Employment Relations Act 2000

1: Title
This Act is the Employment Relations Act 2000.
2: Commencement
This Act comes into force on 2 October 2000.
1: Key provisions
3: Object of this Act
The object of this Act is—
a: to build productive employment relationships through the promotion of good faith
i: by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence, but also on a legislative requirement for good faith behaviour; and
ii: by acknowledging and addressing the inherent inequality of
iii: by promoting collective bargaining; and
iv: by protecting the integrity of individual choice; and
v: by promoting mediation as the primary problem-solving mechanism other than for enforcing employment standards; and
vi: by reducing the need for judicial intervention; and
ab: to promote the effective enforcement of employment standards, in particular by conferring enforcement powers on Labour Inspectors, the Authority, and the court; and
b: to promote observance in New Zealand of the principles underlying International Labour Organisation Convention 87 on Freedom of Association, and Convention 98 on the Right to Organise and Bargain Collectively. Section 3(a) amended 1 December 2004 section 4(1) Employment Relations Amendment Act (No 2) 2004 Section 3(a)(i) substituted 1 December 2004 section 4(2) Employment Relations Amendment Act (No 2) 2004 Section 3(a)(ii) amended 1 December 2004 section 4(3) Employment Relations Amendment Act (No 2) 2004 Section 3(a)(v) replaced 1 April 2016 section 4(1) Employment Relations Amendment Act 2016 Section 3(ab) inserted 1 April 2016 section 4(2) Employment Relations Amendment Act 2016 Good faith employment relations
4: Parties to employment relationship to deal with each other in good faith
1: The parties to an employment relationship specified in subsection (2)—
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.
1A: 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 an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative; and
c: without limiting paragraph (b), requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of 1 or more of his or her employees to provide to the employees affected—
i: access to information, relevant to the continuation of the employees' employment, about the decision; and
ii: an opportunity to comment on the information to their employer before the decision is made.
1B: However, subsection (1A)(c) does not require an employer to provide access to confidential information—
a: that is about an identifiable individual other than the affected employee if providing access to that information would involve the unwarranted disclosure of the affairs of that other individual:
b: that is subject to a statutory requirement to maintain confidentiality:
c: where it is necessary, for any other good reason, to maintain the confidentiality of the information (for example, to avoid unreasonable prejudice to the employer's commercial position).
1C: To avoid doubt,—
a: subsection (1B) does not affect an employer's obligations under—
i: the Official Information Act 1982 section 52(3)
ii: the Privacy Act 2020 section 24(1)
b: an employer must not refuse to provide access to information under subsection (1A)(c) merely because the information is contained in a document that includes confidential information.
1D: For the purposes of subsections (1B) and (1C), confidential information
2: The employment relationships are those between—
a: an employer and an employee employed by the employer:
b: a union and an employer:
c: a union and a member of the union:
d: a union and another union that are parties bargaining for the same collective agreement:
e: a union and another union that are parties to the same collective agreement:
f: a union and a member of another union where both unions are bargaining for the same collective agreement:
g: a union and a member of another union where both unions are parties to the same collective agreement:
h: an employer and another employer where both employers are bargaining for the same collective agreement.
3: Subsection (1) does not prevent a party to an employment relationship communicating to another person a statement of fact or of opinion reasonably held about an employer's business or a union's affairs.
4: The duty of good faith in subsection (1) applies to the following matters:
a: bargaining for a collective agreement or for a variation of a collective agreement, including matters relating to the initiation of the bargaining:
b: any matter arising under or in relation to a collective agreement while the agreement is in force:
ba: bargaining for an individual employment agreement or for a variation of an individual employment agreement:
bb: any matter arising under or in relation to an individual employment agreement while the agreement is in force:
c: consultation (whether or not under a collective agreement) between an employer and its employees, including any union representing the employees, about the employees' collective employment interests, including the effect on employees of changes to the employer's business:
d: a proposal by an employer that might impact on the employer's employees, including a proposal to contract out work otherwise done by the employees or to sell or transfer all or part of the employer's business:
e: making employees redundant:
ea: making pay equity claims, responding to pay equity claims, and participating in the pay equity claim resolution process under Part 4
f: access to a workplace by a representative of a union:
g: communications or contacts between a union and an employer relating to any secret ballots held for the purposes of bargaining for a collective agreement.
5: The matters specified in subsection (4) are examples and do not limit subsection (1).
6: It is a breach of subsection (1) for an employer to advise, or to do anything with the intention of inducing, an employee—
a: not to be involved in bargaining for a collective agreement; or
b: not to be covered by a collective agreement. Section 4(1A) inserted 1 December 2004 section 5(1) Employment Relations Amendment Act (No 2) 2004 Section 4(1B) replaced 6 March 2015 section 4 Employment Relations Amendment Act 2014 Section 4(1C) replaced 6 March 2015 section 4 Employment Relations Amendment Act 2014 Section 4(1C)(a)(ii) replaced 1 December 2020 section 217 Privacy Act 2020 Section 4(1D) inserted 6 March 2015 section 4 Employment Relations Amendment Act 2014 Section 4(4)(ba) inserted 1 December 2004 section 5(2) Employment Relations Amendment Act (No 2) 2004 Section 4(4)(bb) inserted 1 December 2004 section 5(2) Employment Relations Amendment Act (No 2) 2004 Section 4(4)(ea) inserted 6 November 2020 section 33 Equal Pay Amendment Act 2020 Section 4(6) added 1 December 2004 section 5(3) Employment Relations Amendment Act (No 2) 2004
4A: Penalty for certain breaches of duty of good faith
A party to an employment relationship who fails to comply with the duty of good faith in section 4(1)
a: the failure was deliberate, serious, and sustained; or
b: the failure was intended to—
i: undermine bargaining for an individual employment agreement or a collective agreement; or
ii: undermine an individual employment agreement or a collective agreement; or
iii: undermine an employment relationship; or
iv: undermine the pay equity claim resolution process under Part 4
c: the failure was a breach of section 59B section 59C Section 4A inserted 1 December 2004 section 6 Employment Relations Amendment Act (No 2) 2004 Section 4A(b) replaced 6 November 2020 section 33 Equal Pay Amendment Act 2020 Records relating to minimum entitlement provisions Heading inserted 1 April 2016 section 5 Employment Relations Amendment Act 2016
4B: Employer’s general obligation to keep records relating to minimum entitlement provisions
1: An employer must keep records in sufficient detail to demonstrate that the employer has complied with minimum entitlement provisions.
2: The obligation in subsection (1) is in addition to the requirements in the other provisions of this Act or any other enactment relating to the keeping of records. Section 4B inserted 1 April 2016 section 5 Employment Relations Amendment Act 2016
2: Preliminary provisions
Interpretation
5: Interpretation
In this Act, unless the context otherwise requires,— agreed hours of work section 67C(1) applicable collective agreement Authority section 156 bargaining
a: means all the interactions between the parties to the bargaining that relate to the bargaining; and
b: includes—
i: negotiations that relate to the bargaining; and
ii: communications or correspondence (between or on behalf of the parties before, during, or after negotiations) that relate to the bargaining chief executive Chief Judge Chief of the Authority section 166(1)(a) collective agreement
a: 1 or more unions; and
b: 1 or more employers; and
c: 2 or more employees compliance order section 137 section 139 controlling third party
a: who has a contract or other arrangement with an employer under which an employee of the employer performs work for the benefit of the person; and
b: who exercises, or is entitled to exercise, control or direction over the employee that is similar or substantially similar to the control or direction that an employer exercises, or is entitled to exercise, in relation to the employee court coverage clause
a: in relation to a collective agreement,—
i: means a provision in the agreement that specifies the work that the agreement covers, whether by reference to the work or type of work or employees or types of employees; and
ii: includes a provision in the agreement that refers to named employees, or to the work or type of work done by named employees, to whom the collective agreement applies:
b: in relation to a notice initiating bargaining for a collective agreement, means a provision in the notice specifying the work that the agreement is intended to cover, whether by reference to the work or type of work or employees or types of employees demand notice section 224(1) department dispute dwellinghouse
a: means any building or any part of a building to the extent that it is occupied as a residence; and
b: in relation to a homeworker who works in a building that is not wholly occupied as a residence, excludes any part of the building not occupied as a residence employee section 6 employer employment agreement
a: means a contract of service; and
b: includes a contract for services between an employer and a homeworker; and
c: includes an employee's terms and conditions of employment in—
i: a collective agreement; or
ii: a collective agreement together with any additional terms and conditions of employment; or
iii: an individual employment agreement employment relationship section 4(2) employment relationship problem employment standards
a: the requirements of any of sections 64 69Y 69ZD 69ZE 130
b: the requirements of section 2AAC(a) 2A
ba:
c: the minimum entitlements and payment for those under the Holidays Act 2003
d: the requirements of sections 81 82
e: the minimum entitlements under the Minimum Wage Act 1983
f: the provisions of the Wages Protection Act 1983 essential service Schedule 1 homeworker
a: means a person who is engaged, employed, or contracted by any other person (in the course of that other person's trade or business) to do work for that other person in a dwellinghouse (not being work on that dwellinghouse or fixtures, fittings, or furniture in it); and
b: includes a person who is in substance so engaged, employed, or contracted even though the form of the contract between the parties is technically that of vendor and purchaser individual employment agreement intended agreement Judge an acting Labour Inspector section 223 lawyer section 6 lockout section 82 mediation section 144 mediation services section 144 member of the Authority section 166(1) section 172 minimum entitlement provisions
aaa:
a: the minimum entitlements and payment for those under the Holidays Act 2003
b: the minimum entitlements under the Minimum Wage Act 1983
c: the provisions of the Wages Protection Act 1983 Minister person intending to work intended work personal grievance grievance section 103 prescribed Registrar of the court section 198 Registrar of Unions section 27 reinstatement section 123(1)(a) relevant Acts
a: in sections 223A 223B section 223(1) section 69LA
b: in sections 223D to 223F section 223(1) Part 5 section 69LA strike section 81 union Part 4 wages
a: for time; or
b: for piece work; or
c: wholly or in part by way of commission wages and time record section 130 workplace Section 5 agreed hours of work inserted 1 April 2016 section 6(1) Employment Relations Amendment Act 2016 Section 5 controlling third party inserted 27 June 2020 section 4 Employment Relations (Triangular Employment) Amendment Act 2019 Section 5 coverage clause substituted 1 December 2004 section 7(1) Employment Relations Amendment Act (No 2) 2004 Section 5 dwellinghouse substituted 1 December 2004 section 7(2) Employment Relations Amendment Act (No 2) 2004 Section 5 employment standards inserted 1 April 2016 section 6(1) Employment Relations Amendment Act 2016 Section 5 employment standards replaced 6 November 2020 section 33 Equal Pay Amendment Act 2020 Section 5 employment standards repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Section 5 homeworker amended 1 December 2004 section 7(3) Employment Relations Amendment Act (No 2) 2004 Section 5 intended agreement inserted 1 April 2011 section 4 Employment Relations Amendment Act 2010 Section 5 Judge amended 1 March 2017 section 4(1) Employment Relations Amendment Act (No 2) 2016 Section 5 lawyer inserted 1 March 2017 section 4(2) Employment Relations Amendment Act (No 2) 2016 Section 5 minimum entitlement provisions inserted 1 April 2016 section 6(2) Employment Relations Amendment Act 2016 Section 5 minimum entitlement provisions repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Section 5 minimum entitlements repealed 1 April 2016 section 6(2) Employment Relations Amendment Act 2016 Section 5 reinstatement inserted 12 December 2018 section 46 Employment Relations Amendment Act 2018 Section 5 relevant Acts replaced 6 March 2015 section 5 Employment Relations Amendment Act 2014 Section 5 wages inserted 12 December 2018 section 4 Employment Relations Amendment Act 2018
5A: Provisions affecting application of amendments to this Act
Schedule 1AA see section 254 Section 5A inserted 6 March 2015 section 6 Employment Relations Amendment Act 2014
6: Meaning of employee
1: In this Act, unless the context otherwise requires, employee
a: means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and
b: includes—
i: a homeworker; or
ii: a person intending to work; but
c: excludes a volunteer who—
i: does not expect to be rewarded for work to be performed as a volunteer; and
ii: receives no reward for work performed as a volunteer.
d:
1A:
2: In deciding for the purposes of subsection (1)(a) whether a person is employed by another person under a contract of service, the court or the Authority (as the case may be) must determine the real nature of the relationship between them.
3: For the purposes of subsection (2), the court or the Authority—
a: must consider all relevant matters, including any matters that indicate the intention of the persons; and
b: is not to treat as a determining matter any statement by the persons that describes the nature of their relationship.
4: Subsections (2) and (3) do not limit or affect the Real Estate Agents Act 2008 Sharemilking Agreements Act 1937
4A: Nothing in this section applies to determine the employment status of a person who falls within the meaning of screen production worker in section 11
5: The court may, on the application of a union, a Labour Inspector, or 1 or more other persons, by order declare whether the person or persons named in the application are—
a: employees under this Act; or
b: employees or workers within the meaning of any of the Acts specified in section 223(1)
6: The court must not make an order under subsection (5) in relation to a person unless—
a: the person—
i: is the applicant; or
ii: has consented in writing to another person applying for the order; and
b: the other person who is alleged to be the employer of the person is a party to the application or has an opportunity to be heard on the application.
7: Section 6(1)(d) repealed 30 December 2022 section 101(1) Screen Industry Workers Act 2022 Section 6(1A) repealed 30 December 2022 section 101(1) Screen Industry Workers Act 2022 Section 6(4) amended 16 November 2009 section 173 Real Estate Agents Act 2008 Section 6(4A) inserted 30 December 2022 section 101(2) Screen Industry Workers Act 2022 Section 6(7) repealed 30 December 2022 section 101(3) Screen Industry Workers Act 2022
6A: Status of examples
1: In this Act, an example is only illustrative of the provision it relates to and does not limit the provision.
2: If an example and the provision it relates to are inconsistent, the provision prevails.
3: In this section, example Section 6A inserted 14 September 2006 section 5 Employment Relations Amendment Act 2006
3: Freedom of association
7: Object of this Part
The object of this Part is to establish that—
a: employees have the freedom to choose whether or not to form a union or be members of a union for the purpose of advancing their collective employment interests; and
b: no person may, in relation to employment issues, confer any preference or apply any undue influence, directly or indirectly, on another person because the other person is or is not a member of a union. 1991 No 22 s 5
8: Voluntary membership of unions
A contract, agreement, or other arrangement between persons must not require a person—
a: to become or remain a member of a union or a particular union; or
b: to cease to be a member of a union or a particular union; or
c: not to become a member of a union or a particular union. 1991 No 22 s 6
9: Prohibition on preference
1: A contract, agreement, or other arrangement between persons 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 or conditions of employment (including conditions relating to redundancy) or fringe benefits or opportunities for training, promotion, or transfer.
2: Subsection (1) is not breached simply because an employee's employment agreement or terms and conditions of employment are different from those of another employee employed by the same employer.
3: To avoid doubt, this Act does not prevent a collective agreement containing a term or condition that is intended to recognise the benefits—
a: of a collective agreement:
b: arising out of the relationship on which a collective agreement is based. 1991 No 22 s 7 Section 9(3) added 1 December 2004 section 8 Employment Relations Amendment Act (No 2) 2004
10: Contracts, agreements, or other arrangements inconsistent with section 8 or section 9
A contract, agreement, or other arrangement has no force or effect to the extent that it is inconsistent with section 8 section 9
11: Undue influence
1: A person must not exert undue influence, directly or indirectly, on another person with the intention of inducing the other person—
a: to become or remain a member of a union or a particular union; or
b: to cease to be a member of a union or a particular union; or
c: not to become a member of a union or a particular union; or
d: in the case of an individual who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or
e: to resign from or leave any employment on account of the fact that the other person is or, as the case may be, is not a member of a union or of a particular union.
2: Every person who contravenes subsection (1) is liable to a penalty under this Act imposed by the Authority. 1991 No 22 s 8
4: Recognition and operation of unions
12: Object of this Part
The object of this Part is—
a: to recognise the role of unions in promoting their members' collective employment interests; and
b: to provide for the registration of unions that are accountable to their members; and
c: to confer on registered unions the right to represent their members in collective bargaining; and
d: to provide representatives of registered unions with reasonable access to workplaces for purposes related to—
i: the employment of the union’s members; and
ii: the union’s business; and
iii: the health and safety of employees who are not members of the union. Section 12(d) replaced 12 December 2018 section 5 Employment Relations Amendment Act 2018 Registration of unions and related matters
13: Application by society to register as union
1: A society that is entitled to be registered as a union may apply to the Registrar of Unions to be registered as a union under this Act.
2: An application must be made in the prescribed manner and must be accompanied by—
a: a copy of the society's certificate of incorporation under the Incorporated Societies Act 1908
b: a copy of the society's rules as registered under that Act; and
c: a statutory declaration made by an officer of the society setting out the reasons why the society is entitled to be registered as a union.
14: When society entitled to be registered as union
1: A society is entitled to be registered as a union if—
a: the object or, if the society has more than 1 object, an object of the society is to promote its members' collective employment interests; and
b: the society is incorporated under the Incorporated Societies Act 1908
c: the society's rules are—
i: not unreasonable; and
ii: democratic; and
iii: not unfairly discriminatory or unfairly prejudicial; and
iv: not contrary to law; and
ca: the society's rules contain a provision relating to the process for holding a secret ballot for the purposes of this Act; and
d: the society is independent of, and is constituted and operates at arm's length from, any employer.
1A:
1B:
2: In deciding whether a society is entitled to be registered as a union, the Registrar of Unions may rely on the statutory declaration made under section 13(2)(c) Section 14(1)(ca) inserted 15 May 2012 section 5 Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 Section 14(1A) repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Section 14(1B) repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023
15: Registration of society as union
1: The Registrar of Unions must register a society as a union if the society—
a: applies, in accordance with section 13
b: is entitled to be registered as a union.
2: Immediately after registering a union, the Registrar of Unions must give a certificate of registration in the prescribed form to the union.
3: The certificate of registration is conclusive evidence that—
a: all the requirements of this Act relating to the registration of the union have been complied with; and
b: on and from the date of registration stated in the certificate, the union is registered as a union under this Act.
16: Annual return of members
1: A union must deliver to the Registrar of Unions, not later than 1 June in each calendar year, an annual return of members, stating how many members it had as at 1 March in that year.
2: If a union has delivered, or will deliver, information required under this section to the Registrar of Screen Industry Organisations under section 85 Section 16(2) inserted 30 December 2022 section 102 Screen Industry Workers Act 2022
17: Cancellation of union's registration
1: The Registrar of Unions may cancel the registration of a union under this Act, but only if—
a: the union applies to the Registrar of Unions to cancel its registration; or
b: the Authority makes an order directing the Registrar of Unions to cancel the union's registration.
2: The Authority may make an order for the purposes of subsection (1)(b) only if the union has ceased to comply with section 14(1) Union's right to represent members
18: Union entitled to represent members' interests
1: A union is entitled to represent its members in relation to any matter involving their collective interests as employees.
2: This Act does not prevent a union offering different classes of membership.
3: A union may represent an employee in relation to the employee's individual rights as an employee only if the union has an authority from the employee to do so given under section 236
18A: Union delegates entitled to reasonable paid time to represent employees
1: An employee is entitled to spend reasonable paid time undertaking union activities during the employee’s normal hours of work if—
a: the employee has been appointed or elected as a union delegate, in accordance with the rules or procedures of the union, to represent other employees of the employee’s employer who are members of the union on matters relating to their employment; and
b: the activities relate to representation of employees of the employer; and
c: the activities would not unreasonably disrupt the employer’s business or the union delegate’s performance of employment duties.
2: Before undertaking activities under subsection (1), an employee must—
a: agree with the employer that the employee may undertake activities under this section from time to time without notice; or
b: notify the employer—
i: when the employee intends to undertake the activities; and
ii: how long the employee intends to spend undertaking the activities.
3: The employer may refuse to allow an employee to undertake the activities only if the employer is satisfied, on reasonable grounds, that the activities would unreasonably disrupt the employer’s business or the union delegate’s performance of employment duties.
4: An employer must pay the employee for any time spent undertaking union activities under subsection (1) at the rate of pay that the employee would otherwise have received if the employee were performing their ordinary employment duties during that time.
5: This section does not prevent an employer from providing an employee with enhanced or additional entitlements to spend paid time undertaking union activities on a basis agreed with the employee. Section 18A inserted 6 May 2019 section 6 Employment Relations Amendment Act 2018 Access to workplaces
19: Workplace does not include dwellinghouse
For the purposes of sections 20 to 25 workplace
20: Access to workplaces
1: A representative of a union is entitled, in accordance with this section and sections 20A 21
a: purposes related to the employment of the union’s members:
b: purposes related to the union’s business:
c: purposes related to the health and safety of any employee on the premises who is not a member of the union, if the employee requests the assistance of a representative of the union on those matters.
2: The purposes related to the employment of a union's members include—
a: to participate in bargaining for a collective agreement:
b: to deal with matters concerning the health and safety of union members:
c: to monitor compliance with the operation of a collective agreement:
d: to monitor compliance with this Act and other Acts dealing with employment-related rights in relation to union members:
e: with the authority of an employee, to deal with matters relating to an individual employment agreement or a proposed individual employment agreement or an individual employee's terms and conditions of employment or an individual employee's proposed terms and conditions of employment:
f: to seek compliance with relevant requirements in any case where non-compliance is detected.
3: The purposes related to a union's business include—
a: to discuss union business with union members:
b: to seek to recruit employees as union members:
c: to provide information on the union and union membership to any employee on the premises.
4: A discussion in a workplace between an employee and a representative of a union, who is entitled under this section and sections 20A 21
a: must not exceed a reasonable duration; and
b: is not to be treated as a union meeting for the purposes of section 26
5: An employer must not deduct from an employee's wages any amount in respect of the time the employee is engaged in a discussion referred to in subsection (4). 1991 No 22 ss 13, 14(1) Section 20(1) replaced 12 December 2018 section 7 Employment Relations Amendment Act 2018 Section 20(4) added 1 December 2004 section 9 Employment Relations Amendment Act (No 2) 2004 Section 20(4) amended 1 April 2011 section 5 Employment Relations Amendment Act 2010 Section 20(5) added 1 December 2004 section 9 Employment Relations Amendment Act (No 2) 2004
20A: Representative of union must obtain consent to enter workplace
1: Before entering a workplace under section 21
1A: However, subsection (1) does not apply to a representative of a union if,—
a: at the time of the representative’s entry into the workplace,—
i: there is a collective agreement in force between the employer and the union; and
ii: the coverage clause in the collective agreement covers the work done by employees at the workplace; or
b: at the time of the representative’s entry into the workplace,—
i: the union or the employer has initiated bargaining for a collective agreement; and
ii: the intended coverage of the collective agreement, as set out in the notice given in accordance with section 42
2: If a representative of a union makes a request under subsection (1),—
a: the employer or representative of the employer must not unreasonably withhold consent; and
b: the employer or representative of the employer must advise the representative of the union of the employer's or representative of the employer's decision as soon as is reasonably practicable but no later than the working day after the date on which the request was received; and
c: the consent of the employer or representative of the employer (as the case may be) must be treated as having been obtained if the employer or representative of the employer does not respond to the request within 2 working days after the date on which the request was received.
3: If an employer or a representative of an employer withholds consent under subsection (2), the employer or representative of the employer must, as soon as is reasonably practicable but no later than the working day after the date of the decision, give reasons in writing for that decision to the representative of the union who made the request.
4: This section is subject to sections 22 23 Section 20A inserted 1 April 2011 section 6 Employment Relations Amendment Act 2010 Section 20A(1A) inserted 12 December 2018 section 8 Employment Relations Amendment Act 2018
21: Conditions relating to access to workplaces
1: A representative of a union may enter a workplace—
a: for a purpose specified in section 20(2)
b: for a purpose specified in section 20(3)
2: A representative of a union exercising the right to enter a workplace—
a: may do so only at reasonable times during any period when any 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.
3: A representative of a union exercising the right to enter a workplace must, at the time of the initial entry and, if requested by the employer or a representative of the employer or by a person in control of the workplace, at any time after entering the workplace,—
a: give the purpose of the entry; and
b: produce—
i: evidence of his or her identity; and
ii: evidence of his or her authority to represent the union concerned.
4: If a representative of a union exercises the right to enter a workplace and is unable, despite reasonable efforts, to find the employer or a representative of the employer or the person in control of the workplace, the representative 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 union the person is a representative of; and
c: the date and time of entry; and
d: the purpose or purposes of the entry.
5: Nothing in subsections (1) to (4) allows an employer to unreasonably deny a representative of a union access to a workplace.
5: 1991 No 22 s 14(2)–(4) Section 21(5) inserted 12 December 2018 section 9 Employment Relations Amendment Act 2018 Section 21(5) repealed 1 April 2011 section 7 Employment Relations Amendment Act 2010
22: When access to workplaces may be denied
1: A representative of a union 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 20
i: the security or defence of New Zealand; or
ii: the investigation or detection of offences. 1991 No 22 s 15
23: When access to workplaces may be denied on religious grounds
A representative of a union 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.
24: Issue of certificate of exemption
1: The chief executive may, for the purposes of section 23
2: The chief executive may revoke a certificate of exemption if—
a: the employer to whom it has been issued agrees; or
b: it was issued in error; or
c: the chief executive is satisfied that the employer has ceased to be a person eligible to be issued with the certificate. Section 24(1) amended 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023
25: Penalty for certain acts in relation to entering workplace
Every person is liable to a penalty, imposed by the Authority, who, without lawful excuse,—
a: contravenes section 20A(2)(a) section 20A(1)
ab: fails to give reasons in writing for withholding consent to access to a workplace in accordance with section 20A(3)
ac: refuses to permit a representative of a union who is entitled to enter a workplace to enter the workplace; or
b: obstructs a representative of a union in entering a workplace or in doing anything reasonably necessary for or incidental to the purpose for entering the workplace; or
c: wilfully fails to comply with section 21 1991 No 22 s 14(5) Section 25(a) substituted 1 April 2011 section 8 Employment Relations Amendment Act 2010 Section 25(ab) inserted 1 April 2011 section 8 Employment Relations Amendment Act 2010 Section 25(ac) inserted 12 December 2018 section 10 Employment Relations Amendment Act 2018 Union meetings
26: Union meetings
1: An employer must allow every union member employed by the employer to attend—
a: at least 1 union meeting (of a maximum of 2 hours' duration) in the calendar year 2000; and
b: at least 2 union meetings (each of a maximum of 2 hours' duration) in each calendar year after the calendar year 2000.
2: The union must give the employer at least 14 days' notice of the date and time of any union meeting to which subsection (1) applies.
3: The union must make such arrangements with the employer as may be necessary to ensure that the employer's business is maintained during any union meeting to which subsection (1) applies, including, where appropriate, an arrangement for sufficient union members to remain available during the meeting to enable the employer's operations to continue.
4: Work must resume as soon as practicable after the meeting, but the employer is not obliged to pay any union member for a period longer than 2 hours in respect of any meeting.
5: An employer must allow a union member employed by the employer to attend a union meeting under subsection (1) on ordinary pay to the extent that the employee would otherwise be working for the employer during the meeting.
6: For the purposes of subsection (5), the union must—
a: supply to the employer a list of members who attended the union meeting; and
b: advise the employer of the duration of the meeting.
7: Every employer who fails to allow a union member to attend a union meeting in accordance with this section is liable to a penalty imposed by the Authority. 1987 No 77 s 57 Registrar of Unions
27: Registrar of Unions
1: The chief executive may appoint an employee of the department to be the Registrar of Unions, and may appoint another employee of the department to be the Deputy Registrar of Unions.
2: An employee appointed under subsection (1) may also hold any other office or position in the department.
3: Subject to the control and direction of the Registrar of Unions, the Deputy Registrar of Unions has and may exercise all the powers, duties, and functions of the Registrar.
28: Registrar of Unions may seek directions of Authority
1: The Registrar of Unions may apply to the Authority for directions relating to the exercise of his or her powers, duties, or functions under this Part.
2: An application must be served on all persons who, in the Registrar's opinion, are interested in the application.
29: Persons who have standing in proceedings relating to unions
The following persons have standing to commence or be a party to or be heard on matters within the Authority's jurisdiction that relate to a union under this Part:
a: the union:
b: a member of the union:
c: another union with a direct interest in the proceedings:
d: the Registrar of Unions:
e: an employer who is directly affected by the existence of the union or its activities:
f: with the leave of the Authority, any other person.
30: Offence to mislead Registrar
Every person commits an offence and is liable on conviction by the court to a fine not exceeding $5,000 who does or says anything, or omits to do or say anything, with the intention of misleading or attempting to mislead the Registrar of Unions. Employer’s information sharing obligations Heading inserted 6 May 2019 section 11 Employment Relations Amendment Act 2018
30A: Union may provide employer with information about role and functions of union to pass on to prospective employees
1: A union that is a party to a collective agreement may, at any time, request an employer that is a party to the agreement to provide certain specified information about the role and functions of the union to prospective employees under section 63B(3)(b)
2: The union must—
a: specify the information that the union requests the employer to provide to prospective employees; and
b: specify the form in which the union requests the employer to provide the information to prospective employees; and
c: provide the information to the employer in the specified form.
3: The employer or a representative of the employer may refuse to comply with the request only if—
a: the information is confidential; or
b: the information—
i: is about the employer; and
ii: would, or is likely to, mislead or deceive the prospective employee; and
iii: would significantly undermine bargaining between the employer and the prospective employee.
4: An employer who agrees to comply with the request must provide the information to prospective employees under section 63B(3)(b)
5: An employer must be treated as having agreed to comply with the request if the employer or a representative of the employer does not respond to the request within 15 working days.
6: If the union requests under subsection (2)(b) that the employer provide hard copies of the information to prospective employees,—
a: the union must supply to the employer any hard copies of the information that the employer is requested to provide to prospective employees; and
b: the employer must notify the union in writing when the employer requires further hard copies of the information to comply with the request. Section 30A inserted 6 May 2019 section 11 Employment Relations Amendment Act 2018
5: Collective bargaining
31: Object of this Part
The object of this Part is—
a: to provide the core requirements of the duty of good faith in relation to collective bargaining; and
aa: to provide that the duty of good faith in section 4
aa:
b: to provide for 1 or more codes of good faith to assist the parties to understand what good faith means in collective bargaining; and
c: to recognise the view of parties to collective bargaining as to what constitutes good faith; and
d: to promote orderly collective bargaining; and
e: to ensure that employees confirm proposed collective bargaining for a multi-party collective agreement. Section 31(aa) inserted 6 May 2019 section 12 Employment Relations Amendment Act 2018 Section 31(aa) repealed 6 March 2015 section 7 Employment Relations Amendment Act 2014 Good faith
32: Good faith in bargaining for collective agreement
1: The duty of good faith in section 4
a: the union and the employer must use their best endeavours to enter into an arrangement, as soon as possible after the initiation of bargaining, that sets out a process for conducting the bargaining in an effective and efficient manner; and
b: the union and the employer must meet each other, from time to time, for the purposes of the bargaining; and
c: the union and employer must consider and respond to proposals made by each other; and
ca: even though the union and the employer have come to a standstill or reached a deadlock about a matter, they must continue to bargain (including doing the things specified in paragraphs (b) and (c)) about any other matters on which they have not reached agreement; and
ca:
d: the union and the employer—
i: must recognise the role and authority of any person chosen by each to be its representative or advocate; and
ii: must not (whether directly or indirectly) bargain about matters relating to terms and conditions of employment with persons whom the representative or advocate are acting for, unless the union and employer agree otherwise; and
iii: must not undermine or do anything that is likely to undermine the bargaining or the authority of the other in the bargaining; and
e: the union and employer must provide to each other, on request and in accordance with section 34
2: Subsection (1)(b) does not require a union and an employer to continue to meet each other about proposals that have been considered and responded to.
3: The matters that are relevant to whether a union and an employer bargaining for a collective agreement are dealing with each other in good faith include—
a: the provisions of a code of good faith that are relevant to the circumstances of the union and the employer; and
b: the provisions of any agreement about good faith entered into by the union and the employer; and
c: the proportion of the employer's employees who are members of the union and to whom the bargaining relates; and
d: any other matter considered relevant, including background circumstances and the circumstances of the union and the employer.
4: For the purposes of subsection (3)(d), circumstances
a: the operational environment of the union and the employer; and
b: the resources available to the union and the employer.
5: This section does not limit the application of the duty of good faith in section 4
6: To avoid doubt, this section does not prevent an employer from communicating with the employer's employees during collective bargaining (including, without limitation, the employer's proposals for the collective agreement) as long as the communication is consistent with subsection (1)(d) of this section and the duty of good faith in section 4 Section 32(1)(ca) inserted 6 May 2019 section 13 Employment Relations Amendment Act 2018 Section 32(1)(ca) repealed 6 March 2015 section 8 Employment Relations Amendment Act 2014 Section 32(6) added 1 April 2011 section 9 Employment Relations Amendment Act 2010
33: Duty of good faith requires parties to conclude collective agreement unless genuine reason not to
1: The duty of good faith in section 4
2: For the purposes of subsection (1), genuine reason
a: opposition or objection in principle to—
i: bargaining for, or being a party to, a collective agreement; or
ii: including rates of wages or salary in a collective agreement; or
b: disagreement about including a bargaining fee clause under Part 6B
c: the existence of an unsettled pay equity claim between an employer and a claimant under the Equal Pay Act 1972
d:
e:
3: For the purposes of subsection (1), opposition to concluding a multi-employer collective agreement is a genuine reason not to conclude a collective agreement if that opposition is based on reasonable grounds.
4: Clause 6
5: In this section and in clause 6 multi-employer collective agreement Section 33 replaced 6 May 2019 section 14 Employment Relations Amendment Act 2018 Section 33(2)(c) inserted 6 November 2020 section 33 Equal Pay Amendment Act 2020 Section 33(2)(d) repealed 14 May 2025 section 51 Equal Pay Amendment Act 2025 Section 33(2)(e) repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023
34: Providing information in bargaining for collective agreement
1: This section applies for the purposes of section 32(1)(e)
2: A request by a union or an employer to the other for information must—
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 is to be provided.
3: A union or an employer must provide the information requested—
a: direct to the other; or
b: to an independent reviewer if the union or employer providing the information reasonably considers that it should be treated as confidential information.
4: A person must not act as an independent reviewer unless appointed by mutual agreement of the union and employer.
5: As soon as practicable after receiving information under subsection (3), an independent reviewer must—
a: decide whether and, if so, to what extent the information should be treated as confidential; and
b: advise the union and employer concerned of the decision.
6: If an independent reviewer decides that the 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 union and employer concerned of the decision in a way that maintains the confidentiality of the information; and
c: answer any questions from the union or employer that requested the information, in a way that maintains the confidentiality of the information.
7: Unless the union and employer otherwise agree, information provided under subsection (3) and advice and answers provided under subsections (5) and (6)—
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 bound by the collective agreement being bargained for.
8: This section does not limit or affect the Privacy Act 2020
9: Nothing in the Official Information Act 1982 section 6 section 32(1)(e) Section 34(8) amended 1 December 2020 section 217 Privacy Act 2020 Codes of good faith
35: Codes of good faith
1: The Minister may, by notice in the Gazette
a: approve 1 or more codes of good faith recommended by the committee appointed under section 36
b: approve 1 or more codes of good faith if section 37
2: The notice in the Gazette
3: The purpose of a code of good faith is to provide guidance about the application of the duty of good faith in section 4
a: generally; or
b: in relation to particular types of situations; or
c: in relation to particular parts or areas of the employment environment.
