, it must provide the new employer with—
a: the information listed in section 185(6)
b: the form specified in section 185(1)(c)
c: the email address to which the employer must provide its employees’ contact details under subsection (4).
2: The employer bargaining side must comply with subsection (1) within 5 working days of becoming aware of the new employer.
3: A new employer that receives the information and the form under subsection (1)—
a: must, within 15 working days of receiving the information and the form, provide the information and the form to each of its covered employees; but
b: must not amend the wording of the information or the form before providing the information and the form to a covered employee.
4: After providing the information and the form to its covered employees, a new employer must provide, in an electronic format, each covered employee’s contact details to the email address provided by the employee bargaining side, except for the contact details of an employee who has elected not to have their contact details provided.
5: A new employer must comply with subsection (4) no earlier than 5 working days after the date on which it provides the information and the form to its covered employees, but no later than 10 working days after that date.
6: An employer who intentionally or recklessly fails to comply with this section is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
188: Procedure for finalising variation
When bargaining for a proposed variation is complete, the process for finalising the variation is to complete the following steps in the order given:
a: the bargaining side lead advocates for each bargaining side must jointly submit the proposed variation to the Authority for a compliance assessment, and sections 143 to 147
b: if the Authority approves the proposed variation under section 144 sections 189 191
c: if the proposed variation is ratified by both bargaining sides for the proposed variation, the bargaining side lead advocate for each bargaining side must submit the proposed variation to the chief executive for verification of ratification, in accordance with sections 159 160 161(3) 162
d: if the chief executive verifies ratification, the chief executive may set the terms of the variation by issuing a notice in accordance with sections 192 193
189: Process for ratifying proposed variation
1: This section applies when the Authority has approved a proposed variation under section 144 section 188(a)
2: Before the bargaining side lead advocates for each bargaining party for the proposed variation jointly submit the proposed variation to the chief executive for verification, the proposed variation must be ratified in accordance with—
a: this section and section 190
b: the ratification process set by the relevant bargaining side.
3: No later than 5 working days after the Authority has approved the proposed variation under section 144
a: the employee bargaining side must use its best endeavours to notify all covered employees (other than employees who have elected not to have their contact details provided to the employee bargaining side) that a ratification vote will soon be held; and
b: the employer bargaining side must use its best endeavours to notify all covered employers that a ratification vote will soon be held.
4: No later than 15 working days after being notified under subsection (3)(b), each covered employer must advise each of its covered employees that a ratification vote for the proposed variation will soon be held.
5: At least 5 working days before the covered employees and covered employers vote whether to ratify the proposed variation,—
a: the employee bargaining side must ensure that all covered employees for whom the bargaining side has contact details have access to—
i: a copy of the proposed variation; and
ii: a plain language summary of the proposed variation; and
b: the employer bargaining side must ensure that all covered employers that the bargaining side is aware of have access to—
i: a copy of the proposed variation; and
ii: a plain language summary of the proposed variation.
6: An employer who intentionally or recklessly fails to comply with subsection (4) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
190: Further requirements for ratifying proposed variation
1: When setting the date on which the covered employees or covered employers will vote whether to ratify a proposed variation, the relevant bargaining side must set a date that is at least 10 working days after the date on which the Authority approved the proposed variation under section 144
2: The requirement to notify covered employees and covered employers of the ratification vote, as set out in section 154
3: The process for holding the ratification vote is as set out in section 156
4: As soon as practicable after a bargaining side completes its ratification vote for a proposed variation, it must inform the other bargaining side for the proposed variation of the outcome of the ratification vote.
5: If the results of both the ratification vote of the covered employees and the ratification vote of the covered employers are in favour of ratification, each bargaining side must submit evidence of the results of its ratification vote to the chief executive, and section 159
6: The requirement to keep records of the ratification vote are as set out in section 158
191: Ratification of proposed variation to agreement attached as schedule
1: This section applies when a proposed variation is to a fair pay agreement that has another fair pay agreement attached as a schedule ( see sections 120 121
2: If the proposed variation is to the fair pay agreement to which the schedule is attached, only covered employees and covered employers in relation to that fair pay agreement are entitled to vote on the ratification of the proposed variation.
3: If the proposed variation is to the fair pay agreement that is attached as a schedule, only covered employees and covered employers in relation to that fair pay agreement are entitled to vote on the ratification of the proposed variation.
192: Chief executive to issue notice to vary fair pay agreement
1: For the purpose of section 188(d)
a: the process set out in section 188
b: the fair pay agreement to which the proposed variation relates has not expired.
2: If the chief executive is not satisfied that the requirements have been met, the chief executive must, by written notice, advise the bargaining sides for the proposed variation of the reasons for not being satisfied.
3: If the chief executive issues a notice under subsection (1), the chief executive must notify each bargaining side for the variation that the chief executive has issued the notice.
4: A notice issued under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)(aa) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act.
193: Form and content of notice to vary fair pay agreement
Each notice under section 192
a: set out the terms of the variation of the fair pay agreement, which must be in the form prescribed by any regulations; and
b: be for the variation that was ratified by the ratification vote that the chief executive verified under section 160
194: Bargaining sides may seek recommendation from Authority
1: When bargaining for a proposed variation, the employee bargaining side and the employer bargaining side may agree to seek a non-binding recommendation from the Authority in relation to the proposed variation.
2: A bargaining side must not seek a recommendation from the Authority in relation to a proposed variation unless the other bargaining side agrees to do so.
3: If the bargaining sides for a proposed variation seek a recommendation from the Authority in relation to a matter,—
a: section 232
b: before making a recommendation, the Authority must consider the considerations listed in section 236
4: If the bargaining sides accept a recommendation from the Authority, it may be incorporated into the proposed variation, and becomes part of the variation that follows the process set out in section 188
5: There is no limit to the number of recommendations that the bargaining sides may seek from the Authority.
195: Bargaining sides may not seek determination in relation to proposed variation
When bargaining for a proposed variation, neither bargaining side may seek a determination from the Authority in relation to the proposed variation.
2: Renewal and replacement of fair pay agreements
196: Purpose of this subpart
This subpart sets out the process that must be followed to renew or replace a fair pay agreement.
197: Approval required to bargain to renew or replace fair pay agreement
1: Bargaining to renew or replace a fair pay agreement must not start without the chief executive’s approval to do so.
2: The following parties may apply to the chief executive for approval to initiate bargaining to renew or replace a fair pay agreement:
a: an eligible union:
b: an eligible employer association:
c: a specified employer bargaining party that may, in accordance with section 58 60 61
3: A default bargaining party may not apply to the chief executive for approval to initiate bargaining to renew or replace a fair pay agreement. Timing
198: When application to renew fair pay agreement may be made
1: An application to the chief executive for approval to initiate bargaining to renew a fair pay agreement may be made no earlier than,—
a: in the case of an application from an eligible union, 180 days before the expiry date specified in the fair pay agreement; or
b: in the case of an application from an eligible employer association or a specified employer bargaining party, 160 days before the expiry date specified in the fair pay agreement.
2: If a fair pay agreement has expired,—
a: an application for approval to bargain to renew the fair pay agreement may not be made; but
b: an application for approval to bargain to replace the fair pay agreement may be made under section 199
199: Application for approval to bargain for replacement fair pay agreement
1: If no application for approval under section 198(1)
a: an eligible union:
b: an eligible employer association:
c: a specified employer bargaining party that, in accordance with section 58 60 61
2: An application for approval under this section may be made to the chief executive no later than 2 years after the date on which the fair pay agreement expires.
200: Effect on expiry date of approval to bargain for renewal
Despite the expiry date specified in a fair pay agreement, if a party applies for approval to initiate bargaining for renewal under section 198(1)
a: the expiry date specified in the fair pay agreement; and
b: the date on which the renewed fair pay agreement comes into force; and
c: the date on which the chief executive notifies the applicant that it has declined the application for approval to initiate bargaining to renew the agreement; and
d: the date on which bargaining for the proposed renewal is discontinued under section 72(2)(b) 73(3)(b) 75(2)(b) 80
201: Commencement of renewed or replacement agreement
1: A renewed fair pay agreement comes into force on a date specified in the renewed agreement, which date must be no earlier than the expiry date specified in the fair pay agreement immediately prior to being renewed.
2: A fair pay agreement that replaces an expired fair pay agreement comes into force on a date specified in the replacement agreement. Coverage
202: Coverage of renewed or replaced fair pay agreement
1: An application to initiate bargaining to renew a fair pay agreement must be to renew the fair pay agreement with the same coverage as, or a broader coverage than, that provided by the fair pay agreement being renewed on the date on which the application is made.