36: Appointment of committee to recommend codes of good faith
1: The Minister may appoint a committee for the purpose of recommending to the Minister 1 or more codes of good faith.
2: The membership of the committee must comprise—
a: at least 1 person who represents unions; and
b: at least 1 person who represents employers' organisations; and
c: such other persons as the Minister thinks fit to appoint.
3: The Minister must appoint the same number of persons under both subsection (2)(a) and subsection (2)(b).
4: The chairperson of the committee is the member appointed by the Minister to be the chairperson.
5: Subject to any directions given to it by the Minister, the committee may determine its own procedure.
37: Minister may approve code of good faith not recommended by committee
1: The Minister may approve a code of good faith under section 35(1)(b)
a: the committee has not recommended a code of good faith within a time specified by the Minister; or
b: the Minister declines to approve a code of good faith recommended by the committee.
2: Before the Minister approves a code of good faith under section 35(1)(b)
3: If the Minister declines to approve a code of good faith recommended by the committee, the Minister must notify the committee—
a: that the Minister has declined to approve the code; and
b: of the reasons for declining to approve the code.
38: Amendment and revocation of code of good faith
A code of good faith may be amended or revoked in the same manner as the code is approved.
39: Authority or court may have regard to code of good faith
The Authority or court may, in determining whether or not a union and an employer have dealt with each other in good faith in bargaining for a collective agreement, have regard to a code of good faith approved under section 35
a: was in force at the relevant time; and
b: in the form in which it was then in force, related to the circumstances before the Authority or the court. Bargaining
40: Who may initiate bargaining
1: Bargaining for a collective agreement may be initiated by—
a: 1 or more unions with 1 or more employers; or
b: 1 or more employers with 1 or more unions.
2: However, bargaining for a collective agreement may not be initiated by an employer (whether alone or with other employers) unless the coverage clause will cover work (whether in whole or in part) that is or was covered by another collective agreement to which the employer is or was a party.
41: When bargaining may be initiated
1: If there is no applicable collective agreement in force between a union and an employer, the union or the employer may initiate bargaining with the other at any time.
2: Subsection (1) applies subject to section 40(2)
3: If there is an applicable collective agreement in force,—
a: a union must not initiate bargaining earlier than 60 days before the date on which the collective agreement expires:
b: an employer must not initiate bargaining earlier than 40 days before the date on which the collective agreement expires.
4: However, if there is more than 1 applicable collective agreement in force that binds 1 or more unions or 1 or more employers, or both, that are intended to be parties to the bargaining, then—
a: a union must not initiate bargaining before the later of the following dates:
i: the date that is 120 days before the date on which the last applicable collective agreement expires:
ii: the date that is 60 days before the date on which the first applicable collective agreement expires:
b: an employer must not initiate bargaining before the later of the following dates:
i: the date that is 100 days before the date on which the last applicable collective agreement expires:
ii: the date that is 40 days before the date on which the first applicable collective agreement expires.
5: For the purposes of this section, an applicable collective agreement is in force between a union and an employer if the agreement binds employees whose work is intended to come within the coverage clause in the collective agreement being bargained for. Section 41(3) replaced 12 December 2018 section 15 Employment Relations Amendment Act 2018 Section 41(4) replaced 12 December 2018 section 15 Employment Relations Amendment Act 2018
42: How bargaining initiated
1: A union or employer initiates bargaining for a collective agreement by giving to the intended party or parties to the agreement a notice that complies with subsection (2).
2: A notice complies with this subsection if—
a: it is in writing and signed by the union or the employer giving the notice or its duly authorised representative; and
b: it identifies each of the intended parties to the collective agreement; and
c: it identifies the intended coverage of the collective agreement.
43: Employees' attention to be drawn to initiation of bargaining
1: An employer that initiates bargaining or that receives a notice initiating bargaining for a collective agreement must
2: An employer must comply with subsection (1)—
a: as soon as possible; but
b: not later than—
i: 10 days after initiating the bargaining or receiving the notice, if only 1 employer is identified as an intended party to the bargaining:
ii: 15 days after initiating the bargaining or receiving the notice, if 2 or more employers are identified as intended parties to the bargaining. Section 43(1) amended 6 March 2015 section 11(1) Employment Relations Amendment Act 2014 Section 43(2) inserted 6 March 2015 section 11(2) Employment Relations Amendment Act 2014
44: When bargaining initiated
1: Bargaining for a collective agreement is initiated,—
a: if only 1 notice is required under section 42
b: if more than 1 notice is required under section 42
2: Consolidated bargaining for a single collective agreement under section 50
44A: Employer may opt out of bargaining for collective agreement, or for agreement to join collective agreement, involving 2 or more employers
Section 44A repealed 12 December 2018 section 16 Employment Relations Amendment Act 2018
44B: How to opt out
Section 44B repealed 12 December 2018 section 16 Employment Relations Amendment Act 2018
44C: Effect of opting out
Section 44C repealed 12 December 2018 section 16 Employment Relations Amendment Act 2018
45: One or more unions proposing to initiate bargaining with 2 or more employers for single collective agreement
1: This section applies to—
a: 1 union proposing to initiate bargaining with 2 or more employers for a single collective agreement:
b: 2 or more unions proposing to initiate bargaining with 1 or more employers for a single collective agreement.
2: Before bargaining for the single collective agreement is initiated under section 42
3: A secret ballot may be held only if the members of the union employed by the employer are—
a: not covered by an applicable collective agreement that is in force; or
b: covered by an applicable collective agreement that is in force and the secret ballot is held not earlier than 60 days before the time within which bargaining may be initiated by the union under section 41
4: The result of a secret ballot of members of the union employed by an employer is determined by a simple majority of the members who are entitled to vote and who do vote.
5: If, at the conclusion of the secret ballots, 2 or more secret ballots have resulted in a decision in favour of bargaining for a single collective agreement, then the union proposing to initiate bargaining for a single collective agreement may initiate bargaining by giving a notice in accordance with section 42
6: The notice must include the following additional information in respect of each employer whose employees voted in a secret ballot:
a: the name of the employer; and
b: the number of the employer's employees who are members of the union; and
c: the number of those members who voted; and
d: the number of those members who voted in favour of bargaining for a single collective agreement.
46: Terms of question for secret ballot
The question to be voted on in a secret ballot for the purposes of section 45
a: whether the member is in favour of bargaining for a single collective agreement, irrespective of the employers or unions concerned; or
b: whether the member is in favour of bargaining for a single collective agreement with named employers or unions; or
c: whether the member is in favour of bargaining for a single collective agreement except with 1 or more named employers or unions.
47: When secret ballots required after employer initiates bargaining for single collective agreement
1: This section applies to—
a: 2 or more unions in relation to which 1 employer has initiated bargaining for a single collective agreement:
b: 1 or more unions in relation to which 2 or more employers have initiated bargaining for a single collective agreement.
2: A union to which subsection (1)(a) applies must hold a secret ballot of its members employed by the employer if the union considers that a majority of its members employed by the employer would disagree with bargaining for a single collective agreement.
3: A union to which subsection (1)(b) applies must hold a secret ballot of its members employed by an employer to which subsection (1)(b) applies if it considers that a majority of its members employed by the employer would disagree with bargaining for a single collective agreement.
4: A secret ballot held under subsection (2) or subsection (3) must be held in accordance with sections 45 46
5: At the conclusion of a secret ballot, the union must inform the following employers of the result of the secret ballot:
a: the employer of the employees in respect of whom the secret ballot has been held; and
b: if subsection (1)(b) applies, the other employers concerned.
6: At the conclusion of the secret ballots, bargaining for a single collective agreement may continue,—
a: where subsection (1)(a) applies, if the members of each of the 2 unions or of a majority of the unions, if more than 2,—
i: have voted in favour of bargaining for a single collective agreement with the employer; or
ii: are considered by their union to be in favour of bargaining for a single collective agreement with the employer; or
iii: both; or
b: where subsection (1)(b) applies, if the members of the union or of each union, if there are 2, or of a majority of the unions, if more than 2,—
i: have voted in favour of bargaining for a single collective agreement with the 2 or more employers; or
ii: are considered by the union or each union, as the case may be, to be in favour of bargaining for a single collective agreement with the 2 or more employers; or
iii: both.
48: When requirement for secret ballot does not apply
Sections 45 46 47
a: the collective agreement is intended to replace a single collective agreement that is in force; and
b: the parties to the bargaining are 2 or more of the same parties to the single collective agreement; and
c: the scope of the coverage clause is not wider than the scope of the coverage clause in the single collective agreement.
49: Parties joining bargaining after it begins
1: A union or employer may become a party to bargaining for a collective agreement after bargaining has been initiated, but only if the requirements of this section are met.
2: The union or employer that wishes to become a party to the bargaining must, at the time that it seeks to become a party, meet the requirements (including but not limited to those for secret ballots) that would have applied if the union or employer had been a party at the initiation of the bargaining.
3: The parties to the bargaining must consent to the union or employer becoming a party to the bargaining.
50: Consolidation of bargaining
1: This section applies if—
a: an employer receives 2 or more notices under section 42
b: the notices relate, in whole or in part, to the same type of work.
2: The employer may, within 40 days after receiving the first notice, request each union concerned to consolidate the bargaining initiated by each notice into bargaining for a single collective agreement.
3: Each union receiving a request under subsection (2) must, within 30 days after receiving the request,—
a: agree to the request; or
b: withdraw the notice given under section 42
4: A union that does not comply with subsection (3) is to be treated as if it had withdrawn the notice given under section 42
5: If all the unions concerned agree to the request, the bargaining initiated by each notice is consolidated into bargaining for a single collective agreement. Facilitating bargaining Heading inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004
50A: Purpose of facilitating collective bargaining
1: The purpose of sections 50B to 50I
2: Sections 50B to 50I
a: prevent the parties from seeking assistance from another person in resolving the difficulties; or
b: apply to any agreement or arrangement with the other person providing such assistance. Section 50A inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004
50B: Reference to Authority
1: One or more matters relating to bargaining for a collective agreement may be referred to the Authority for facilitation to assist in resolving difficulties in concluding the collective agreement.
2: A reference for facilitation—
a: may be made by any party to the bargaining or 2 or more parties jointly; and
b: must be made on 1 or more of the grounds specified in section 50C(1) Section 50B inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004
50C: Grounds on which Authority may accept reference
1: The Authority must not accept a reference for facilitation unless satisfied that 1 or more of the following grounds exist:
a: that—
i: in the course of the bargaining, a party has failed to comply with the duty of good faith in section 4
ii: the failure—
A: was serious and sustained; and
B: has undermined the bargaining:
b: that—
i: the bargaining has been unduly protracted; and
ii: extensive efforts (including mediation) have failed to resolve the difficulties that have precluded the parties from entering into a collective agreement:
c: that—
i: in the course of the bargaining there has been 1 or more strikes or lockouts; and
ii: the strikes or lockouts have been protracted or acrimonious:
d: that—
i: in the course of bargaining, a party has proposed a strike or lockout; and
ii: the strike or lockout, if it were to occur, would be likely to affect the public interest substantially.
2: For the purposes of subsection (1)(d)(ii), a strike or lockout is likely to affect the public interest substantially if—
a: the strike or lockout is likely to endanger the life, safety, or health of persons; or
b: the strike or lockout is likely to disrupt social, environmental, or economic interests and the effects of the disruption are likely to be widespread, long-term, or irreversible.
3: The Authority must not accept a reference in relation to bargaining for which the Authority has already acted as a facilitator unless—
a: circumstances relating to the bargaining have changed; or
b: the bargaining since the previous facilitation has been protracted. Section 50C inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004
50D: Limitation on which member of Authority may provide facilitation
A member of the Authority who facilitates collective bargaining must not be the member of the Authority who accepted the reference for facilitation. Section 50D inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004
50E: Process of facilitation
1: The process to be followed during facilitation—
a: must be conducted in private; and
b: is the process determined by the Authority.
2: During facilitation, the collective bargaining that the facilitation relates to continues subject to the process determined by the Authority.
3: During facilitation, the Authority—
a: is not acting as an investigative body; and
b: may not exercise the powers it has for investigating matters.
4: The provision of facilitation by the Authority may not be challenged or called in question in any proceedings on the ground—
a: that the nature and content of the facilitation was inappropriate; or
b: that the manner in which the facilitation was provided was inappropriate. Section 50E inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004
50F: Statements made by parties during facilitation
1: A statement made by a party for the purposes of facilitation is not admissible against the party in proceedings under this Act or under the Equal Pay Act 1972
2: A party may make a public statement about facilitation only if—
a: it is made in good faith; and
b: it is limited to the process of facilitation or the progress being made. Section 50F inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004 Section 50F(1) replaced 6 November 2020 section 33 Equal Pay Amendment Act 2020
50G: Proposals made or positions reached during facilitation
1: A proposal made by a party or a position reached by parties to collective bargaining during facilitation is not binding on a party after facilitation has come to an end.
2: This section—
a: applies to avoid doubt; and
b: is subject to any agreement of the parties. Section 50G inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004
50H: Recommendation by Authority
1: While assisting parties to bargaining for a collective agreement, the Authority may make 1 or more recommendations about—
a: the process the parties should follow to reach agreement; or
b: the provisions of the collective agreement the parties should conclude; or
c: both.
2: The Authority may give public notice of a recommendation in such manner as the Authority determines.
3: A recommendation made by the Authority is not binding on a party, but a party must consider a recommendation before deciding whether to accept the recommendation. Section 50H inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004
50I: Party must deal with Authority in good faith
During facilitation, a party to bargaining for a collective agreement must deal with the Authority in good faith. Section 50I inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004 Determining collective agreement if breach of duty of good faith Heading inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004
50J: Remedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining
1: A party to bargaining for a collective agreement may apply, on the grounds specified in subsection (3), to the Authority for a determination fixing the provisions of the collective agreement being bargained for.
2: The Authority may fix the provisions of the collective agreement being bargained for if it is satisfied that—
a: the grounds in subsection (3) have been made out; and
b: it is appropriate, in all the circumstances, to do so.
3: The grounds are that—
a: a breach of the duty of good faith in section 4
i: has occurred in relation to the bargaining; and
ii: was sufficiently serious and sustained as to significantly undermine the bargaining; and
b: all other reasonable alternatives for reaching agreement have been exhausted; and
c: fixing the provisions of the collective agreement is the only effective remedy for the party or parties affected by the breach of the duty of good faith.
4: The Authority may make a determination under this section whether or not any penalty for a breach of good faith has been awarded under section 4A
5: The effect of a determination of the Authority fixing the provisions of a collective agreement is to make the collective agreement binding and enforceable as if it had been—
a: ratified as required by section 51
b: signed by the parties under section 54(1)(b)
6: Section 59
7: If the bargaining for the collective agreement was subject to facilitation under sections 50A to 50I Section 50J inserted 1 December 2004 section 14 Employment Relations Amendment Act (No 2) 2004 Authority may determine that bargaining has concluded Heading repealed 12 December 2018 section 17 Employment Relations Amendment Act 2018
50K: Authority may determine that bargaining has concluded
Section 50K repealed 12 December 2018 section 17 Employment Relations Amendment Act 2018
50KA: Declaration or determination under section 50K not to be made if breach of duty of good faith by party seeking declaration
Section 50KA repealed 12 December 2018 section 17 Employment Relations Amendment Act 2018 Collective agreements
51: Ratification of collective agreement
1: A union must not sign a collective agreement or a variation of it unless the agreement or variation has been ratified in accordance with the ratification procedure notified under subsection (2).
2: At the beginning of bargaining for a collective agreement or a variation of it, a union must notify the other intended party or parties to the collective agreement of the procedure for ratification by the employees to be bound by it that must be complied with before the union may sign the collective agreement or variation of it.
52: When collective agreement comes into force and expires
1: A collective agreement comes into force on—
a: the date specified in the agreement as the date on which it comes into force; or
b: if no such date is specified, the date on which the last party to the agreement, or its duly authorised representative, signed the agreement.
2: A collective agreement may provide that 1 or more of its provisions have effect from 1 or more dates before or after the date on which the agreement comes into force.
3: A collective agreement expires on the close of the earliest of the following dates:
a: the date specified in the agreement as the date on which the agreement expires:
b: the date on which an event occurs, being an event that is specified by the agreement as an event on the occurrence of which the agreement expires:
c: the date that is the third anniversary of the agreement coming into force.
4: Subsection (3) applies subject to section 53
53: Continuation of collective agreement after specified expiry date
1: A collective agreement that would otherwise expire as provided in section 52(3)
a: if subsection (2) is complied with; and
b: for the period specified in subsection (3).
2: This subsection is complied with if the union or the employer
2A:
3: The period is the period (not exceeding 12 months) during which bargaining continues for a collective agreement to replace the collective agreement that has expired.
4: Section 53(2) amended 6 March 2015 section 15(1) Employment Relations Amendment Act 2014 Section 53(2A) repealed 12 December 2018 section 18 Employment Relations Amendment Act 2018 Section 53(4) repealed 12 December 2018 section 18 Employment Relations Amendment Act 2018
54: Form and content of collective agreement
1: A collective agreement has no effect unless—
a: it is in writing; and
b: it is signed by each union and employer that is a party to the agreement.
2: A collective agreement may contain such provisions as the parties to the agreement mutually agree on.
3: However, a collective agreement—
a: must contain—
i: a coverage clause; and
ii: the rates of wages or salary payable to employees bound by the agreement; and
ii:
iii: a plain language explanation of the services available for the resolution of employment relationship problems, including a reference to—
A: the 12-month period within which a personal grievance must be raised under section 114(1) section 103(1)(d)
B: the 90-day period within which any other personal grievance must be raised under section 114(1)
iv: a clause providing how the agreement can be varied; and
v: the date on which the agreement expires or an event on the occurrence of which the agreement is to expire; and
b: must not contain anything—
i: contrary to law; or
ii: inconsistent with this Act.
4: For the purposes of subsection (3)(a)(ii), a collective agreement contains the rates of wages or salary payable to employees bound by the agreement
a: contains, in respect of the employees bound by the collective agreement (whether by reference to the work or types of work done by the employees or by reference to named employees or types of employees),—
i: the rates of wages or salary payable for certain work or types of work or to certain employees or types of employees; or
ii: the minimum rates of wages or salary payable for certain work or types of work or to certain employees or types of employees; or
iii: 1 or more methods of calculating the rates or minimum rates of wages or salary payable for certain work or types of work or to certain employees or types of employees; and
b: indicates how the rate of wages or salary payable to an employee bound by the agreement may increase during the term of the agreement. Section 54(3)(a)(ii) inserted 6 May 2019 section 19(1) Employment Relations Amendment Act 2018 Section 54(3)(a)(ii) repealed 1 December 2004 section 15 Employment Relations Amendment Act (No 2) 2004 Section 54(3)(a)(iii) replaced 13 June 2023 section 4 Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 54(4) inserted 6 May 2019 section 19(2) Employment Relations Amendment Act 2018
55: Deduction of union fees
1: A collective agreement is to be treated as if it contains a provision that requires an employer that is a party to the agreement to deduct, with the consent of a union member, the member's union fee from the member's salary or wages on a regular basis during the year.
2: A collective agreement may exclude or vary the effect of subsection (1).
3: Union fees deducted from a member's salary or wages must be paid to the union concerned in accordance with any arrangement agreed with the union.
56: Application of collective agreement
1: A collective agreement that is in force binds and is enforceable by—
a: the union and the employer that are the parties to the agreement; and
b: employees—
i: who are employed by an employer that is a party to the agreement; and
ii: who are or become members of a union that is a party to the agreement; and
iii: whose work comes within the coverage clause in the agreement.
1A: However, an employee who is bound by a collective agreement and who holds a minimum wage exemption permit section 8
a: while the permit is in force; and
b: if the union that is a party to the collective agreement agrees.
2: If the registration of a union that is a party to a collective agreement is cancelled or the union ceases to be an incorporated society, the collective agreement continues to bind the employer or employers who are parties to the agreement, and the members of the union who were bound by the collective agreement immediately before the cancellation of the union's registration or the cessation of the union as an incorporated society.
3: If the union's registration is cancelled as a result of the union's amalgamation with 1 or more other unions, the collective agreement binds the amalgamated union. Section 56(1A) inserted 1 December 2004 section 16 Employment Relations Amendment Act (No 2) 2004 Section 56(1A) amended 28 March 2007 section 5(1) Minimum Wage Amendment Act 2007
56A: Application of collective agreement to subsequent parties
1: An employer who is not a party to a collective agreement may become a party to the collective agreement if—
a: the agreement provides for an employer to become a party to the agreement after it has been signed by the original parties to the agreement; and
b: the work of some or all of the employer's employees comes within the coverage clause in the agreement; and
c: the employees referred to in paragraph (b) are not bound by another collective agreement in respect of their work for the employer; and
d: the employer notifies all the parties to the agreement in accordance with subsection (5) that the employer proposes to become a party to the agreement.
2: On the day after the day on which all parties to the collective agreement have been notified in accordance with subsection (5),—
a: the employer becomes a party to the collective agreement; and
b: the collective agreement also binds and is enforceable by—
i: the employer:
ii: employees—
A: who are employed by the employer; and
B: who are or become members of a union that is a party to the agreement; and
C: whose work comes within the coverage clause in the agreement.
3: A union that is not a party to a collective agreement may become a party to the collective agreement if—
a: the agreement provides for a union to become a party to the agreement after it has been signed by the original parties to the agreement; and
b: the union has members doing work that comes within the coverage clause of the collective agreement; and
c: as a result of a secret ballot of those members, a majority of them who are entitled to vote and do vote are in favour of the union becoming a party to the collective agreement; and
d: the union notifies all the parties to the collective agreement in accordance with subsection (5) that the union proposes to become a party to the agreement.
4: On the day after the day on which all parties to the collective agreement have been notified in accordance with subsection (5),—
a: the union becomes a party to the collective agreement; and
b: the collective agreement also binds and is enforceable by—
i: the union:
ii: employees—
A: who are employed by an employer that is a party to the agreement; and
B: who are or become members of the union; and
C: whose work comes within the coverage clause in the agreement.
5: For the purposes of this section, a party to a collective agreement is notified—
a: when the notice is given to the party; or
b: if the notice is posted to the party, on the seventh day after the day on which the notice is posted.
6: For the purposes of subsection (1)(b) and (c), employees Section 56A inserted 1 December 2004 section 17 Employment Relations Amendment Act (No 2) 2004
57: Employee bound by only 1 collective agreement in respect of same work
If an employee is a member of more than 1 union, the employee is bound by only 1 collective agreement covering the same work done by the employee, being the collective agreement resulting from the bargaining first initiated which covered the employee's work.
58: Employee who resigns as member of union but does not resign as employee
1: A member of a union who is bound by a collective agreement and who resigns as a member of the union but does not resign from his or her employment, may not be subject to any other bargaining for a collective agreement or bound by any other collective agreement until the 60th day before the expiry date of the collective agreement binding on the member before resigning as a member of the union.
2: For the purposes of subsection (1), the expiry date of a collective agreement is determined under section 52(3) section 53
59: Copy of collective agreement to be delivered to chief executive
1: The parties to a collective agreement must ensure that, as soon as practicable after they enter into the agreement, a copy of the agreement is delivered to the chief executive.
2: The copy of the agreement delivered to the chief executive must include any document referred to, or incorporated by reference, in the collective agreement, unless the document is publicly available.
3: Nothing in the Official Information Act 1982
4: The information contained in the copies of collective agreements delivered to the chief executive under subsection (1) must be used only for statistical or analytical purposes. Undermining collective bargaining or collective agreement Heading inserted 1 December 2004 section 18 Employment Relations Amendment Act (No 2) 2004
59A: Interpretation
In sections 59B 59C reached Section 59A inserted 1 December 2004 section 18 Employment Relations Amendment Act (No 2) 2004
59B: Breach of duty of good faith to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement
1: It is not a breach of the duty of good faith in section 4
2: However, it is a breach of the duty of good faith in section 4
a: the employer does so with the intention of undermining the collective agreement; and
b: the effect of the employer doing so is to undermine the collective agreement.
3: It is not a breach of the duty of good faith in section 4
4: However, it is a breach of the duty of good faith in section 4
a: the employer does so with the intention of undermining the collective bargaining; or
b: the effect of the employer doing so is to undermine the collective bargaining.
5: It is not a breach of the duty of good faith in section 4
6: In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account:
a: whether the employer bargained with the employee before they agreed on the term or condition of employment:
b: whether the employer consulted the union in good faith before agreeing to the term or condition of employment:
c: the number of the employer's employees bound by the collective agreement or covered by the collective bargaining compared to the number of the employer's employees not bound by the collective agreement or not covered by the collective bargaining:
d: how long the collective agreement has been in force.
e:
7: Subsection (6) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).
8: Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act. Section 59B inserted 1 December 2004 section 18 Employment Relations Amendment Act (No 2) 2004 Section 59B(6)(e) repealed 6 March 2015 section 16 Employment Relations Amendment Act 2014
59C: Breach of duty of good faith to pass on, in certain circumstances, in collective agreement provisions agreed in other collective bargaining or another collective agreement
1: It is not a breach of the duty of good faith in section 4
2: However, it is a breach of the duty of good faith in section 4
a: the intention of the employer is to undermine the other collective agreement; and
b: the effect of the employer doing so is to undermine the other collective agreement.
3: It is not a breach of the duty of good faith in section 4
4: However, it is a breach of the duty of good faith in section 4
a: the employer does so with the intention of undermining the other collective bargaining; or
b: the effect of the employer doing so is to undermine the other collective bargaining.
5: It is not a breach of the duty of good faith in section 4
6: In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account:
a: whether the employer and union bargained before agreeing on the provision:
b: whether the employer and union consulted, in good faith, the parties to the other collective agreement or collective bargaining:
c: the number of the employer's employees bound by the collective agreement or covered by the collective bargaining compared to the number of the employer's employees bound by the other collective agreement or covered by the other collective bargaining:
d: how long the other collective agreement has been in force.
7: Subsection (4) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).
8: Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act. Section 59C inserted 1 December 2004 section 18 Employment Relations Amendment Act (No 2) 2004
6: Individual employees' terms and conditions of employment
60: Object of this Part
The object of this Part is—
a: to specify the rules for determining the terms and conditions of an employee's employment; and
b: to require new employees, whose terms and conditions of employment are not determined with reference to a collective agreement, to be given sufficient information and an adequate opportunity to seek advice before entering into an individual employment agreement; and
c: to recognise that, in relation to individual employees and their employers, good faith behaviour is—
i: promoted by providing protection against unfair bargaining; and
ia: required when entering into and varying individual employment agreements; and
ii: consistent with , but not limited to, Section 60(c)(ia) inserted 1 December 2004 section 19(1) Employment Relations Amendment Act (No 2) 2004 Section 60(c)(ii) amended 1 December 2004 section 19(2) Employment Relations Amendment Act (No 2) 2004 Good faith Heading inserted 6 May 2019 section 20 Employment Relations Amendment Act 2018
60A: Good faith in bargaining for individual employment agreement
1: The matters that are relevant to whether an employee and employer bargaining for an individual employment agreement are dealing with each other in good faith include the circumstances of the employee and employer.
2: For the purposes of subsection (1), circumstances
a: the operational environment of the employee and employer; and
b: the resources available to the employee and employer. Section 60A inserted 1 December 2004 section 20 Employment Relations Amendment Act (No 2) 2004 Terms and conditions of employment if work covered by collective agreement Heading inserted 6 May 2019 section 21 Employment Relations Amendment Act 2018
61: Employee bound by applicable collective agreement may agree to additional terms and conditions of employment
1: The terms and conditions of employment of an employee who is bound by an applicable collective agreement may include any additional terms and conditions that are—
a: mutually agreed to by the employee and the employer, whether before, on, or after the date on which the employee became bound by the collective agreement; and
b: not inconsistent with the terms and conditions in the collective agreement.
2: If the applicable collective agreement expires or the employee resigns from the union that is bound by the agreement,—
a: the employee is employed under an individual employment agreement based on the collective agreement and any additional terms and conditions agreed under subsection (1); and
b: the employee and employer may, by mutual agreement, vary that individual employment agreement as they think fit.
62: Terms and conditions for first 30 days of employment of new employee who is not member of union
1: This section—
a: applies to a new employee who—
i: is not a member of a union that is a party to a collective agreement that covers the work to be done by the employee; and
ii: enters into an individual employment agreement with an employer that is a party to a collective agreement that covers the work to be done by the employee; but
b: does not apply to an employee who—
i: resigns as a member of a union and enters into an individual employment agreement with the same employer; or
ii: enters into a new individual employment agreement with the same employer.
2: For the purposes of subsection (1)(a), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
3: For the first 30 days after the new employee commences employment with the employer, the employee's terms and conditions of employment comprise—
a: the terms and conditions in the collective agreement that would bind the employee if the employee were a member of the union (other than any bargaining fee payable under Part 6B
b: any additional terms and conditions mutually agreed to by the employee and employer that are no less favourable to the employee than the terms and conditions in the collective agreement.
4: If the work to be done by the new employee is covered by more than 1 collective agreement, subsection (3)(a) applies to the collective agreement that binds the greatest number of the employer's employees in relation to the work the employee will be performing.
5: No term or condition of employment may be expressed to alter automatically after the 30-day period in a way that makes it less favourable to the employee than the collective agreement.
6: For an employee who holds a minimum wage exemption permit under section 8 Section 62 replaced 6 May 2019 section 22 Employment Relations Amendment Act 2018
62A: Employer must share new employee information with union unless employee objects
1: This section applies to an employer who enters into an individual employment agreement with a new employee under section 62
2: The employer must, within 10 days after the employee commences employment with the employer, provide the employee with a form approved by the chief executive under section 237AA
a: notifying the employer whether the employee intends to join a union (or a particular union):
b: objecting to the employer providing information about the employee to,—
i: if the employee does not intend to join a union, any union; or
ii: if the employee intends to join a particular union, any other union.
3: The form must be accompanied by a notice that—
a: specifies the period during which the employee may complete and return the form, which is the period described in subsection (4); and
b: explains that, unless the employee objects in accordance with this section, the employer will provide the following information to each union that is a party to a collective agreement that covers the work to be done by the employee:
i: the name of the employee:
ii: whether the employee has, during the period,—
A: notified the employer that the employee intends to join the union; or
B: notified the employer that the employee does not intend to join the union; or
C: not completed and returned the form.
4: The employee may complete and return the form during the period that—
a: starts when the employee receives the form; and
b: ends 30 days after the employee commences employment with the employer.
5: The employer must, within 10 working days of the expiry of the period described in subsection (4), provide the following to each union that is a party to a collective agreement that covers the work to be done by the employee (unless the employee has objected in accordance with this section):
a: the name of the employee:
b: if the employee completes and returns a form in accordance with this section, the completed form:
c: if the employee does not complete and return the form in accordance with this section, notice that the employee did not complete and return the form.
6: Nothing in this section limits or affects the right of an employee to become, or not to become, a member of a union or a particular union at any time.
7: An employer who fails to comply with this section is liable to a penalty imposed by the Authority. Section 62A inserted 6 May 2019 section 22 Employment Relations Amendment Act 2018
63: Terms and conditions of employment of employee who is not member of union after expiry of 30-day period
1: This section applies after the expiry of the 30-day period described in section 62(3)
2: The employee and the employee’s employer may, by mutual agreement, vary the individual employment agreement entered into under section 62 Section 63 inserted 6 May 2019 section 22 Employment Relations Amendment Act 2018
63: Terms and conditions of employment of new employee who is not member of union
Section 63 repealed 6 March 2015 section 18 Employment Relations Amendment Act 2014 Bargaining Heading inserted 6 May 2019 section 22 Employment Relations Amendment Act 2018
63A: Bargaining for individual employment agreement or individual terms and conditions in employment agreement
1: This section applies when bargaining for terms and conditions of employment in the following situations:
a: under section 61(1)
b: under section 61(2)
i: additional terms and conditions to the collective agreement on which the individual employment agreement is based; and
ii: variations to the individual employment agreement in subparagraph (i):
c: under section 62(3)
c:
d: under section 63(2)
d:
e: in relation to the terms and conditions of an individual employment agreement (including any variations to that agreement) for an employee if no collective agreement covers the work done, or to be done, by the employee:
f: where a fixed term of employment, or probationary or trial period of employment, is proposed:
g: under section 69OJ
h: under section 69N
2: The employer must do at least the following things:
a: provide to the employee a copy of the intended agreement
b: advise the employee that he or she is entitled to seek independent advice about the intended agreement
c: give the employee a reasonable opportunity to seek that advice; and
d: consider any issues that the employee raises and respond to them.
3: Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.
4: Failure to comply with this section does not affect the validity of the employment agreement between the employee and the employer.
5: The requirements imposed by this section are in addition to any requirements that may be imposed under any provision in this Act.
6: For the purpose of subsection (1)(e), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
6:
7: In this section, employee Section 63A inserted 1 December 2004 section 23 Employment Relations Amendment Act (No 2) 2004 Section 63A(1)(c) inserted 6 May 2019 section 23(1) Employment Relations Amendment Act 2018 Section 63A(1)(c) repealed 6 March 2015 section 19(1) Employment Relations Amendment Act 2014 Section 63A(1)(d) inserted 6 May 2019 section 23(1) Employment Relations Amendment Act 2018 Section 63A(1)(d) repealed 6 March 2015 section 19(1) Employment Relations Amendment Act 2014 Section 63A(1)(e) replaced 6 May 2019 section 23(2) Employment Relations Amendment Act 2018 Section 63A(1)(g) amended 6 March 2015 section 19(3) Employment Relations Amendment Act 2014 Section 63A(1)(h) amended 6 March 2015 section 19(4) Employment Relations Amendment Act 2014 Section 63A(2)(a) amended 1 April 2011 section 10(1) Employment Relations Amendment Act 2010 Section 63A(2)(b) amended 1 April 2011 section 10(2) Employment Relations Amendment Act 2010 Section 63A(6) inserted 6 May 2019 section 23(3) Employment Relations Amendment Act 2018 Section 63A(6) repealed 6 March 2015 section 19(5) Employment Relations Amendment Act 2014
63B: Additional employer obligations when bargaining for terms and conditions of employment under section 62
1: This section applies to an employer who is bargaining with a prospective employee for terms and conditions of employment for the first 30 days of an individual employment agreement under section 62(3)
2: The employer must, in addition to doing the things described in section 63A(2)
a: that a collective agreement exists and covers work to be done by the prospective employee; and
b: that the prospective employee may join a union that is a party to the collective agreement; and
c: how to contact the union; and
d: that, if the prospective employee joins the union, the prospective employee will be bound by the collective agreement; and
e: that, if the prospective employee enters into an individual employment agreement with the employer, the prospective employee's terms and conditions of employment will, during the first 30 days of the prospective employee's employment, comprise—
i: the terms and conditions in the collective agreement that would bind the prospective employee if the prospective employee were a member of the union; and
ii: any additional terms and conditions mutually agreed to by the prospective employee and employer that are no less favourable to the employee than the terms and conditions in the collective agreement.
3: The employer must also provide to the prospective employee—
a: a copy of the collective agreement; and
b: any information about the role and functions of the union that the employer is required to provide to prospective employees in accordance with a request by a union under section 30A
4: An employer who fails to comply with this section is liable to a penalty imposed by the Authority. Section 63B inserted 6 May 2019 section 24 Employment Relations Amendment Act 2018 Individual employment agreements Heading inserted 6 May 2019 section 24 Employment Relations Amendment Act 2018
64: Employer must retain copy of individual employment agreement or individual terms and conditions of employment
1: When section 63A
2: If an employer has provided an employee with an intended agreement under section 63A(2)(a)
a: signed the intended agreement; or
b: agreed to any of the terms and conditions specified in the intended agreement.