2: An application to initiate bargaining for an agreement to replace a fair pay agreement that has expired must be for a replacement agreement with the same coverage as, or a broader coverage than, the coverage of the expired fair pay agreement on the date on which it expired.
3: Bargaining to renew or replace a fair pay agreement must not reduce the coverage of the agreement contained in the application to start bargaining. Application for approval to renew or replace fair pay agreement
203: Contents of application to renew or replace fair pay agreement
1: An application to initiate bargaining to renew or replace a fair pay agreement must—
a: be in writing; and
b: state the following:
i: the name of the applicant; and
ii: the name of the primary contact person for the applicant; and
iii: the email address of the primary contact person; and
c: specify which renewal test the application meets ( see section 205
d: specify the coverage of the proposed renewal or the proposed replacement, including,—
i: for an occupation-based agreement, a description of the work or type of work that is intended to be within the coverage; or
ii: for an industry-based agreement, a description of—
A: the industry or type of industry that is intended to be within the coverage; and
B: the work or type of work that is intended to be within the coverage; and
e: provide evidence of—
i: the applicant being either an eligible union or an eligible employer association (as applicable); and
ii: how the application meets the renewal test specified under paragraph (c); and
f: be signed by an authorised representative of the applicant; and
g: include any other information required by regulations.
2: Evidence provided in support of an application must be provided in accordance with section 204
a: the application is made by an eligible employer association or a specified employer bargaining party; and
b: the application relies on the representation test specified in section 205(2)(b)
3: If an eligible union makes an application that relies on the representation test specified in section 205(2)(a)
a: the employee’s name:
b: the employee’s occupation:
c: the name of the employee’s employer:
d: the date on which the employee agreed to support initiating bargaining:
e: if the application is for an industry-based agreement, the industry in which the employee is employed:
f: if the application is made, in accordance with section 205(2)(a)(ii)
4: Information provided under subsection (3) must be no more than 12 months old as at the date on which the eligible union submits the application.
5: An applicant who intentionally or recklessly provides inaccurate information as part of an application to the chief executive for approval to initiate bargaining for a proposed renewal or a proposed replacement is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
204: Evidence provided in support of application from eligible employer association or specified employer bargaining party
1: An application described in section 203(2)
a: the name of each employer that would be within the coverage of the proposed renewal or the proposed replacement, and that supports the application; and
b: for each employer listed under paragraph (a), the number of the employer’s employees who would be within the coverage of the proposed renewal or the proposed replacement; and
c: the occupations of each employee that would be within the coverage of the proposed renewal or the proposed replacement; and
d: the date on which each employer agreed to support the application to initiate bargaining for the proposed renewal or the proposed replacement; and
e: if the application relates to an industry-based agreement, the industry in which the applicant employer operates; and
f: if the application is made, in accordance with section 205(2)(b)(ii)
2: Information provided under subsection (1) must be no more than 12 months old as at the date on which the eligible employer association or the specified employer bargaining party submits the application.
205: Test for initiating bargaining to renew or replace fair pay agreement
1: An application for approval to initiate bargaining to renew or replace a fair pay agreement must meet—
a: the representation test; or
b: the public interest test.
2: An application meets the representation test if,—
a: for an application from an eligible union,—
i: at least 1,000 employees who would be within the coverage of the proposed renewal or the proposed replacement support bargaining to renew or replace the fair pay agreement; or
ii: at least 10% of all employees within the coverage of the proposed renewal or the proposed replacement support bargaining to renew or replace the fair pay agreement; or
b: for an application from an eligible employer association or specified employer bargaining party, bargaining for the proposed renewal or the proposed replacement is supported by 1 or more employers who, between them, employ—
i: at least 1,000 employees who would be within the coverage of the proposed renewal or the proposed replacement; or
ii: at least 10% of all employees who would be within the coverage of the proposed renewal or the proposed replacement.
3: An application meets the public interest test if the applicant provides evidence that the proposed renewal or the proposed replacement—
a: meets the public interest test specified in section 29(1)
b: would have met the public interest test specified in section 29(1)
206: Chief executive to assess application for approval to renew or replace fair pay agreement
1: After receiving an application for approval to initiate bargaining for a proposed renewal or a proposed replacement, the chief executive must—
a: assess the application; and
b: as soon as practicable, notify the applicant in writing whether or not the chief executive has approved the application.
2: For the purpose of subsection (1), sections 31(1)(a)(i) and (1)(b) 32 33(1), (2), and (3)(b)(i) and (ii) 34 35 36
a: references to the union must be read as references to the applicant; and
b: the application relates to bargaining for the proposed renewal or the proposed replacement, rather than to bargaining for a proposed FPA.
3: The chief executive may, for the purpose of verifying information the applicant has provided under section 203(2) or (3) 204
a: all employees or employers who would be covered by the proposed renewal or the proposed replacement; or
b: a sample of the employees or employers who would be covered by the proposed renewal or the proposed replacement.
4: The chief executive must decline an application if,—
a: after assisting the applicant under section 33(2)
b: after considering any additional information or evidence provided under section 35(2) sections 33(3)(b)(i) and (ii) 203 205
c: based on the information provided in the application and, if applicable, any additional information or evidence provided under section 35(2) Notification requirements
207: Chief executive must notify bargaining parties of approval to bargain for proposed renewal or proposed replacement
1: If the chief executive approves an application for approval to initiate bargaining for a proposed renewal or a proposed replacement, the chief executive must—
a: publicly notify the chief executive’s approval of the application; and
b: notify each bargaining party to the fair pay agreement of the chief executive’s approval of the application.
2: A notification under subsection (1)(a) or (b) must comply with the requirements of section 37
a: the references to a proposed FPA must be read as references to a proposed renewal or a proposed replacement:
b: section 37(2)(b)
3: The chief executive must comply with subsection (1) within 5 working days of approving the application.
208: Notification of bargaining for proposed renewal or proposed replacement
1: If the chief executive approves an application for approval to initiate bargaining for a proposed renewal or a proposed replacement,—
a: if the applicant is an eligible union, the applicant, any unions notified under section 39(1) 40(1) sections 39 to 42 272 273
b: if the applicant is an eligible employer association or a specified employer bargaining party, the applicant, the employee bargaining side, and the employer must comply with subsections (2) to (9).
2: Within 15 working days of the applicant receiving notice that the chief executive has approved its application to initiate bargaining, the applicant must—
a: use its best endeavours to identify each union, employer association, employer, and specified employer bargaining party that the applicant considers is likely to have covered employees or members who are covered employees (as applicable); and
b: use its best endeavours to notify those unions, employer associations, employers, and specified employer bargaining parties that the applicant has received approval to initiate bargaining; and
c: publish a notice—
i: on an Internet site that is administered by or on behalf of the initiating union, publicly available, and free of charge; and
ii: in the daily newspapers circulating in Auckland, Hamilton, Tauranga, Wellington, Christchurch, and Dunedin.
3: A notification under subsection (2)(b) must—
a: be in writing; and
b: state where to find the notice issued by the chief executive under section 207
c: in the case of a notification to an employer association, include a statement for the employer association to provide to each of its members that have covered employees; and
d: in the case of a notification to a specified employer bargaining party, include a statement for the specified employer bargaining party to provide to each of its covered employers; and
e: in the case of a notification to an employer, include a statement for the employer to provide to each of its covered employees; and
f: in each case, include a form that has been approved and issued by the chief executive under section 284
i: that an employer is required to provide contact details for each of the employer’s covered employees to the employee bargaining side, unless the employee elects not to have their contact details provided:
ii: the process by which an employee who does not want their contact details to be provided to the employee bargaining side can elect not to have their contact details provided:
iii: the reason for providing the employee’s contact details to the employee bargaining side:
iv: an explanation of to whom the employee bargaining side is able to provide the employee’s contact details:
v: an explanation of the purposes for which the employee’s contact details may be used:
vi: the consequences of the employee electing not to have their contact details provided:
vii: how an employee who has elected not to have their contact details provided can rescind that election so that the employer must provide the employee’s contact details to the eligible union or the employee bargaining party.
4: A statement provided under subsection (3)(c), (d), or (e) must—
a: be in writing; and
b: be drafted in plain language; and
c: be drafted in such a way that it is able to be provided to the covered employees without the employer association or specified employer bargaining party needing to redraft it; and
d: advise the covered employee about the proposed renewal or the proposed replacement, including at least the following information:
i: that the applicant has been approved to initiate bargaining for a proposed renewal or a proposed replacement and that the employee is within the coverage of the proposed renewal or the proposed replacement:
ii: how the proposed renewal or the proposed replacement could affect the employee and the work they do:
iii: that, when bargaining for a proposed renewal or a proposed replacement, an eligible union that is an employee bargaining party represents all employees within the coverage of the proposed renewal or the proposed replacement, including employees who are not members of the union or of any other union:
iv: where to find further information about the proposed renewal or the proposed replacement and the bargaining process:
v: how to contact the employee bargaining side or the employer bargaining side (as applicable) to request any further information.
5: Within 15 working days of receiving notice under subsection (2)(b), a covered employer must comply with section 40
6: A notice published—
a: under subsection (2)(c)(i) must—
i: state that approval has been given to initiate bargaining for a proposed renewal or a proposed replacement; and
ii: include the information specified in subsection (3)(b) to (f) (as applicable); or
b: under subsection (2)(c)(ii) must state—
i: that approval has been given to initiate bargaining for a proposed renewal or a proposed replacement; and
ii: where to find the notice issued by the chief executive under section 207
iii: where to find the notice published under subsection (2)(c)(i).
7: An employee bargaining side for a proposed renewal or a proposed replacement must, within 10 working days of forming, provide to the applicant an email address to which the employer must provide its employees’ contact details.
8: The applicant must, within 5 working days of receiving the email address, provide it to each union, employer association, employer, or specified employer bargaining party that the applicant considers is likely to have covered employees or members who are covered employees.
9: An employer must, within 10 working days after receiving the email address, comply with section 42(1) and (3)
10: An employer that intentionally or recklessly fails to comply with subsection (5) or (9) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
209: Formation of employer bargaining side for proposed renewal or proposed replacement
1: If the chief executive notifies, under section 207
a: if the application to initiate bargaining was from an eligible union, and within 2 months of the chief executive’s notification under section 207
b: if the application to initiate bargaining was from an eligible employer association or a specified employer bargaining party, the date that is 2 months after the date of the chief executive’s notification under section 207
c: if the application to initiate bargaining was from a specified employer bargaining party and the proposed renewal or the proposed replacement applies to a covered employer that is a non-SEBP employer, and within 2 months of the chief executive’s notification under section 207
d: if (in accordance with section 69
2: For the purposes of forming an employer bargaining side, sections 43 to 46 51 53 to 56 62 99 100
a: the chief executive’s notification of having approved the application is made under section 207
b: each reference to 3 months must be read as a reference to 2 months:
c: each reference to a proposed FPA must be read as a reference to a proposed renewal or a proposed replacement.
210: Formation of employee bargaining side for proposed renewal or proposed replacement
1: If the chief executive notifies, under section 207
a: if the application to initiate bargaining was from an eligible employer association or a specified employer bargaining party, and within 2 months of the chief executive’s notification under section 207
b: if the application to initiate bargaining was from an eligible union, on the date that is 2 months after the date of the chief executive’s notification under section 207
c: if (in accordance with section 69
2: For the purposes of forming an employee bargaining side, sections 47 to 50 51 52 54 to 56 96 97 98
a: the chief executive’s notification of having approved the application is made under section 207
b: each reference to 3 months must be read as a reference to 2 months:
c: each reference to a proposed FPA must be read as a reference to a proposed renewal or a proposed replacement.
10: Penalties and enforcement
211: Penalty for non-compliance with obligation when bargaining
1: This section applies to an obligation if a provision of this Act provides that the Authority may impose a penalty, not exceeding the applicable amount specified in this section, for a breach of that obligation.
2: A person who breaches an obligation to which this section applies is liable,—
a: if the person is an individual, to a penalty not exceeding $20,000:
b: in the case of any other person, to a penalty not exceeding $40,000.
3: A person who incites, instigates, aids, or abets a breach of an obligation to which this section applies is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in subsection (2).
212: Penalty for non-compliance with obligation when fair pay agreement in force
1: This section applies to an obligation if a provision of this Act provides that the Authority may impose a penalty, not exceeding the applicable amount specified in this section, for a breach of that obligation.
2: A person who breaches an obligation to which this section applies is liable,—
a: if the person is an individual, to a penalty not exceeding $10,000:
b: in the case of any other person, to a penalty not exceeding $20,000.
3: A person who incites, instigates, aids, or abets a breach of an obligation to which this section applies is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in subsection (2).
213: Jurisdiction concerning penalties
1: The Authority has full and exclusive jurisdiction to deal with all actions for the recovery of penalties under this Act—
a: for any breach of a fair pay agreement; or
b: for a breach of any provision of this Act for which a penalty in the Authority is provided in the particular provision.
2: Subsection (1) is subject to—
a: sections 177 178
b: any right to have the matter heard by the court under clause 16 2000 No 24 s 133
214: Priority when overlapping jurisdiction
1: If a person’s actions mean that the person has breached this Act and another Act,—
a: any proceedings must be brought under the Act specified in this section; and
b: proceedings may not be brought under both Acts.
2: If a fair pay agreement sets a minimum wage for covered employees that is the same as, or higher than, the minimum wage that would otherwise have applied under the Minimum Wage Act 1983
3: If a fair pay agreement provides a leave entitlement, and payment for that leave entitlement, for covered employees that is the same as, or greater than, the leave entitlement and payment for that leave entitlement that would otherwise have applied under the Holidays Act 2003
215: Matters Authority and court must have regard to in determining amount of penalty
In determining an appropriate penalty for a breach referred to in section 211 212
a: the purpose of this Act, stated in section 3
b: the nature and extent of the breach or involvement in the breach; and
c: whether the breach was intentional, inadvertent, or negligent; and
d: the nature and extent of any loss or damage suffered by any person, or gains made or losses avoided by the person in breach or the person involved in the breach, because of the breach or involvement in the breach; and
e: whether the person in breach or the person involved in the breach has paid an amount of compensation, reparation, or restitution, or has taken other steps to avoid or mitigate any actual or potential adverse effects of the breach; and
f: the circumstances in which the breach, or involvement in the breach, took place, including the vulnerability of the employee; and
g: whether the person in breach or the person involved in the breach has previously been found by the Authority or the court in proceedings under this Act, or any other enactment, to have engaged in any similar conduct. 2000 No 24 s 133A
216: Recovery of penalties
1: Any action for the recovery of a penalty may be brought,—
a: in the case of a breach of a fair pay agreement, at the suit of one of the following parties who is affected by the breach:
i: a covered employee:
ii: a covered employer:
iii: a bargaining party; or
b: in the case of any other breach of this Act, at the suit of any person in relation to whom the breach is alleged to have taken place or a Labour Inspector under section 282(5)
2: A claim for 2 or more penalties against the same person may be joined in the same action.
3: In any claim for a penalty, the Authority or the court—
a: may give judgment for the total amount claimed, or any amount, not exceeding the maximum specified in section 211 212
b: may dismiss the action.
4: The Authority or the court may order payment of a penalty by instalments, but only if the financial position of the person paying the penalty requires it.
5: An action for the recovery of a penalty under this Act must be commenced within 12 months after the earlier of the following:
a: the date on which the cause of action first became known to the person bringing the action:
b: the date on which the cause of action should reasonably have become known to the person bringing the action. 2000 No 24 s 135
217: Chief executive or Labour Inspector may enforce payment of penalty
The chief executive or a Labour Inspector may recover in the District Court as a debt due to the Crown any penalty ordered by the Authority or the court under section 216 2000 No 24 s 135A
218: Application of penalties recovered
1: Subject to any order made under subsection (2), every penalty recovered in any penalty action, whether before the Authority or the court, must be paid into the Authority or the court, as the case requires, and not to the plaintiff, and must then be paid by the Authority or the court into a Crown Bank Account.
2: The Authority or the court may order that the whole or any part of any penalty recovered must be paid to any person. 2000 No 24 s 136
11: Institutions
1: Mediation services
219: Mediation services
1: The chief executive must employ or engage persons to provide mediation services to support all fair pay relationships.
2: For the purposes of this section, fair pay relationships
a: the relationships listed in section 17(2) 20(2)
b: the relationships between the following parties:
i: the employer bargaining parties on an employer bargaining side and 1 or more covered employees:
ii: an employee bargaining party and 1 or more covered employees:
iii: an employee bargaining party and a representative or representatives of Māori covered employees:
iv: an employer bargaining party and a representative or representatives of Māori covered employers:
v: an employer bargaining party and 1 or more covered employers:
vi: the employee bargaining parties on an employee bargaining side and 1 or more covered employers.