2A: The employer’s obligation to retain an individual employment agreement or individual terms and conditions of employment under subsection (1), or an intended agreement under subsection (2), includes obligations to ensure that—
a: the employee does not hold the only copy of the agreement, individual terms and conditions of employment, or intended agreement; and
b: the employer’s copy of the agreement, individual terms and conditions of employment, or intended agreement is readily accessible.
3: If requested by the employee, the employer must, as soon as is reasonably practicable, provide the employee with a copy of the employee's—
a: individual employment agreement or current terms and conditions of employment retained under subsection (1); or
b: intended agreement retained under subsection (2).
4: An employer who fails to comply with subsection (1), (2), or (3) is liable, in an action brought by a Labour Inspector or the employee concerned
5: Before bringing an action under subsection (4), the Labour Inspector must—
a: give the employer written notice of the breach of this section; and
b: give the employer 7 working days to remedy the breach by producing a copy of the agreement that was retained in accordance with subsection (1) or (2), or providing a copy of the agreement to the employee in accordance with a request under subsection (3) (as applicable).
6: To avoid doubt, an intended agreement must not be treated as the employee's employment agreement if the employee has not—
a: signed the intended agreement; or
b: agreed to any of the terms and conditions specified in the intended agreement. Section 64 substituted 1 July 2011 section 11 Employment Relations Amendment Act 2010 Section 64(2A) inserted 30 March 2025 section 9(1) Regulatory Systems (Immigration and Workforce) Amendment Act 2025 Section 64(4) amended 1 April 2016 section 7 Employment Relations Amendment Act 2016 Section 64(5)(b) replaced 30 March 2025 section 9(2) Regulatory Systems (Immigration and Workforce) Amendment Act 2025
65: Form and content of individual employment agreement
1: The individual employment agreement of an employee may contain such terms and conditions as the employee and employer think fit, but the employer must ensure that the agreement—
a: is in writing; and
b: complies with the requirements in subsection (2).
2: The
a: must include—
i: the names of the employee and employer concerned; and
ii: a description of the work to be performed by the employee; and
iii: an indication of where the employee is to perform the work; and
iv: any agreed hours of work specified in accordance with section 67C
v: the wages or salary payable to the employee; and
vi: a plain language explanation of the services available for the resolution of employment relationship problems, including a reference to—
A: the 12-month period within which a personal grievance must be raised under section 114(1) section 103(1)(d)
B: the 90-day period within which any other personal grievance must be raised under section 114(1)
b: must not contain anything—
i: contrary to law; or
ii: inconsistent with this Act.
3:
4: An employer who fails to comply with this section is liable, in an action brought by a Labour Inspector or the employee concerned Section 65 heading replaced 6 March 2015 section 20(1) Employment Relations Amendment Act 2014 Section 65(1) replaced 30 March 2025 section 10(1) Regulatory Systems (Immigration and Workforce) Amendment Act 2025 Section 65(2) amended 30 March 2025 section 10(2) Regulatory Systems (Immigration and Workforce) Amendment Act 2025 Section 65(2)(a)(iv) amended 1 April 2016 section 8(1) Employment Relations Amendment Act 2016 Section 65(2)(a)(vi) replaced 13 June 2023 section 5 Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 65(3) repealed 6 March 2015 section 20(3) Employment Relations Amendment Act 2014 Section 65(4) added 1 April 2011 section 12 Employment Relations Amendment Act 2010 Section 65(4) amended 1 April 2016 section 8(2) Employment Relations Amendment Act 2016 Specific terms and conditions of employment Heading inserted 12 December 2018 section 25 Employment Relations Amendment Act 2018
65A: Deduction of union fees
1: An individual employment agreement of an employee who is a member of a union is to be treated as if it contains a provision that requires the employee's employer to deduct, with the consent of the employee, the employee's union fee from the employee's salary or wages on a regular basis during the year.
2: An individual employment agreement may exclude or vary the effect of subsection (1).
3: Union fees deducted from an employee's salary or wages under subsection (1) must be paid to the union concerned in accordance with any arrangement agreed with the union. Section 65A inserted 1 December 2004 section 26 Employment Relations Amendment Act (No 2) 2004
66: Fixed term employment
1: An employee and an employer may agree that the employment of the employee will end—
a: at the close of a specified date or period; or
b: on the occurrence of a specified event; or
c: at the conclusion of a specified project.
2: Before an employee and employer agree that the employment of the employee will end in a way specified in subsection (1), the employer must—
a: have genuine reasons based on reasonable grounds for specifying that the employment of the employee is to end in that way; and
b: advise the employee of when or how his or her employment will end and the reasons for his or her employment ending in that way.
3: The following reasons are not genuine reasons for the purposes of subsection (2)(a):
a: to exclude or limit the rights of the employee under this Act:
b: to establish the suitability of the employee for permanent employment:
c: to exclude or limit the rights of an employee under the Holidays Act 2003
4: If an employee and an employer agree that the employment of the employee will end in a way specified in subsection (1), the employee's employment agreement must state in writing—
a: the way in which the employment will end; and
b: the reasons for ending the employment in that way.
5: Failure to comply with subsection (4), including failure to comply because the reasons for ending the employment are not genuine reasons based on reasonable grounds, does not affect the validity of the employment agreement between the employee and the employer.
6: However, if the employer does not comply with subsection (4), the employer may not rely on any term agreed under subsection (1)—
a: to end the employee's employment if the employee elects, at any time, to treat that term as ineffective; or
b: as having been effective to end the employee's employment, if the former employee elects to treat that term as ineffective. Section 66(3)(c) added 1 April 2004 section 91(2) Holidays Act 2003 Section 66(4) added 1 December 2004 section 27 Employment Relations Amendment Act (No 2) 2004 Section 66(5) added 1 December 2004 section 27 Employment Relations Amendment Act (No 2) 2004 Section 66(6) added 1 December 2004 section 27 Employment Relations Amendment Act (No 2) 2004
67: Probationary arrangements
1: Where the parties to an employment agreement agree as part of the agreement that an employee will serve a period of probation
a: the fact of the probation
b: neither the fact that the probation
2: Failure to comply with subsection (1)(a) does not affect the validity of the employment agreement between the parties.
3: However, if the employer does not comply with subsection (1)(a), the employer may not rely on any term agreed under subsection (1) that the employee serve a period of probation Section 67(1) amended 1 March 2009 section 6 Employment Relations Amendment Act 2008 Section 67(1)(a) amended 1 March 2009 section 6 Employment Relations Amendment Act 2008 Section 67(1)(b) amended 1 March 2009 section 6 Employment Relations Amendment Act 2008 Section 67(2) added 1 December 2004 section 28 Employment Relations Amendment Act (No 2) 2004 Section 67(3) added 1 December 2004 section 28 Employment Relations Amendment Act (No 2) 2004 Section 67(3) amended 1 March 2009 section 6 Employment Relations Amendment Act 2008
67A: Employment agreement may contain provision for trial period for 90 days or less
1: An employment agreement containing a trial provision may be entered into by an employer and an employee who has not previously been employed by that employer.
2: For the purposes of this section and section 67B trial provision
a: for a specified period (not exceeding 90 days), starting at the beginning of the employee’s employment, the employee is to serve a trial period; and
b: during that period, the employer may dismiss the employee; and
c: if the employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal. Section 67A replaced 23 December 2023 section 4 Employment Relations (Trial Periods) Amendment Act 2023
67B: Effect of trial provision under section 67A
1: This section applies if an employer section 67A
2: An employee whose employment agreement is terminated in accordance with subsection (1) may not bring a personal grievance or legal proceedings in respect of the dismissal.
3: Neither this section nor a trial provision prevents an employee from bringing a personal grievance or legal proceedings on any of the grounds specified in section 103(1)(b) to (k)
4: An employee whose employment agreement contains a trial provision is, in all other respects (including access to mediation services), to be treated no differently from an employee whose employment agreement contains no trial provision or contains a trial provision that has ceased to have effect.
5: Subsection (4) applies subject to the following provisions:
a: in observing the obligation in section 4 employer
b: the employer section 120 Section 67B inserted 1 March 2009 section 7 Employment Relations Amendment Act 2008 Section 67B(1) amended 23 December 2023 section 5(1) Employment Relations (Trial Periods) Amendment Act 2023 Section 67B(3) amended 1 July 2022 section 40 Protected Disclosures (Protection of Whistleblowers) Act 2022 Section 67B(3) amended 31 March 2017 section 4 Regulatory Systems (Workplace Relations) Amendment Act 2017 Section 67B(5)(a) amended 23 December 2023 section 5(2) Employment Relations (Trial Periods) Amendment Act 2023 Section 67B(5)(b) amended 23 December 2023 section 5(2) Employment Relations (Trial Periods) Amendment Act 2023
67C: Agreed hours of work
1: Hours of work agreed by an employer and employee must be specified as follows:
a: in the case of an employee covered by a collective agreement,—
i: in the collective agreement; and
ii: if section 61
b: in the case of an employee covered by an individual employment agreement, in the employee’s individual employment agreement.
2: In subsection (1), hours of work
a: the number of guaranteed hours of work:
b: the days of the week on which work is to be performed:
c: the start and finish times of work:
d: any flexibility in the matters referred to in paragraph (b) or (c). Section 67C inserted 1 April 2016 section 9 Employment Relations Amendment Act 2016
67D: Availability provision
1: In this section and section 67E availability provision
a: the employee’s performance of work is conditional on the employer making work available to the employee; and
b: the employee is required to be available to accept any work that the employer makes available.
2: An availability provision may only—
a: be included in an employment agreement that specifies agreed hours of work and that includes guaranteed hours of work among those agreed hours; and
b: relate to a period for which an employee is required to be available that is in addition to those guaranteed hours of work.
3: An availability provision must not be included in an employment agreement unless—
a: the employer has genuine reasons based on reasonable grounds for including the availability provision and the number of hours of work specified in that provision; and
b: the availability provision provides for the payment of reasonable compensation to the employee for making himself or herself available to perform work under the provision.
4: An availability provision that is not included in an employment agreement in accordance with subsection (3) is not enforceable against the employee.
5: In considering whether there are genuine reasons based on reasonable grounds for including an availability provision, an employer must have regard to all relevant matters, including the following:
a: whether it is practicable for the employer to meet business demands for the work to be performed by the employee without including an availability provision:
b: the number of hours for which the employee would be required to be available:
c: the proportion of the hours referred to in paragraph (b) to the agreed hours of work.
6: Compensation payable under an availability provision must be determined having regard to all relevant matters, including the following:
a: the number of hours for which the employee is required to be available:
b: the proportion of the hours referred to in paragraph (a) to the agreed hours of work:
c: the nature of any restrictions resulting from the availability provision:
d: the rate of payment under the employment agreement for the work for which the employee is available:
e: if the employee is remunerated by way of salary, the amount of the salary.
7: For the purposes of subsection (3)(b), an employer and an employee who is remunerated for agreed hours of work by way of salary may agree that the employee’s remuneration includes compensation for the employee making himself or herself available for work under an availability provision. Section 67D inserted 1 April 2016 section 9 Employment Relations Amendment Act 2016
67E: Employee may refuse to perform certain work
An employee is entitled to refuse to perform work in addition to any guaranteed hours specified in the employee’s employment agreement if the agreement does not contain an availability provision that provides for the payment of reasonable compensation to the employee for making himself or herself available to perform work under the availability provision. Section 67E inserted 1 April 2016 section 9 Employment Relations Amendment Act 2016
67F: Employee not to be treated adversely because of refusal to perform certain work
1: An employer must not treat adversely an employee who refuses to perform work under section 67E
2: In this section, an employer treats an employee adversely
a: refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially the same qualifications, experience, or skills employed in the same or substantially similar circumstances; or
b: dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or
c: retires that employee, or requires or causes that employee to retire or resign.
3: For the purposes of subsection (2)(b), detriment Section 67F inserted 1 April 2016 section 9 Employment Relations Amendment Act 2016
67G: Cancellation of shifts
1: This section applies in relation to an employee who is required under the employee’s employment agreement to undertake shift work.
2: The employer must not cancel a shift of the employee unless the employee’s employment agreement specifies—
a: a reasonable period of notice that must be given before the cancellation of a shift; and
b: reasonable compensation that must be paid to the employee if the employer cancels a shift of the employee without giving the specified notice.
3: In cancelling a shift of an employee, the employer must—
a: give the employee the notice specified in the employee’s employment agreement under subsection (2)(a); or
b: if that notice is not given, pay to the employee the compensation specified in the employee’s employment agreement under subsection (2)(b).
4: The period of notice specified under subsection (2)(a) must be determined having regard to all relevant factors, including—
a: the nature of the employer’s business, including the employer’s ability to control or foresee the circumstances that have given rise to the proposed cancellation; and
b: the nature of the employee’s work, including the likely effect of the cancellation on the employee; and
c: the nature of the employee’s employment arrangements, including whether there are agreed hours of work in the employee’s employment agreement and, if so, the number of guaranteed hours of work (if any) included among those agreed hours.
5: Compensation specified under subsection (2)(b) must be determined having regard to all relevant matters, including the following:
a: the period of notice specified in the employee’s employment agreement under subsection (2)(a):
b: the remuneration that the employee would have received for working the shift:
c: whether the nature of the work requires the employee to incur any costs in preparing for the shift.
6: Without limiting subsection (5), an employee is entitled to what he or she would have earned for working a shift if—
a: the shift is cancelled and the employee’s employment agreement does not comply with this section; or
b: the shift is cancelled, but the employee has not been notified of the cancellation until the commencement of the shift; or
c: the remainder of a shift is cancelled after the shift has begun.
7: If an employee whose shift is cancelled is entitled, under his or her employment agreement or under subsection (6), to the remuneration that he or she would have earned for working the shift, that remuneration is a part of the employee’s ordinary weekly pay and relevant daily pay for the purposes of sections 8 9
8: To avoid doubt, nothing in this section enables an employer to cancel an employee’s shift if that cancellation would breach the employee’s employment agreement.
9: In this section, shift
a: are continuous or effectively continuous; and
b: may occur at different times on different days of the week. Section 67G inserted 1 April 2016 section 9 Employment Relations Amendment Act 2016
67H: Secondary employment provisions
1: In this section, a secondary employment provision
a: prohibits or restricts the employee from performing work for another person; or
b: prohibits or restricts the employee from performing work for another person without the employer’s consent.
2: A secondary employment provision must not be included in an employee’s employment agreement unless—
a: the employer has genuine reasons based on reasonable grounds for including the provision; and
b: the reasons are stated in the employee’s employment agreement.
3: For the purposes of subsection (2)(a) and without limiting that provision, a genuine reason
a: protecting an employer’s commercially sensitive information; or
b: protecting an employer’s intellectual property rights; or
c: protecting an employer’s commercial reputation; or
d: preventing a real conflict of interest that cannot be managed without including a secondary employment provision.
4: A secondary employment provision in an employee’s employment agreement must not—
a: prohibit the employee from performing work for another person unless it is necessary having regard to the reasons for which the provision is included; or
b: restrict the employee from performing work for another person to a greater extent than is necessary having regard to the reasons for which the provision is included.
5: This section does not limit or affect the law relating to restraint of trade provisions. Section 67H inserted 1 April 2016 section 9 Employment Relations Amendment Act 2016 Unfair bargaining Heading inserted 12 December 2018 section 26 Employment Relations Amendment Act 2018
68: Unfair bargaining for individual employment agreements
1: Bargaining for an individual employment agreement is unfair if—
a: 1 or more of paragraphs (a) to (d) of subsection (2) apply to a party to the agreement ( person A
b: the other party to the agreement ( person B
i: knows of the circumstances described in the paragraph or paragraphs that apply to person A; or
ii: ought to know of the circumstances in the paragraph or paragraphs that apply to person A because person B or the other person is aware of facts or other circumstances from which it can be reasonably inferred that the paragraph or paragraphs apply to person A.
2: The circumstances are that person A, at the time of bargaining for or entering into the agreement,—
a: is unable to understand adequately the provisions or implications of the agreement by reason of diminished capacity due (for example) to—
i: age; or
ii: sickness; or
iii: mental or educational disability; or
iv: a disability relating to communication; or
v: emotional distress; or
b: reasonably relies on the skill, care, or advice of person B or a person acting on person B's behalf; or
c: is induced to enter into the agreement by oppressive means, undue influence, or duress; or
d: where section 63A
3: In this section, individual employment agreement
4: Except as provided in this section, a party to an individual employment agreement must not challenge or question the agreement on the ground that it is unfair or unconscionable. Section 68(2)(d) amended 1 December 2004 section 29 Employment Relations Amendment Act (No 2) 2004
69: Remedies for unfair bargaining
1: If a party to an individual employment agreement is found to have bargained unfairly under section 68
a: make an order that the party pay to the other party such sum, by way of compensation, as the Authority thinks fit:
b: make an order cancelling or varying the agreement:
c: make such other order as it thinks fit in the circumstances.
2: The Authority must not make an order under subsection (1)(b) unless the requirements in section 164
6AA: Flexible working
Part 6AA inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007
69AA: Object of this Part
The object of this Part is to—
a: provide employees with a statutory right to make, or to have made on their behalf, a request for a variation of their working arrangements (other than a variation covered by Part 6AB family
b: require an employer to deal with a request as soon as possible but not later than 1 month
c: provide that an employer may refuse a request only if it cannot be accommodated on certain grounds; and
d: if an employer does not deal with a request in accordance with the process specified in this Part, provide for reference of the matter to a Labour Inspector, then to mediation, and then to the Authority. Section 69AA inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007 Section 69AA(a) replaced 1 April 2019 section 4 Domestic Violence—Victims' Protection Act 2018 Section 69AA(a) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69AA(b) amended 6 March 2015 section 22(2) Employment Relations Amendment Act 2014
69AAA: Interpretation
In this Part, unless the context otherwise requires,— additional terms that need variation
a: the location of the employee’s workplace:
b: the employee’s duties at work:
c: the extent of the contact details that the employee must provide to the employer:
d: any other term of the employee’s employment—
i: that is not a term covered by paragraphs (a) to (c) of this definition or by paragraphs (a) to (c) of the definition in this section of working arrangements; and
ii: that, in the employee's view, needs variation to enable the employee to deal with the effects of being a person affected by family child section 8 family violence section 9 mediation section 144 person affected by family violence
a: a person against whom any other person inflicts, or has inflicted, family violence:
b: a person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, family violence request
a: is written; and
b: requests an employer to vary an employee's terms and conditions of employment relating to the employee's working arrangements (other than by making a variation that the employee can request under Part 6AB family
c: is made by the employee or on the employee's behalf working arrangements
a: hours of work:
b: days of work:
c: place of work (for example, at home or at the employee's place of work):
d: if the employee is a person affected by family Section 69AAA inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007 Section 69AAA additional terms that need variation inserted 1 April 2019 section 5(1) Domestic Violence—Victims' Protection Act 2018 Section 69AAA additional terms that need variation amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69AAA child inserted 1 April 2019 section 5(1) Domestic Violence—Victims' Protection Act 2018 Section 69AAA child amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69AAA domestic violence repealed 1 July 2019 section 259(1) Family Violence Act 2018 Section 69AAA family violence inserted 1 July 2019 section 259(1) Family Violence Act 2018 Section 69AAA non-compliance with section 69AAE repealed 6 March 2015 section 23 Employment Relations Amendment Act 2014 Section 69AAA person affected by domestic violence repealed 1 July 2019 section 259(1) Family Violence Act 2018 Section 69AAA person affected by family violence inserted 1 July 2019 section 259(1) Family Violence Act 2018 Section 69AAA request replaced 1 April 2019 section 5(2) Domestic Violence—Victims' Protection Act 2018 Section 69AAA request amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69AAA working arrangements inserted 1 April 2019 section 5(3) Domestic Violence—Victims' Protection Act 2018 Section 69AAA working arrangements amended 1 July 2019 section 259(1) Family Violence Act 2018 Employee's statutory right to make request Heading inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007
69AAB: When employee may make request
An employee may make a request at any time. Section 69AAB replaced 6 March 2015 section 24 Employment Relations Amendment Act 2014
69AAC: Requirements relating to request
A request must be in writing and—
a: state—
i: the employee's name; and
ii: the date on which the request is made; and
iii: that the request is made under this Part; and
b: specify the variation of the working arrangements requested and whether the variation is permanent or for a period of time; and
c: specify the date on which the employee proposes that the variation take effect and, if the variation is for a period of time, the date on which the variation is to end; and
d:
e: explain, in the employee's view, what changes, if any, the employer may need to make to the employer's arrangements if the employee's request is approved. Section 69AAC inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007 Section 69AAC(d) repealed 6 March 2015 section 25 Employment Relations Amendment Act 2014
69AAD: Limitation on frequency of requests
Section 69AAD repealed 6 March 2015 section 26 Employment Relations Amendment Act 2014 Duties of employer Heading inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007
69AAE: Employer must notify decision as soon as possible
1: An employer must deal with a request as soon as possible, but not later than 1 month after receiving it, and must notify the employee in writing of whether his or her request has been approved or refused.
2: If the employer refuses an employee's request, the notification given under subsection (1) must—
a: state that the request is refused because of a ground specified in section 69AAF(2) or (3)
b: state the ground for refusal; and
c: explain the reasons for that ground. Section 69AAE replaced 6 March 2015 section 27 Employment Relations Amendment Act 2014
69AAF: Grounds for refusal of request by employer
1: An employer may refuse a request only if the employer determines that the request cannot be accommodated on 1 or more of the grounds specified in subsection (2).
2: The grounds are—
a: inability to reorganise work among existing staff:
b: inability to recruit additional staff:
c: detrimental impact on quality:
d: detrimental impact on performance:
e: insufficiency of work during the periods the employee proposes to work:
f: planned structural changes:
g: burden of additional costs:
h: detrimental effect on ability to meet customer demand.
3: However, an employer must refuse a request if—
a: the request is from an employee who is bound by a collective agreement; and
b: the request relates to working arrangements to which the collective agreement applies; and
c: the employee's working arrangements would be inconsistent with the collective agreement if the employer were to approve the request. Section 69AAF inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007 Section 69AAF(1) replaced 6 March 2015 section 28 Employment Relations Amendment Act 2014 Resolving disputes Heading inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007
69AAG: Role of Labour Inspector
1: For the purposes of this Part, a Labour Inspector may provide to employees and employers such assistance as he or she considers appropriate in the circumstances.
2: This section applies subject to section 69AAH(2) Section 69AAG inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007
69AAH: Labour Inspectors and mediation
1: This section applies if an employee believes that his or her employer has not complied with section 69AAE
2: The employee may refer the non-compliance with section 69AAE
3: If, after completion of the process under subsection (2), the employee is dissatisfied with the result, the employee may refer the matter to mediation.
4: For the purposes of subsection (3), non-compliance with section 69AAE Section 69AAH inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007
69AAI: Application to Authority
1: This section applies if—
a: an employee believes that his or her employer has not complied with section 69AAE
b: mediation has not resolved the matter.
2: The employee may apply to the Authority for a determination as to whether the employer has complied with section 69AAE
3: An application under subsection (2) must be made within 12 months after the relevant date.
4:
5: In subsection (3), relevant date
a: if the employer notifies a refusal within 1 month
b: in any other case, the date 1 month Section 69AAI inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007 Section 69AAI(4) repealed 6 March 2015 section 29(1) Employment Relations Amendment Act 2014 Section 69AAI(5)(a) amended 6 March 2015 section 29(2) Employment Relations Amendment Act 2014 Section 69AAI(5)(b) amended 6 March 2015 section 29(2) Employment Relations Amendment Act 2014
69AAJ: Penalty
1: An employer who does not comply with section 69AAE
2: The penalty is payable to the employee concerned. Section 69AAJ inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007
69AAK: Limitation on challenging employer
An employee may not challenge his or her employer's refusal of a request, or failure to respond to a request, except—
a: if the employee believes his or her employer has not complied with section 69AAE
b: to the extent provided by sections 69AAH to 69AAJ Section 69AAK inserted 1 July 2008 section 5 Employment Relations (Flexible Working Arrangements) Amendment Act 2007 Review of Part Heading repealed 6 March 2015 section 30 Employment Relations Amendment Act 2014
69AAL: Review of operation of Part after 2 years
Section 69AAL repealed 6 March 2015 section 30 Employment Relations Amendment Act 2014
6AB: Flexible working short-term for people affected by
family Part 6AB inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018 Part 6AB heading amended 1 July 2019 section 259(1) Family Violence Act 2018
69AB: Object of this Part
The object of this Part is to—
a: provide employees who are people affected by family family
b: require an employer to deal with a request as soon as possible but not later than 10 working days after receiving it; and
c: provide that an employer may refuse a request only if proof of family
d: if an employer does not deal with a request in accordance with this Part, provide for reference of the matter to a Labour Inspector, mediation, or the Authority. Section 69AB inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018 Section 69AB(a) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69AB(c) amended 1 July 2019 section 259(1) Family Violence Act 2018
69ABA: Interpretation
In this Part, unless the context otherwise requires,— additional terms that need variation
a: the location of the employee’s workplace:
b: the employee’s duties at work:
c: the extent of the contact details that the employee must provide to the employer:
d: any other term of the employee’s employment—
i: that is not a term covered by paragraphs (a) to (c) of this definition or by paragraphs (a) to (c) of the definition in this section of working arrangements; and
ii: that, in the employee's view, needs variation to enable the employee to deal with the effects of being a person affected by family child section 8 family violence section 9 mediation section 144 non-compliance with section 69ABE section 69ABF(1)(a) and (b) person affected by family violence
a: a person against whom any other person inflicts, or has inflicted, family violence:
b: a person with whom there ordinarily or periodically resides a child against whom any other person inflicts, or has inflicted, family violence request
a: is written; and
b: requests an employer to vary an employee's terms and conditions of employment relating to the employee's working arrangements; and
c: is made by the employee or on the employee's behalf working arrangements
a: hours of work:
b: days of work:
c: place of work (for example, at home or at the employee’s place of work):
d: additional terms that need variation. Section 69ABA inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018 Section 69ABA additional terms that need variation amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69ABA child amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69ABA domestic violence repealed 1 July 2019 section 259(1) Family Violence Act 2018 Section 69ABA family violence inserted 1 July 2019 section 259(1) Family Violence Act 2018 Section 69ABA person affected by domestic violence repealed 1 July 2019 section 259(1) Family Violence Act 2018 Section 69ABA person affected by family violence inserted 1 July 2019 section 259(1) Family Violence Act 2018 Employee’s statutory right to make request Heading inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018
69ABB: When and why employee may make request
1: An employee who is a person affected by family
a: at any time; and
b: for the purpose of assisting the employee to deal with the effects on the employee of being a person affected by family
2: Subsection (1) applies regardless of how long ago the family family
3: A request made under this Part for a short-term (2-month or shorter) variation of the employee’s working arrangements (as defined in section 69ABA Part 6AA section 69AAA Section 69ABB inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018 Section 69ABB(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69ABB(1)(b) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69ABB(2) amended 1 July 2019 section 259(1) Family Violence Act 2018
69ABC: Requirements relating to request
A request must be in writing and—
a: state—
i: the employee’s name; and
ii: the date on which the request is made; and
iii: that the request is made under this Part; and
b: specify the variation of the working arrangements requested and the period of time (which must be no longer than 2 months) for which the variation is requested; and
c: specify the date on which the employee proposes that the variation take effect and the date on which it is proposed that the variation end; and
d: specify how, in the employee's view, the variation will assist the employee to deal with the effects of being a person affected by family
e: explain, in the employee’s view, what changes, if any, the employer may need to make to the employer's arrangements if the employee's request is approved. Section 69ABC inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018 Section 69ABC(d) amended 1 July 2019 section 259(1) Family Violence Act 2018 Duties of employer Heading inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018
69ABE: Employer must notify decision as soon as possible
1: An employer must deal with a request as soon as possible, but not later than 10 working days after receiving it, and must notify the employee in writing of whether his or her request has been approved or refused.
2: In or before giving the notification under subsection (1), the employer must provide the employee with information about appropriate specialist family
3: If the employer refuses an employee’s request, the notification given under subsection (1) must—
a: state that the request is refused because of 1 or both grounds specified in section 69ABF(1)(a) and (b)
b: state the ground or grounds for refusal; and
c: explain the reasons for that ground or those grounds. Section 69ABE inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018 Section 69ABE(2) amended 1 July 2019 section 259(1) Family Violence Act 2018
69ABEA: Proof of
family
1: An employer may require proof that an employee is a person affected by family
a: to the employer; and
b: by or on behalf of an employee; and
c: for the purposes of a request made by or on behalf of the employee; and
d: as soon as practicable after that proof is required by the employer under this section; and
e: within 10 working days after the employer receives the request.
2: However, the employer may require proof of that kind only if—
a: the employer informs the employee as early as possible that the proof is required; and
b: the employer requires the proof within 3 working days after the employer receives the request. 2003 No 129 s 68 Section 69ABEA inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018 Section 69ABEA heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69ABEA(1) amended 1 July 2019 section 259(1) Family Violence Act 2018
69ABF: Grounds for refusal of request by employer
1: An employer may refuse a request only if the employer determines 1 or both of the following:
a: that proof required to be produced under section 69ABEA
b: that the request cannot be accommodated reasonably on 1 or more of the non-accommodation grounds specified in subsection (2).
2: The non-accommodation grounds are—
a: inability to reorganise work among existing staff:
b: inability to recruit additional staff:
c: detrimental impact on quality:
d: detrimental impact on performance:
e: insufficiency of work during the periods the employee proposes to work:
f: planned structural changes:
g: burden of additional costs:
h: detrimental effect on ability to meet customer demand.
3: An employer must not refuse a request just because—
a: the request is from an employee who is bound by a collective agreement; and
b: the request relates to working arrangements to which the collective agreement applies; and
c: the employee’s working arrangements would be inconsistent with the collective agreement if the employer were to approve the request. Section 69ABF inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018 Resolving disputes Heading inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018
69ABG: Employee has choice of procedure at initial stage
1: This section applies if an employee believes that the employee’s employer has not complied with section 69ABE
2: The employee may do 1 of the following:
a: refer the matter to a Labour Inspector who must, to the extent practicable in the circumstances, assist the employee and employer to resolve the matter; or
b: refer the matter to mediation, at which the matter is treated as an employment relationship problem; or
c: apply to the Authority for a determination as to whether the employer has complied with section 69ABE
3: A reference or application under subsection (2)(a), (b), or (c) must be made within 6 months after the relevant date.
4: In subsection (3), relevant date
a: if the employer notifies a refusal within 10 working days after receiving a request, the date on which the employer notifies the employee of the employer’s refusal; or
b: in any other case, the date that is 10 working days after the employer receives the employee’s request. Section 69ABG inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018
69ABH: Mediation after initial reference to Labour Inspector
1: This section applies if the employee is dissatisfied with the result of the reference under section 69ABG(2)(a)
2: The employee may refer the matter to mediation, at which the matter is treated as an employment relationship problem.
3: A reference under subsection (2) must be made within 6 months after the earlier of—
a: the date when the result of the reference first became known to the employee; or
b: the date when the result of the reference should reasonably have become known to the employee. Section 69ABH inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018
69ABI: Application to Authority after initial or later reference to mediation
1: This section applies if the employee is dissatisfied with the result of the reference under section 69ABG(2)(b) 69ABH(2)
2: The employee may apply to the Authority for a determination as to whether the employer has complied with section 69ABE
3: An application under subsection (2) must be made within 6 months after the earlier of—
a: the date when the result of the reference first became known to the employee; or
b: the date when the result of the reference should reasonably have become known to the employee. Section 69ABI inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018
69ABJ: Penalty
1: An employer who does not comply with section 69ABE
2: The penalty is payable to the employee concerned.
3: For the purposes of the 6-month time limit in section 135(5)
a: the relevant date under section 69ABG(3)
b: the applicable date under section 69ABI(3)(a) or (b) Section 69ABJ inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018
69ABK: Limitation on challenging employer
An employee may challenge his or her employer’s refusal of a request, or failure to respond to a request, only—
a: if the employee believes his or her employer has not complied with section 69ABE
b: to the extent provided by sections 69ABG to 69ABJ Section 69ABK inserted 1 April 2019 section 6 Domestic Violence—Victims' Protection Act 2018
6A: Continuity of employment if employees' work affected by restructuring
Part 6A substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006
1: Specified categories of employees
Subpart 1 substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006
69A: Object of this subpart
1: The object of this subpart is to provide protection to specified categories of employees if, as a result of a proposed restructuring, their work is to be performed by another person.
2: The categories of employees—
a: are the categories of employees specified in Schedule 1A
b: are specified in Schedule 1A
i: who are employed in sectors in which restructuring of an employer's business occurs frequently; and
ii: whose terms and conditions of employment tend to be undermined by the restructuring of an employer's business; and
iii: who have little bargaining power.
3: The protection conferred by this subpart gives—
a: the employees a right to elect to transfer to the other person as employees on the same terms and conditions of employment; and
b: the employees who have transferred a right,—
i: subject to their employment agreements, to bargain for redundancy entitlements from the other person if made redundant by the other person for reasons relating to the transfer of the employees or to the circumstances arising from the transfer of the employees; and
ii: if redundancy entitlements cannot be agreed with the other person, to have the redundancy entitlements determined by the Authority.
4: Section 69A replaced 6 March 2015 section 31 Employment Relations Amendment Act 2014 Section 69A(4) repealed 6 May 2019 section 38 Employment Relations Amendment Act 2018
69B: Interpretation
In this subpart, unless the context otherwise requires,— agreement contracting in section 69C contracting out section 69C independent contractor new employer section 69D redundancy entitlements restructuring
a: means—
i: contracting out; or
ii: contracting in; or
iii: subsequent contracting; or
iv: selling or transferring an employer's business (or part of it) to another person; but
b: to avoid doubt, does not include,—
i: in the case of an employer that is a company, the sale or transfer of any or all of the shares in the company; or
ii: any contract, arrangement, sale, or transfer entered into, made, or concluded while the employer is adjudged bankrupt or in receivership or liquidation specified date section 69I(4) subcontractor
a: means a person engaged by an independent contractor to perform work—
i: under an agreement that is not an employment agreement; and
ii: that the independent contractor has agreed to perform for another person; and
b: includes another person engaged by a subcontractor (within the meaning of paragraph (a)) to perform the work or part of the work under an agreement that is not an employment agreement subsequent contracting section 69C work Section 69B substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006 Section 69B associated person repealed 6 May 2019 section 39 Employment Relations Amendment Act 2018 Section 69B exempt employer repealed 6 May 2019 section 39 Employment Relations Amendment Act 2018 Section 69B specified date inserted 6 March 2015 section 32 Employment Relations Amendment Act 2014
69C: Meaning of contracting in, contracting out, and subsequent contracting
1: In this subpart, unless the context otherwise requires, contracting in
a: a person ( person A person B
b: the work or some of the work is actually performed by employees of person B or of a subcontractor; and
c: the agreement, or that part of the agreement, under which person B performs the work expires or is terminated; and
d: the work is to be performed by person A or employees (if any) of person A.
2: In this subpart, unless the context otherwise requires, contracting out
a: a person ( person A person B
b: the employees of person A are actually performing, or employed to undertake, the work or some of the work before the agreement takes effect.
3: The definition of contracting out
a: person B or employees (if any) of person B; or
b: a subcontractor or employees (if any) of a subcontractor.