3: Mediation services may include services that—
a: provide general information about rights and obligations in relation to fair pay agreements:
b: provide information about what services are available for persons (including unions, employee bargaining parties, covered employees, covered employers, and employer associations) who have problems related to fair pay relationships:
c: assist the smooth conduct of fair pay agreements:
d: assist persons to resolve, promptly and effectively, problems related to fair pay relationships:
e: assist persons to resolve any problem in relation to bargaining for the terms of a fair pay agreement.
4: A person employed or engaged to provide mediation services under this section may also be employed or engaged to provide mediation services under section 144 section 222 2000 No 24 s 144
220: Application of provisions in Employment Relations Act 2000
In relation to mediation services provided under this Act (rather than those provided under the Employment Relations Act 2000 sections 145 to 153
a: each reference to the Employment Relations Act 2000
b: each reference to the object of the Employment Relations Act 2000 see section 3
c: section 148(5)
d: in addition to applying to the payments specified in section 148A(3)
e: sections 149A 150
f: the reference in section 150A(3)(a) section 219(2)
g: section 153
221: Other mediation services
Nothing in this Part prevents any person from seeking and using mediation services other than those provided by the chief executive under section 219 section 144 2000 No 24 s 154
2: Bargaining support services
222: Bargaining support services
1: The chief executive must employ or engage persons to provide bargaining support services to support the following parties:
a: a union:
b: an employer association:
c: a bargaining party:
d: a bargaining side.
2: Bargaining support services may include services that—
a: help a union or employer association to understand the requirements to become a bargaining party:
b: help bargaining sides to understand the process for bargaining:
c: support bargaining sides throughout the process of bargaining:
d: support bargaining sides to ensure that bargaining is constructive and efficient:
e: assist bargaining sides to understand the content requirements for a proposed agreement or a proposed variation:
f: assist in resolving any conflict within or between bargaining sides that are bargaining.
3: A person employed or engaged to provide bargaining support services under this section may also be employed or engaged to provide mediation services under section 219 section 144
223: Access to bargaining support services
A person who wishes to access bargaining support services must contact an office of the department that deals with employment relations issues. 2000 No 24 s 146
224: Provision of bargaining support services
1: The chief executive may, by general instructions under subsections (5) and (6),—
a: decide how to provide the bargaining support services required under section 222
b: treat matters presented for bargaining support in different ways, in order to promote fast and effective support.
2: Any of the bargaining support services may be provided, for example,—
a: by a telephone, facsimile, Internet, or email service (whether as a means of explaining where information can be found or as a means of providing the information or of otherwise seeking to resolve a problem); or
b: by publishing pamphlets, brochures, booklets, or codes; or
c: by specialists who—
i: respond to requests or themselves identify how, where, and when their services can best support the purpose of this Act; or
ii: provide their services in the manner, and at the time and place (including wherever practicable the workplace itself), that are most likely to provide the required support; or
iii: provide their services in all of the ways described in this paragraph.
3: Any of the bargaining support services may be provided—
a: by a combination of the ways described in subsection (2); or
b: in any other way the chief executive thinks best supports the purpose of this Act.
4: Subsections (2) and (3) do not limit subsection (1).
5: The chief executive, in managing the overall provision of bargaining support services, may give general instructions about the manner in which, and the times and places at which, bargaining support services are to be provided.
6: Any such general instructions may include general instructions about how bargaining support services are to be provided in relation to particular types of matters or particular types of situations, or both. 2000 No 24 ss 145 153(2), (3)
225: Application of provisions in Employment Relations Act 2000
In relation to bargaining support services provided under this Act, sections 148 152(1) 153
a: each reference to the Employment Relations Act 2000
b: section 148(5)
c: section 153
d: each reference to mediation or mediation services must be read as a reference to bargaining support services provided under this Act.
226: Other bargaining support services
Nothing in this Part prevents any person from seeking and using bargaining support services other than those provided by the chief executive under section 222 2000 No 24 s 154
3: Employment Relations Authority
227: Role of Authority
1: Under this Act, the Authority’s role includes the following:
a: making determinations (including to fix terms under section 234 252
b: assessing for coverage overlap ( see sections 146(1) and (2) 165(1)(a)
c: if the Authority decides there is coverage overlap, determining whether the proposed agreement or the fair pay agreement provides the better terms overall for covered employees who are within the coverage of both agreements ( see sections 146(3) 165(1)(b)
d: assessing a proposed agreement or a proposed variation to determine whether it complies with the requirements of this Act and other legislation ( see section 144
2: In carrying out its role under this Act, the Authority must—
a: comply with the principles of natural justice; and
b: aim to promote good faith behaviour; and
c: support successful employment relationships; and
d: generally further the object of this Act.
3: The Authority must act as it thinks fit in equity and good conscience, but may not do anything that is inconsistent with—
a: the Employment Relations Act 2000
b: any regulations made under the Employment Relations Act 2000
c: this Act; or
d: any regulations made under this Act; or
e: a fair pay agreement. 2000 No 24 s 157
228: Jurisdiction of Authority
1: The Authority has exclusive jurisdiction to make determinations relating to fair pay relationships (listed in section 219(2)
a: any matter arising during the initiation of, bargaining for, or ratification of a proposed agreement or a proposed variation, including matters relating to—
i: forming bargaining sides:
ii: notifying covered employees of process requirements for bargaining:
iii: whether an employee is a covered employee:
iv: whether an employer is a covered employer:
v: whom to appoint as an independent reviewer for the purposes of section 94
b: determining whether a party has complied with the duty of good faith imposed by this Act, including—
i: in the terms of an inter-party side agreement:
ii: in the terms of the bargaining process agreement:
iii: when appointing a bargaining side lead advocate:
iv: when providing requested information under section 94
v: when deciding whom to appoint as an independent reviewer for the purposes of section 94
c: determining whether a bargaining party or bargaining side has complied with its bargaining obligations imposed by this Act, including the following:
i: ensuring a sufficient level of representation of covered employees ( see section 96 see section 99
ii: ensuring a sufficient level of Māori representation ( see sections 97 100
d: resolving a dispute about whether an employee is a covered employee in relation to a fair pay agreement; and
e: resolving a dispute about the interpretation or application of, or compliance with, a fair pay agreement; and
f: determining whether a topic listed in section 125(1) section 230
g: recommending the terms of a proposed agreement under section 231 section 194
h: fixing the terms of a proposed agreement under section 234 252
i: determining any other matter arising under this Act.
2: The Authority also has jurisdiction to—
a: assess for coverage overlap ( see sections 146(1) and (2) 165(1)(a)
b: if the Authority decides there is coverage overlap, determine whether the proposed agreement or the fair pay agreement provides the better terms overall for employees who are covered employees in relation to both agreements ( see sections 146(3) 165(1)(b)
c: assess a proposed agreement or a proposed variation to determine whether it complies with the requirements of this Act and other legislation ( see section 144
3: This section is subject to section 277 Determinations
229: Parties may apply to Authority for determination
The following parties may apply to the Authority for a determination:
a: an employee, an employer, or a bargaining party may apply for a determination in relation to whether an employee, a group of employees, or an employer is a covered employee, a group of covered employees, or a covered employer in relation to a proposed agreement, a proposed variation, or a fair pay agreement:
b: a bargaining side that is unable to agree with another bargaining side on whom to appoint as an independent reviewer under section 94
c: a party to a fair pay relationship described in section 219(2)
d: a bargaining side for a proposed agreement, in relation to whether to include a term that addresses a topic listed in section 125(1)
e: a bargaining side for a proposed agreement, in relation to asking the Authority under section 234
f: a bargaining party on the bargaining side that initiated bargaining for a proposed agreement (if the bargaining side lead advocate for the bargaining side receives a notice under section 78 79 section 252
g: a covered employee or a covered employer, in relation to the interpretation, the application, or the operation of the fair pay agreement by which they are covered:
h: a Labour Inspector, in relation to whether an employee, or a group of employees, is a covered employee or a group of covered employees in relation to a fair pay agreement. Determinations and recommendations during bargaining process
230: Determination relating to topic that bargaining sides must consider for inclusion
1: If the bargaining sides for a proposed agreement are unable to agree whether to include a term that addresses a topic listed in section 125(1)
a: a bargaining side (or a bargaining party acting on behalf of the bargaining side) may apply to the Authority for a determination as to whether the proposed agreement must include such a term; and
b: the Authority must determine whether the proposed agreement must include such a term.