4: In this subpart, unless the context otherwise requires,— subsequent contracting
a: a person ( person A person B
b: the work or some of the work is actually performed by employees of person B or of a subcontractor; and
c: the agreement or that part of the agreement under which person B performs the work expires or is terminated; and
d: person A enters into an agreement with another person ( person C
5: The definition of subsequent contracting
a: the work concerned has previously been the subject of a subsequent contracting:
b: the engagement of person B as an independent contractor constituted a contracting out:
c: the work is to be performed by—
i: person C or employees (if any) of person C; or
ii: a subcontractor or employees (if any) of a subcontractor.
6: To avoid doubt, in the definitions of contracting in contracting out subsequent contracting
a: mean work that person A is doing or would otherwise do in person A's own right; and
b: include work that person A is doing or would otherwise do as an independent contractor or as a subcontractor. Section 69C substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006
69CA: Exempt employer
Section 69CA repealed 6 May 2019 section 40 Employment Relations Amendment Act 2018
69CB: Warranty
Section 69CB repealed 6 May 2019 section 40 Employment Relations Amendment Act 2018
69CC: Persons warranty to be provided to
Section 69CC repealed 6 May 2019 section 40 Employment Relations Amendment Act 2018
69CD: Provision of information for purposes of giving warranty
Section 69CD repealed 6 May 2019 section 40 Employment Relations Amendment Act 2018
69CE: When warranty must be provided
Section 69CE repealed 6 May 2019 section 40 Employment Relations Amendment Act 2018
69D: Meaning of new employer
1: In section 69I new employer
a: in relation to contracting in, means person A in the definition of that term:
b: in relation to contracting out,—
i: means person B in the definition of that term; but
ii: if person B subcontracts the work (whether before or at the same time as the contracting out), means the subcontractor:
c: in relation to subsequent contracting,—
i: means person C in the definition of that term; but
ii: if person C subcontracts the work (whether before or at the same time as the subsequent contracting), means the subcontractor:
d: in relation to the sale or transfer of an employer's business (or part of it), means the person to whom the business (or part of it) is sold or transferred.
2: In the rest of this subpart, new employer
a: may elect or has elected to transfer under section 69I
b: has transferred under that section. Section 69D replaced 6 May 2019 section 40 Employment Relations Amendment Act 2018
69DA: Associated person
Section 69DA repealed 6 May 2019 section 40 Employment Relations Amendment Act 2018
69E: Examples of contracting in, contracting out, and subsequent contracting
1: This section contains examples of contracting in, contracting out, and subsequent contracting.
2: Whether, in the following examples, an employee comes within the protection provided by this subpart depends on whether section 69F
3: This subsection sets out examples of contracting in. Example A
A rest home carries on business in the age-related residential care sector. Instead of providing food catering services through its employees, it enters into an agreement with an independent contractor to provide those services. The agreement under which the independent contractor provides those services to the rest home expires or is terminated. The rest home then uses its employees or engages further employees to provide those services. Employees of the independent contractor to whom section 69F Example B
The circumstances in this example are the same as in example A except that the independent contractor engages a subcontractor to provide food catering services to the rest home. As a result of the agreement between the rest home and the independent contractor expiring or being terminated, the agreement between the independent contractor and the subcontractor expires or is terminated. Employees of the subcontractor to whom section 69F Note
In both example A and example B, it does not matter whether the rest home's or the independent contractor's employees originally provided the food catering services or whether the work was contracted out or subcontracted at the outset. In example A and example B, the persons relate to the definition of contracting in as follows: the rest home is person A: the independent contractor is person B.
4: This subsection sets out examples of contracting out. Example C A school has employees who provide cleaning services. The school then enters into an agreement with an independent contractor to do that work or some of that work. The employees of the school to whom section 69F Note
Example C would not be a contracting out if, at the outset, the school does not have employees providing cleaning services. In example C, the persons relate to the definition of contracting out as follows: the school is person A: the independent contractor is person B. Example D The circumstances in this example are the same as in example C, except that later on the independent contractor decides that, instead of using its employees for the contract for the school, it will engage a subcontractor to do the work or some of the work. Employees of the independent contractor to whom section 69F Note
In example D, the persons relate to the definition of contracting out as follows: the independent contractor is person A: the subcontractor is person B. Note
In example C and example D if, at the outset, the independent contractor did not have employees providing cleaning services, but subcontracts the work straight away, then the employees to whom section 69F
5: This subsection sets out examples of subsequent contracting. Example E An airport operator enters into an agreement with an independent contractor to provide food catering services at the airport. Some time later, the agreement under which the independent contractor provides those services expires or is terminated. The airport operator then enters into an agreement with a second independent contractor to provide food catering services at the airport. Employees of the first independent contractor to whom section 69F Note
In example E, it does not matter whether the agreement between the airport operator and the first independent contractor constitutes a contracting out. In example E, the persons relate to the definition of subsequent contracting as follows: the airport operator is person A: the first independent contractor is person B: the second independent contractor is person C. Example F The circumstances in this example are the same as in example E, except that the first independent contractor engages a subcontractor to do the work or some of the work. Later on, the agreement under which the subcontractor provides the work expires or is terminated and the first independent contractor engages a second subcontractor to provide food catering services at the airport. The employees of the first subcontractor to whom section 69F Note
In example F, the subsequent contracting occurs at the subcontracting level. In example F, the persons relate to the definition of subsequent contracting as follows: the independent contractor is person A: the first subcontractor is person B: the second subcontractor is person C. Section 69E replaced 6 May 2019 section 40 Employment Relations Amendment Act 2018
69F: Application of this subpart
1: This subpart applies to an employee if—
a: the employee is in a category specified in Schedule 1A
b: as a result of a proposed restructuring,—
i: the employee will no longer be required by the employee’s employer to perform the work performed by the employee; and
ii: the work performed by the employee (or work that is substantially similar) is to be performed by or on behalf of another person.
2: To avoid doubt, this subpart applies even though the performance of the work by or on behalf of the other person does not begin immediately after an employee ceases to perform the work for the employee’s employer. Section 69F replaced 6 May 2019 section 40 Employment Relations Amendment Act 2018
69FA: Employer's breach of obligations not to affect employee's rights and new employer's obligations
To avoid doubt, any failure by an employee's employer to comply with the obligations imposed on employers by this subpart does not limit or affect the rights of an employee under this subpart or the obligations of a new employer under this subpart. Section 69FA replaced 6 May 2019 section 40 Employment Relations Amendment Act 2018
69G: Notice of right to make election
1: As soon as practicable, but no later than 20 working days before the date on which a restructuring takes effect, the employer of the employees who will be affected by the restructuring must provide the affected employees with—
a: information about whether the employees have a right to make an election under section 69I
b: if the employees have a right to make an election under section 69I
c: information sufficient for the employees to make an informed decision about whether to exercise any right to make an election; and
d: the date by which any right to make an election must be exercised, which is—
i: the date that is 10 working days after the day on which the employees are provided with the information described in paragraphs (a) to (c); or
ii: if the employees' employer and the new employer agree to a later date, that agreed date.
2: Without limiting the information to be provided under subsection (1)(c), the information provided under that provision must include—
a: the name of the new employer:
b: the nature and scope of the restructuring:
c: the date on which the restructuring is to take effect:
d: a statement to the effect that an election—
i: must be made in writing and signed by the employee; and
ii: may be delivered, sent by post, or sent by electronic means (for example, by fax or email) to the employee’s employer:
e: notice in writing—
i: that employee transfer costs information and individualised employee information (as those terms are defined in section 69OB
ii: that explains that individualised employee information includes (but is not limited to) information about any disciplinary matters relating to those employees and any personal grievances raised by those employees against the employer; and
iii: that those employees are entitled to access the information, and to request correction of the information, in accordance with the Privacy Act 2020
3: The employees' employer must send an election that complies with subsections (1)(d) and (2)(d) to the new employer as soon as practicable, but no later than 5 working days after the day on which that election is received by the employees' employer.
4: If an employee sends an election that complies with subsection (2)(d) by post or electronic means before the date described in subsection (1)(d), the employee must be treated as having exercised the employee’s right to make an election by that date.
5: If the employee’s employer sends an election to the new employer by post or electronic means before the date that is 5 working days after the day on which the employee’s employer received that election, the employee’s employer must be treated as having met the deadline specified in subsection (3).
6: If the restructuring is a contracting in or a subsequent contracting, person A in the definition that applies must give the employer sufficient notice of, and information about, the restructuring to enable the employer to comply with subsection (1).
7: In subsection (6), sufficient notice
a: as soon as practicable; but
b: no later than 25 working days before the date on which the restructuring takes effect.
8: An employer or other person who fails to comply with this section is liable to a penalty imposed by the Authority. Section 69G replaced 6 May 2019 section 40 Employment Relations Amendment Act 2018 Section 69G(2)(e)(iii) amended 1 December 2020 section 217 Privacy Act 2020
69H: Employee bargaining for alternative arrangements
1: To avoid doubt, an employee may, after the employee’s employer has complied with section 69G(1)
2: If the employee and employer agree on alternative arrangements,—
a: the alternative arrangements must be recorded in writing; and
b: if paragraph (a) is complied with, the employee may not subsequently elect to transfer to the new employer. Section 69H replaced 6 May 2019 section 40 Employment Relations Amendment Act 2018
69I: Employee may elect to transfer to new employer
1: An employee to whom this subpart applies may, before the date provided to the employee under section 69G(1)(d)
2: If an employee elects to transfer to the new employer, then, to the extent that the employee's work is to be performed by the new employer, the employee—
a: becomes an employee of the new employer on and from the specified date; and
b: is employed by the new employer on the same terms and conditions as applied to the employee immediately before the specified date, including terms and conditions relating to whether the employee is employed full-time or part-time; and
c: is not entitled to any redundancy entitlements under those terms and conditions of employment from the employee's previous employer because of the transfer.
3: To avoid doubt,—
a: the election of an employee to transfer to a new employer may result in the employee being employed by more than 1 employer if—
i: only part of the employee's work is affected by the restructuring; or
ii: the work performed by the employee will be performed by or on behalf of more than 1 new employer; and
b: a person becomes the new employer of an employee who elects to transfer to the new employer whether or not the new employer—
i: has, or intends to have, employees performing the same type of work as (or work that is substantially similar to) the work performed by the employee who has elected to transfer to the new employer; or
ii: was an employer before the employee transferred to the new employer; and
c: this section does not affect the employment agreement of an employee who elects not to transfer to the new employer. Example This example relates to subsection (3)(a). A retailer owns 3 gift shops and engages an independent contractor to clean the shops. The independent contractor employs a cleaner to clean the gift shops. The cleaning contract between the retailer and the independent contractor expires. The retailer enters into a cleaning contract with a second independent contractor for the cleaning of 1 shop, and enters into a new cleaning contract with the first independent contractor for the cleaning of the other 2 shops. As a result, the first independent contractor no longer requires the cleaner to clean 1 of the shops. The cleaner may elect to transfer and become an employee of the second independent contractor in relation to 1 shop while remaining an employee of the first independent contractor in relation to the other 2 shops.
4: In this section, specified date Section 69I replaced 6 May 2019 section 40 Employment Relations Amendment Act 2018
69J: Employment of employee who elects to transfer to new employer treated as continuous
1: The employment of an employee who elects to transfer to a new employer is to be treated as continuous, including for the purpose of service-related entitlements whether legislative or otherwise.
2: To avoid doubt, and without limiting subsection (1),—
a: in relation to an employee's entitlements under the Holidays Act 2003
i: the period of employment of an employee with the employer that ends with the transfer must be treated as a period of employment with the new employer for the purpose of determining the employee's entitlement to annual holidays, sick leave, bereavement leave, and family
ii: the employer must not pay the employee for annual holidays not taken before the date of transfer; and
iii: the new employer must recognise the employee's entitlement to—
A: any sick leave, including any sick leave carried over under section 66
B: any annual holidays not taken before the date of transfer; and
C: any alternative holidays not taken or exchanged for payment under section 61
b: for the purposes of determining an employee's rights and benefits to parental leave and parental leave payments under the Parental Leave and Employment Protection Act 1987
i: the period of employment of an employee with the employer that ends with the transfer must be treated as a period of employment with the new employer; and
ii: the new employer must treat any notice given to or by the employer under the Act as if it had been given to or by the new employer. Section 69J substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006 Section 69J(2)(a)(i) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 69J(2)(a)(i) amended 1 April 2019 section 7 Domestic Violence—Victims' Protection Act 2018
69K: Terms and conditions of employment of transferring employee under fixed term employment
1: This section applies to an employee if—
a: he or she is an employee of—
i: person A in the definition of contracting out; or
ii: person B or of a subcontractor in the definition of contracting in; or
iii: person B or of a subcontractor in the definition of subsequent contracting; or
iv: an employer who is selling or transferring the employer's business (or part of it) to another person; and
b: the employee's terms and conditions of employment include a term agreed under section 66(1)
i: linked to the expiry or termination of the agreement under which his or her employer performs the work; or
ii: included in contemplation of his or her employer entering into an agreement that constitutes a restructuring.
2: Despite the employee's terms and conditions of employment containing a term referred to in subsection (1)(b), the employee may elect, under section 69I
3: If the employee elects, under section 69I
a: if the restructuring is a contracting out, the employee's terms and conditions of employment must be read and applied as if the term agreed under section 66(1)
b: if the restructuring is a contracting in, the employee's terms and conditions of employment cease to include the term referred to in subsection (1)(b):
c: if the restructuring is a subsequent contracting, the employee's terms and conditions of employment must be read and applied as if the term agreed under section 66(1)
d: if the restructuring is a sale or transfer of an employer's business, the employee's terms and conditions of employment cease to include the term referred to in subsection (1)(b). Section 69K substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006
69L: Agreements excluding entitlements for technical redundancy not affected
1: To avoid doubt, this subpart does not limit or affect any terms and conditions of employment under which the employee's entitlement to redundancy entitlements is excluded where the employee may transfer to the new employer but elects not to do so.
2: This subpart does not limit or affect section 605 Section 69L substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006 Section 69L(2) amended 1 August 2020 section 668 Education and Training Act 2020
69LA: Liability for costs of service-related entitlements of transferring employee
1: This section applies if—
a: an employee elects to transfer to a new employer; and
b: on the specified date, the employee has not taken, or been paid for, service-related entitlements (whether legislative or otherwise) that relate to the employee’s period of employment before the specified date.
2: Liability for the costs of service-related entitlements (whether legislative or otherwise) of the employee must be apportioned between the employee’s employer and the new employer.
3: If the employee’s employer and the new employer cannot agree before the specified date on how to apportion those costs, the costs must be apportioned as follows:
a: the employee’s employer is liable for the costs that the employer would have been liable to pay to the employee if the employee had resigned and ceased employment with the employer on the day before the specified date (for example, costs related to annual holidays or alternative holidays not taken before the specified date); and
b: the new employer is liable for the costs of any service-related entitlements that accrued before the specified date but would not have been paid to the employee if the employee had resigned and ceased employment with his or her previous employer on the day before the specified date (for example, costs relating to sick leave not taken before the specified date).
4: The employee’s employer must pay to the new employer—
a: the amount agreed before the specified date by the employee’s employer and the new employer; or
b: if no amount is agreed, the costs described in subsection (3)(a).
5: The employee’s employer must comply with subsection (4)—
a: by the specified date; or
b: if the employee’s employer and the new employer agree to a later date, by that agreed date.
6: If the new employer does not receive payment from the employee’s employer by the specified date or the agreed date (if any), the new employer may recover the payment, in any court of competent jurisdiction, as a debt due from the employee’s employer.
7: To avoid doubt,—
a: if only part of the employee’s work is affected by the restructuring, the apportionment of costs described in subsection (3) must relate only to the work that is affected by the restructuring:
b: if the work performed by the employee will be performed for, or on behalf of, more than 1 new employer, the apportionment of costs described in subsection (3) must be adjusted between the employee's employer and each new employer on a pro rata basis:
c: on and from the specified date, the new employer is liable to pay the employee for all service-related entitlements (whether legislative or otherwise), including those referred to in subsection (3)(a). Section 69LA inserted 6 March 2015 section 40 Employment Relations Amendment Act 2014
69LB: Resolving disputes about apportioning liability for costs of service-related entitlements
1: This section applies to a dispute between an employee’s employer and the new employer (or, if more than 1 new employer is involved, all or any of the new employers) about apportioning liability for the costs of service-related entitlements under section 69LA(3)
2: If the dispute cannot be resolved between the employee’s employer and the new employer or employers,—
a: the parties may access mediation services as if the dispute were an employment relationship problem:
b: proceedings to resolve the dispute may be commenced before the Authority as if the dispute were an employment relationship problem.
3: For the purposes of subsection (2)(a), the parties may agree to access mediation services that are—
a: provided under section 144 sections 145 to 153
b: referred to in section 154
4: If proceedings are commenced before the Authority, the Authority must determine the apportionment of the costs of the service-related entitlements in accordance with section 69LA(3) Section 69LB inserted 6 March 2015 section 40 Employment Relations Amendment Act 2014
69LC: Implied warranty by employer of transferring employees
1: This section applies if 1 or more employees of an employer elect to transfer to a new employer, as provided for in section 69I
2: There is an implied warranty by the employees’ employer to the new employer that the employees' employer has not, without good reason, changed—
a: the work affected by the restructuring; or
b: the employees who perform the work affected by the restructuring (for example, replacing employees with employees who are less experienced or less efficient); or
c: the terms and conditions of employment of 1 or more of those employees.
3: The warranty implied by this section applies in relation to changes occurring in the period—
a: beginning on the day on which the employees' employer is informed about the proposed restructuring; and
b: ending on the day before the specified date.
4: If the employees' employer breaches the implied warranty, and that breach adversely affects the new employer, the new employer may commence proceedings for damages, in any court of competent jurisdiction, against that employer.
5: For the purposes of subsection (2), whether a reason is a good reason is to be determined on an objective basis. Section 69LC inserted 6 March 2015 section 40 Employment Relations Amendment Act 2014
69M: New employer becomes party to collective agreement that binds employee electing to transfer
1: This section applies if—
a: an employee who elects to transfer to a new employer is a member of a union and bound by a collective agreement; and
b: the new employer is not a party to the collective agreement that the union is a party to.
2: On and from the date on which the employee becomes an employee of the new employer, the new employer becomes a party to the collective agreement, but only in relation to, and for the purposes of, that employee. Section 69M substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006
69N: Employee who transfers may bargain for redundancy entitlements with new employer
1: This section applies to an employee if—
a: the employee elects, under section 69I(1)
b: the new employer proposes to make the employee redundant for reasons relating to the transfer of the employees or to the circumstances arising from the transfer of the employees; and
c: the employee's employment agreement—
i: does not provide for redundancy entitlements for those reasons or in those circumstances; or
ii: does not expressly exclude redundancy entitlements for those reasons or in those circumstances.
2: The employee is entitled to redundancy entitlements from his or her new employer.
3: If an employee seeks redundancy entitlements from his or her new employer, the employee and new employer must bargain with a view to reaching agreement on appropriate redundancy entitlements. Section 69N substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006
69O: Authority may investigate bargaining and determine redundancy entitlements
1: If an employee and his or her new employer fail to agree on redundancy entitlements under section 69N(3)
2: After concluding the investigation, the Authority must determine—
a: if, in the Authority's view, it is possible for the bargaining to continue, how further bargaining should occur; or
b: if, in the Authority's view, further bargaining is not warranted, the redundancy entitlements due to an employee.
3: In determining the redundancy entitlements under subsection (2)(b), the Authority may take into account 1 or more of the following matters:
a: the redundancy entitlements (if any) provided in the employee's employment agreement for redundancy in circumstances other than restructuring:
b: the employee's length of service with his or her previous employer and new employer:
c: how much notice of the redundancy the employee has received:
d: the ability of the new employer to provide redundancy entitlements:
e: the likelihood of the employee being re-employed or obtaining employment with another employer:
f: any other relevant matter that the Authority thinks fit. Section 69O substituted 14 September 2006 section 6 Employment Relations Amendment Act 2006
69OAA: False warranty: exempt employer
Section 69OAA repealed 6 May 2019 section 41 Employment Relations Amendment Act 2018
2: Disclosure of information relating to transfer of employees
Subpart 2 substituted 13 December 2006 section 6 Employment Relations Amendment Act 2006 Subpart 2 heading replaced 6 March 2015 section 42 Employment Relations Amendment Act 2014
69OA: Object of this subpart
The object of this subpart is to make provision for the disclosure of employee transfer costs information and individualised employee information relating to employees who have elected to transfer to a new employer under section 69I Section 69OA replaced 6 March 2015 section 43 Employment Relations Amendment Act 2014
69OB: Interpretation
1: In this subpart,— employee transfer costs information
a: means information about employment-related entitlements of the employees who would be eligible to elect, under section 69I
b: includes—
i: the number of employees who would be eligible to make an election; and
ii: the wages or salary payable in a stated period (for example, a week, fortnight, or month) to the employees for performing the work that would be subject to the proposed restructuring; and
iii: the total number of hours the employees spend in a stated period (for example, a week, fortnight, or month) performing the work that would be subject to the proposed restructuring; and
iv: the cost of service-related entitlements of the employees, whether legislative or otherwise; and
v: the cost of any other entitlements of the employees in their capacity as employees, including any entitlements already agreed but not due until a future date or time individualised employee information—
a: means information about an employee kept by the employee’s employer for employment-related purposes, including—
i: any personnel records relating to the employee; and
ii: information about any disciplinary matters relating to the employee; and
iii: information about any personal grievances raised by the employee against the employer; and
iv: information about an employee that the employee’s employer is required to keep under this Act or any other enactment, for example,—
A: the employee’s individual employment agreement, the current terms and conditions of employment that make up the employee’s individual terms and conditions of employment, or the relevant collective agreement (as the case may be); and
B: a copy of the wages and time record; and
C: a copy of the holiday and leave record; and
D: a copy of the employee’s tax code declaration; and
E: details of any employer contribution (as defined in section 4(1) KiwiSaver Act 2006
F: details of any deductions from the employee’s wages made under section 36
G: details of any deductions from the employee’s wages made under Part 10
b: does not include any information about the employee that is subject to a statutory or contractual requirement to maintain confidentiality.
2: Any term or expression defined in subpart 1 and used but not defined in this subpart has the same meaning as in subpart 1 Section 69OB inserted 13 December 2006 section 6 Employment Relations Amendment Act 2006 Section 69OB(1) replaced 6 March 2015 section 44 Employment Relations Amendment Act 2014
69OC: Disclosure of employee transfer costs information
1: A request for the disclosure of employee transfer costs information may be made either—
a: where—
i: disclosure is sought for the purpose of—
A: deciding whether to terminate an agreement or let it expire; or
B: negotiating an agreement; or
C: deciding whether to enter into an agreement; or
D: tendering for an agreement; and
ii: a restructuring would result if the agreement were to be—
A: terminated or to expire; or
B: concluded; or
C: entered into; or
D: awarded; or
b: where—
i: the restructuring referred to in paragraph (a)(ii) is a contracting out or a subsequent contracting; and
ii: a subcontractor is engaged, before or at the same time as the restructuring, to perform the work, or some of the work, affected by the restructuring.
2: The persons who may make the request are—
a: the persons who would (if they were parties to the restructuring and the restructuring were to proceed) be—
i: person A in a contracting in:
ii: person B in a contracting out:
iii: person C in a subsequent contracting:
iv: the person to whom an employer’s business (or part of it) is sold or transferred:
b: the persons who would (if the restructuring were to proceed and if the work were to be subcontracted before or at the same time as the restructuring) be—
i: a subcontractor engaged to perform the work for person B in a contracting out:
ii: a subcontractor engaged to perform the work for person C in a subsequent contracting.
2A:
3: The persons to whom a request may be made are the persons who would, if the restructuring were to proceed and they were parties to the restructuring, be—
a: person B in the definition of contracting in:
b: person A in the definition of contracting out:
c: person A in the definition of subsequent contracting:
d: the seller or transferor in the case of the sale or transfer of an employer's business (or part of it).
3A:
3B:
3C: A person to whom a request is made for a purpose described in subsection (1)(a) must provide the information in sufficient time for the person who made the request to take the information into account for that purpose.
4: A person to whom a request is made under subsection (3) must provide to the person who made the request under subsection (2) employee transfer costs information that relates to the proposed restructuring.
5:
6: Employee transfer costs information provided under this section must be provided—
a: in aggregate form; and
b: to the extent practicable, in a form that protects the privacy of the employees concerned.
7: Section 69OC inserted 13 December 2006 section 6 Employment Relations Amendment Act 2006 Section 69OC(1) replaced 6 March 2015 section 45(1) Employment Relations Amendment Act 2014 Section 69OC(2) replaced 6 March 2015 section 45(1) Employment Relations Amendment Act 2014 Section 69OC(2A) repealed 6 May 2019 section 42 Employment Relations Amendment Act 2018 Section 69OC(3A) repealed 6 May 2019 section 42 Employment Relations Amendment Act 2018 Section 69OC(3B) repealed 6 May 2019 section 42 Employment Relations Amendment Act 2018 Section 69OC(3C) inserted 6 March 2015 section 45(2) Employment Relations Amendment Act 2014 Section 69OC(5) repealed 6 March 2015 section 45(3) Employment Relations Amendment Act 2014 Section 69OC(7) repealed 6 May 2019 section 42 Employment Relations Amendment Act 2018
69OD: Provision of employee transfer costs information by other persons
1: Subsection (2) applies to a person who receives a request for employee transfer costs information under section 69OC(3)(a)
2: If the request relates (whether wholly or in part) to work that has been subcontracted and the person receiving the request does not have some or all of the information requested, the person must immediately require the subcontractor to provide the information.
3: Subsection (4) applies to a person who receives a request for employee transfer costs information under section 69OC(3)(c)
4: If the person does not have some or all of the information requested, the person must immediately require the person who performs the work to which the request relates to provide the information.
5: If the person who performs the work has subcontracted some or all of the work and does not have some or all of the information requested, the person must immediately require the subcontractor to provide the information.
6: A person required to provide information—
a: under subsection (2) or (4) must provide the information—
i: to the person who received the request; and
ii: in time for that person to comply with section 69OC(3C)
b: under subsection (5) must provide the information—
i: to the person who required the information; and
ii: in time for the person who received the request to comply with section 69OC(3C)
7: However, if the subcontractor who is required to provide the information under subsection (2) or (5) does not have some or all of the information requested because the work has been further subcontracted, the subcontractor must immediately provide to the person who required the information any details the subcontractor has about who the other subcontractor is and how to contact the other subcontractor, and (to avoid doubt) subsection (2) or (5) (as the case may require) applies accordingly.
8: Employee transfer costs information provided under this section must be provided—
a: in aggregate form; and
b: to the extent practicable, in a form that protects the privacy of the employees concerned. Section 69OD inserted 13 December 2006 section 6 Employment Relations Amendment Act 2006 Section 69OD(6)(a)(ii) amended 6 March 2015 section 46 Employment Relations Amendment Act 2014 Section 69OD(6)(b)(ii) amended 6 March 2015 section 46 Employment Relations Amendment Act 2014
69OE: Updating disclosure of employee transfer costs information
1: This section applies if—
a: employee transfer costs information has been provided under section 69OC 69OD
b: after the provision of the information, there is a change in the employment-related entitlements or circumstances that the information relates to; and
c: the change makes the information provided out of date.
2: The person who provided the employee transfer costs information must, immediately after the change in the employment-related entitlements or circumstances, provide to the person who was originally provided with the information details specifying—
a: the information that is out of date; and
b: what the up-to-date information is.
3: If the person who is provided with the up-to-date employee transfer costs information is not the person who made the request for the original information under section 69OC
a: the person must, immediately after receiving the up-to-date information, provide it to the person who received the request for the original information; and
b: that person must, immediately after receiving the up-to-date information, provide it to the person who made the request for the original information.
4: A person is not required to provide up-to-date information if, at the time of the change in the employment-related entitlements or circumstances, a request could not have been made for the information under section 69OC Section 69OE inserted 13 December 2006 section 6 Employment Relations Amendment Act 2006
69OEA: Disclosure of individualised employee information
1: This section applies if an employee elects to transfer under section 69I
2: The employee’s employer must provide the new employer with individualised employee information about the employee.
3: The employee's employer must provide the individualised employee information—
a: as soon as practicable; but
b: no later than—
i: the date on which the restructuring takes effect; or
ii: any later date agreed to by the employee's employer and the new employer.
4: Subsection (5) applies if—
a: individualised employee information has been provided under subsection (2); and
b: after the provision of the information, there is a change in the matters or circumstances that the information relates to; and
c: the change makes the information provided out of date.
5: The employee’s employer must, immediately after the change in the matters or circumstances, provide the new employer with the information details, specifying—
a: the information that is out of date; and
b: what the up-to-date information is.
6: Every employer who fails to comply with subsections (2) to (5) is liable to a penalty imposed by the Authority.
7: To avoid doubt, the new employer may keep, use, or disclose individualised employee information only in accordance with the Privacy Act 2020 Section 69OEA inserted 6 March 2015 section 47 Employment Relations Amendment Act 2014 Section 69OEA(7) amended 1 December 2020 section 217 Privacy Act 2020
69OF: Employer who is subject to Official Information Act 1982
Nothing in the Official Information Act 1982 section 6 Section 69OF inserted 13 December 2006 section 6 Employment Relations Amendment Act 2006
69OG: Subpart prevails over agreement
A contract, agreement, or other arrangement has no force or effect to the extent that it is inconsistent with this subpart. Section 69OG inserted 13 December 2006 section 6 Employment Relations Amendment Act 2006
3: Other employees
Subpart 3 added 14 September 2006 section 6 Employment Relations Amendment Act 2006
69OH: Object of this subpart
The object of this subpart is to provide protection to employees to whom subpart 1 Section 69OH inserted 14 September 2006 section 6 Employment Relations Amendment Act 2006
69OI: Interpretation
1: In this subpart, unless the context otherwise requires,— employee Schedule 1A employee protection provision
a: the purpose of which is to provide protection for the employment of employees affected by a restructuring; and
b: that includes—
i: a process that the employer must follow in negotiating with a new employer about the restructuring to the extent that it relates to affected employees; and
ii: the matters relating to the affected employees' employment that the employer will negotiate with the new employer, including whether the affected employees will transfer to the new employer on the same terms and conditions of employment; and
iii: the process to be followed at the time of the restructuring to determine what entitlements, if any, are available for employees who do not transfer to the new employer new employer
a: in the case of a contracting out, person B in the definition of that term; or
b: in the case of a sale or transfer of a business, the person to whom the business is sold or transferred restructuring
a: means—
i: contracting out; or
ii: selling or transferring the employer's business (or part of it) to another person; but
b: to avoid doubt, does not include—
i: contracting in; or
ii: subsequent contracting; or
iii: in the case of an employer that is a company, the sale or transfer of any or all of the shares in the company; or
iv: any contract, arrangement, sale, or transfer entered into, made, or concluded while the employer is adjudged bankrupt or in receivership or liquidation.
2: For the purposes of this subpart, an employee is an affected employee
a: as a result of a restructuring, the employee is, or will be, no longer required by his or her employer to perform the work performed by the employee; and
b: the type of work performed by the employee (or work that is substantially similar) is, or is to be, performed by or on behalf of another person.
3: Any term or expression defined in subpart 1 Section 69OI inserted 14 September 2006 section 6 Employment Relations Amendment Act 2006
69OJ: Collective agreements and individual employment agreements must contain employee protection provision
Every collective agreement and every individual employment agreement must contain an employee protection provision to the extent that the agreement binds employees to whom this subpart applies. Section 69OJ inserted 14 September 2006 section 6 Employment Relations Amendment Act 2006
69OK: Affected employee may choose whether to transfer to new employer
If an employer, in relation to a restructuring, arranges for an affected employee to transfer to the new employer, the affected employee may—
a: choose to transfer to the new employer; or
b: choose not to transfer to the new employer. Section 69OK inserted 14 September 2006 section 6 Employment Relations Amendment Act 2006
4: Review of Part
Subpart 4 repealed 6 March 2015 section 48 Employment Relations Amendment Act 2014
69OL: Review of operation of Part after 3 years
Section 69OL repealed 6 March 2015 section 48 Employment Relations Amendment Act 2014
6B: Bargaining fees
Part 6B inserted 1 December 2004 section 30 Employment Relations Amendment Act (No 2) 2004
69P: Interpretation
In this Part, unless the context otherwise requires,— bargaining fee bargaining fee clause
a: applies to the employer's employees who are not members of a union and who perform work that comes within the coverage clause of the collective agreement; and
b: specifies the amount of the bargaining fee; and
c: requires those employees to pay a bargaining fee; and
d: provides that those employees' terms and conditions of employment comprise the terms and conditions of employment specified in the collective agreement. Section 69P inserted 1 December 2004 section 30 Employment Relations Amendment Act (No 2) 2004
69Q: Bargaining fee clause does not come into force unless agreed to first by employer and union and then by secret ballot
1: A bargaining fee clause does not come into force unless the clause has—
a: first been agreed to by the employer and the union in a collective agreement; and
b: then been agreed to in a secret ballot held in accordance with this section.
2: The secret ballot must be—
a: held before the collective agreement comes into force; and
b: conducted jointly by the employer and union.
3: An employee is entitled to vote in a secret ballot if—
a: the work performed by the employee comes within the coverage clause in the collective agreement; and
b: the employee is—
i: not a member of any union; or
ii: a member only of the union that is a party to the collective agreement with the employer.
4: For the purposes of a secret ballot, a ballot paper must contain, or have attached to it, a copy of the bargaining fee clause.
5: A bargaining fee clause is agreed to in a secret ballot if a majority of the employer's employees who vote, vote in favour of the clause. Section 69Q inserted 1 December 2004 section 30 Employment Relations Amendment Act (No 2) 2004
69R: Employer to notify employees if bargaining fee clause agreed to
1: If a bargaining fee clause is agreed to in a secret ballot, the employer must provide the employees referred to in section 69S(a) to (c)
a: their terms and conditions of employment will comprise the terms and conditions of employment specified in the collective agreement (including the obligation to pay a bargaining fee) on and from the later of the following:
i: the expiry of the period referred to in paragraph (c); or
ii: the date on which the collective agreement comes into force; and
b: the bargaining fee will be deducted from their wages, specifying the amount of the bargaining fee; and
c: if an employee does not wish to pay the bargaining fee, the employee must notify the employer in writing within the period specified in the collective agreement for that purpose that the employee does not agree to pay the bargaining fee.
2: If an employee notifies his or her employer that the employee does not agree to pay the bargaining fee,—
a: the bargaining fee clause does not apply to the employee; and
b: the employee's terms and conditions of employment remain the same until such time as varied by agreement with the employer. Section 69R inserted 1 December 2004 section 30 Employment Relations Amendment Act (No 2) 2004
69S: Which employees bargaining fee clause applies to
When a bargaining fee clause has been agreed to in a secret ballot and comes into force, the clause applies to an employee if—
a: the work performed by the employee comes within the coverage clause of the collective agreement; and
b: the employee is not a member of any union; and
c: the employee was—
i: entitled to vote in the secret ballot that agreed to the clause; or
ii: employed in the period beginning immediately after the secret ballot was held and ending with the close of the day before the date on which the collective agreement came into force; and
d: the employee has not notified his or her employer in writing, within the period specified under section 69R(1)(c) Section 69S inserted 1 December 2004 section 30 Employment Relations Amendment Act (No 2) 2004
69T: Bargaining fee clause binding on employer and employee
While a bargaining fee clause applies to an employee,—
a: the clause is binding on the employee and his or her employer; and
b: the employer must deduct the bargaining fee from the employee's wages and pay it to the union concerned. Section 69T inserted 1 December 2004 section 30 Employment Relations Amendment Act (No 2) 2004
69U: Amount of bargaining fee
1: A bargaining fee must not be greater than the union fee that an employee would be required to pay to the union if the employee were a member of the union.