2: The Authority must determine that a proposed agreement must include a term to address a topic listed in section 125(1)
3: If the Authority determines that a proposed agreement must include a term to address a topic listed in section 125(1)
4: To avoid doubt, this section and sections 231 to 235 237 section 244 section 252
231: Recommendations on terms of proposed agreement
1: If the bargaining sides for a proposed agreement are unable to agree the content of a term of the proposed agreement, a bargaining side (or a bargaining party acting on behalf of the bargaining side)—
a: may apply to the Authority asking it to recommend the content of the term; but
b: is not permitted to apply for a recommendation under section 173A
2: The Authority may consider the factors listed in section 236
3: A recommendation made by the Authority is not binding on the parties to the proposed agreement.
232: Authority must direct use of mediation before making determination or recommendation
1: Except as provided in section 233
a: consider whether the party has attempted to resolve the matter by using mediation before applying to the Authority; and
b: if the Authority does not consider that the party has attempted to resolve the matter by using mediation, direct the party to use mediation or another process to resolve the matter before the Authority makes the determination or recommendation.
2: However, the Authority is not required to direct a party to use mediation or another process if the Authority considers that mediation or another process—
a: would not contribute constructively to resolving the matter; or
b: would not, in all the circumstances, be in the public interest; or
c: would undermine the urgent nature of the application; or
d: would otherwise be impractical or inappropriate in the circumstances.
3: The Authority must, when investigating a matter before making a determination or recommendation, consider from time to time whether to direct the parties to use mediation or another process before the Authority makes the determination or recommendation.
4: If the Authority gives a direction under subsection (1)(b) or (3), the parties must comply with the direction and attempt in good faith to reach an agreed settlement of their differences, and proceedings in relation to the request before the Authority are suspended until the parties have done so or the Authority otherwise directs (whichever occurs first).
233: Limitations on issues relating to coverage
1: A party listed in subsection (2) is not required to use mediation services (whether provided under this Act, the Employment Relations Act 2000
a: an employee is a covered employee:
b: an employer is a covered employer.
2: For the purposes of subsection (1), the parties are,—
a: during bargaining for a proposed agreement or a proposed variation, employees, employers, and bargaining parties; or
b: when a fair pay agreement is in force, an employee or an employer.
3: If the Authority receives an application described in subsection (1), the Authority—
a: must not direct the party to use mediation or another process before the Authority makes a determination; and
b: must give priority to investigating and determining the matter in accordance with clause 5(2)
4: An application for a determination described in subsection (1) cannot be made to the Employment Court. Fixing terms of fair pay agreements
234: Authority may fix terms of proposed agreement
1: If the bargaining sides for a proposed agreement are unable to agree the terms of the proposed agreement, a bargaining side (or a bargaining party acting on behalf of the bargaining side) may apply to the Authority for a determination to fix the terms of the proposed agreement.
2: However, the Authority may only make a determination to fix the terms of a proposed agreement if it is satisfied that—
a: the bargaining sides have exhausted all other reasonable alternatives for reaching agreement; or
b: the bargaining sides have, for a reasonable period, used their best endeavours to identify and use reasonable alternatives to agree the terms of the proposed agreement; or
c: a bargaining side has breached the duty of good faith imposed by section 17
i: was deliberate, serious, and sustained; or
ii: involved behaviour that undermined the bargaining process; or
d: the proposed agreement has been the subject of 2 ratification processes, without having been ratified.
235: Terms that Authority may fix
If the Authority receives a valid application under section 234
a: fix the terms that, under section 123(1)
b: fix the terms (unless there is good reason not to) on topics that,—
i: under section 125(1)
ii: a bargaining side has requested the Authority to fix.
c: if the term is not described in paragraph (a) or (b), but both bargaining sides agreed to include the term, the Authority may fix the term.
236: Considerations when Authority recommends or fixes terms
When recommending terms of a proposed agreement or a proposed variation under section 194 231 section 234
a: any terms of the proposed agreement or the proposed variation (as applicable) that the bargaining sides have already agreed:
b: industrial (in relation to an industry-based agreement) or occupational (in relation to an occupation-based agreement) practices and norms, including their evolution and development:
c: the likely impact and potential benefits of the terms on covered employees and, in particular, on covered employees who are low-paid and vulnerable employees:
d: the likely impact of the terms on covered employers:
e: relativities within the proposed agreement or the proposed variation (as applicable) and with other relevant employment standards (for example, any relevant collective agreements under the Employment Relations Act 2000
f: the need to ensure that the proposed agreement or the proposed variation is easily understood by covered employees and covered employers (for example, by being expressed in plain language):
g: any likely impacts on New Zealand’s economy or society:
h: any other relevant considerations.
237: Limits on Authority fixing terms
1: When the Authority fixes the terms of a proposed agreement under this Part, Part 7
2: However, the Authority—
a: may fix a term that provides for a union member payment (as defined in section 13(4)
b: must not fix a term that provides for the proposed agreement to have a delayed commencement date for a specified employer ( see sections 139 to 141
238: Effect of Authority fixing terms
1: Terms that are fixed by the Authority under section 234
a: are not required to be—
i: submitted to the Authority for a compliance assessment under section 143
ii: ratified under subpart 2
iii: verified under subpart 3
b: must be—
i: assessed for coverage overlap under section 146(2)
ii: checked and, if applicable, assessed for coverage overlap under subpart 4
iii: validated under subpart 5
2: If, when the Authority assesses terms for coverage overlap as required by subsection (1)(b)(i) and (ii), the Authority decides there is coverage overlap,—
a: it must—
i: determine, in accordance with section 149
ii: notify the bargaining sides for the agreements which agreement provides the better terms overall, no later than 20 working days after deciding that there is coverage overlap; and
b: sections 166 167
3: If the Authority fixes the terms of a proposed agreement under section 234
4: The Authority must assess a term for coverage overlap under subsection (1)(b) within the time frame permitted for fixing the term ( see clause 11
239: Membership of Authority when fixing terms of fair pay agreement
1: When fixing the terms of a proposed agreement, the Authority must consist of a panel of 3 members.
2: The Chief of the Authority must appoint 1 of the 3 members to be the chairperson of the panel.
3: The Chief of the Authority must replace a panel member who is temporarily or permanently unable to perform their function as panel member (for example, due to ill health) by appointing another panel member. General provisions relating to Employment Relations Authority
240: Panel member not permitted to hear disputes about same fair pay agreement
An Authority member who is a member of a panel that has fixed the terms of a fair pay agreement must not hear any disputes relating to the interpretation or application of the fair pay agreement.
241: Decision of Authority
1: The decision of a majority of the Authority members on a panel appointed in accordance with section 239
2: If the panel members are unable to form a majority decision, the decision of the panel is,—
a: if the Chief of the Authority is a member of the panel, the Chief’s decision; or
b: if the Chief of the Authority is not a member of the panel, the chairperson of the panel’s decision. 2000 No 24 s 210
242: Obligation not to obstruct or delay Authority
1: A person must not obstruct or delay the Authority from performing a function under this Act.
2: A person who, without sufficient cause, fails to comply with subsection (1) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 212
3: The power to award a penalty under subsection (2) may be exercised by the Authority—
a: of its own motion; or
b: on the application of any other party. 2000 No 24 s 134A Provisions that apply when application made to Authority
243: Application of Employment Relations Act 2000
1: The provisions of the Employment Relations Act 2000 Part 1 Part 2
a: if a person applies, in accordance with this Act, for the Authority or the court to—
i: issue a determination or recommendation:
ii: resolve a dispute:
iii: fix the terms of a fair pay agreement:
b: when the Authority is—
i: assessing for coverage overlap ( see sections 146(1) and (2) 165(1)(a)
ii: if the Authority decides there is coverage overlap, determining whether the proposed agreement or the fair pay agreement provides the better terms overall for covered employees who are within the coverage of both agreements ( see sections 146(3) 165(1)(b)
iii: assessing a proposed agreement or a proposed variation to determine whether it complies with the requirements of this Act and other legislation ( see section 144
2: Subsection (1) applies subject to clauses 2 3 4
12: Determinations in absence of bargaining side
Applications for determination
244: Bargaining party may apply to Authority for determination
1: A bargaining party on the bargaining side that initiated the bargaining for a proposed agreement may apply to the Authority for a determination under section 252 section 78 79
2: The bargaining party that makes an application does so on behalf of all the bargaining parties on the bargaining side.
3: If a bargaining party applies for a determination, it must apply no later than 3 months after the date of the notice provided under section 78 79
4: However,—
a: a bargaining party on the bargaining side that did not initiate bargaining for the proposed agreement is not permitted to apply to the Authority for a determination:
b: a default bargaining party is not permitted to apply to the Authority for a determination:
c: in relation to a proposed renewal or a proposed replacement, a specified employer bargaining party may apply for a determination only if a specified employer bargaining party initiated bargaining.
245: Application for determination
1: A bargaining party that, in accordance with section 244 section 252
a: is made in the prescribed form; and
b: is filed with the Authority no later than 3 months after the date of the notice provided under section 78 79
c: confirms that the chief executive has not notified the applicant that—
i: the chief executive has received an application under section 43 47 see section 250(2)
ii: the chief executive has approved an application to initiate bargaining for another proposed FPA that covers employees who are employed in the same industry ( see section 251(1)(b)
d: specifies the coverage of the proposed agreement; and
e: specifies where to find the chief executive’s notice issued under section 37 207
2: To avoid doubt, an application must not seek to change the coverage of the proposed agreement, as approved by the chief executive under section 37 110 207
246: Joint applicants and other parties to application for determination
If a bargaining party applies, in accordance with section 244 section 252
a: each bargaining party, including any specified employer bargaining party or default bargaining party, on the same bargaining side as the applicant is a joint applicant for the determination (but need not be named as an applicant on the application) and is a party to the determination; and
b: any bargaining party on the opposing bargaining side is a party to the application and the determination, but is not a joint applicant. Notification requirements
247: Notification requirements: employee bargaining side
1: Subsections (2) and (3) apply to an employee bargaining side—
a: that initiated bargaining for a proposed agreement; and
b: that may apply, in accordance with section 244 section 252
2: An employee bargaining side described in subsection (1) must notify the following parties of its decision whether to apply for a determination under section 252
a: each employer that it knows to be within the coverage of the proposed agreement:
b: each employee that it knows to be within the coverage of the proposed agreement and for whom it holds contact details:
c: the chief executive.
3: If the employee bargaining side decides not to apply for a determination, it must also notify the parties listed in subsection (2) that bargaining for the proposed agreement will be discontinued on the day after the last day on which the employee bargaining side may apply for a determination.
248: Notification requirements: employer bargaining side
1: Subsections (2) and (3) apply to an employer bargaining side—
a: that initiated bargaining for a proposed renewal or a proposed replacement; and
b: that may apply, in accordance with section 244 section 252
2: An employer bargaining side described in subsection (1) must notify the following parties of its decision whether to apply for a determination under section 252
a: each employer that it knows to be within the coverage of the proposed renewal or the proposed replacement:
b: the chief executive.
3: If the employer bargaining side decides not to apply for a determination, it must also notify the parties listed in subsection (2) that bargaining for the proposed renewal or the proposed replacement will be discontinued on the day after the last day on which the employer bargaining side may apply for a determination.
249: Notification requirements: employers
An employer that receives a notification under section 248 Restrictions on applying for determinations
250: Restriction on applying for determination: subsequent formation of bargaining side
1: This section applies if, in relation to a proposed agreement,—
a: the initiating bargaining side is entitled to apply, in accordance with section 244 section 252
b: a party applies under section 43 47
2: If this section applies, the chief executive must notify the Authority and the bargaining side lead advocate for the initiating bargaining side that—
a: the chief executive has received an application under section 43 47
b: the initiating bargaining side is temporarily no longer permitted to apply for a determination; and
c: the chief executive will notify the initiating bargaining side of the chief executive’s decision.
3: If the chief executive approves the application, the chief executive must notify the Authority and the bargaining side lead advocate for the initiating bargaining side that—
a: the chief executive has approved the application, so that there are 2 opposing bargaining sides for the proposed agreement; and
b: the initiating bargaining party continues not to be permitted to apply for a determination.
4: If the chief executive declines the application, the chief executive must notify the Authority and the bargaining side lead advocate for the initiating bargaining side that—
a: the chief executive has declined the application; and
b: the initiating bargaining party may apply for a determination if sufficient time remains to make an application in accordance with section 244(3)
251: Restriction on applying for determination: bargaining initiated for another proposed agreement
1: This section applies if—
a: the initiating bargaining side is entitled to apply, in accordance with section 244 section 252 first proposed agreement
b: the chief executive approves an application to initiate bargaining for another proposed agreement that covers employees who are employed in the same industry (the second proposed agreement
2: If this section applies,—
a: bargaining for the first proposed agreement is consolidated with bargaining for the second proposed agreement in accordance with sections 115 to 120
b: the initiating bargaining party is no longer entitled to apply for a determination in respect of the first proposed agreement.
3: However, despite subsection (2)(b), a bargaining party on the initiating bargaining side for a consolidated proposed agreement ( see section 118 section 244 section 252 Authority’s power to make determinations
252: Authority must make determination
1: If a bargaining party applies for a determination in accordance with section 244
2: When the Authority is making a determination under this Part,—
a: sections 236 239 240 241 242 243
b: section 238
253: Terms that Authority must fix when making determination
1: When making a determination to fix the terms of a proposed agreement under this Part, the Authority must—
a: fix the terms that, under section 123(1)
b: fix the terms (unless there is good reason not to)—
i: on topics that, under section 125(1)
ii: that the applicant for the determination has requested the Authority to fix.
2: This section applies subject to sections 255 256
254: Terms that Authority may fix when making determination
1: When making a determination to fix the terms of a proposed agreement under this Part, the Authority may fix the terms that, under section 125(1)
2: This section applies subject to sections 255 256
255: Terms that Authority must not fix when making determination
When making a determination to fix the terms of a proposed agreement under this Part, the Authority must not fix a term of a fair pay agreement that—
a: provides for a union member payment (as defined in section 13(4)
b: provides for a delayed commencement date for a specified employer ( see sections 139 to 141
c: amends the coverage of the proposed agreement; or
d: is not described in section 253 254
256: Provisions that apply to determination under this Part
When the Authority makes a determination to fix the terms of a proposed agreement under this Part, sections 123(2) to (5) 127 to 129 131 to 138 Consolidation
257: Consolidation when Authority making 2 determinations
1: This section applies if—
a: a bargaining party applies, in accordance with section 244 first proposed agreement
b: a bargaining party (which may be the same bargaining party that applies for the first proposed agreement) applies, in accordance with section 244 second proposed agreement
c: the coverage of the second proposed agreement is in the same industry as the coverage of the first proposed agreement, but for a different occupation.
2: If this section applies, the Authority may decide to consolidate the determination processes for the first proposed agreement and the second proposed agreement.
258: Effect of decision whether to consolidate
1: If the Authority decides to consolidate 2 determination processes under section 257
2: If the Authority decides not to consolidate 2 determination processes under section 257
a: the processes continue separately; and
b: if the chief executive decides to validate both proposed agreements under section 168 Provisions that apply during determination process
259: Provisions that apply during determination process
The following provisions apply, with all necessary modifications, during the process of applying, in accordance with section 244 section 252
a: section 62
b: section 96
c: section 97
d: section 98
e: section 99
f: section 100 Provision of information
260: Requirement to provide information
1: If an employee bargaining party is a party to a determination that has been applied for in accordance with section 244
a: after the date on which a bargaining party applies in accordance with section 244
b: before the date on which the chief executive issues a fair pay agreement notice under section 168(1)(a)
2: For the purposes of subsection (1), the provisions that apply are—
a: section 105
b: section 106(1)
c: section 107(1)(b), (2), (3)(b), (4), and (5)
d: section 108
3: However, when applying the provisions listed in subsection (2),—
a: the reference to an employer bargaining side in section 106(1)
b: the references to an employer bargaining side in section 107(1)(b), (2)(a), and (3)(b)
261: Personal information
Personal information that is provided to a bargaining side during the period described in section 260(1) section 42 105 107 108 152(3) 185(4) 186(2)(c) 187(4) 208(9)
a: must be used only for a purpose related to an application under section 244
b: must not be disclosed to any person except in a form that does not identify the individual. FPA meetings
262: Requirements for arranging FPA meetings
1: During the period described in section 260(1)
2: Before holding an FPA meeting under this section, the employee bargaining party must—
a: give at least 14 days’ notice of the date and time of the meeting to each employer who has employees who are eligible to attend the meeting; and
b: make arrangements with each employer to ensure that the employer’s business is maintained during the FPA meeting, including, where appropriate, an arrangement for sufficient employees to remain available during the meeting to enable the employer’s operations to continue.