2: A bargaining fee has no effect to the extent (if any) that the bargaining fee does not comply with subsection (1). Section 69U inserted 1 December 2004 section 30 Employment Relations Amendment Act (No 2) 2004
69V: Expiry of bargaining fee clause
A bargaining fee clause expires when the collective agreement that contains the clause expires. Section 69V inserted 1 December 2004 section 30 Employment Relations Amendment Act (No 2) 2004
69W: Validity of bargaining fee clause
A bargaining fee clause, and anything done under it in accordance with this Part,—
a: is not a breach of, or inconsistent with, this Act (in particular sections 8 9 11 68(2)(c)
b: overrides the Wages Protection Act 1983 Section 69W inserted 1 December 2004 section 30 Employment Relations Amendment Act (No 2) 2004
6C: Breastfeeding facilities and breaks
Part 6C inserted 1 April 2009 section 6 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008
69X: Interpretation
In this Part, unless the context otherwise requires,— breastfeeding work period section 69ZC Section 69X inserted 1 April 2009 section 6 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008
69Y: Employer's obligation
1: An employer must ensure that, so far as is reasonable and practicable in the circumstances,—
a: appropriate facilities are provided in the workplace for an employee who is breastfeeding and who wishes to breastfeed in the workplace; and
b: appropriate breaks are provided to an employee who is breastfeeding and wishes to breastfeed during a work period.
2: For the purpose of subsection (1)(b), the breaks are paid only if the employee and employer agree that they are paid.
3: In subsection (1), circumstances
a: the employer's operational environment; and
b: the employer's resources. Section 69Y inserted 1 April 2009 section 6 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008
69Z: Breastfeeding breaks additional to breaks under Part 6D
1: Breastfeeding breaks provided under this Part are in addition to breaks an employee is entitled to under Part 6D
2: However, if an employee and employer agree, the same break may be taken for the purposes of this Part and Part 6D
3: To avoid doubt, a break taken for the purposes of this Part and Part 6D Section 69Z inserted 1 April 2009 section 6 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008
69ZA: Code of employment practice relating to employer's obligation
As soon as practicable after the commencement of this Part, the Minister must approve, under section 100A section 69Y Section 69ZA inserted 1 April 2009 section 6 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008
69ZB: Penalty
An employer who does not comply with section 69Y Section 69ZB inserted 1 April 2009 section 6 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008
6D: Rest breaks and meal breaks
Part 6D inserted 1 April 2009 section 6 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008
69ZC: Interpretation
In this Part, unless the context otherwise requires, work period
a: means the period—
i: beginning with the time at which, in accordance with an employee’s terms and conditions of employment, an employee starts work; and
ii: ending with the time at which, in accordance with an employee’s terms and conditions of employment, an employee finishes work; and
b: includes all authorised breaks (whether paid or not) provided to an employee or to which an employee is entitled during the period specified in paragraph (a). Section 69ZC replaced 6 May 2019 section 43 Employment Relations Amendment Act 2018
69ZD: Employee’s entitlement to, and employer’s duty to provide, rest breaks and meal breaks
Entitlement and duty
1: An employee is entitled to, and the employee’s employer must provide the employee with, rest breaks and meal breaks in accordance with this Part. Work period between 2 hours and 4 hours
2: If an employee’s work period is 2 hours or more but not more than 4 hours, the employee is entitled to one 10-minute paid rest break. Work period between 4 hours and 6 hours
3: If an employee’s work period is more than 4 hours but not more than 6 hours, the employee is entitled to—
a: one 10-minute paid rest break; and
b: one 30-minute meal break. Work period between 6 hours and 8 hours
4: If an employee’s work period is more than 6 hours but not more than 8 hours, the employee is entitled to—
a: two 10-minute paid rest breaks; and
b: one 30-minute meal break. Work period over 8 hours
5: If an employee’s work period is more than 8 hours, the employee is entitled to the rest breaks and meal breaks in accordance with subsections (6) and (7).
6: During the work period of 8 hours, the employee is entitled to—
a: two 10-minute paid rest breaks; and
b: one 30-minute meal break.
7: During the work period beyond 8 hours (the subsequent period
a: if the subsequent period is 2 hours or more but not more than 4 hours, to one 10-minute paid rest break:
b: if the subsequent period is more than 4 hours but not more than 6 hours, to—
i: one 10-minute paid rest break; and
ii: one 30-minute meal break:
c: if the subsequent period is more than 6 hours but not more than 8 hours, to—
i: two 10-minute paid rest breaks; and
ii: one 30-minute meal break. Section 69ZD replaced 6 May 2019 section 43 Employment Relations Amendment Act 2018
69ZE: Timing of rest breaks and meal breaks
Timing of breaks as agreed
1: If an employee and employer have agreed on the times at which the employee is to take rest breaks and meal breaks during the employee’s work period, the rest breaks and meal breaks are to be taken at those times. Timing of breaks in absence of agreement
2: In the absence of an agreement, the rest breaks and meal breaks are to be taken in accordance with the applicable provision in subsections (3) to (7). Work period between 2 hours and 4 hours
3: If section 69ZD(2) Work period between 4 hours and 6 hours
4: If section 69ZD(3)
a: the rest break one-third of the way through the work period; and
b: the meal break two-thirds of the way through the work period. Work period between 6 hours and 8 hours
5: If section 69ZD(4)
a: a rest break halfway between the start of work and the meal break; and
b: the meal break in the middle of the work period; and
c: a rest break halfway between the meal break and the finish of the work period. Work period over 8 hours
6: If section 69ZD(5) and (6)
a: a rest break halfway between the start of work and the meal break; and
b: the meal break in the middle of the work period; and
c: a rest break halfway between the meal break and the finish of the work period.
7: If section 69ZD(5) and (7)
a: if the subsequent period is 2 hours or more but not more than 4 hours, the rest break in the middle of the subsequent period:
b: if the subsequent period is more than 4 hours but not more than 6 hours,—
i: the rest break one-third of the way through the subsequent period; and
ii: the meal break two-thirds of the way through the subsequent period:
c: if the subsequent period is more than 6 hours but not more than 8 hours,—
i: a rest break halfway between the start of the subsequent period and the meal break; and
ii: the meal break in the middle of the subsequent period; and
iii: a rest break halfway between the meal break and the finish of the subsequent period. Section 69ZE replaced 6 May 2019 section 43 Employment Relations Amendment Act 2018
69ZEA: Exemption from requirement to provide rest breaks and meal breaks
1: An employer is exempt from the requirement to provide rest breaks and meal breaks in accordance with section 69ZD(1)
2: This subsection applies if—
a: the employer is engaged in the protection of New Zealand’s national security; and
b: continuity of service is critical to New Zealand’s national security; and
c: the employer would incur unreasonable costs in replacing an employee, employed in the protection of New Zealand’s national security, during the rest breaks and meal breaks—
i: with another person who has sufficient skills and experience; and
ii: without compromising New Zealand’s national security.
3: This subsection applies if—
a: the employer is engaged in an essential service; and
b: continuity of service or production in the essential service is critical to the public interest, including (without limitation) services affecting public safety; and
c: the employer would incur unreasonable costs in replacing an employee, employed in the essential service, during the rest breaks and meal breaks—
i: with another person who has sufficient skills and experience; and
ii: without compromising public safety.
4: If subsection (2) or (3) applies, the employer and employee may agree that any rest breaks and meal breaks are to be taken in a different manner (including the number and timing of breaks) than specified in this Part. Section 69ZEA replaced 6 May 2019 section 43 Employment Relations Amendment Act 2018
69ZEB: Compensatory measures
1: If the employer and employee are unable to reach agreement under section 69ZEA(4)
2: In this section, compensatory measure
a: means a measure that is reasonable and designed to compensate an employee for a failure to provide rest breaks or meal breaks in accordance with section 69ZD(1)
b: may include (without limitation)—
i: a measure that provides the employee with time off work at an alternative time during the employee’s work period (for example, by allowing a later start time, an earlier finish time, or an accumulation of time off work that may be taken on 1 or more occasions); or
ii: financial compensation; or
iii: both time off work at an alternative time and financial compensation.
3: For the purposes of subsection (2),—
a: if the compensatory measure provided is time off work at an alternative time,—
i: the employee must be provided with at least an equivalent amount of time off work (that is, the same amount of time that the employee would otherwise have taken as a rest break or meal break); and
ii: the time off work at an alternative time must be provided on the same basis as the rest break or meal break that the employee would otherwise have taken:
b: if the compensatory measure provided is financial compensation, that financial compensation, at a minimum, must relate to the amount of time that the employee was required to work but would otherwise have taken as a rest break or meal break, and must,—
i: in the case of an employee paid at variable rates during a work period, be calculated at the employee’s average rate of pay in the relevant work period; or
ii: in the case of any other employee, be calculated at the employee’s ordinary rate of pay:
c: if the compensatory measure includes both time off work at an alternative time and financial compensation, the total amount of alternative time plus time for which payment is made must be at least equivalent to the amount of time that the employee would otherwise have taken as a rest break or meal break.
4: For the purposes of subsection (3)(c), any financial compensation must,—
a: in the case of an employee paid at variable rates during a work period, be calculated at the employee’s average rate of pay in the relevant work period; or
b: in the case of any other employee, be calculated at the employee’s ordinary rate of pay. Section 69ZEB replaced 6 May 2019 section 43 Employment Relations Amendment Act 2018
69ZF: Penalty
An employer who does not comply with any of sections 69ZD to 69ZEB Section 69ZF inserted 1 April 2009 section 6 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 Section 69ZF amended 6 March 2015 section 51 Employment Relations Amendment Act 2014
69ZG: Relationship between Part and employment agreements
1: This Part does not prevent an employer from providing an employee with enhanced or additional entitlements to rest breaks and meal breaks (whether specified in an employment agreement or otherwise) on a basis agreed with the employee.
2: An employment agreement that excludes, restricts, or reduces an employee’s entitlements under section 69ZD 69ZE section 69ZEA 69ZEB
a: has no effect to the extent that it does so; but
b: is not an illegal contract under subpart 5
3: Section 69ZG replaced 6 March 2015 section 52 Employment Relations Amendment Act 2014 Section 69ZG(2) replaced 6 May 2019 section 44 Employment Relations Amendment Act 2018 Section 69ZG(3) repealed 6 May 2019 section 44 Employment Relations Amendment Act 2018
69ZH: Relationship between this Part and other enactments
1: If an employee is provided with, or entitled to, rest breaks or meal breaks under an enactment other than this Part,—
a: this Part prevails if the breaks provided under this Part are additional or enhanced breaks:
b: the other enactment prevails if the breaks provided under the other enactment are additional or enhanced breaks.
2: If an employee is required to take a rest break by, or under, an enactment other than this Part, the requirement for a rest break defined by, or under, the other enactment applies instead of the provisions or entitlements for rest breaks or meal breaks provided under this Part.
3: However, if subsection (2) applies, the employee’s employer must provide the employee with—
a: at least the same number of breaks as provided under this Part; and
b: breaks of at least the same duration as the breaks provided under this Part. Section 69ZH replaced 6 May 2019 section 45 Employment Relations Amendment Act 2018
7: Employment relations education leave
70: Object of this Part
The object of this Part is to provide paid leave to certain employees to increase their knowledge about employment relations for the purpose of—
a: improving relations among unions, employees, and employers; and
b: promoting the object of this Act, especially the duty of good faith.
71: Interpretation
In this Part, unless the context otherwise requires,— eligible employee employment relations education section 72 specified date
a: 1 March; or
b: such other date in a year as is specified in a collective agreement for the purposes of this Part year
a: if a collective agreement does not provide a specified date as an alternative date to 1 March, a period of 12 months beginning on 1 March and ending on the close of the last day of February in the following year, the first such year being 1 March 2001 to 28 February 2002:
b: if a collective agreement does provide a specified date as an alternative date to 1 March, a period of 12 months beginning on the specified date. Section 71 eligible employee substituted 1 December 2004 section 31 Employment Relations Amendment Act (No 2) 2004
72: Minister to approve employment relations education
1: The Minister may, for the purposes of this Part, approve
2: The Minister may approve a course of employment relations education only if satisfied that the course will further the object of this Part.
3: The Minister may delegate his or her power under subsection (1) to 1 or more persons. Section 72(1) amended 1 December 2004 section 32 Employment Relations Amendment Act (No 2) 2004
73: Union entitled to allocate employment relations education leave
1: A union is entitled to allocate employment relations education leave to eligible employees in accordance with this Part.
2: The maximum number of days of employment relations education leave that a union is entitled to allocate in a year in respect of an employer's eligible employees is the number of days calculated in accordance with section 74
3: The maximum number of days of employment relations education leave that a union is entitled to allocate in a year to an eligible employee is 5 days, unless the employee's employer agrees to the allocation of additional days.
4: Employment relations education leave expires if it is not allocated by the end of the year in respect of which it is calculated under section 74
74: Calculation of maximum number of days of employment relations education leave
1: The maximum number of days of employment relations education leave that a union is entitled to allocate in respect of an employer is based on the number of full-time equivalent eligible employees employed by the employer as at the 30th day before The following table is small in size and has 2 columns. Column 1 is headed Full-time equivalent eligible employees as at the 30th day before the specified date in a year. Column 2 is headed Maximum number of days of employment relations education leave that union entitled to allocate. Full-time equivalent eligible employees as at the 30th day before Maximum number of days of employment relations education leave that union entitled to allocate 1–5 3 6–50 5 51–280 1 day for every 8 full-time equivalent eligible employees or part of that number 281 or more 35 days plus 5 days for every 100 full-time equivalent eligible employees or part of that number that exceeds 280
2: For the purposes of calculating the number of full-time equivalent eligible employees employed by an employer,—
a: an eligible employee who normally works 30 hours or more during a week is to be counted as 1:
b: an eligible employee who normally works less than 30 hours during a week is to be counted as one-half. Section 74(1) amended 1 December 2004 section 33(1) Employment Relations Amendment Act (No 2) 2004 Section 74(1) table amended 1 December 2004 section 33(2) Employment Relations Amendment Act (No 2) 2004
75: Union to notify employer of maximum number of days of employment relations education leave calculated
1: After calculating the maximum number of days of employment relations education leave, a union must give the employer concerned a notice containing—
a: the maximum number of days calculated in respect of the employer; and
b: the details of the calculation.
2: The union must comply with subsection (1) within 1 month after the specified date in each year.
3: Until a union complies with this section, the union must not allocate employment relations education leave.
4: If a union fails to comply with subsections (1) and (2), the union forfeits one-twelfth of the employment relations education leave for each complete month that the failure continues.
76: Allocation of employment relations education leave calculated in respect of another employer
1: This section applies to a union that is a party to a collective agreement with 2 or more employers.
2: A union may allocate employment relations education leave calculated in respect of an employer to 1 or more eligible employees of another employer only if, and to the extent that, the employers concerned agree, and subject to any terms and conditions agreed with the employers.
77: Allocation of employment relations education leave to eligible employee
1: A union allocates employment relations education leave to an eligible employee by giving a notice to the employee, and a copy of the notice to the employee's employer, that informs the employee—
a: that the union has allocated employment relations education leave to the employee; and
b: of the number of days of employment relations education leave allocated to the employee; and
c: that the employee must take the employment relations education leave by the end of the year in which it is allocated; and
d: of the terms or effect of sections 78 79
2: The allocation of employment relations education leave does not, of itself, entitle the employee to take the leave.
78: Eligible employee proposing to take employment relations education leave
1: An eligible employee proposing to take employment relations education leave must tell his or her employer—
a: that the employee proposes to take that leave; and
b: the dates on which the employee proposes to take that leave; and
c: the employment relations education that the employee proposes to undertake during that leave.
2: An eligible employee must not take employment relations education leave unless the employee complies with subsection (1) as soon as possible, but in any event no later than 14 days before the first day of such leave.
3: An employer may refuse to allow an eligible employee to take employment relations education leave if the employer is satisfied, on reasonable grounds, that the employee taking employment relations education leave on the dates notified would unreasonably disrupt the employer's business.
3A: To avoid doubt, a representative of an eligible employee may comply with subsection (1) on behalf of the eligible employee.
4: In subsection (2), day Section 78(3A) inserted 1 December 2004 section 34 Employment Relations Amendment Act (No 2) 2004
79: Eligible employee taking employment relations education leave entitled to ordinary pay
1: An employer must pay to an eligible employee the employee's relevant daily pay as defined in section 9 section 9A
2: However, an employer is not required to comply with subsection (1) in respect of any day for which the eligible employee is paid weekly compensation under the Accident Compensation Act 2001 Section 79(1) substituted 1 April 2011 section 18 Holidays Amendment Act 2010 Section 79(2) amended 1 April 2002 section 337(1) Accident Compensation Act 2001 Section 79(2) amended 3 March 2010 section 5(1)(b) Accident Compensation Amendment Act 2010
8: Strikes and lockouts
80: Object of this Part
The object of this Part is—
a: to recognise that the requirement that a union and an employer must deal with each other in good faith does not preclude certain strikes and lockouts being lawful (as defined in this Part); and
b: to define lawful and unlawful strikes and lockouts; and
ba: to provide notice requirements for all strikes and lockouts; and
bb:
c: to ensure that where a strike or lockout is threatened in an essential service, there is an opportunity for a mediated solution to the problem. Section 80(ba) inserted 6 March 2015 section 53 Employment Relations Amendment Act 2014 Section 80(bb) repealed 12 December 2018 section 27 Employment Relations Amendment Act 2018 Interpretation
81: Meaning of strike
1: In this Act, strike
a: is the act of a number of employees who are or have been in the employment of the same employer or of different employers—
i: in discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it; or
ii: in refusing or failing after any such discontinuance to resume or return to their employment; or
iii: in breaking their employment agreements; or
iv: in refusing or failing to accept engagement for work in which they are usually employed; or
v: in reducing their normal output or their normal rate of work; and
b: is due to a combination, agreement, common understanding, or concerted action, whether express or , as the case requires,
2: In this Act, strike
a: by an employer; or
b: by an employment agreement; or
c: by this Act.
3: In this Act, to strike 1991 No 22 s 61 Section 81(1)(b) amended 14 May 2013 section 6 Employment Relations (Secret Ballot for Strikes) Amendment Act 2012
82: Meaning of lockout
1: In this Act, lockout
a: is the act of an employer—
i: in closing the employer's place of business, or suspending or discontinuing the employer's business or any branch of that business; or
ii: in discontinuing the employment of any employees; or
iii: in breaking some or all of the employer's employment agreements; or
iv: in refusing or failing to engage employees for any work for which the employer usually employs employees; and
b: is done with a view to compelling employees, or to aid another employer in compelling employees, to—
i: accept terms of employment; or
ii: comply with demands made by the employer.
2: In this Act, to lock out 1991 No 22 s 62 Lawfulness of strikes and lockouts
82A: Requirement for union to hold secret ballot before strike
1: This section applies to—
a: a union that—
i: is bound by a current collective agreement; or
ii: will be bound by a proposed collective agreement; and
b: members of that union who are employees who are or have been in the employment of the same employer or of different employers and who—
i: are or were bound (as the case may be) by the current collective agreement referred to in paragraph (a)(i); or
ii: will be bound (as the case may be) by the proposed collective agreement referred to in paragraph (a)(ii).
2: Before a strike may proceed under this Part,—
a: the union must hold, in accordance with its rules, a secret ballot of its members who are employed by the same or different employers (as the case may be) and who would become a party to the strike; and
b: the result of the secret ballot must be in favour of the strike.
3: For the purposes of subsection (2)(b), the result of a secret ballot is determined by a simple majority of the members of the union who are entitled to vote and who do vote.
4: As soon as is reasonably practicable after the conclusion of the secret ballot under subsection (2), the union must notify the result of the ballot to the members of the union who were entitled to vote. Section 82A inserted 14 May 2013 section 7 Employment Relations (Secret Ballot for Strikes) Amendment Act 2012
82B: Terms of question for secret ballot
The question to be voted on in a secret ballot for the purposes of section 82A Section 82B inserted 14 May 2013 section 7 Employment Relations (Secret Ballot for Strikes) Amendment Act 2012
82C: When requirement for secret ballot does not apply
Sections 82A 82B section 84 Section 82C inserted 14 May 2013 section 7 Employment Relations (Secret Ballot for Strikes) Amendment Act 2012
83: Lawful strikes and lockouts related to collective bargaining
Participation in a strike or lockout is lawful if the strike or lockout—
a: is not unlawful under section 86
b: relates to bargaining—
i: for a collective agreement that will bind each of the employees concerned; or
ii: with regard to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declaration made by the court under section 192(2)(c) 1991 No 22 s 64(1)
84: Lawful strikes and lockouts on grounds of safety or health
Participation in a strike or lockout is lawful if the employees who strike have, or the employer who locks out has, reasonable grounds for believing that the strike or lockout is justified on the grounds of safety or health. 1991 No 22 s 71(1)
85: Effect of lawful strike or lockout
1: Lawful participation in a strike or lockout does not give rise—
a: to proceedings under section 99
b: to proceedings under section 100
c: to any action or proceedings—
i: for a breach of an employment agreement; or
ii: for a penalty under this Act; or
iii: for the grant of a compliance order.
2: Where it is proved in proceedings that participation in a strike or lockout of a kind described in section 86 section 84 1991 No 22 ss 64(2), 71(2)
86: Unlawful strikes or lockouts
1: Participation in a strike or lockout is unlawful if the strike or lockout—
aa: in the case of a strike, takes place in contravention of section 82A
a: occurs while a collective agreement binding the employees participating in the strike or affected by the lockout is in force, unless subsection (2) applies; or
b: occurs during bargaining for a proposed collective agreement that will bind the employees participating in the strike or affected by the lockout, unless—
i: at least 40 days have passed since the bargaining was initiated; and
ii: if on the date bargaining was initiated the employees were bound by the same collective agreement, that collective agreement has expired; and
iii: if on that date the employees were bound by different collective agreements, at least 1 of those collective agreements has expired; or
ba: occurs in a situation where,—
i: in the case of a strike, the employee has failed to comply with the notice requirements in section 86A 93
ii: in the case of a lockout, the employer has failed to comply with the notice requirements in section 86B 94
c: relates to a personal grievance; or
d: relates to a dispute; or
da: relates to a bargaining fee clause or proposed bargaining fee clause under Part 6B
e: relates to any matter dealt with in Part 3
ea:
f: is in an essential service and the requirements as to notice that are contained in section 90 section 91
g: takes place in contravention of an order of the court.
2: Subsection (1)(a) does not apply—
a: to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declaration made by the court under section 192(2)(c)
b: to a collective agreement that is still in force after the first of the collective agreements referred to in subsection (1)(b)(iii) has expired, for so long as that bargaining continues.
3: For the purposes of this section, in determining whether a collective agreement is in force or has expired section 53 1991 No 22 s 63(a)–(d), (f), (g) Section 86(1)(aa) inserted 14 May 2013 section 8 Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 Section 86(1)(ba) inserted 6 March 2015 section 54 Employment Relations Amendment Act 2014 Section 86(1)(da) inserted 1 December 2004 section 35 Employment Relations Amendment Act (No 2) 2004 Section 86(1)(ea) repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Notice of strike or lockout Heading inserted 6 March 2015 section 55 Employment Relations Amendment Act 2014
86A: Notice of strike
1: No employees may strike—
a: unless participation in the strike is lawful under section 83 84
b: without having given to the employees' employer and to the chief executive notice of the employees' intention to strike; and
c: before the date and time specified in the notice as the date and time on which the strike will begin.
2: The notice required under subsection (1) must—
a: be in writing; and
b: specify the following information:
i: the period of notice given; and
ii: the nature of the proposed strike, including whether or not it will be continuous; and
iii: the place or places where the proposed strike will occur; and
iv: the date and time on which the strike will begin; and
v: the date and time on which, or an event on the occurrence of which, the strike will end.
3: The notice—
a: must be signed by a representative of the employees' union on the employees' behalf:
b: need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who—
i: are members of a union that is a party to the bargaining; and
ii: are covered by the bargaining; and
iii: are employed in the relevant part of the workplace or at any particular place or places where the work is carried on.
3A: An omission or error in any information specified under subsection (2)(b) or a failure to comply with subsection (3)(a) does not affect the validity of the notice if the omission, error, or failure is minor and technical only.
4: To avoid doubt, this section does not apply if notice is required under any of the following provisions:
a: section 90
b: section 93
c: section 589 Section 86A inserted 6 March 2015 section 55 Employment Relations Amendment Act 2014 Section 86A(3A) inserted 12 December 2018 section 28 Employment Relations Amendment Act 2018 Section 86A(4)(c) amended 1 August 2020 section 668 Education and Training Act 2020
86B: Notice of lockout
1: No employer may lock out any employees—
a: unless participation in the lockout is lawful under section 83 84
b: without having given to the employees' union or unions and to the chief executive notice of the employer's intention to lock out; and
c: before the date and time specified in the notice as the date and time on which the lockout will begin.
2: The notice required under subsection (1) must—
a: be in writing; and
b: specify the following information:
i: the period of notice given; and
ii: the nature of the proposed lockout, including whether or not it will be continuous; and
iii: the place or places where the proposed lockout will occur; and
iv: the date and time on which the lockout will begin; and
v: the date and time on which, or an event on the occurrence of which, the lockout will end; and
vi: the names of the employees who will be locked out.
3: The lockout notice must be signed by the employer or on the employer's behalf.
4: To avoid doubt, this section does not apply if notice is required under any of the following provisions:
a: section 91
b: section 94 Section 86B inserted 6 March 2015 section 55 Employment Relations Amendment Act 2014 Suspension of employees during strikes
87: Suspension of striking employees
1: Where there is a strike, the employer may suspend the employment of an employee who is a party to the strike.
2: Unless sooner revoked by the employer, a suspension under subsection (1) continues until the strike is ended.
3: The suspension under this section of all or any of the employees who are on strike does not end the strike and those employees do not, by reason only of their suspension under subsection (1), cease to be parties to the strike.
4: An employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the suspension.
5: On the resumption of the employee's employment, the employee's service must be treated as continuous, despite the period of suspension, for the purpose of rights and benefits that are conditional on continuous service. 1991 No 22 s 65
88: Suspension of non-striking employees where work not available during strike
1: Where there is a strike, and as a result of the strike an employer is unable to provide for a non-striking employee work that is normally performed by that employee, the employer may suspend the employee's employment until the strike is ended.
2: A non-striking employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the suspension.
3: On the resumption of the employee's employment, that employee's service must be treated as continuous, despite the period of suspension, for the purpose of rights and benefits that are conditional on continuous service.
4: Where a non-striking employee or group of non-striking employees is suspended under subsection (1), that employee or group of employees may—
a: challenge the suspension by applying for the grant of a compliance order under section 137
b: seek other remedies under this Act in respect of the suspension, including (without limitation) arrears of wages.
5: In this section, non-striking employee 1991 No 22 s 66(1), (2)
89: Basis of suspension
Where an employer suspends an employee under section 87 section 88 1991 No 22 s 67 Essential services
90: Strikes in essential services
1: No employee employed in an essential service may strike—
a: unless participation in the strike is lawful under section 83 section 84
b: if subsection (2) applies,—
i: without having given to his or her employer and to the chief executive, within 28 days before the date of the commencement of the strike, notice in writing of his or her intention to strike; and
ii: before the date and time specified in the notice as the date and time on which the strike will begin.
2: The requirements specified in subsection (1)(b) apply if—
a: the proposed strike will affect the public interest, including (without limitation) public safety or health; and
b: the proposed strike relates to bargaining of the type specified in section 83(b)
3: The notice required by subsection (1)(b)(i) must specify—
a: the period of notice, being a period that is—
i: no less than 14 days in the case of an essential service described in Part A
ii: no less than 3 days in the case of an essential service described in Part B
b: the nature of the proposed strike, including whether or not the proposed action will be continuous; and
c: the place or places where the proposed strike will occur; and
d: the date and time on which the strike will begin; and
e: the date and time on which, or an event on the occurrence of which, the strike will end.
4: The notice—
a: must be signed by a representative of the employee's union on the employee's behalf:
b: need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who—
i: are members of a union that is a party to the bargaining; and
ii: are covered by the bargaining; and
iii: are employed in the relevant part of the essential service or at any particular place or places where the essential service is carried on. 1991 No 22 s 69 Section 90(1)(b)(ii) replaced 6 March 2015 section 56(1) Employment Relations Amendment Act 2014 Section 90(3)(d) replaced 6 March 2015 section 56(2) Employment Relations Amendment Act 2014 Section 90(3)(e) inserted 6 March 2015 section 56(2) Employment Relations Amendment Act 2014
91: Lockouts in essential services
1: No employer engaged in an essential service may lock out any employees who are employed in the essential service—
a: unless participation in the lockout is lawful under section 83 section 84
b: if subsection (2) applies,—
i: without having given to the employees' union or unions and to the chief executive, within 28 days before the date of commencement of the lockout, notice in writing of the employer's intention to lock out; and
ii: before the date and time specified in the notice as the date and time on which the lockout will begin.
2: The requirements specified in subsection (1)(b) apply if—
a: the proposed lockout will affect the public interest, including (without limitation) public safety or health; and
b: the proposed lockout relates to bargaining of the type specified in section 83(b)
3: The notice required by subsection (1)(b)(i) must specify—
a: the period of notice, being a period that is—
i: no less than 14 days in the case of an essential service described in Part A
ii: no less than 3 days in the case of an essential service described in Part B
b: the nature of the proposed lockout, including whether or not it will be continuous; and
c: the place or places where the proposed lockout will occur; and
d: the date and time on which the lockout will begin; and
da: the date and time on which, or an event on the occurrence of which, the lockout will end; and
e: the names of the employees who will be locked out.
4: The notice must be signed either by the employer or on the employer's behalf. 1991 No 22 s 70 Section 91(1)(b)(ii) replaced 6 March 2015 section 57(1) Employment Relations Amendment Act 2014 Section 91(3)(d) replaced 6 March 2015 section 57(2) Employment Relations Amendment Act 2014 Section 91(3)(da) inserted 6 March 2015 section 57(3) Employment Relations Amendment Act 2014
92: Chief executive to ensure mediation services provided
Where the chief executive receives a notice of intention to strike or lock out under section 90(1)(b)(i) section 91(1)(b)(i) Procedure to provide public with notice before strike or lockout in certain passenger transport services
93: Procedure to provide public with notice before strike in certain passenger transport services
1: No employee employed in a passenger road service or a passenger rail service may strike—
a: unless participation in the strike is lawful under section 83 section 84
b: without the employee's union giving his or her employer notice in writing of the employee's intention to strike.
2: The notice required by subsection (1) must specify—
a: the period of notice, being a period of not less than 24 hours; and
b: the nature of the proposed strike, including whether or not the proposed action will be continuous; and
c: the particular passenger road service or passenger rail service that will be affected by the strike; and
d: the date and time on which the strike will begin; and
e: the date and time on which, or an event on the occurrence of which, the strike will end.
3: The notice—
a: must be signed by a representative of the employee's union; and
b: need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who—
i: are members of a union that is a party to the bargaining; and
ii: are covered by the bargaining; and
iii: are employed in the relevant part of the passenger road service or passenger rail service.
4: An employer who is given notice of a strike under subsection (1) must take all practicable steps to ensure that the public who are likely to be affected are notified of the strike as soon as possible after the employer receives the notice.
5: For the purposes of this section and section 94 passenger road service section 2(1) Section 93(2)(d) replaced 6 March 2015 section 58 Employment Relations Amendment Act 2014 Section 93(2)(e) inserted 6 March 2015 section 58 Employment Relations Amendment Act 2014 Section 93(5) substituted 1 October 2007 section 95(6) Land Transport Amendment Act 2005
94: Procedure to provide public with notice before lockout in certain passenger transport services
1: No employer engaged in providing a passenger road service or passenger rail service may lock out employees who are employed in the service—
a: unless participation in the lockout is lawful under section 83 section 84
b: without having given to the employees' union or unions notice in writing of the employer's intention to lock out.
2: The notice required by subsection (1) must specify—
a: the period of notice, being a period of not less than 24 hours; and
b: the nature of the proposed lockout, including whether or not it will be continuous; and
c: the particular passenger road service or passenger rail service that will be affected by the lockout; and
d: the date and time on which the lockout will begin; and
da: the date and time on which, or an event on the occurrence of which, the lockout will end; and
e: the names of the employees who will be locked out.
3: The notice must be signed either by the employer or on the employer's behalf.
4: An employer engaged in providing a passenger road service or passenger rail service and who intends to lock out any employees who are employed in the service must take all practicable steps to ensure that the public who are likely to be affected are notified of the lockout as soon as possible. Section 94(2)(d) replaced 6 March 2015 section 59(1) Employment Relations Amendment Act 2014 Section 94(2)(da) inserted 6 March 2015 section 59(2) Employment Relations Amendment Act 2014
95: Penalty for breach of section 93(4) or 94(4)
1: An employer who fails to comply with section 93(4) 94(4)
2: Except as provided in this section, an employer is under no liability (whether under this Act or the general law) for a failure to comply with section 93(4) 94(4) Section 95 replaced 6 March 2015 section 60 Employment Relations Amendment Act 2014 Withdrawal of notice of strike or lockout Heading inserted 6 March 2015 section 61 Employment Relations Amendment Act 2014
95AA: Withdrawal of notice of strike or lockout
1: A strike notice given under section 86A 90 93
a: the employees' employer; and
b: the chief executive.
2: A lockout notice given under section 86B 91 94
a: the employees' union or unions; and
b: the chief executive. Section 95AA inserted 6 March 2015 section 61 Employment Relations Amendment Act 2014 Interpretation Heading repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018
95A: Meaning of partial strike and specified pay deduction
Section 95A repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018 Specified pay deductions in relation to partial strike Heading repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018
95B: Employer may make specified pay deductions in relation to partial strike
Section 95B repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018
95C: Notice of specified pay deduction
Section 95C repealed 12 December 2018 Employment Relations Amendment Act 2018
95D: Calculation of specified pay deduction
Section 95D repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018
95E: Relationship between specified pay deduction and minimum wage
Section 95E repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018 Rights of union in relation to specified pay deductions Heading repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018
95F: Union may request information about specified pay deduction
Section 95F repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018
95G: Employer must respond to request for information about specified pay deduction
Section 95G repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018
95H: Resolution of problem relating to specified pay deduction
Section 95H repealed 12 December 2018 section 29 Employment Relations Amendment Act 2018 Employer's liability for wages during lockout
96: Employer not liable for wages during lockout
1: Where any employees are locked out by their employer, those employees are not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the lockout, unless the employer's participation in the lockout is unlawful.
2: On the resumption of work by the employees, their service must be treated as continuous, despite the period of the lockout, for the purpose of rights and benefits that are conditional on continuous service. 1991 No 22 s 72 Performance of duties of striking or locked out employees
97: Performance of duties of striking or locked out employees
1: This section applies if there is a lockout or lawful strike.
2: An employer may employ or engage another person to perform the work of a striking or locked out employee only in accordance with subsection (3) or subsection (4).
3: An employer may employ another person to perform the work of a striking or locked out employee if the person—
a: is already employed by the employer at the time the strike or lockout commences; and
b: is not employed principally for the purpose of performing the work of a striking or locked out employee; and
c: agrees to perform the work.