263: Entitlement to attend FPA meetings
1: An employer must, during the period described in section 260(1)
a: if the employee has not attended any FPA meetings in relation to the proposed agreement under Part 5
b: if the employee has attended 1 FPA meeting in relation to the proposed agreement under Part 5
c: if the employee has attended 2 or more FPA meetings in relation to the proposed agreement under Part 5
2: Each FPA meeting held during the period described in section 260(1)
a: last no longer than 2 hours; and
b: relate to the proposed agreement; and
c: be arranged in accordance with section 262
3: An employee is entitled to attend an FPA meeting under this Part despite not being a member of—
a: the union that arranges the meeting; or
b: a union on the employee bargaining side; or
c: any other union.
4: An employee’s entitlement to attend an FPA meeting under this Part is in addition to any entitlement to attend a union meeting under section 26
5: An employer who fails to comply with this section is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
264: Payment for attending FPA meeting
1: An employee’s employer must allow the employee to attend an FPA meeting on ordinary pay—
a: if the employee is entitled to attend the FPA meeting under this Part; and
b: if the FPA meeting is arranged in accordance with section 262
c: to the extent that the employee would otherwise be working for the employer during the meeting.
2: For the purposes of subsection (1), the employee bargaining party that arranges the FPA meeting must—
a: supply to the employer a list of the employer’s employees who attended the meeting; and
b: advise the employer of the duration of the meeting.
3: An employee must resume work as soon as practicable after attending an FPA meeting.
4: An employee who is absent from work for more than 2 hours to attend an FPA meeting is entitled to ordinary pay for a maximum of 2 hours.
5: An employer who fails to comply with this section is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211 Access to workplaces
265: Access to workplaces
1: A representative of an employee bargaining party is entitled, in accordance with this Part, to enter a workplace without the employer’s consent if the primary purpose of entering the workplace is to discuss with a covered employee, or an employee who may be affected by, an application for a determination under section 252
2: A purpose for entering a workplace is within the scope of subsection (1) if, for example, it relates to—
a: communicating to employees any progress in the application for a determination; or
b: seeking feedback from covered employees about any aspect of the application for a determination; or
c: discussing the terms of a determination with covered employees.
3: However, the representative is entitled to enter a workplace in accordance with subsection (1) only if—
a: 1 or more employees at the workplace are covered employees (whether or not the employees are members of a union); and
b: the employee bargaining party is a party to the application that has been made, in accordance with section 244 section 252
c: the Authority has not yet made the determination.
4: For the purposes of the entitlement under this section,—
a: sections 88(5), (6), and (7) 89 to 92
b: in section 88(5)(b)(ii) section 84 86 section 84, 86, or 263
c: in section 90(3)(b) section 88
5: In this section,— dwellinghouse section 5 workplace
13: Miscellaneous provisions
266: Meaning of document
In this Part, document Representation
267: Representation of individuals
1: Subsection (2) applies only if this Act confers on an employee the right to do anything or take any action—
a: in respect of an employer; or
b: in respect of an employee bargaining party; or
c: in the Authority; or
d: in the court.
2: The employee may choose any person to represent the employee for the purpose of doing anything or taking any action described in subsection (1).
3: Subsection (4) applies only if this Act confers on an employer the right to do anything or take any action—
a: in respect of an employee; or
b: in respect of an employee bargaining party; or
c: in respect of an employer bargaining party; or
d: in the Authority; or
e: in the court.
4: The employer may choose any person to represent the employer for the purpose of doing anything or taking any action described in subsection (3).
5: Any person purporting to represent any employee or employer must establish that person’s authority for that representation. 2000 No 24 s 236
268: Representation of bargaining parties
1: Subsection (2) applies only if this Act confers on an employee bargaining party the right to do anything or take any action—
a: in respect of an employer; or
b: in respect of an employee bargaining party; or
c: in respect of an employer bargaining party; or
d: in the Authority; or
e: in the court.
2: The employee bargaining party may choose any person to represent the employee bargaining party for the purpose of doing anything or taking any action described in subsection (1).
3: Subsection (4) applies only if this Act confers on an employer bargaining party the right to do anything or take any action—
a: in respect of an employer; or
b: in respect of an employee bargaining party; or
c: in respect of an employer bargaining party; or
d: in the Authority; or
e: in the court.
4: The employer bargaining party may choose any person to represent the employer bargaining party for the purpose of doing anything or taking any action described in subsection (3).
5: Any person purporting to represent any employee bargaining party or employer bargaining party must establish that person’s authority for that representation. 2000 No 24 s 236 Record-keeping requirements
269: Record when minimum entitlement provision has district variation
1: An employer that has at least 1 covered employee within the coverage of a fair pay agreement that includes a minimum entitlement provision that applies to a specific district ( see section 135
a: the hours of each day that the employee worked; and
b: the days of the week on which the employee worked; and
c: for each hour of each day that the employee worked, the district in which the employee worked.
2: If the hours of each day that the employee is to work, the days of the week on which the employee is to work, and the district in which the employee is to work for each hour are agreed and the employee works those hours in the agreed district or districts (the usual hours
a: the wages and time record; or
b: the employment agreement; or
c: a roster or any other document or record used in the normal course of the employee’s employment.
3: In subsection (2), the usual hours
4: Despite subsection (3), the employer must keep a record of any additional hours worked that need to be recorded for the employer to comply with section 4B(1)
270: Record when agreement includes penalty rate or overtime rate
1: An employer that has at least 1 covered employee within the coverage of a fair pay agreement that includes a penalty rate or overtime rate that is not the same as the base wage rate must keep records showing, for each of the employer’s covered employees who are within the coverage of the fair pay agreement,—
a: the number of hours the employee worked each day, including the time at which the employee started and finished working each day; and
b: the days of the week on which the employee worked; and
c: the pay rates the employee received for the hours worked, including the base wage rate, any penalty rate, and any overtime rate.
2: If the number of hours an employee is to work each day in a pay period (including the time at which the employee is to start and finish working each day) and the pay rates for those hours (including the base wage rate, any penalty rate, and any overtime rate) are agreed and the employee works those hours (the usual hours
a: the wages and time record; or
b: the employment agreement; or
c: a roster or any other document or record used in the normal course of the employee’s employment.
3: In subsection (2), the usual hours
4: Despite subsection (3), the employer must keep a record of any additional hours worked that need to be recorded for the employer to comply with section 4B(1) 2000 No 24 s 130
271: How records must be kept
1: A record kept under section 269 270
a: must form part of the employer’s wages and time record kept under section 130
b: is additional to the requirements under that section.
2: A record must be kept—
a: in written form; or
b: in a form or in a manner that allows the information in the record to be easily accessed and converted into written form.
3: An employer that fails to comply with section 269 270 section 130 Employee contact details
272: Use of employee contact details by initiating union or employee bargaining party
1: An initiating union or employee bargaining party that receives employees’ contact details from an employee bargaining party or under section 42 105 107 108 152(3) 185(4) 186(2)(c) 187(4) 208(9)
a: may use the contact details to communicate with the employees about whether the initiating union or employee bargaining party will apply for approval to initiate bargaining for a proposed renewal or a proposed replacement, or to seek the employees’ support for such an application; but
b: except as provided in paragraph (a), must not use the contact details for a purpose that is not related to the relevant proposed agreement, proposed variation, or fair pay agreement.
2: However, subsection (1) does not apply to an employee’s contact details that an initiating union or employee bargaining party receives if—
a: the employee is or becomes a member of the initiating union or employee bargaining party; and
b: the contact details provided by the employee as part of being or becoming a member of the initiating union or the employee bargaining party match those provided under a section listed in subsection (1).
3: Any communication from an initiating union or employee bargaining party using the contact details received under section 42 105 107 108 152(3) 185(4) 186(2)(c) 187(4) 208(9)
a: may, despite subsection (1), also provide supplementary information to the employee if the primary purpose of the communication—
i: is related to the relevant proposed agreement, proposed variation, or fair pay agreement; or
ii: is described in subsection (1)(a); and
b: must advise the employee that they may elect not to receive any further communication from the initiating union or employee bargaining party, and how to do so.
4: Supplementary information provided under subsection (3)(a)—
a: may, without limitation, include the location of information about how to join a union; but
b: must otherwise be directly related to the primary purpose of the communication.
5: An initiating union or employee bargaining party that intentionally or recklessly fails to comply with this section is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211
273: Storage of employee contact details
1: An initiating union or an employee bargaining party that receives employees’ contact details from an employee bargaining party or under section 42 105 107 108 152(3) 185(4) 186(2)(c) 187(4) 208(9)
a: the contact details are stored separately from any other information held by the union; and
b: access to the contact details is limited to only those employees of the union who need to use the contact details for a purpose set out in this Act (for example, to communicate with the employee about bargaining for a proposed FPA, or for the union to access the workplace to discuss a proposed FPA).
2: Nothing in this section limits an initiating union’s or employee bargaining party’s obligation to ensure the security of employees’ contact details under the Privacy Act 2020
3: An initiating union or employee bargaining party that intentionally or recklessly fails to comply with subsection (1) is liable to a penalty imposed by the Authority not exceeding the applicable amount specified in section 211 Personal information
274: Personal information
1: Personal information that is provided to a bargaining side for the purpose of bargaining under this Act (excluding contact details provided under section 42 105 107 108 152(3) 185(4) 186(2)(c) 187(4) 208(9)
a: must be used only for the purposes of bargaining; and
b: must not be disclosed to any person except in a form that does not identify the individual.
2: Nothing in this Act limits the rights of an individual under the Privacy Act 2020 Part 5
275: Chief executive may collect personal information
The chief executive may collect personal information under this Act for the following purposes only:
a: assessing whether an application to initiate bargaining has met the required tests for the chief executive to approve the application:
b: assessing whether to approve an application to be a bargaining party:
c: verifying that a ratification vote complies with the requirements set out in this Act:
d: monitoring compliance with this Act. Labour Inspector may make determination of coverage by fair pay agreement
276: Employee or employer may apply for coverage determination
1: An employee or an employer (or a representative of the employee or the employer under section 267
2: An application must be made using a form approved by the chief executive.
3: A Labour Inspector must not make a determination under subsection (1) in relation to an employee unless satisfied that the application is from—
a: the employee; or
b: the employer of the employee; or
c: a representative of the employee or the employee’s employer, and the employee or employer has consented in writing to the representative applying on their behalf.
277: Labour Inspector may determine whether employee is covered employee under fair pay agreement
1: A Labour Inspector may determine whether an employee is a covered employee in relation to a fair pay agreement if the Labour Inspector—
a: receives an application for a determination under section 276
b: considers, without receiving an application, that it is necessary to do so for the purposes of performing a function under section 223A
2: If an applicant applies for a determination about a group of employees, the Labour Inspector must make a separate determination about each employee in the group.
3: A Labour Inspector who receives an application for a determination must—
a: decide whether to investigate whether the employee is a covered employee in relation to the fair pay agreement; and
b: decide whether to make a determination; and
c: decide whether to take any further action on behalf of the applicant, which may include referring the matter to the Authority; and
d: within a reasonable period after receiving the application, notify the applicant of the Labour Inspector’s decisions under paragraphs (a) to (c).
4: When the Labour Inspector notifies the applicant under subsection (3)(d), the Labour Inspector must also,—
a: if the Labour Inspector decides to make a determination, include a copy of the determination; and
b: if the Labour Inspector decides not to make a determination, advise the applicant what other steps (if any) the applicant could take to resolve the matter; and
c: advise the applicant whether the Labour Inspector will take any further action on behalf of the applicant.
5: A Labour Inspector who considers it is necessary to make a determination under subsection (1)(b) may decide to take further action on behalf of the employee who is the subject of the application, including by referring the matter to the Authority.
278: Actions by Labour Inspector
A Labour Inspector may commence an action in the Authority to seek a determination as to whether an employee is a covered employee in relation to a fair pay agreement—
a: on behalf of an applicant under section 276
b: if the Labour Inspector did not receive an application, but has decided—
i: it is necessary to make a determination for the purposes of performing a function under section 223A
ii: the Labour Inspector is unable to make a determination.
279: Effect of coverage determination
1: A determination made under section 277
2: However, subsection (1) does not apply if—
a: a Labour Inspector makes a subsequent determination in relation to the same employee and the same fair pay agreement; or
b: the determination is appealed against in accordance with section 280
3: A determination as to whether an employee is a covered employee in relation to a fair pay agreement overrides any earlier determination in relation to the same employee and the same fair pay agreement.
280: Appeal against coverage determination
1: A person described in section 276(1) section 277
2: Any appeal must be made no later than 28 days after the date on which the Labour Inspector notifies the applicant of the determination under section 277(3)(d)
281: Extended powers of Labour Inspectors
1: For the purpose of determining whether an employee is a covered employee under section 277
a: the power to enter, at any reasonable hour, any premises where any person is employed or where the Labour Inspector has reasonable cause to believe that any person is employed (including the premises of a controlling third party), accompanied, if the Labour Inspector thinks fit, by any other employee of the department qualified to assist or by a constable:
b: the power to interview any—
i: person at any premises of the kind described in paragraph (a):
ii: employer:
iii: controlling third party:
iv: employee (including an employee of a controlling third party):
v: employee of a business that has a contract with the employer of the employee who is the subject of the determination:
c: the power to require the production of, to inspect, and to take copies from—
i: any wages and time record or any holiday and leave record whether kept under this Act, the Employment Relations Act 2000
ii: any records that an employer is required to keep under sections 269 270
iii: any other document held that records the remuneration of any employees (including an employee of a controlling third party, or that is under the direction and control of a controlling third party):
iv: any other document that the Labour Inspector reasonably believes may assist in determining whether an employee is a covered employee under section 277
d: the power to require any employer or controlling third party to supply to the Labour Inspector, in relation to any employee of that employer or controlling third party, 1 or more of the following:
i: a copy of the wages and time record or holiday and leave record or employment agreement:
ii: any records that an employer is required to keep under sections 269 270
e: the power to question any employer or controlling third party.
2: An employer or a controlling third party that is required, under subsection (1)(c) or (d), to provide any information to a Labour Inspector must comply with the requirement immediately.
3: An employer or a controlling third party who, without reasonable cause, fails to comply with any requirement made under subsection (1)(c) or (d)—
a: is not liable to a penalty under the Employment Relations Act 2000
b: is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority not exceeding the applicable amount specified in section 212
4: A Labour Inspector must not use any evidence or information obtained under section 281 section 277
5: For the purpose of this section and section 282 controlling third party section 5
282: Extent of Labour Inspectors’ powers
1: A Labour Inspector’s powers under section 281
a: apply only for the purpose of the Labour Inspector determining whether an employee is a covered employee in relation to a fair pay agreement under section 277
b: permit a Labour Inspector to require a controlling third party to provide information only if the Labour Inspector reasonably believes that the controlling third party holds information that may assist the Labour Inspector to determine whether an employee is a covered employee; and
c: are subject to sections 230 to 233
d: are in addition to the Labour Inspector’s powers under section 229
2: A Labour Inspector may only interview an employee under section 281(1)(b)(iv) or (v)
a: the employee consents to being interviewed; and
b: the interview takes place at a reasonable time of the day.
3: A Labour Inspector may only interview an employee under section 281(1)(b)(v)
a: the employee who is the subject of the determination, or that employee’s employer, has not provided sufficient information for the Labour Inspector to make the determination; and
b: the employee holds information that would contribute meaningfully to the Labour Inspector’s determination.
4: A Labour Inspector may interview—
a: a person described in section 281(1)(b)(i), (ii), or (iii)
b: a person described in section 281(1)(b)(iv) or (v)
5: A Labour Inspector may recover a penalty under this Act in the Authority for a breach of any provision that provides for the imposition of a penalty. Regulations
283: Power to make regulations
1: The Governor-General may, by Order in Council and on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
a: providing for anything that this Act says may or must be provided for by regulations; and
b: providing for anything incidental that is necessary for carrying out, or giving full effect to, this Act.
2: Regulations made under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Forms
284: 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 and that are not 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. 2000 No 24 s 237AA
285: Consequential amendments
Amend the Acts specified in Schedule 4 2022-12-01 Defence Act 1990 Employment Relations Act 2000 Equal Pay Act 1972 Holidays Act 2003 Judicial Review Procedure Act 2016 Minimum Wage Act 1983 See section 2(3).