4: An employer may employ or engage another person to perform the work of a striking or locked out employee if—
a: there are reasonable grounds for believing it is necessary for the work to be performed for reasons of safety or health; and
b: the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health.
5: A person who performs the work of a striking or locked out employee in accordance with subsection (3) or subsection (4) must not perform that work for any longer than the duration of the strike or lockout.
6: An employer who fails to comply with this section is liable to a penalty imposed by the Authority under this Act in respect of each person who performs the work concerned. Record of strikes and lockouts
98: Record of strikes and lockouts
If a strike or lockout occurs, the employer of the employees participating in the strike or affected by the lockout must—
a: keep a record, in the prescribed form, of the strike or lockout; and
b: give to the chief executive, within 1 month after the end of the strike or lockout, a copy of that record. 1991 No 22 s 142 Jurisdiction of Employment Court
99: Jurisdiction of court in relation to torts
1: The court has full and exclusive jurisdiction to hear and determine proceedings founded on tort—
a: issued against a party to a strike or lockout that is threatened, is occurring, or has occurred, and that have resulted from or are related to that strike or lockout:
b: issued against any person in respect of picketing related to a strike or lockout.
2: No other court has jurisdiction to hear and determine any action or proceedings founded on tort—
a: resulting from or related to a strike or lockout:
b: in respect of any picketing related to a strike or lockout.
3: Where any action or proceedings founded on tort are commenced in the court, and the court is satisfied that the proceedings resulted from or related to participation in a strike or lockout that is lawful under section 83 section 84
a: the court must dismiss those proceedings; and
b: no proceedings founded on tort and resulting from or related to that strike or lockout may be commenced in the District Court or the High Court. 1991 No 22 s 73
100: Jurisdiction of court in relation to injunctions
1: The court has full and exclusive jurisdiction to hear and determine any proceedings issued for the grant of an injunction—
a: to stop a strike or lockout that is occurring or to prevent a threatened strike or lockout; or
b: to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout ; or
c:
2: No other court has jurisdiction to hear and determine any action or proceedings seeking the grant of an injunction—
a: to stop a strike or lockout that is occurring or to prevent a threatened strike or lockout; or
b: to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout ; or
c:
3: Where any action or proceedings seeking the grant of an injunction to stop a strike or lockout or to prevent a threatened strike or lockout are commenced in the court, and the court is satisfied that participation in the strike or lockout is lawful under section 83 section 84
a: the court must dismiss that action or those proceedings; and
b: no proceedings seeking the grant of an injunction to stop that strike or lockout or to prevent that threatened strike or lockout may be commenced in the District Court or the High Court.
4:
5: 1991 No 22 s 74 Section 100(1)(b) amended 6 March 2015 section 63(1) Employment Relations Amendment Act 2014 Section 100(1)(c) repealed 12 December 2018 section 30(1) Employment Relations Amendment Act 2018 Section 100(2)(b) amended 6 March 2015 section 63(3) Employment Relations Amendment Act 2014 Section 100(2)(c) repealed 12 December 2018 section 30(1) Employment Relations Amendment Act 2018 Section 100(4) repealed 12 December 2018 section 30(2) Employment Relations Amendment Act 2018 Section 100(5) repealed 12 December 2018 section 30(2) Employment Relations Amendment Act 2018
8A: Codes of employment practice and code of good faith for public health sector
Part 8A inserted 1 December 2004 section 36 Employment Relations Amendment Act (No 2) 2004 Codes of employment practice Heading inserted 1 December 2004 section 36 Employment Relations Amendment Act (No 2) 2004
100A: Codes of employment practice
1: The Minister may, by notice
2:
3: Before the Minister approves a code of employment practice, the Minister must consult, or be satisfied that there has been consultation, with such persons and organisations as the Minister thinks appropriate, including relevant employer and employee interests.
4: The purpose of a code of employment practice is to provide guidance on the application of any of the Acts specified in section 223(1)
a: generally; or
b: in relation to particular types of situations; or
c: in relation to particular parts or areas of the employment environment.
5: A code of employment practice 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: LA19 ss 73 74(1)(a) cl 14 •	publish it in the Gazette •	notify its approval in the Gazette Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 100A inserted 1 December 2004 section 36 Employment Relations Amendment Act (No 2) 2004 Section 100A(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 100A(2) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 100A(4) amended 6 November 2020 section 27(1) Equal Pay Amendment Act 2020 Section 100A(5) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
100B: Amendment and revocation of code of practice
A code of practice may be amended or revoked in the same manner as the code is approved. Section 100B inserted 1 December 2004 section 36 Employment Relations Amendment Act (No 2) 2004
100C: Authority or court may have regard to code of employment practice
1: A code of employment practice is admissible in any civil or criminal proceedings as evidence of whether the enactment to which it relates has been complied with.
2: The Authority or a court may—
a: have regard to the code as evidence of compliance with the provisions of the enactment to which it relates; and
b: rely on the code in determining what is required to comply with those provisions. 2015 No 70 s 226 Section 100C replaced 6 November 2020 section 28 Equal Pay Amendment Act 2020 Code of good faith for public health sector Heading inserted 1 December 2004 section 36 Employment Relations Amendment Act (No 2) 2004
100D: Code of good faith for public health sector
1: Schedule 1B
2: The code—
a: applies subject to the other provisions of this Act and any other enactment; and
b: in particular, does not limit the application of the duty of good faith in section 4
3: Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4
4: It is a breach of the duty of good faith in section 4
5: This section does not prevent a code of good faith approved under section 35 section 100A
6: However, in the case of any inconsistency, the code set out in Schedule 1B section 35 section 100A Section 100D inserted 1 December 2004 section 36 Employment Relations Amendment Act (No 2) 2004
100E: Amendments to or replacement of code of good faith for public health sector
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend or replace the code of good faith for the public health sector set out in Schedule 1B
2: The Minister must not make a recommendation under subsection (1) unless—
a: requested to do so by—
i: Health New Zealand
ii: unions who represent not less than three-quarters of union members employed by Health New Zealand
b: the Minister has consulted the Minister of Health and such other persons and organisations as he or she considers appropriate.
3: An order 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 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 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 100E inserted 1 December 2004 section 36 Employment Relations Amendment Act (No 2) 2004 Section 100E(2)(a)(i) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 100E(2)(a)(ii) amended 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022 Section 100E(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
100F: Code of good faith for employment relationships in relation to provision of services by New Zealand Police
1: Schedule 1C
2: The code—
a: applies subject to the other provisions of this Act and any other enactment; and
b: in particular, does not limit the application of the duty of good faith in section 4
3: Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4
4: It is a breach of the duty of good faith in section 4
5: This section does not prevent a code of good faith approved under section 35 section 100A
6: However, in the case of any inconsistency, the code set out in Schedule 1C section 35 100A Section 100F inserted 1 October 2008 section 120 Policing Act 2008
100G: Amendments to or replacement of code of good faith for employment relationships in relation to provision of services by New Zealand Police
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend or replace the code of good faith for employment relationships in relation to the provision of services by the New Zealand Police set out in Schedule 1C
2: The Minister must not make a recommendation under subsection (1) unless—
a: requested to do so by the Commissioner of Police and service organisations representing not less than three-quarters of service organisation members employed by the Police; and
b: the Minister has consulted the Minister of Police and any other persons and organisations that he or she considers appropriate.
3: In this section, service organisation section 55
4: An order 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 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 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 100G inserted 1 October 2008 section 120 Policing Act 2008 Section 100G(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
9: Personal grievances, disputes, and enforcement
Object
101: Object of this Part
The object of this Part is—
a: to recognise that, in resolving employment relationship problems, access to both information and mediation services is more important than adherence to rigid formal procedures; and
ab: to recognise that employment relationship problems are more likely to be resolved quickly and successfully if the problems are first raised and discussed directly between the parties to the relationship; and
b: to continue to give special attention to personal grievances, and to facilitate the raising of personal grievances with employers; and
c:
d: to ensure that the role of the Authority and the court in resolving employment relationship problems is to determine the rights and obligations of the parties rather than to fix terms and conditions of employment. Section 101(ab) inserted 1 December 2004 section 37 Employment Relations Amendment Act (No 2) 2004 Section 101(c) repealed 1 April 2011 section 14 Employment Relations Amendment Act 2010 Personal grievances
102: Employee may pursue personal grievance under this Act
An employee who believes that he or she has a personal grievance may pursue that grievance under this Act.
103: Personal grievance
1: For the purposes of this Act, personal grievance
a: that the employee has been unjustifiably dismissed; or
b: that the employee's employment, or 1 or more conditions of the employee's employment (including any condition that survives termination of the employment), is or are or was (during employment that has since been terminated) affected to the employee's disadvantage by some unjustifiable action by the employer; or
c: that the employee has been discriminated against in the employee's employment; or
d: that the employee has been sexually harassed in the employee's employment; or
da: that the employee has been treated adversely in the employee’s employment on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family
e: that the employee has been racially harassed in the employee's employment; or
f: that the employee has been subject to duress in the employee's employment in relation to membership or non-membership of a union or employees organisation ; or
g: that the employee's employer has failed to comply with a requirement of Part 6A ; or
h: that the employee has been disadvantaged by the employee’s employment agreement not being in accordance with section 67C 67D 67G 67H
i: that the employee’s employer has contravened section 67F 67G(3) j that the employee’s employer has, in relation to the employee,—
i: engaged in adverse conduct for a prohibited health and safety reason; or
ii: contravened section 92
k: that the employer has retaliated, or threatened to retaliate, against the employee in breach of section 21
2: For the purposes of this Part, a representative
a: who is employed by that employer; and
b: who either—
i: has authority over the employee alleging the grievance; or
ii: is in a position of authority over other employees in the workplace of the employee alleging the grievance.
3: In subsection (1)(b), unjustifiable action by the employer does not include an action deriving solely from the interpretation, application, or operation, or disputed interpretation, application, or operation, of any provision of any employment agreement.
4: For the purposes of sections 103B 115A 123A
a: references to the employer were references to the controlling third party; and
b: references to the employee’s employment included work the employee has performed under the control or direction of a controlling third party. 1991 No 22 s 27 Section 103(1)(da) inserted 1 April 2019 section 8 Domestic Violence—Victims' Protection Act 2018 Section 103(1)(da) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 103(1)(f) amended 14 September 2006 section 7(1) Employment Relations Amendment Act 2006 Section 103(1)(g) added 14 September 2006 section 7(2) Employment Relations Amendment Act 2006 Section 103(1)(g) amended 10 September 2008 section 7(1) Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 Section 103(1)(h) replaced 1 April 2016 section 10 Employment Relations Amendment Act 2016 Section 103(1)(i) inserted 1 April 2016 section 10 Employment Relations Amendment Act 2016 Section 103(1)(i) amended 17 December 2016 section 44 Statutes Amendment Act 2016 Section 103(1)(j) inserted 4 April 2016 section 5 Employment Relations Amendment Act 2015 Section 103(1)(k) inserted 1 July 2022 section 40 Protected Disclosures (Protection of Whistleblowers) Act 2022 Section 103(4) inserted 27 June 2020 section 5 Employment Relations (Triangular Employment) Amendment Act 2019
103A: Test of justification
1: For the purposes of section 103(1)(a)
2: The test is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
3: In applying the test in subsection (2), the Authority or the court must consider—
a: whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
b: whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
c: whether the employer gave the employee a reasonable opportunity to respond to the employer's concerns before dismissing or taking action against the employee; and
d: whether the employer genuinely considered the employee's explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
4: In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate.
5: The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were—
a: minor; and
b: did not result in the employee being treated unfairly. Section 103A substituted 1 April 2011 section 15 Employment Relations Amendment Act 2010
103B: Joining controlling third party to personal grievance
1: This section applies if—
a: an employee has—
i: raised a personal grievance in accordance with section 114
ii: applied to the Authority to resolve a personal grievance with the employee’s employer; and
b: the personal grievance relates to an action that is alleged to have occurred while the employee was working under the control or direction of a controlling third party.
2: The employee or the employer, or both, may apply to the Authority or the court to join the controlling third party to the proceedings to resolve the personal grievance.
3: The Authority or the court must grant the application to join a controlling third party if the Authority or the court is satisfied—
a: that the requirement to notify the controlling third party in accordance with section 115A
b: that an arguable case has been made out—
i: that the party to be joined to the proceedings is a controlling third party; and
ii: that the party’s actions caused or contributed to the personal grievance.
4: The Authority or the court may, at any stage of the proceedings, of its own motion join a controlling third party to the proceedings by order.
5: If the Authority or the court joins the controlling third party to the proceedings, the Authority or the court must consider whether to direct the employer, the employee, and the controlling third party to use mediation services to seek to resolve the personal grievance. Section 103B inserted 27 June 2020 section 6 Employment Relations (Triangular Employment) Amendment Act 2019
104: Discrimination
1: For the purposes of section 103(1)(c) discriminated against in that employee's employment section 105 or the employee’s union membership status or involvement in union activities section 107
a: refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or
b: dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or
c: retires that employee, or requires or causes that employee to retire or resign.
2: For the purposes of this section, detriment
3: This section is subject to the exceptions set out in section 106 1991 No 22 s 28(1) Section 104(1) amended 11 June 2019 section 31 Employment Relations Amendment Act 2018 Section 104(1) amended 4 April 2016 section 6 Employment Relations Amendment Act 2015
105: Prohibited grounds of discrimination for purposes of section 104
1: The prohibited grounds of discrimination referred to in section 104 section 21(1)
a: sex:
b: marital status:
c: religious belief:
d: ethical belief:
e: colour:
f: race:
g: ethnic or national origins:
h: disability:
i: age:
j: political opinion:
k: employment status:
l: family status:
m: sexual orientation.
2: The items listed in subsection (1) have the meanings (if any) given to them by section 21(1)
106: Exceptions in relation to discrimination
1: Section 104 Human Rights Act 1993
a: section 24
b: section 25
c: section 26
d: section 27
e: section 28
f: section 29
g: section 30
h: section 31
i: section 32
j:
k: section 34
l: section 35
m: section 70
2: For the purposes of subsection (1), sections 24 to 35 section 104 section 22
a: references in sections 24 to 29 31 and 32 section 22 section 104(1)
b: references in section 30 section 34
i: to section 22(1)(a) or 22(1)(b) section 104(1)(a)
ii: to section 22(1)(c) section 104(1)(b)
iii: to section 22(1)(d) section 104(1)(c)
3: Nothing in section 104
a: anything done or omitted for any of the reasons set out in paragraph (a) or paragraph (b) of section 73(1)
b: preferential treatment granted by reason of any of the reasons set out in paragraph (a) or paragraph (b) of section 74
c: retiring an employee or requiring or causing an employee to retire at a particular age that has effect by virtue of section 149(2)
4: Despite section 104
5: Section 104 section 9(3) Section 106(1)(j) repealed 5 May 2007 section 6(2) Human Rights (Women in Armed Forces) Amendment Act 2007 Section 106(1)(m) added 1 December 2004 section 39 Employment Relations Amendment Act (No 2) 2004 Section 106(2)(a) amended 5 May 2007 section 6(3) Human Rights (Women in Armed Forces) Amendment Act 2007 Section 106(4) inserted 11 June 2019 section 32 Employment Relations Amendment Act 2018 Section 106(5) inserted 11 June 2019 section 32 Employment Relations Amendment Act 2018
107: Definition of
union membership status or involvement in union activities
1: For the purposes of section 104 involvement in union activities
a: was an officer of a union or part of a union, or was a member of the committee of management of a union or part of a union, or was otherwise an official or representative of a union or part of a union; or
b: had acted as a negotiator or representative of employees in collective bargaining; or
ba: had participated in a strike lawfully; or
c: was involved in the formation or the proposed formation of a union; or
d: had made or caused to be made a claim for some benefit of an employment agreement either for that employee or any other employee, or had supported any such claim, whether by giving evidence or otherwise; or
e: had submitted another personal grievance to that employee's employer; or
f: had been allocated, had applied to take, or had taken any employment relations education leave under this Act; or
g: was a delegate of other employees in dealing with the employer on matters relating to the employment of those employees.
2: For the purposes of section 104 union membership status
a: was a member of a union; or
b: intended to join a union.
2: 1991 No 22 s 28(2) Section 107 heading amended 11 June 2019 section 33(1) Employment Relations Amendment Act 2018 Section 107(1) amended 11 June 2019 section 33(2) Employment Relations Amendment Act 2018 Section 107(1)(ba) inserted 1 December 2004 section 40 Employment Relations Amendment Act (No 2) 2004 Section 107(2) inserted 11 June 2019 section 33(3) Employment Relations Amendment Act 2018 Section 107(2) repealed 4 April 2016 section 7 Employment Relations Amendment Act 2015
108: Sexual harassment
1: For the purposes of sections 103(1)(d) 123(d) sexually harassed in that employee's employment
a: directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains—
i: an implied or overt promise of preferential treatment in that employee's employment; or
ii: an implied or overt threat of detrimental treatment in that employee's employment; or
iii: an implied or overt threat about the present or future employment status of that employee; or
b: by—
i: the use of language (whether written or spoken) of a sexual nature; or
ii: the use of visual material of a sexual nature; or
iii: physical behaviour of a sexual nature,— directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee's employment, job performance, or job satisfaction.
2: For the purposes of sections 103(1)(d) 123(d) sexually harassed in that employee's employment section 117 1991 No 22 s 29
108A: Adverse treatment in employment of people affected by
family
1: For the purposes of sections 103(1)(da) 123(1)(d) treated adversely in the employee’s employment on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family family section 69ABA
a: dismisses that employee, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed; or
b: refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially the same qualifications, experience, or skills employed in the same or substantially similar circumstances; or
c: subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be subjected to such detriment; or
d: retires that employee, or requires or causes that employee to retire or resign.
2: Subsection (1) applies regardless of how long ago the family family Section 108A inserted 1 April 2019 section 9 Domestic Violence—Victims' Protection Act 2018 Section 108A heading amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 108A(1) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 108A(2) amended 1 July 2019 section 259(1) Family Violence Act 2018
109: Racial harassment
For the purposes of sections 103(1)(e) 123(d) racially harassed in the employee's employment
a: expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and
b: is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and
c: has, either by its nature or through repetition, a detrimental effect on the employee's employment, job performance, or job satisfaction.
110: Duress
1: For the purposes of section 103(1)(f) subject to duress in that employee's employment in relation to membership or non-membership of a union or employees organisation
a: makes membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or
b: makes non-membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or
c: exerts undue influence on that employee, or offers, or threatens to withhold or does withhold, any incentive or advantage to or from that employee, or threatens to or does impose any disadvantage on that employee, with intent to induce that employee—
i: to become or remain a member of a union or employees organisation or a particular union or employees organisation; or
ii: to cease to be a member of a union or employees organisation or a particular union or employees organisation; or
iii: not to become a member of a union or employees organisation or a particular union or employees organisation; or
iv: in the case of an employee who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or
v: on account of the fact that the employee is, or, as the case may be, is not, a member of a union or employees organisation or of a particular union or employees organisation, to resign from or leave any employment; or
vi: to participate in the formation of a union or employees organisation; or
vii: not to participate in the formation of a union or employees organisation.
2: In this section and in section 103(1)(f) employees organisation 1991 No 22 s 30
110A: Adverse conduct for prohibited health and safety reason
1: For the purposes of this Part, an employer engages in adverse conduct for a prohibited health and safety reason
a: dismisses an employee; or
b: refuses or omits to offer or afford to the employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or
c: subjects the employee to any detriment in circumstances in which other employees employed by the employer in work of that description are not or would not be subjected to such detriment; or
d: retires the employee, or requires or causes the employee to retire or resign.
2: For the purposes of subsection (1), conduct described in that section is engaged in for a prohibited health and safety reason if it is engaged in for a reason described in section 89
3: An employer may be found to have engaged in adverse conduct for a prohibited health and safety reason only if the prohibited health and safety reason was a substantial reason for the conduct.
4: For the purposes of subsection (3), a prohibited health and safety reason is presumed to be a substantial reason for the conduct unless the employer proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.
5: It is a defence to an action for a personal grievance under section 103(1)(j)(i)
a: the conduct was reasonable in the circumstances; and
b: a substantial reason for the conduct was to comply with the requirements of the Health and Safety at Work Act 2015 section 16
6: For the purposes of this section,—
a: an employer also engages in adverse conduct if the employer or a representative of the employer, in relation to the employee,—
i: organises to take any action referred to in subsection (1) or threatens to organise or take that action; or
ii: requests, instructs, induces, encourages, authorises, or assists another person to engage in adverse conduct for a prohibited health and safety reason:
b: detriment Section 110A replaced 4 April 2016 section 8 Employment Relations Amendment Act 2015 Section 110A(5) amended 31 March 2017 section 5 Regulatory Systems (Workplace Relations) Amendment Act 2017
110B: Retaliation against whistleblower
1: For the purposes of this Part, retaliate section 21
2: An employer may be found to have retaliated, or threatened to retaliate, only if the protected disclosure was a substantial reason for the employer’s relevant actions or omissions.
3: The burden of proof is on the employer to prove, on the balance of probabilities, that the disclosure was not a substantial reason for the employer’s actions or omissions. Section 110B inserted 1 July 2022 section 40 Protected Disclosures (Protection of Whistleblowers) Act 2022
111: Definitions relating to personal grievances
Each of the terms personal grievance discrimination sexual harassment adverse treatment in employment of people affected by family racial harassment duress adverse conduct for prohibited health and safety reason retaliate sections 103 104 105 106 107 108 108A 109 110 110A 110B 1991 No 22 s 31 Section 111 amended 1 July 2022 section 40 Protected Disclosures (Protection of Whistleblowers) Act 2022 Section 111 amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 111 amended 1 April 2019 section 10(1) Domestic Violence—Victims' Protection Act 2018 Section 111 amended 1 April 2019 section 10(2) Domestic Violence—Victims' Protection Act 2018 Section 111 amended 4 April 2016 section 9 Employment Relations Amendment Act 2015
112: Choice of procedures
1: Where the circumstances giving rise to a personal grievance by an employee are also such that that employee would be entitled to make a complaint under the Human Rights Act 1993
a: the employee may, if the grievance is not otherwise resolved, apply to the Authority for the resolution of the grievance:
b: the employee may make, in relation to those circumstances, a complaint under the Human Rights Act 1993
2: For the purposes of subsection (1)(b), an employee makes a complaint when proceedings in relation to that complaint are commenced by the complainant or the Commission.
3: If an employee applies to the Authority for a resolution of the grievance under subsection (1)(a), the employee may not exercise or continue to exercise any rights in relation to the subject matter of the grievance that the employee may have under the Human Rights Act 1993
4: If an employee makes a complaint under subsection (1)(b), the employee may not exercise or continue to exercise any rights in relation to the subject matter of the complaint that the employee may have under this Act. 1991 No 22 s 39 Section 112(2) substituted 1 January 2002 section 71(1) Human Rights Amendment Act 2001 Section 112(3) added 1 December 2004 section 41 Employment Relations Amendment Act (No 2) 2004 Section 112(4) added 1 December 2004 section 41 Employment Relations Amendment Act (No 2) 2004
113: Personal grievance provisions only way to challenge dismissal
1: If an employee who has been dismissed wishes to challenge that dismissal or any aspect of it, for any reason, in any court, that challenge may be brought only in the Authority under this Part as a personal grievance.
2: Nothing in subsection (1) prevents an action under this Part to recover—
a: wages relating to a period of notice or alleged period of notice; or
b: wages or other money relating to the employment prior to the dismissal; or
c: other money payable on dismissal.
114: Raising personal grievance
1: An employee who wishes to raise a personal grievance must, subject to subsections (3) and (4), raise the grievance with their employer within the applicable employee notification period unless the employer consents to the personal grievance being raised after the expiration of that period.
2: For the purposes of subsection (1), a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.
3: Where the employer does not consent to the personal grievance being raised after the expiration of the employee notification period
4: On an application under subsection (3), the Authority, after giving the employer an opportunity to be heard, may grant leave accordingly, subject to such conditions (if any) as it thinks fit, if the Authority—
a: is satisfied that the delay in raising the personal grievance was occasioned by exceptional circumstances (which may include any 1 or more of the circumstances set out in section 115
b: considers it just to do so.
5: In any case where the Authority grants leave under subsection (4), the Authority must direct the employer and employee to use mediation to seek to mutually resolve the grievance.
6: No action may be commenced in the Authority or the court in relation to a personal grievance more than 3 years after the date on which the personal grievance was raised in accordance with this section.
7: In this section, employee notification period
a: in respect of a personal grievance under section 103(1)(d)
b: in respect of any other personal grievance, the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is later. 1991 No 22 s 33 Section 114(1) replaced 13 June 2023 section 6(1) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 114(3) amended 13 June 2023 section 6(2) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 114(7) inserted 13 June 2023 section 6(3) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023
115: Further provision regarding exceptional circumstances under section 114
For the purposes of section 114(4)(a)
a: where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the applicable employee notification period under section 114
b: where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; or
c: where the employee's employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 section 65
d: where the employer has failed to comply with the obligation under section 120(1) Section 115(a) amended 13 June 2023 section 7 Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023
115A: Notifying controlling third party of personal grievance
1: For the purposes of section 103B complied with
a: when an employee—
i: considers that the actions of a controlling third party caused or contributed to the personal grievance; and
ii: notifies the controlling third party of that fact within the applicable
b: when an employer—
i: considers that the actions of a controlling third party caused or contributed to the personal grievance; and
ii: notifies the controlling third party of that fact within the 90-day employer notification period; or
c: if the controlling third party has consented to being notified under subsection (2); or
d: if the Authority has granted leave to notify the controlling third party under subsection (4).
2: Subsection (1)(a) or (b) does not apply if the controlling third party consents to being notified after the expiration of the relevant
3: If the controlling third party does not consent to being notified after the relevant
4: On an application under subsection (3), the Authority, after giving the controlling third party an opportunity to be heard, may grant leave accordingly, subject to any conditions that it thinks fit, if the Authority considers it just to do so.
5: In any case where the Authority grants leave under subsection (4), the Authority must direct the employee, the employer, and the controlling third party to use mediation to seek to resolve the personal grievance.
6: In this section,— 90-day employer notification period employee notification period section 114(7) relevant notification period Section 115A inserted 27 June 2020 section 7 Employment Relations (Triangular Employment) Amendment Act 2019 Section 115A(1)(a)(ii) amended 13 June 2023 section 8(1) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 115A(2) amended 13 June 2023 section 8(2) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 115A(3) amended 13 June 2023 section 8(3) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 115A(6) 90-day employee notification period repealed 13 June 2023 section 8(4) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 115A(6) employee notification period inserted 13 June 2023 section 8(5) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 115A(6) relevant 90-day notification period repealed 13 June 2023 section 8(4) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 Section 115A(6) relevant notification period inserted 13 June 2023 section 8(5) Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023
116: Special provision where sexual harassment alleged
Where a personal grievance involves allegations of sexual harassment, no account may be taken of any evidence of the complainant's sexual experience or reputation. 1991 No 22 s 35
117: Sexual or racial harassment by person other than employer
1: This section applies where—
a: a request of the kind described in section 108(1)(a)
b: an employee is subjected to behaviour of the kind described in section 108(1)(b)
c: an employee is subjected to behaviour of the kind described in section 109
2: If this section applies, the employee may make a complaint about that request or behaviour to the employee's employer or to a representative of the employer.
3: The employer or representative, on receiving a complaint under subsection (2), must inquire into the facts.
4: If the employer or representative is satisfied that the request was made or that the behaviour took place, the employer or representative must take whatever steps are practicable to prevent any repetition of such a request or of such behaviour. 1991 No 22 s 36(1), (2)
118: Sexual or racial harassment after steps not taken to prevent repetition
1: This section applies if—
a: a person in relation to whom an employee has made a complaint under section 117(2)
i: makes to that employee after the complaint a request of the kind described in section 108(1)(a)
ii: subjects that employee after the complaint to behaviour of the kind described in section 108(1)(b) section 109
b: the employer of that employee, or a representative of that employer, has not taken whatever steps are practicable to prevent the repetition of such a request or such behaviour.
2: If this section applies, the employee is deemed for the purposes of this Act and for the purposes of any employment agreement to have a personal grievance by virtue of having been sexually harassed or racially harassed, as the case may be, in the course of the employee's employment as if the request or behaviour were that of the employee's employer. 1991 No 22 s 36(3)
119: Presumption in discrimination cases
1: Subsection (2) applies if, in any matter before the Authority or the court,—
a: the employee establishes that the employer or the employer's representative took any action or omitted any action as described in any of paragraphs (a) to (c) of section 104(1)
b: if it is a case where the employee alleges that the discrimination was by reason directly or indirectly of the employee's union membership status or involvement in union activities section 107
2: If this subsection applies, there is a rebuttable presumption that the employer or representative of the employer discriminated against the employee on the grounds, or for the reason, specified in section 104(1) Section 119(1)(b) amended 11 June 2019 section 34 Employment Relations Amendment Act 2018
120: Statement of reasons for dismissal
1: Where an employee is dismissed, that employee may, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later, request the employer to provide a statement in writing of the reasons for the dismissal.
2: Every employer to whom a request is made under subsection (1) must, within 14 days after the day on which the request is received, provide the statement to the person who made the request. 1991 No 22 s 38
121: Statements privileged
Any statements made or information given in the course of raising a personal grievance or in the course of attempting to resolve the grievance or in the course of any matter relating to a personal grievance are absolutely privileged. 1991 No 22 s 37
122: Nature of personal grievance may be found to be of different type from that alleged
Nothing in this Part or in any employment agreement prevents a finding that a personal grievance is of a type other than that alleged. 1991 No 22 s 34 Remedies in relation to personal grievances
123: Remedies
1: Where the Authority or the court determines that an employee has a personal grievance, it may, in settling the grievance, provide for any 1 or more of the following remedies:
a: reinstatement of the employee in the employee's former position or the placement of the employee in a position no less advantageous to the employee:
b: the reimbursement to the employee of a sum equal to the whole or any part of the wages or other money lost by the employee as a result of the grievance:
c: the payment to the employee of compensation by the employee's employer, including compensation for—
i: humiliation, loss of dignity, and injury to the feelings of the employee; and
ii: loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to obtain if the personal grievance had not arisen:
ca: if the Authority or the court finds that any workplace conduct or practices are a significant factor in the personal grievance, recommendations to the employer concerning the action the employer should take to prevent similar employment relationship problems occurring:
d: if the Authority or the court finds an employee to have been sexually or racially harassed in the employee’s employment, or treated adversely in the employee’s employment on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family
i: concerning the action the employer should take in respect of the person who made the request referred to in section 108(1)(a)
ii: about any other action that it is necessary for the employer to take to prevent further harassment, or adverse treatment on that ground, of the employee concerned or any other employee.
2: When making an order under subsection (1)(b) or (c), the Authority or the court may order payment to the employee by instalments, but only if the financial position of the employer requires it. 1991 No 22 s 40 Section 123(1)(ca) inserted 1 December 2004 section 42(1) Employment Relations Amendment Act (No 2) 2004 Section 123(1)(d) replaced 1 April 2019 section 11 Domestic Violence—Victims' Protection Act 2018 Section 123(1)(d) amended 1 July 2019 section 259(1) Family Violence Act 2018 Section 123(2) added 1 December 2004 section 42(2) Employment Relations Amendment Act (No 2) 2004
123A: Remedies where controlling third party caused or contributed to personal grievance
1: This section applies if the Authority or the court—
a: determines that an employee has a personal grievance; and
b: has, under section 103B
c: determines that the actions of the controlling third party caused or contributed to the situation that gave rise to the personal grievance.
2: The Authority or the court may, if satisfied that it is just to do so, order the controlling third party to provide to the employee either or both of the remedies in section 123(1)(b) and (c)
3: The Authority or the court must consider the extent to which the actions of the controlling third party caused or contributed to the situation that gave rise to the personal grievance.
4: The Authority or the court must award any remedies against the employer under section 123
5: The Authority or the court may, if making an order under subsection (2), order payment to the employee by instalments, but only if the financial position of the controlling third party requires it.
6: Subsection (2) applies subject to subsections (3) to (5). Section 123A inserted 27 June 2020 section 8 Employment Relations (Triangular Employment) Amendment Act 2019
124: Remedy reduced if contributing behaviour by employee
Where the Authority or the court determines that an employee has a personal grievance, the Authority or the court must, in deciding both the nature and the extent of the remedies to be provided in respect of that personal grievance,—
a: consider the extent to which the actions of the employee contributed towards the situation that gave rise to the personal grievance; and
b: if those actions so require, reduce the remedies that would otherwise have been awarded accordingly. 1991 No 22 ss 40(2), 41(3)
125: Reinstatement to be primary remedy
1: This section applies if—
a: the remedies sought by, or on behalf of, an employee in respect of a personal grievance include reinstatement; and
b: it is determined that the employee did have a personal grievance.
2: If this section applies, the Authority or court must provide for reinstatement wherever practicable and reasonable, irrespective of whether it provides for any other remedy as specified in section 123 Section 125 replaced 12 December 2018 section 47 Employment Relations Amendment Act 2018
126: Provisions applying if reinstatement ordered
Where the remedy of reinstatement is provided by the Authority or the court, the employee must be reinstated immediately or on such date as is specified by the Authority or the court and, despite any challenge to or appeal against the determination of the Authority or the court, the provisions for reinstatement remain in full force pending the outcome of those proceedings unless the Authority or the court otherwise orders. 1991 No 22 s 42
127: Authority may order interim reinstatement
1: The Authority may if it thinks fit, on the application of an employee who has raised a personal grievance with his or her employer, make an order for the interim reinstatement of the employee pending the hearing of the personal grievance.
2: The employee must, at the time of filing the application for an order under subsection (1), file a signed undertaking that the employee will abide by any order that the Authority may make in respect of damages—
a: that are sustained by the other party through the granting of the order for interim reinstatement; and
b: that the Authority decides that the employee ought to pay.
3: The undertaking must be referred to in the order for interim reinstatement and is part of it.
4: When determining whether to make an order for interim reinstatement, the Authority must apply the law relating to interim injunctions having regard to the object of this Act.
5: The order for interim reinstatement may be subject to any conditions that the Authority thinks fit.
6: The Authority may at any time rescind or vary an order made under this section.
7: Nothing in this section prevents the court from granting an interim injunction reinstating an employee if the court is seized of the proceedings dealing with the personal grievance.
128: Reimbursement
1: This section applies where the Authority or the court determines, in respect of any employee,—
a: that the employee has a personal grievance; and
b: that the employee has lost remuneration as a result of the personal grievance.
2: If this section applies then, subject to subsection (3) and section 124 section 123
3: Despite subsection (2), the Authority may, in its discretion, order an employer to pay to an employee by way of compensation for remuneration lost by that employee as a result of the personal grievance, a sum greater than that to which an order under that subsection may relate. 1991 No 22 s 41(1), (2) Disputes
129: Person bound by, or party to, employment agreement may pursue dispute under this Act
1: Where there is a dispute about the interpretation, application, or operation of an employment agreement, any person bound by the agreement or any party to the agreement may pursue that dispute in accordance with Part 10
2: If the dispute relates to a collective agreement, the person or party pursuing the dispute must ensure that all union and employer parties to the agreement have notice of the existence of the dispute. 1991 No 22 s 44 Recovery of wages
130: Wages and time record
1: Every employer must at all times keep a record (called the wages and time record
a: the name of the employee:
b: the employee's age, if under 20 years of age:
c: the employee's postal address:
d: the kind of work on which the employee is usually employed:
e: whether the employee is employed under an individual employment agreement or a collective agreement:
f: in the case of an employee employed under a collective agreement, the title and expiry date of the agreement, and the employee's classification under it:
g: the number of hours worked each day in a pay period and the pay for those hours:
h: the wages paid to the employee each pay period and the method of calculation:
i: details of any employment relations education leave taken under Part 7
j: such other particulars as may be prescribed.
1A: The wages and time record must be kept—
a: in written form; or
b: in a form or in a manner that allows the information in the record to be easily accessed and converted into written form.
1B: If an employee’s number of hours worked each day in a pay period and the pay for those hours are agreed and the employee works those hours (the usual hours
a: the wages and time record; or
b: the employment agreement; or
c: a roster or any other document or record used in the normal course of the employee’s employment.
1C: In subsection (1B), the usual hours
1D: Despite subsection (1C), the employer must record any additional hours worked that need to be recorded to enable the employer to comply with the employer’s general obligation under section 4B(1)
2: Every employer must, upon request by an employee or by a person authorised under section 236
3:
4: Every employer who fails to comply with any requirement of this section is liable to a penalty imposed by the Authority.
5: An action to recover a penalty under subsection (4) may also be brought by a Labour Inspector. 1991 No 22 s 47 Section 130(1)(g) replaced 1 April 2016 section 11(1) Employment Relations Amendment Act 2016 Section 130(1A) inserted 1 April 2016 section 11(2) Employment Relations Amendment Act 2016 Section 130(1B) inserted 1 April 2016 section 11(2) Employment Relations Amendment Act 2016 Section 130(1C) inserted 1 April 2016 section 11(2) Employment Relations Amendment Act 2016 Section 130(1D) inserted 1 April 2016 section 11(2) Employment Relations Amendment Act 2016 Section 130(3) repealed 1 April 2016 section 11(3) Employment Relations Amendment Act 2016 Section 130(5) inserted 1 April 2016 section 11(4) Employment Relations Amendment Act 2016
131: Arrears
1: Where—
a: there has been default in payment to an employee of any wages or other money payable by an employer to an employee under an employment agreement or a contract of apprenticeship; or
b: any payments of any such wages or other money has been made at a rate lower than that legally payable,— the whole or any part, as the case may require, of any such wages or other money may be recovered by the employee by action commenced in the prescribed manner in the Authority.
1A: The Authority may order payment of the wages or other money to the employee by instalments, but only if the financial position of the employer requires it.
2: Subsection (1) applies despite the acceptance by the employee of any payment at a lower rate or any express or implied agreement to the contrary.
3: Subsection (1) does not affect any other remedies for the recovery of wages or other money payable by an employer to any employee under an employment agreement or a contract of apprenticeship. 1991 No 22 s 48(1) Section 131(1A) inserted 1 December 2004 section 43 Employment Relations Amendment Act (No 2) 2004
132: Failure to keep or produce records
1: Where any claim is brought before the Authority under section 131
a: the defendant employer failed to keep or produce a wages and time record in respect of that employee as required by this Act; and
b: that failure prejudiced the employee's ability to bring an accurate claim under section 131
2: Where evidence of the type referred to in subsection (1) is given, the Authority may, unless the defendant proves that those claims are incorrect, accept as proved all claims made by the employee in respect of—
a: the wages actually paid to the employee:
b: the hours, days, and time worked by the employee.
3: A defendant may not use as evidence any wages and time record that would be inadmissible under section 232(3) 1991 No 22 s 50 Section 132(2) replaced 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Penalties
133: 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 an employment 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 178AA
b: any right to have the matter heard by the court under section 179
3: Subject to any rights of appeal under this Act, the court has full and exclusive jurisdiction to deal with all actions for the recovery of penalties under this Act for a breach of any other provision of this Act for which a penalty in the court is provided in the particular provision. 1991 No 22 s 51 Section 133(2)(a) amended 28 November 2023 section 88 Security Information in Proceedings (Repeals and Amendments) Act 2022
133A: Matters Authority and court to have regard to in determining amount of penalty
In determining an appropriate penalty for a breach referred to in section 133
a: the object 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. Section 133A inserted 1 April 2016 section 12 Employment Relations Amendment Act 2016
134: Penalties for breach of employment agreement
1: Every party to an employment agreement who breaches that agreement is liable to a penalty under this Act.
2: Every person who incites, instigates, aids, or abets any breach of an employment agreement is liable to a penalty imposed by the Authority. 1991 No 22 s 52
134A: Penalty for obstructing or delaying Authority investigation
1: Every person is liable to a penalty under this Act who, without sufficient cause, obstructs or delays an Authority investigation, including failing to attend as a party before an Authority investigation (if required).
2: The power to award a penalty under subsection (1) may be exercised by the Authority—
a: of its own motion; or
b: on the application of any party to the investigation. Section 134A inserted 1 April 2011 section 17 Employment Relations Amendment Act 2010
135: Recovery of penalties
1: Any action for the recovery of a penalty may be brought,—
a: in the case of a breach of an employment agreement, at the suit of any party to the employment agreement who is affected by the breach; or
b: in the case of a breach of this Act, at the suit of any person in relation to whom the breach is alleged to have taken place; or
c: if permitted in the particular penalty provision, by a Labour Inspector.
2: Every person who is liable to a penalty under this Act is liable,—
a: in the case of an individual, to a penalty not exceeding $10,000
b: in the case of a company or other corporation, to a penalty not exceeding $20,000
3: A claim for 2 or more penalties against the same person may be joined in the same action.
4: In any claim for a penalty the Authority or the court may give judgment for the total amount claimed, or any amount, not exceeding the maximum specified in subsection (2), or the Authority or the court may dismiss the action.
4A: 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.
4B: In determining whether to give judgment for a penalty, and the amount of that penalty, the Authority or the court must consider whether the person against whom the penalty is sought has previously failed to comply with an improvement notice issued under section 223D
5: An action for the recovery of a penalty under this Act must be commenced within 12 months or, for a penalty for non-compliance with section 69ABE
a: the date when the cause of action first became known to the person bringing the action; or
b: the date when the cause of action should reasonably have become known to the person bringing the action.
6: Despite subsection (5), if a court refuses to make a pecuniary penalty order under section 142E 1991 No 22 s 53 Section 135(2)(a) amended 1 April 2011 section 18(1) Employment Relations Amendment Act 2010 Section 135(2)(b) amended 1 April 2011 section 18(2) Employment Relations Amendment Act 2010 Section 135(4A) inserted 1 December 2004 section 44(1) Employment Relations Amendment Act (No 2) 2004 Section 135(4B) inserted 1 April 2011 section 18(3) Employment Relations Amendment Act 2010 Section 135(5) substituted 1 December 2004 section 44(2) Employment Relations Amendment Act (No 2) 2004 Section 135(5) amended 1 April 2019 section 12 Domestic Violence—Victims' Protection Act 2018 Section 135(6) inserted 1 April 2016 section 13 Employment Relations Amendment Act 2016
135A: Chief executive or Labour Inspector may enforce payment of penalty
The chief executive or a Labour Inspector may recover in the District Court section 135 Section 135A inserted 1 April 2016 section 14 Employment Relations Amendment Act 2016 Section 135A amended 1 March 2017 section 14 Employment Relations Amendment Act 2016
136: 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
2: The Authority or the court may order that the whole or any part of any penalty recovered must be paid to any person. 1991 No 22 s 54 Section 136(1) amended 25 January 2005 section 65R(3) Public Finance Act 1989 Compliance orders
137: Power of Authority to order compliance
1: This section applies where any person has not observed or complied with—
a: any provision of—
i: any employment agreement; or
ii: Parts 1 3 to 6 6AB 6A subpart 2 6B 6C 6D 7 9
iii: any terms of settlement or decision that section 151
iiia: an enforceable undertaking that section 223C(1)
iiib: an improvement notice that section 223D(6)
iiic: any terms of a pay equity claim settlement under section 13ZH
iv: a demand notice that section 225(4)
v: sections 73 74 sections 597 600
vi: sections 76 to 80 sections 585 to 596 660
vii: section 11(3)(c) of the Health and Disability Services Act 1993
viii: clauses 5 6
ix: sections 83 83A 83B
x: clauses 18 19 21 Accident Compensation Act 2001
xi: Part 3 sections 589 600
xi:
xii:
b: any order, determination, direction, or requirement made or given under this Act by the Authority or a member or officer of the Authority.
c: any order, determination, direction, or requirement made or given under the Screen Industry Workers Act 2022
2: Where this section applies, the Authority may, in addition to any other power it may exercise, by order require, in or in conjunction with any matter before the Authority under this Act to which that person is a party or in respect of which that person is a witness, that person to do any specified thing or to cease any specified activity, for the purpose of preventing further non-observance of or non-compliance with that provision, order, determination, direction, or requirement.
3: The Authority must specify a time within which the order is to be obeyed.
4: The following persons may take action against another person by applying to the Authority for an order of the kind described in subsection (2):
a: any person (being an employee, employer, union, or employer organisation) who alleges that that person has been affected by non-observance or non-compliance of the kind described in subsection (1).
b: 1991 No 22 s 55(1), (2) Section 137(1)(a)(ii) substituted 13 December 2006 section 8 Employment Relations Amendment Act 2006 Section 137(1)(a)(ii) amended 1 April 2019 section 13 Domestic Violence—Victims' Protection Act 2018 Section 137(1)(a)(ii) amended 1 April 2009 section 9 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 Section 137(1)(a)(iiia) inserted 1 April 2011 section 19 Employment Relations Amendment Act 2010 Section 137(1)(a)(iiib) inserted 1 April 2011 section 19 Employment Relations Amendment Act 2010 Section 137(1)(a)(iiic) inserted 6 November 2020 section 33 Equal Pay Amendment Act 2020 Section 137(1)(a)(v) replaced 7 August 2020 section 135 Public Service Act 2020 Section 137(1)(a)(vi) replaced 7 August 2020 section 135 Public Service Act 2020 Section 137(1)(a)(x) substituted 1 April 2002 section 337(1) Accident Compensation Act 2001 Section 137(1)(a)(x) amended 3 March 2010 section 5(1)(b) Accident Compensation Amendment Act 2010 Section 137(1)(a)(xi) inserted 1 August 2020 section 668 Education and Training Act 2020 Section 137(1)(a)(xi) repealed 4 April 2016 section 10 Employment Relations Amendment Act 2015 Section 137(1)(a)(xii) repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Section 137(1)(c) inserted 30 December 2022 section 103 Screen Industry Workers Act 2022 Section 137(4) substituted 5 May 2003 section 33(4) Health and Safety in Employment Amendment Act 2002 Section 137(4)(b) repealed 4 April 2016 section 10 Employment Relations Amendment Act 2015
138: Further provisions relating to compliance order by Authority
1: The power given to the Authority by section 137(2)
a: of its own motion; or
b: on the application of—
i: any party to the matter; or
ii:
iii: in the case of sections 223C 223D(6) 225(4)(c)
2: Before exercising its power under section 137(2)
3: Any time specified by the Authority under section 137
4: A compliance order of the kind described in section 137(2)
a: may be made subject to such terms and conditions as the Authority thinks fit (including conditions as to the actions of the applicant); and
b: may be expressed to continue in force until a specified time or the happening of a specified event.
4A: If the compliance order relates in whole or in part to the payment to an employee of a sum of money, the Authority may order payment to the employee by instalments, but only if the financial position of the employer requires it.
5: Where the Authority makes a compliance order of the kind described in section 137(2)
6: Where any person fails to comply with a compliance order made under section 137 section 140(6) 1991 No 22 s 55(3)–(7) Section 138(1)(b) substituted 5 May 2003 section 33(5) Health and Safety in Employment Amendment Act 2002 Section 138(1)(b)(ii) repealed 4 April 2016 section 11 Employment Relations Amendment Act 2015 Section 138(1)(b)(iii) added 1 April 2011 section 20 Employment Relations Amendment Act 2010 Section 138(4A) inserted 1 December 2004 section 46 Employment Relations Amendment Act (No 2) 2004
139: Power of court to order compliance
1: This section applies where any person has not observed or complied with—
a: any provision of Part 8
b: any order, determination, direction, or requirement made or given under this Act by the court.
1A: This section also applies to a person in relation to whom the court has made a declaration of breach under section 142B
2: Where this section applies, the court may, in addition to any other power it may exercise, by order require, in or in conjunction with any proceedings under this Act to which that person is a party or in respect of which that person is a witness, that person to do any specified thing or to cease any specified activity, for the purpose of preventing further non-observance of or non-compliance with that provision, order, determination, direction, requirement, or (in the case of a declaration of breach) the provision that the declaration relates to
3: The court must specify a time within which the order is to be obeyed.
4: Where any person (being an employee, employer, union, or employer organisation) alleges that that person has been affected by a non-observance or non-compliance of the kind described in subsection (1), that person may commence proceedings against any other person in respect of the non-observance or non-compliance by applying to the court for an order of the kind described in subsection (2). 1991 No 22 s 56(1), (2) Section 139(1A) inserted 1 April 2016 section 15(1) Employment Relations Amendment Act 2016 Section 139(2) amended 1 April 2016 section 15(2) Employment Relations Amendment Act 2016
140: Further provisions relating to compliance order by court
1: The power given to the court by section 139(2)
a: on the application of any party to the proceedings; or
b: except where the proceedings are commenced under section 139(4)
2: Before exercising its power under section 139(2)
3: Any time specified by the court under section 139
4: A compliance order of the kind described in section 139(2)
a: may be made subject to such terms and conditions as the court thinks fit (including conditions as to the actions of the applicant); and
b: may be expressed to continue in force until a specified time or the happening of a specified event.
5: Where the court makes a compliance order of the kind described in section 139(2)
6: Where any person fails to comply with a compliance order made under section 139 section 138(6) section 137
a: if the person in default is a plaintiff, order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the plaintiff in the proceedings:
b: if the person in default is a defendant, order that the defendant's defence be struck out and that judgment be sealed accordingly:
c: order that the person in default be sentenced to imprisonment for a term not exceeding 3 months:
d: order that the person in default be fined a sum not exceeding $40,000:
e: order that the property of the person in default be sequestered.
7: An order under subsection (6)(d) may direct that the whole or any part of the fine must be paid to the employee concerned. 1991 No 22 s 56(3)–(7) Section 140(7) inserted 1 April 2016 section 17 Employment Relations Amendment Act 2016
140AA: Sanctions for breaches without compliance order
1: This section applies in relation to an order, determination, direction, or requirement referred to in section 137(1)(b) 139(1)(b)
2: If, after the order, determination, direction, or requirement is made or given, there has been non-observance of or non-compliance with the order, determination, direction, or requirement, the court may, on the application of a Labour Inspector, do 1 or more of the things specified in section 140(6)(a) to (e)
3: However, the court must not do any of the things specified in section 140(6)(a) to (e)
a: has provided the person in default with the opportunity to make submissions to the court; and
b: is satisfied that—
i: the matter arises from a breach of employment standards and relates to the payment of wages or other money owed, or penalties ordered, as a result of the breach; and
ii: the matter involves a breach that was not minor or inadvertent; and
iii: there was no reasonable excuse for the breach; and
iv: there are reasonable grounds for believing that, if a compliance order were made, the person in default would not comply with it. Section 140AA inserted 1 April 2016 section 16 Employment Relations Amendment Act 2016
140A: Compliance order in relation to disclosure of employee transfer costs information
and individualised employee information
1: This section applies where—
a: any person has not observed or complied with section 69OC 69OD 69OE 69OEA
b: there are reasonable grounds to believe that a person will not observe or comply with section 69OC 69OD 69OE 69OEA
2: Where this section applies, the Authority may, in addition to any other power it may exercise, by order require that person to do any specified thing or to cease any specified activity for the purpose of preventing—
a: further non-observance of or non-compliance with section 69OC 69OD 69OE 69OEA
b: non-observance of or non-compliance with section 69OC 69OD 69OE 69OEA
3: The Authority must specify a time within which the order is to be obeyed.
4: An application to the Authority for an order of the kind described in subsection (2) may be made by the following persons:
a: a person who has made or proposes to make a request under section 69OC(2)
b: a person who has required another person to provide information under section 69OD(2), (4), or (5)
ba: the new employer to whom individualised employee information must be provided under section 69OEA
bb: the employee to whom the individualised employee information referred to in section 69OEA
c: an employee who would be eligible to elect to transfer to the new employer under section 69I
d: a union of which the employee is a member.
5: Where a person alleges that a person has been or would be affected by non-observance of or non-compliance with section 69OC 69OD 69OE 69OEA
6: The power given to the Authority by subsection (2) may be exercised by the Authority—
a: of its own motion; or
b: on the application of a person described in subsection (4).
7: Sections 138(2) to (4), (5), and (6) 140(6) 161 section 137(2)
8: For the purposes of section 161(1) section 69OC 69OD 69OE 69OEA Section 140A inserted 13 December 2006 section 9 Employment Relations Amendment Act 2006 Section 140A heading amended 6 March 2015 section 64(1) Employment Relations Amendment Act 2014 Section 140A(1)(a) amended 6 March 2015 section 64(2) Employment Relations Amendment Act 2014 Section 140A(1)(b) amended 6 March 2015 section 64(2) Employment Relations Amendment Act 2014 Section 140A(2)(a) amended 6 March 2015 section 64(2) Employment Relations Amendment Act 2014 Section 140A(2)(b) amended 6 March 2015 section 64(2) Employment Relations Amendment Act 2014 Section 140A(4)(ba) inserted 6 March 2015 section 64(3) Employment Relations Amendment Act 2014 Section 140A(4)(bb) inserted 6 March 2015 section 64(3) Employment Relations Amendment Act 2014 Section 140A(5) amended 6 March 2015 section 64(2) Employment Relations Amendment Act 2014 Section 140A(8) amended 6 March 2015 section 64(2) Employment Relations Amendment Act 2014 Enforcement of order
141: Enforcement of order
1: Any order made or judgment given under any of the Acts referred to in section 223(1) the District Court
2: To avoid doubt, an order imposing a fine is enforceable under Part 3 1991 No 22 s 58 Section 141(1) amended 1 March 2017 section 261 District Court Act 2016 Section 141(1) amended 1 April 2016 section 18(1) Employment Relations Amendment Act 2016 Section 141(2) inserted 1 April 2016 section 18(2) Employment Relations Amendment Act 2016 Limitation period for actions other than personal grievances
142: Limitation period for actions other than personal grievances
No action may be commenced in the Authority or the court in relation to an employment relationship problem that is not a personal grievance more than 6 years after the date on which the cause of action arose.
9A: Additional provisions relating to enforcement of employment standards
Part 9A inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142A: Object of this Part
1: The object of this Part is to provide additional enforcement measures to promote the more effective enforcement of employment standards (especially minimum entitlement provisions) by—
a: providing for a Labour Inspector to apply to the court for—
i: declarations of breach in relation to breaches of minimum entitlement provisions that are serious:
ii: pecuniary penalty orders for breaches of minimum entitlement provisions that are serious:
iii: compensation orders for serious breaches of minimum entitlement provisions to compensate employees who have suffered or are likely to suffer loss or damage as a result:
iv: banning orders based on certain grounds, including persistent breach of employment standards; and
b: making insurance for pecuniary penalties unlawful; and
c: providing for—
i: what is meant by being involved in a breach of employment standards; and
ii: when states of mind or conduct by certain persons are to be attributed to bodies corporate and principals; and
d: providing certain defences to breaches of minimum entitlement provisions.
2: The provisions in this Part are in addition to the provisions in—
a: sections 133 to 142
b: sections 223 to 235 Section 142A inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Declarations of breach Heading inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142B: Court may make declarations of breach
1: A Labour Inspector (but no other person) may apply to the court for a declaration of breach.
2: The court may make a declaration of breach if the court is satisfied that—
a: a person has—
i: breached a minimum entitlement provision; or
ii: been involved in a breach of a minimum entitlement provision; and
b: the breach of the minimum entitlement provision is serious.
3: Whether a breach of a minimum entitlement provision is serious is a question of fact.
4: In determining whether a breach of a minimum entitlement provision is serious, the court may take into account—
a: the amount of money involved:
b: whether the breach comprises a single instance or a series of instances:
c: if the breach comprises a series of instances,—
i: how many instances it comprises; and
ii: the period over which they occurred:
d: whether the breach was intentional or reckless:
e: whether the employer concerned has complied with any relevant record-keeping obligations imposed by any Act:
f: any other relevant matter. Section 142B inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142C: Purpose and effect of declarations of breach
1: The purpose of a declaration of breach is to enable an applicant for an order against a person under this Part to rely on the declaration of breach made against the person in the proceedings for that order and not be required to prove the breach or involvement in the breach.
2: Accordingly, a declaration of breach made against a person is conclusive evidence in relation to the person of the matters that must be stated in it under section 142D Section 142C inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142D: What declaration of breach must state
A declaration of breach must state the following:
a: the minimum entitlement provision that the breach or involvement in the breach relates to; and
b: the person the declaration applies to; and
c: the conduct that constituted the breach or the involvement in the breach. Section 142D inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Pecuniary penalty orders Heading inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142E: Pecuniary penalty orders
1: The court may make a pecuniary penalty order against a person in respect of whom the court has made a declaration of breach.
2: An application for a pecuniary penalty order may be made—
a: only by a Labour Inspector; and
b: at the following times:
i: when application is made for a declaration of breach; or
ii: subsequently, whether before or after the application for a declaration of breach is determined. Section 142E inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142F: Matters court to have regard to in determining amount of pecuniary penalty
In determining an appropriate pecuniary penalty under section 142E
a: the object stated in section 3
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. Section 142F inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142G: Maximum amount of pecuniary penalty
If the court determines that it should make a pecuniary penalty order, the maximum amount it may specify in the order is,—
a: in the case of an individual, $50,000:
b: in the case of a body corporate, the greater of—
i: $100,000; or
ii: 3 times the amount of the financial gain made by the body corporate from the breach. Section 142G inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142H: Chief executive or Labour Inspector may enforce payment of pecuniary penalty
The chief executive or a Labour Inspector may recover in the District Court section 142E Section 142H inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Section 142H amended 1 March 2017 section 19 Employment Relations Amendment Act 2016
142I: Limitation period for actions for pecuniary penalty orders
An application for a pecuniary penalty order under this Part must be made within 12 months after the earlier of—
a: the date when the breach first became known to a Labour Inspector; and
b: the date when the breach should reasonably have become known to a Labour Inspector. Section 142I inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Compensation orders Heading inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142J: Court may make compensation orders
1: The court may make a compensation order against a person if—
a: the court has made a declaration of breach in respect of the person; and
b: the court is satisfied that the employee concerned (the aggrieved employee
2: The court may not make a compensation order against a person involved in a breach for wages or other money payable to an employee except to the extent that the employee’s employer is unable to pay the wages or other money.
3: An application for a compensation order may be made—
a: only by a Labour Inspector or the aggrieved employee; and
b: at one of the following times:
i: the same time as the application for a declaration of breach; or
ii: subsequently, whether before or after the application for a declaration of breach is determined. Section 142J inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142K: Application of section 132 of this Act and section 83 of Holidays Act 2003
Section 132 section 83 section 142J Section 142K inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142L: Terms of compensation orders
1: If section 142J
2: An order under this section may include an order to direct a relevant person to pay to the aggrieved employee the amount of the loss or damage (in whole or in part).
3: Subsection (2) does not limit subsection (1).
4: In this section, relevant person
a: any person in breach; or
b: any person involved in the breach. Section 142L inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Banning orders Heading inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142M: Banning orders
1: The court may make a banning order against a person if—
a: the court has made a declaration of breach in respect of the person; or
b: the court is satisfied that the person has persistently breached, or persistently been involved in the breach of, 1 or more employment standards; or
c: the person has been convicted of an offence under section 351
2: The persons who may apply for a banning order are—
a: a Labour Inspector:
b: an immigration officer under the Immigration Act 2009
3: For the purposes of subsection (1)(b), a past breach is not evidence that a person has persistently breached, or persistently been involved in the breach of, 1 or more employment standards if the person concerned established a defence under section 142ZC 142ZD Section 142M inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142N: Terms of banning order
1: If the court makes a banning order, the order must prohibit the person from doing 1 or more of the following:
a: entering into an employment agreement as an employer:
b: being an officer of an employer:
c: being involved in the hiring or employment of employees.
2: A person who is subject to a banning order may do something prohibited by the order if the person first obtains the leave of the court to do so.
3: In this section, officer
a: a person occupying the position of a director of a company if the employer is a company:
b: a partner if the employer is a partnership:
c: a general partner if the employer is a limited partnership:
d: a person occupying a position comparable with that of a director of a company if the employer is not a company, partnership, or limited partnership:
e: any other person occupying a position in the employer if the person is in a position to exercise significant influence over the management or administration of the employer. Section 142N inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142O: Duration of banning order
A banning order under section 142M
a: 10 years; or
b: any shorter period specified in the order. Section 142O inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142P: Variation of banning order
A banning order may be—
a: made subject to the terms and conditions that the court thinks fit; and
b: cancelled or varied at any time by the court. Section 142P inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142Q: General provisions for banning orders
1: A Registrar of the court must, as soon as practicable after making a banning order,—
a: give notice to the chief executive that the order has been made; and
b: publish a notice in the Gazette
i: the name of the person against whom the banning order has been made; and
ii: the terms of the order; and
iii: the period or dates for which the order applies.
2: A person intending to apply for the leave of the court under section 142N(2)
3: The department, and any other person the court thinks fit, may attend and be heard at the hearing of an application for leave. Section 142Q inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142R: Offence to breach banning order
A person who breaches a banning order commits an offence and is liable on conviction by the District Court Section 142R inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Section 142R amended 1 March 2017 section 19 Employment Relations Amendment Act 2016 Standard of proof Heading inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142S: Standard of proof
To avoid doubt, in proceedings under this Part for a declaration of breach, pecuniary penalty order, compensation order, or banning order, the standard of proof is the standard of proof that applies in civil proceedings. Section 142S inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Interrelationship of orders Heading inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142T: More than one kind of order may be made for same breach
1: The court may make one kind of order under this Part against a person even though the court has made another kind of order, whether under this Part or another Part, against the person in relation to the same breach.
2: Without limiting subsection (1) and by way of example,—
a: a pecuniary penalty order and a compliance order may be made against a person for the same breach:
b: a compensation order and a banning order may be made against a person for the same breach. Section 142T inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142U: No pecuniary penalty and criminal sanction or other penalty for same conduct
1: A person cannot be ordered to pay a pecuniary penalty and be liable to a fine or term of imprisonment under this Act or the Immigration Act 2009
2: A person cannot be ordered to pay a pecuniary penalty and be liable to another penalty under this Act for the same breach of employment standards. Section 142U inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Insurance against pecuniary penalties unlawful and of no effect Heading inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142V: Insurance against pecuniary penalties unlawful
1: To the extent that an insurance policy or a contract of insurance indemnifies or purports to indemnify a person for the person's liability to pay a pecuniary penalty under this Act,—
a: the policy or contract is of no effect; and
b: no court or tribunal has jurisdiction to grant relief in respect of the policy or contract, whether under sections 75 to 82
2: A person must not—
a: enter into, or offer to enter into, a policy or contract described in subsection (1); or
b: indemnify, or offer to indemnify, another person for the other person's liability to pay a pecuniary penalty under this Act; or
c: be indemnified, or agree to be indemnified, by another person for that person's liability to pay a pecuniary penalty under this Act; or
d: pay to another person, or receive from another person, an indemnity for a pecuniary penalty under this Act. Section 142V inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Section 142V(1)(b) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017 Liability of persons involved in breach, bodies corporate, and principals Heading inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142W: Involvement in breaches
1: In this Act, a person is involved in a breach
a: has aided, abetted, counselled, or procured the breach; or
b: has induced, whether by threats or promises or otherwise, the breach; or
c: has been in any way, directly or indirectly, knowingly concerned in, or party to, the breach; or
d: has conspired with others to effect the breach.
2: However, if the breach is a breach by an entity such as a company, partnership, limited partnership, or sole trader, a person who occupies a position in the entity may be treated as a person involved in the breach only if that person is an officer of the entity.
3: For the purposes of subsection (2), the following persons are to be treated as officers of an entity:
a: a person occupying the position of a director of a company if the entity is a company:
b: a partner if the entity is a partnership:
c: a general partner if the entity is a limited partnership:
d: a person occupying a position comparable with that of a director of a company if the entity is not a company, partnership, or limited partnership:
e: any other person occupying a position in the entity if the person is in a position to exercise significant influence over the management or administration of the entity.
4: This section does not apply to proceedings for offences. Section 142W inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Section 142W(2) replaced 31 March 2017 section 6 Regulatory Systems (Workplace Relations) Amendment Act 2017 Section 142W(3) replaced 31 March 2017 section 6 Regulatory Systems (Workplace Relations) Amendment Act 2017
142X: Person involved in breach liable to penalty
1: A person involved in a breach is liable to a penalty under this Act if—
a: the person is involved in the breach within the meaning of section 142W
b: this Act provides a penalty for the breach.
2: An application for a penalty against a person involved in a breach may be made only by a Labour Inspector. Section 142X inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142Y: When person involved in breach liable for default in payment of wages or other money due to employee
1: A Labour Inspector or an employee may recover from a person who is not the employee’s employer any wages or other money payable to the employee if—
a: there has been a default in the payment of wages or other money payable to the employee; and
b: the default is due to a breach of employment standards; and
c: the person is a person involved in the breach within the meaning of section 142W
2: However, arrears in wages or other money may be recovered under subsection (1) only,—
a: in the case of recovery by an employee, with the prior leave of the Authority or the court; and
b: to the extent that the employee’s employer is unable to pay the arrears in wages or other money. Section 142Y inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142Z: State of mind of directors, employees, or agents attributed to body corporate or other principal
1: If, in a proceeding under this Act in respect of any conduct engaged in by a body corporate, being conduct in relation to which any provision of this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, an employee, or an agent of the body corporate, acting within the scope of his or her actual or apparent authority, had that state of mind.
2: If, in a proceeding (other than a proceeding for an offence) under this Act in respect of any conduct engaged in by a person other than a body corporate, being conduct in relation to which any provision of this Act applies, it is necessary to establish the state of mind of the person, it is sufficient to show that an employee or agent of the person, acting within the scope of his or her actual or apparent authority, had that state of mind.
3: In this Act, state of mind Section 142Z inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142ZA: Conduct of directors, employees, or agents attributed to body corporate or other principal
1: Conduct engaged in on behalf of a body corporate by any of the following must be treated, for the purposes of this Act, as having been engaged in also by the body corporate:
a: a director, an employee, or an agent of the body corporate who is acting within the scope of his, her, or its actual or apparent authority:
b: any other person at the direction or with the consent or agreement (whether express or implied) of a director, an employee, or an agent of the body corporate, given within the scope of the actual or apparent authority of the director, employee, or agent.
2: Conduct engaged in on behalf of a person other than a body corporate ( A
a: an employee or an agent of A who is acting within the scope of his, her, or its actual or apparent authority:
b: any other person who is acting at the direction or with the consent or agreement (whether express or implied) either of A or of an employee or an agent of A, given within the scope of the actual or apparent authority of the employee or agent. Section 142ZA inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016 Defences relating to breach of minimum entitlement provisions Heading inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142ZB: Proceedings in which defences apply
The defences described in sections 142ZC 142ZD
a: an action to recover wages or other money under section 142Y section 77A section 11AA section 11A
b: an action to recover a penalty under section 135 section 76 section 10 section 13
c: an application under section 142E
d: an application under section 142J
e: an application under section 142M(1)(a) Section 142ZB inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142ZC: Defences for person in breach
1: In a proceeding referred to in section 142ZB A
a: A's breach was due to reasonable reliance on information supplied by another person; or
b: both of the following apply:
i: A's breach was due to the act or default of another person, or to an accident or to some other cause beyond A's control; and
ii: A took reasonable precautions and exercised due diligence to avoid the breach.
2: In a proceeding referred to in section 142ZB(d)
3: For the purposes of subsection (1)(a) and (b), another person Section 142ZC inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
142ZD: Defences for person involved in breach
1: This section applies if—
a: a person ( A
b: another person ( B
2: In a proceeding referred to in section 142ZB
a: B's involvement in the breach was due to reasonable reliance on information supplied by another person; or
b: B took all reasonable and proper steps to ensure that A complied with the provision.
3: For the purposes of subsection (2)(a), another person Section 142ZD inserted 1 April 2016 section 19 Employment Relations Amendment Act 2016
10: Institutions
143: Object of this Part
The object of this Part is to establish procedures and institutions that—
a: support successful employment relationships and the good faith obligations that underpin them; and
b: recognise that employment relationships are more likely to be successful if problems in those relationships are resolved promptly by the parties themselves; and
c: recognise that, if problems in employment relationships are to be resolved promptly, expert problem-solving support, information, and assistance needs to be available at short notice to the parties to those relationships; and
d: recognise that the procedures for problem-solving need to be flexible; and
da: recognise that the person who provides mediation services can manage any mediation process actively; and
e: recognise that there will always be some cases that require judicial intervention; and
f: recognise that judicial intervention at the lowest level needs to be that of a specialist decision-making body that is not inhibited by strict procedural requirements; and
fa: ensure that investigations by the specialist decision-making body are, generally, concluded before any higher court exercises its jurisdiction in relation to the investigations; and
g: recognise that difficult issues of law will need to be determined by higher courts. Section 143(da) inserted 1 December 2004 section 47(1) Employment Relations Amendment Act (No 2) 2004 Section 143(fa) inserted 1 December 2004 section 47(2) Employment Relations Amendment Act (No 2) 2004 Mediation services
144: Mediation services
1: The chief executive must employ or engage persons to provide mediation services to support all employment relationships.
1A: For the purposes of this section, employment relationships
2: Those mediation services may include—
a: the provision of general information about employment rights and obligations:
b: the provision of information about what services are available for persons (including unions and other bodies corporate) who have employment relationship problems:
c: other services that assist the smooth conduct of employment relationships:
d: other services (of a type that can address a variety of circumstances) that assist persons to resolve, promptly and effectively, their employment relationship problems:
e: services that assist persons to resolve any problem with the fixing of new terms and conditions of employment. Section 144(1A) inserted 27 June 2020 section 9 Employment Relations (Triangular Employment) Amendment Act 2019
144A: Dispute resolution services
1: Nothing in this Act prevents the chief executive from providing dispute resolution services to parties in work-related relationships that are not employment relationships.
2: Services provided in accordance with this section proceed on the basis specified in writing by the chief executive. Section 144A inserted 1 December 2004 section 48 Employment Relations Amendment Act (No 2) 2004
145: Provision of mediation services
1: The chief executive, by way of general instructions under section 153(2)
a: may decide how the mediation services required by section 144
b: may, in order to promote fast and effective resolutions, treat matters presented for mediation in different ways.
2: Any of the mediation services may be provided, for example,—
a: by a telephone, facsimile, Internet, or e-mail service (whether as a means of explaining where information can be found or as a means of actually providing the information or of otherwise seeking to resolve the 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 object 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 resolve the problem in question; or
iii: provide their services in all of the ways described in this paragraph.
3: Any of the mediation services may be provided—
a: by a combination of the ways described in subsection (2); or
b: in such other ways as the chief executive thinks fit to best support the object of this Act.
4: Subsections (2) and (3) do not limit subsection (1). Section 145(1) substituted 1 December 2004 section 49 Employment Relations Amendment Act (No 2) 2004
146: Access to mediation services
A person who wishes to access mediation services must contact an office of the department that deals with employment relations issues.
147: Procedure in relation to mediation services
1: Where mediation services are provided, the person who provides the services decides what services are appropriate to the particular case.
2: That person, in providing those services,—
a: may, having regard to the object of this Act and the needs of the parties, follow such procedures, whether structured or unstructured, or do such things as he or she considers appropriate to resolve the problem or dispute promptly and effectively; and
ab: may offer mediation services on the basis that, prior to the commencement of a mediation, the parties have agreed—
i: that the services will be limited to a specified time; and
ii: if the problem is not resolved within the specified time, the parties will resolve the problem by using the process in section 150
ac: may assist the parties to resolve a problem at an early stage, including, at the request of a party, discussing the problem with that party without any representative of that party being present; and
b: may receive any information, statement, admission, document, or other material, in any way that he or she thinks fit, whether or not it would be admissible in judicial proceedings.
3: To avoid doubt, the person who provides the services also decides the procedures that will be followed, which may include—
a: addressing any party to the matter without any representative of that party being present:
b: expressing to any party his or her views on the substance of 1 or more of the issues between the parties—
i: with or without any representative of the party being present:
ii: with or without any other party or parties to the matter being present:
c: expressing to any party his or her views on the process the party is following or the position the party has adopted about the employment relationship problem—
i: with or without any representative of the party being present:
ii: with or without any other party or parties to the matter being present. Section 147(2)(ab) inserted 1 December 2004 section 50(1) Employment Relations Amendment Act (No 2) 2004 Section 147(2)(ac) inserted 1 April 2011 section 21 Employment Relations Amendment Act 2010 Section 147(3) added 1 December 2004 section 50(2) Employment Relations Amendment Act (No 2) 2004
148: Confidentiality
1: Except with the consent of the parties or the relevant party, a person who—
a: provides mediation services; or
b: is a person to whom mediation services are provided; or
c: is a person employed or engaged by the department; or
d: is a person who assists either a person who provides mediation services or a person to whom mediation services are provided— must keep confidential any statement, admission, or document created or made for the purposes of the mediation and any information that, for the purposes of the mediation, is disclosed orally in the course of the mediation.
2: No person who provides mediation services may give evidence in any proceedings, whether under this Act or any other Act, about—
a: the provision of the services; or
b: anything, related to the provision of the services, that comes to his or her knowledge in the course of the provision of the services.
3: No evidence is admissible in any court, or before any person acting judicially, of any statement, admission, document, or information that, by subsection (1), is required to be kept confidential.
4: Nothing in the Official Information Act 1982
5: Where mediation services are provided for the purpose of assisting persons to resolve any problem in determining or agreeing on new collective terms and conditions of employment, subsections (1) and (3) do not apply to any statement, admission, document, or information disclosed or made in the course of the provision of any such mediation services.
6: Nothing in this section—
a: prevents the discovery or affects the admissibility of any evidence (being evidence which is otherwise discoverable or admissible and which existed independently of the mediation process) merely because the evidence was presented in the course of the provision of mediation services; or
b: prevents the gathering of information by the department for research or educational purposes so long as the parties and the specific matters in issue between them are not identifiable; or
c: prevents the disclosure by any person employed or engaged by the department to any other person employed or engaged by the department of matters that need to be disclosed for the purposes of giving effect to this Act; or
d: applies in relation to the functions performed, or powers exercised, by any person under section 149(2) section 150(2)
148A: Certain entitlements may be subject to mediation and agreed terms of settlement
1: The entitlements specified in subsection (3)
a: mediation under this Part; and
b: agreed terms of settlement under section 149(1)
2: Despite subsection (1), a person who is employed or engaged by the chief executive to provide mediation services and who holds a general authority to sign agreed terms of settlement under section 149(1) entitlements specified in subsection (3)
3: This section applies to wages or holiday pay or other money payable by the employer to the employee under the Minimum Wage Act 1983 Holidays Act 2003 the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 or the Support Workers (Pay Equity) Settlements Act 2017 Section 148A inserted 1 April 2011 section 22 Employment Relations Amendment Act 2010 Section 148A heading replaced 1 April 2016 section 20(1) Employment Relations Amendment Act 2016 Section 148A(1) amended 1 April 2016 section 20(2) Employment Relations Amendment Act 2016 Section 148A(2) amended 1 April 2016 section 20(3) Employment Relations Amendment Act 2016 Section 148A(3) inserted 1 April 2016 section 20(4) Employment Relations Amendment Act 2016 Section 148A(3) amended 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Section 148A(3) amended 1 July 2017 section 20(2) Care and Support Workers (Pay Equity) Settlement Act 2017
149: Settlements
1: Where a problem is resolved, whether through the provision of mediation services or otherwise, any person—
a: who is employed or engaged by the chief executive to provide the services; and
b: who holds a general authority, given by the chief executive, to sign, for the purposes of this section, agreed terms of settlement,— may, at the request of the parties to the problem, and under that general authority, sign the agreed terms of settlement.
2: Any person who receives a request under subsection (1) must, before signing the agreed terms of settlement,—
a: explain to the parties the effect of subsection (3); and
b: be satisfied that, knowing the effect of that subsection, the parties affirm their request.
3: Where, following the affirmation referred to in subsection (2) of a request made under subsection (1), the agreed terms of settlement to which the request relates are signed by the person empowered to do so,—
a: those terms are final and binding on, and enforceable by, the parties; and
ab: the terms may not be cancelled under sections 36 to 40
b: except for enforcement purposes, no party may seek to bring those terms before the Authority or the court, whether by action, appeal, application for review, or otherwise.
3A: For the purposes of subsection (3), a minor aged 16 years or over may be a party to agreed terms of settlement, and be bound by that settlement, as if the minor were a person of full age and capacity.
4: A person who breaches an agreed term of settlement to which subsection (3) applies is liable to a penalty imposed by the Authority. Section 149(3)(ab) inserted 1 December 2004 section 51(1) Employment Relations Amendment Act (No 2) 2004 Section 149(3)(ab) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 149(3A) inserted 1 April 2011 section 23 Employment Relations Amendment Act 2010 Section 149(4) added 1 December 2004 section 51(2) Employment Relations Amendment Act (No 2) 2004
149A: Recommendation to parties
1: The parties to a problem may agree in writing—
a: to confer the power to make a written recommendation in relation to the matters in issue on a person employed or engaged by the chief executive to provide mediation services; and
b: on the date on which that person's recommendation will become final, unless the parties do not accept the recommendation.
2: The person on whom the power is conferred must, before making and signing a recommendation under that power,—
a: explain to the parties the effect of subsections (4) and (5); and
b: be satisfied that, knowing the effect of those subsections, the parties affirm their agreement.
3: Where, following the affirmation referred to in subsection (2) of an agreement made under subsection (1), a recommendation is made and signed by the person empowered to do so, a party has until the date agreed under subsection (1)(b) to give written notice to the person who made the recommendation that the party does not accept the recommendation.
4: If a party gives notice under subsection (3) that the party does not accept the recommendation,—
a: further mediation services may be provided in order to attempt to resolve the problem; and
b: either party to the problem may request those services be provided by a person other than the person who made the recommendation.
5: If a party does not give notice under subsection (3),—
a: the recommendation becomes final and binding on, and enforceable by, the parties; and
b: a party may not seek to bring that recommendation before the Authority or the court, whether by action, appeal, application for review, or otherwise, except for enforcement purposes. Section 149A inserted 1 April 2011 section 24 Employment Relations Amendment Act 2010
150: Decision by authority of parties
1: The parties to a problem may agree in writing to confer on a person employed or engaged by the chief executive to provide mediation services, the power to decide the matters in issue.
2: The person on whom the power is conferred must, before making and signing a decision under that power,—
a: explain to the parties the effect of subsection (3); and
b: be satisfied that, knowing the effect of that subsection, the parties affirm their agreement.
3: Where, following the affirmation referred to in subsection (2) of an agreement made under subsection (1), a decision on how to resolve a problem is made and signed by the person empowered to do so,—
a: that decision is final and binding on, and enforceable by, the parties; and
b: except for enforcement purposes, no party may seek to bring that decision before the Authority or the court, whether by action, appeal, application for review, or otherwise.
4: A person who breaches a term of a decision to which subsection (3) applies is liable to a penalty imposed by the Authority. Section 150(4) added 1 December 2004 section 52 Employment Relations Amendment Act (No 2) 2004
150A: Payment on resolution of problem
1: Any payment by one party to another, required by any agreed terms of settlement under section 149(3) section 150(3)
2: For the purposes of this Act, a payment that does not comply with subsection (1) is to be treated as if the payment has not been made.
3: Subsection (1) does not—
a: apply if the party to whom the payment is required to be made is receiving or has received legal aid under the Legal Services Act 2000
b: prevent a payment being made to the other party's solicitor. Section 150A inserted 1 December 2004 section 53 Employment Relations Amendment Act (No 2) 2004
151: Enforcement of terms of settlement agreed or authorised
1: This section applies to—
a: any agreed terms of settlement that are enforceable by the parties under section 149(3)
b: any recommendation that is enforceable by the parties under section 149A(5)
c: any decision that is enforceable by the parties under section 150(3)
2: A matter referred to in subsection (1) may be enforced—
a: by compliance order under section 137
b: in the case of a monetary settlement, in one of the following ways:
i: by compliance order under section 137
ii: by using, as if the settlement, recommendation, or decision were an order enforceable under section 141 Section 151 substituted 1 April 2011 section 25 Employment Relations Amendment Act 2010
152: Mediation services not to be questioned as being inappropriate
1: No mediation services may be challenged or called in question in any proceedings on the ground—
a: that the nature and content of the services was inappropriate; or
b: that the manner in which the services were provided was inappropriate.
2: Nothing in subsection (1) or in sections 149 150
a: in the case of terms signed under section 149
b: in the case of a decision made and signed under section 150
153: Independence of mediation personnel
1: The chief executive must ensure that any person employed or engaged to provide mediation services under section 144
a: is, in deciding how to handle or deal with any particular problem or aspect of it, able to act independently; and
b: is independent of any of the parties to whom mediation services are being provided in a particular case.
2: The chief executive, in managing the overall provision of mediation services, is not prevented by subsection (1) from giving general instructions about the manner in which, and the times and places at which, mediation services are to be provided.
3: Any such general instructions may include general instructions about the manner in which mediation services are to be provided in relation to particular types of matters or particular types of situations or both.
4: Where a Labour Inspector is a party to any matter in respect of which a person employed or engaged by the chief executive is providing mediation services, the fact that the Labour Inspector and that person are employed by the same employer is not a ground for challenging the independence of that person.
5: Where the chief executive is a party to any matter in respect of which a person employed or engaged by the chief executive is providing mediation services, that fact is not a ground for challenging the independence of that person.
6: No person who is employed or engaged by the chief executive to provide mediation services may—
a: hold office, at the same time, as a member of the Authority; or
b: be employed, at the same time, to staff or support—
i: the Authority under section 185
ii: the court under section 198
154: Other mediation services
Nothing in this Part prevents any person seeking and using mediation services other than those provided by the chief executive under section 144 1991 No 22 s 78(5)
155: Arbitration
1: Nothing in this Act prevents the parties to an employment agreement from agreeing to submit an employment relationship problem to arbitration.
2: If the parties to an employment agreement purport to submit an employment relationship problem to arbitration,—
a: nothing in the Arbitration Act 1996
b: the parties must determine the procedure for the arbitration.
3: The submission of an employment relationship problem to arbitration does not—
a: prevent any of the parties from using mediation services or applying to the Authority or the court in accordance with this Part; or
b: otherwise affect the application of this Act. Employment Relations Authority
156: Employment Relations Authority
This section establishes an authority called the Employment Relations Authority.
157: Role of Authority
1: The Authority is an investigative body that has the role of resolving employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities.
2: The Authority must, in carrying out its role,—
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.
2A:
3: The Authority must act as it thinks fit in equity and good conscience, but may not do anything that is inconsistent with—
a: this Act; or
b: any regulations made under this Act; or
c: the relevant employment agreement. Section 157(2A) repealed 1 April 2011 section 26 Employment Relations Amendment Act 2010 Section 157(3) substituted 1 April 2011 section 26 Employment Relations Amendment Act 2010
158: Lodging of applications
Proceedings before the Authority are to be commenced by the lodging of an application in the prescribed form.
159: Duty of Authority to consider mediation
1: Where any matter comes before the Authority for determination, the Authority—
a: must, whether through a member or through an officer, first consider whether an attempt has been made to resolve the matter by the use of mediation; and
b: must direct that mediation or further mediation, as the case may require, be used before the Authority investigates the matter, unless the Authority considers that the use of mediation or further mediation—
i: will not contribute constructively to resolving the matter; or
ii: will not, in all the circumstances, be in the public interest; or
iii: will undermine the urgent or interim nature of the proceedings ; or
iv: will be otherwise impractical or inappropriate in the circumstances; and
c: must, in the course of investigating any matter, consider from time to time, as the Authority thinks fit, whether to direct the parties to use mediation.
1A:
2: Where the Authority gives a direction under subsection (1)(b) or subsection (1)(c), 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 first occurs).
3: This section applies subject to section 159AA Section 159(1)(b)(iii) amended 1 April 2011 section 27(1) Employment Relations Amendment Act 2010 Section 159(1)(b)(iv) added 1 April 2011 section 27(1) Employment Relations Amendment Act 2010 Section 159(1A) repealed 1 April 2016 section 21(1) Employment Relations Amendment Act 2016 Section 159(3) inserted 1 April 2016 section 21(2) Employment Relations Amendment Act 2016
159AA: When mediation in relation to breach of employment standards is appropriate
If a matter before the Authority relates principally to an alleged breach of employment standards relating to an employee, the Authority must not give a direction that the parties use mediation or further mediation unless—
a: the Authority is satisfied that mediation will be a cheaper and quicker way to clarify disputed facts or otherwise assist the Authority in considering the matter; or
b: the alleged breach appears to be minor and inadvertent; or
c: both parties agree; or
d: the Authority is satisfied that, in the circumstances and having regard to section 3(ab) Section 159AA inserted 1 April 2016 section 22 Employment Relations Amendment Act 2016
159A: Duty of Authority to prioritise previously mediated matters
1: This section applies if a matter comes before the Authority for investigation and determination and an attempt has been made to resolve the matter by mediation.
2: The Authority must give priority to investigating and determining the matter referred to in subsection (1) over any other matters in which mediation has not been used unless the Authority considers that providing mediation services would be inappropriate having regard to section 159(1)
3: Despite subsection (2), the Authority may give priority to proceedings referred to in section 161(1)(la) Section 159A inserted 1 April 2011 section 28 Employment Relations Amendment Act 2010 Section 159A(3) inserted 6 March 2015 section 65 Employment Relations Amendment Act 2014
160: Powers of Authority
1: The Authority may, in investigating any matter,—
a: call for evidence and information from the parties or from any other person:
b: require the parties or any other person to attend an investigation meeting to give evidence:
c: interview any of the parties or any person at any time before , during, or after
d: in the course of an investigation meeting, fully examine any witness:
e: decide that an investigation meeting should not be in public or should not be open to certain persons:
f: follow whatever procedure the Authority considers appropriate.
2: The Authority may take into account such evidence and information as in equity and good conscience it thinks fit, whether strictly legal evidence or not.
2A: The Authority must allow cross-examination of a party or a person to the extent that is consistent with subsection (2).
3: The Authority is not bound to treat a matter as being a matter of the type described by the parties, and may, in investigating the matter, concentrate on resolving the employment relationship problem, however described.
4: The Authority may not make a freezing order or search order as provided for in the High Court Rules 2016 Section 160(1)(c) amended 1 December 2004 section 54 Employment Relations Amendment Act (No 2) 2004 Section 160(2A) inserted 1 April 2011 section 29(1) Employment Relations Amendment Act 2010 Section 160(4) added 1 April 2011 section 29(2) Employment Relations Amendment Act 2010 Section 160(4) amended 18 October 2016 section 183(c) Senior Courts Act 2016
161: Jurisdiction
1: The Authority has exclusive jurisdiction to make determinations about employment relationship problems generally, including—
a: disputes about the interpretation, application, or operation of an employment agreement:
b: matters related to a breach of an employment agreement:
c: matters about whether a person is an employee (not being matters arising on an application under section 6(5)
ca: facilitating bargaining under sections 50A to 50I
cb: fixing the provisions of a collective agreement under section 50J
cba:
cc:
d: matters alleged to arise under section 68
daa: determining whether an employer has complied with section 69AAE
dab: determining whether an employer has complied with section 69ABE section 69ABA
da: investigating bargaining under section 69O
e: personal grievances:
ea: joining a controlling third party to a personal grievance under section 103B
f: matters about whether the good faith obligations imposed by this Act (including those that apply where a union and an employer bargain for a collective agreement) have been complied with in a particular case:
g: matters about the recovery of wages or other money under section 131
ga: determining the apportionment of liability for the costs of service-related entitlements under section 69LB(4)
h: matters about whether the rules of a union, or of an incorporated society that wishes to register as a union, comply with the provisions of this Act:
i: matters about whether an incorporated society is entitled to register under this Act as a union or is entitled to continue to be so registered:
j: matters about whether a person is entitled to be a member of a union:
k: matters related to a failure by a union to comply with its rules:
l: any proceedings related to a strike or lockout (other than those founded on tort or seeking an injunction):
la:
m: actions for the recovery of penalties—
i: under this Act for a breach of an employment agreement:
ii: under this Act for a breach of any provision of this Act (being a provision that provides for the penalty to be recovered in the Authority):
iia: under the Support Workers (Pay Equity) Settlements Act 2017
iib: under section 18
iii: under section 76
iiia: under section 25
iv: under section 10
v: under section 13
vi:
n: compliance orders under section 137
o: objections under section 225
p: orders for interim reinstatement under section 127
q: actions of the type referred to in section 228(1)
qa: disputes about an invention made by an employee (either alone or jointly with any other person) or any patent granted, or to be granted, in respect of that invention:
qb: reviews under section 30
qc: determining whether an employer has complied with section 30D
qd: all matters arising under the Equal Pay Act 1972
i: determining equal pay claims and unlawful discrimination claims:
ia: determining whether a pay equity claim meets all requirements set out in section 13E see section 13ZY(1)(a), (b), and (c)(i)
ib: determining whether an employee’s work is the same as, or substantially similar to, work that is the subject of a pay equity claim raised by a union with the employee’s employer, for the purposes of determining whether or not the employee is, or is to be, covered by the claim ( see section 13ZY(1)(d)
ii: determining disputes as to whether a pay equity claim has merit ( see section 13ZY(1)(e)
iii: determining whether 1 or more comparators selected for use in assessing a pay equity claim are appropriate comparators or whether 1 or more appropriate comparators are available for selection ( see section 13ZY(1)(g) and (h)
iiia: determining, in relation to a decision by an employer under section 13ZEB see section 13ZY(1)(c)(ii)
iv: determining disputes as to whether work is in fact undervalued ( see section 13ZY(1)(f)
v: fixing remuneration that is consistent with pay equity under that Act and specifying 3 annual phases of equal amounts or proportions (starting at the date of the pay equity claim settlement) by which the remuneration will be increased ( see section 13ZY(1)(i) and (6)
va: determining whether remuneration agreed by the parties to a pay equity claim is to be increased to the agreed level in phases and, if so, the particulars of those phases ( see section 13ZY(1)(j)
vi: determining whether the terms and conditions of employment in an employee’s employment agreement are more or less favourable than the terms and conditions of employment in a pay equity claim settlement for the purposes of section 13ZM
vii:
viii:
qe:
r: any other action (being an action that is not directly within the jurisdiction of the court) arising from or related to the employment relationship or related to the interpretation of this Act (other than an action founded on tort):
s: determinations under such other powers and functions as are conferred on it by this or any other Act.
2: Except as provided in subsection (1)(ca), (cb), (f), and (qd)
a: bargaining; or
b: the fixing of new terms and conditions of employment.
3: Except as provided in this Act, no court has jurisdiction in relation to any matter that, under subsection (1), is within the exclusive jurisdiction of the Authority.
4: The Authority has jurisdiction to perform and exercise the functions and powers conferred on it by the Screen Industry Workers Act 2022 1991 No 22 s 79(1)(b)–(g), (j) Section 161(1)(ca) inserted 1 December 2004 section 55(1) Employment Relations Amendment Act (No 2) 2004 Section 161(1)(cb) inserted 1 December 2004 section 55(1) Employment Relations Amendment Act (No 2) 2004 Section 161(1)(cba) repealed 12 December 2018 section 35(1) Employment Relations Amendment Act 2018 Section 161(1)(cc) repealed 1 April 2019 section 14(1) Domestic Violence—Victims' Protection Act 2018 Section 161(1)(daa) inserted 1 April 2019 section 14(2) Domestic Violence—Victims' Protection Act 2018 Section 161(1)(dab) inserted 1 April 2019 section 14(2) Domestic Violence—Victims' Protection Act 2018 Section 161(1)(da) inserted 1 December 2004 section 55(2) Employment Relations Amendment Act (No 2) 2004 Section 161(1)(da) amended 14 September 2006 section 10 Employment Relations Amendment Act 2006 Section 161(1)(ea) inserted 27 June 2020 section 10 Employment Relations (Triangular Employment) Amendment Act 2019 Section 161(1)(ga) inserted 6 March 2015 section 66(2) Employment Relations Amendment Act 2014 Section 161(1)(la) repealed 12 December 2018 section 35(1) Employment Relations Amendment Act 2018 Section 161(1)(m)(iia) inserted 1 July 2017 section 20(3) Care and Support Workers (Pay Equity) Settlement Act 2017 Section 161(1)(m)(iia) amended 7 August 2020 section 23(2)(b) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 161(1)(m)(iib) inserted 6 November 2020 section 33 Equal Pay Amendment Act 2020 Section 161(1)(m)(iii) amended 1 April 2004 section 91(2) Holidays Act 2003 Section 161(1)(m)(iiia) inserted 25 February 2016 section 31(3) Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 Section 161(1)(m)(vi) repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Section 161(1)(qa) inserted 13 September 2014 section 249 Patents Act 2013 Section 161(1)(qb) inserted 13 September 2014 section 249 Patents Act 2013 Section 161(1)(qc) inserted 1 April 2016 section 83 Parental Leave and Employment Protection Amendment Act 2016 Section 161(1)(qd) inserted 6 November 2020 section 33 Equal Pay Amendment Act 2020 Section 161(1)(qd)(ia) inserted 14 May 2025 section 52(1) Equal Pay Amendment Act 2025 Section 161(1)(qd)(ib) inserted 14 May 2025 section 52(1) Equal Pay Amendment Act 2025 Section 161(1)(qd)(ii) amended 14 May 2025 section 52(2) Equal Pay Amendment Act 2025 Section 161(1)(qd)(iii) replaced 14 May 2025 section 52(3) Equal Pay Amendment Act 2025 Section 161(1)(qd)(iiia) inserted 14 May 2025 section 52(3) Equal Pay Amendment Act 2025 Section 161(1)(qd)(iv) amended 14 May 2025 section 52(4) Equal Pay Amendment Act 2025 Section 161(1)(qd)(v) amended 14 May 2025 section 52(5) Equal Pay Amendment Act 2025 Section 161(1)(qd)(va) inserted 14 May 2025 section 52(6) Equal Pay Amendment Act 2025 Section 161(1)(qd)(vii) repealed 14 May 2025 section 52(7) Equal Pay Amendment Act 2025 Section 161(1)(qd)(viii) repealed 14 May 2025 section 52(7) Equal Pay Amendment Act 2025 Section 161(1)(qe) repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Section 161(2) amended 6 November 2020 section 33 Equal Pay Amendment Act 2020 Section 161(2) amended 12 December 2018 section 35(2) Employment Relations Amendment Act 2018 Section 161(2) amended 1 December 2004 section 55(3) Employment Relations Amendment Act (No 2) 2004 Section 161(4) inserted 30 December 2022 section 104 Screen Industry Workers Act 2022
162: Application of law relating to contracts
Subject to sections 163 164 the District Court
a: Part 2
b: the Fair Trading Act 1986
c:
d:
e:
f:
g: 1991 No 22 s 104(1)(h) Section 162 amended 1 March 2017 section 261 District Court Act 2016 Section 162(a) replaced 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 162(b) replaced 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 162(c) repealed 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 162(d) repealed 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 162(e) repealed 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 162(f) repealed 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 162(g) repealed 1 September 2017 section 347 Contract and Commercial Law Act 2017
163: Restriction on Authority's power in relation to collective agreements
The Authority may not, under section 162 1991 No 22 s 104(2)
164: Application to individual employment agreements of law relating to contracts
Where the Authority has, under section 69(1)(b) section 162
a: the Authority (whether or not it gave any direction under section 159(1)(b)
i: has identified the problem in relation to the agreement; and
ii: has directed the parties to attempt in good faith to resolve that problem; and
b: the parties have attempted in good faith to resolve the problem relating to the agreement by using mediation; and
c: despite the use of mediation, the problem has not been resolved; and
d: the Authority is satisfied that any remedy other than such an order would be inappropriate or inadequate. 1991 No 22 s 104(2)
165: Other provisions relating to investigations of Authority
The provisions of Schedule 2
166: Membership of Authority
1: The Authority consists of—
a: 1 member who is to be appointed as the Chief of the Employment Relations Authority:
b: at least 2 other members.
2: For the purposes of any matter within its jurisdiction, the Authority consists of 1 member of the Authority.
3: 1991 No 22 s 81(1), (2) Section 166(3) repealed 1 April 2011 section 30 Employment Relations Amendment Act 2010
166A: Role of Chief of Authority
1: In addition to deciding matters as a member of the Authority, the Chief of the Authority is responsible for—
a: making any arrangements that are practicable to ensure that the members of the Authority discharge their functions—
i: in an orderly and expeditious way; and
ii: in a way that meets the objects of this Act; and
b: directing the education, training, and professional development of members of the Authority.
2: Without limiting subsection (1), the Chief of the Authority may—
a: issue instructions (not inconsistent with this Act or regulations made under it) that outline expectations in respect of the process, timeliness, or any other matter relating to the hearing and determination of matters before the Authority; and
b: require particular members of the Authority to investigate particular matters.
3: For the purposes of section 169(3) Section 166A inserted 1 April 2011 section 31 Employment Relations Amendment Act 2010
166B: Delegation of Chief of Authority’s functions, duties, or powers
1: The Chief of the Authority must ensure that an appropriate delegation is at all times in place under this section to enable 1 member of the Authority to act in place of the Chief of the Authority during—
a: any absence or incapacity of the Chief of the Authority; or
b: any vacancy in the office of Chief of the Authority.
2: A delegation under this section—
a: must be in writing; and
b: may be made subject to any restrictions and conditions that the Chief of the Authority thinks fit; and
c: may include a power to subdelegate any function, duty, or power to any other member of the Authority; and
d: is revocable at any time, by notice in writing.
3: The person to whom any functions, duties, or powers are delegated under this section may perform or exercise them in the same manner and with the same effect as if they had been conferred on the person directly by this Act and not by delegation.
4: A person purporting to act under any delegation under this section is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.
5: No delegation under this section affects or prevents the performance or exercise of any function, duty, or power by the Chief of the Authority, or affects the responsibility of the Chief of the Authority for the actions of any person acting under the delegation.
6: A delegation, until it is revoked, continues to have effect according to its terms even if the Chief of the Authority by whom it was made has ceased to hold office. Section 166B inserted 6 March 2015 section 67 Employment Relations Amendment Act 2014
167: Appointment of members
Each member of the Authority is to be appointed by the Governor-General on the recommendation of the Minister. 1991 No 22 s 82(1)
168: Oath of office
Each member of the Authority must, before entering on the exercise of any of his or her functions as a member of the Authority, swear or affirm before a Judge of the court that the member of the Authority will faithfully and impartially perform his or her duties as a member of the Authority. 1991 No 22 s 82(3)
169: Term of office
1: Every member of the Authority is to be appointed for a term not exceeding 4 years.
2: A member of the Authority is eligible for reappointment from time to time.
3: Before recommending the reappointment of a member of the Authority under section 167 section 166A(3) 1991 No 22 s 83 Section 169(3) added 1 April 2011 section 32 Employment Relations Amendment Act 2010
170: Vacation of office
1: A member of the Authority may at any time be removed from office by the Governor-General for incapacity affecting performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.
2: A member of the Authority is deemed to have vacated his or her office if he or she is, under the Insolvency Act 2006
3: A member of the Authority may at any time resign his or her office by giving notice in writing to that effect to the Minister. 1991 No 22 s 84 Section 170(2) amended 3 December 2007 section 445 Insolvency Act 2006
171: Salaries and allowances
1: There is to be paid to each member of the Authority, out of public money, without further appropriation than this section,—
a: a salary at such rate or in accordance with such scale of rates as the Remuneration Authority
b: subject to subsection (2), such allowances as are from time to time determined by the Remuneration Authority
2: There is to be paid to each member of the Authority, in respect of time spent travelling in the exercise of the Authority's functions, travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951
3: In the case of the Chief of the Authority or of a member of the Authority to whom a delegation has been made under section 166B
4: Nothing in subsection (1) prevents in an appropriate case payment to a member of the Authority of a salary and allowances on a per diem basis. 1991 No 22 s 86(1)–(3) Section 171(1)(a) amended 1 April 2003 section 4(1) Remuneration Authority (Members of Parliament) Amendment Act 2002 Section 171(1)(b) amended 1 April 2003 section 4(1) Remuneration Authority (Members of Parliament) Amendment Act 2002 Section 171(3) amended 13 January 2020 section 4 Regulatory Systems (Workforce) Amendment Act 2019
172: Temporary appointments
1: The Governor-General may from time to time, on the recommendation of the Minister, appoint 1 or more temporary members of the Authority to hold office for such period as may be specified in the instrument of appointment.
2: The period so specified may not exceed 12 months; but any person appointed under this section may from time to time be reappointed.
3: A person so appointed has all the powers of a member.
4: Every person appointed as a temporary member of the Authority under this section is, during the term of that member's appointment, to be paid, on a per diem basis,—
a: such salary, payable pursuant to section 171
b: the allowances to which that person would be entitled if that person held office under section 166(1) 1991 No 22 s 87(1)–(4)
172A: Reports from Inspector-General of Intelligence and Security
1: This section applies if—
a: any matter that comes before the Authority relates to or arises from a recommendation made by the New Zealand Security Intelligence Service under section 11
b: a report on the recommendation has not previously been prepared by the Inspector-General of Intelligence and Security under section 185
2: The Authority must request the Inspector-General of Intelligence and Security to prepare a report on the recommendation made by the New Zealand Security Intelligence Service.
3: As soon as practicable after receiving a request under subsection (2), the Inspector-General of Intelligence and Security must prepare and provide a report to the Authority.
4: To enable the Inspector-General of Intelligence and Security to prepare a report, the Authority must provide to the Inspector-General all relevant documents within its possession or under its control.
5: The parties are entitled—
a: to receive a copy of the report; and
b: to make submissions on it to the Authority.
6: The Authority must have regard to the report prepared by the Inspector-General of Intelligence and Security before making a determination on the matter.
7: In this section,— Inspector-General of Intelligence and Security section 157 New Zealand Security Intelligence Service section 7 Section 172A inserted 28 September 2017 section 264 Intelligence and Security Act 2017
173: Procedure
1: The Authority, in exercising its powers and performing its functions, must—
a: comply with the principles of natural justice; and
b: act in a manner that is reasonable, having regard to its investigative role.
2: The Authority may exercise its powers under section 160
3: However, if the Authority acts under subsection (2), the Authority must provide an absent party with—
a: any material it receives that is relevant to the case of the absent party; and
b: an opportunity to comment on the material before the Authority takes it into account.
4: To avoid doubt, subsections (2) and (3) do not limit the powers of the Authority to make ex parte High Court Rules 2016
5: The Authority may meet with the parties at the times and places fixed by a member of the Authority or an officer of the Authority.
6: Meetings of the Authority may be adjourned from time to time and from place to place by a member of the Authority or an officer of the Authority designated for the purpose by the chief executive, whether at any meeting or at any time before the time fixed for the meeting. Section 173 substituted 1 April 2011 section 33 Employment Relations Amendment Act 2010 Section 173(4) amended 18 October 2016 section 183(c) Senior Courts Act 2016
173A: Recommendation to parties
1: The parties to an employment relationship problem may agree in writing—
a: to confer the power to make a written recommendation in relation to the matters in issue on a member of the Authority; and
b: on the date on which the member's recommendation will become final, unless the parties do not accept the recommendation.
2: The member must, before making and signing a recommendation under that power,—
a: explain to the parties the effect of subsections (4) and (5); and
b: be satisfied that, knowing the effect of those subsections, the parties affirm their agreement.
3: Where, following the affirmation referred to in subsection (2) of an agreement made under subsection (1), a recommendation is made and signed by the member empowered to do so, a party has until the date agreed under subsection (1)(b) to give written notice to the member who made the recommendation that the party does not accept the recommendation.
4: If a party gives notice under subsection (3) that the party does not accept the recommendation,—
a: the Authority must continue to investigate and determine the matter; and
b: either party to the problem may request that the matter be further investigated and determined by a member other than the member who made the recommendation.
5: If a party does not give notice under subsection (3), the recommendation becomes final and must be treated as the Authority's determination of the matter.
6: However, a recommendation under subsection (5) need not comply with section 174E(a) Section 173A inserted 1 April 2011 section 33 Employment Relations Amendment Act 2010 Section 173A(6) amended 6 March 2015 section 68 Employment Relations Amendment Act 2014
174: Authority must give oral determination or oral indication of preliminary findings wherever practicable
At the conclusion of an investigation meeting, the Authority must, wherever practicable,—
a: give its determination on the matter orally; or
b: give an oral indication of its preliminary findings on the matter. Section 174 replaced 6 March 2015 section 69 Employment Relations Amendment Act 2014
174A: Oral determinations
1: If the Authority gives an oral determination under section 174(a)
a: express its conclusions on the matters or issues it considers require determination in order to dispose of the matter; and
b: state any relevant findings of fact or law to the extent that it considers it necessary to do so in order to explain its conclusions; and
c: specify what orders (if any) it is making.
2: The Authority must record an oral determination in writing as soon as practicable and not later than 1 month after the date on which the investigation meeting concluded.
3: However, the Authority may record an oral determination later than the date specified in subsection (2) if the Chief of the Authority decides exceptional circumstances exist.
4: The Authority may amend an oral determination when it is recorded under subsection (2) if it is necessary to correct a mistake caused by an error or omission in the determination. Section 174A inserted 6 March 2015 section 69 Employment Relations Amendment Act 2014
174B: Oral indication of preliminary findings
1: If the Authority gives an oral indication of its preliminary findings under section 174(b)
a: must—
i: give an indication of its likely conclusions on the matters or issues it considers require determination in order to dispose of the matter; and
ii: state any likely relevant findings of fact or law to the extent that it considers it necessary to do so in order to explain its likely conclusions; and
b: may express the oral indication of its preliminary findings as being subject to any further evidence or information from the parties or any other person.
2: The Authority must provide a written determination in respect of a matter for which it has given an oral indication of its preliminary findings as soon as practicable and not later than the later of the following dates:
a: the day that is 3 months after the date on which the investigation meeting concluded; and
b: the day that is 3 months after the date on which the Authority received the last evidence or information from the parties or other person referred to in subsection (1)(b).
3: However, the Authority may provide a written determination in respect of a matter for which it has given an oral indication of its preliminary findings later than the latest date specified in subsection (2) if the Chief of the Authority decides exceptional circumstances exist. Section 174B inserted 6 March 2015 section 69 Employment Relations Amendment Act 2014
174C: Authority may reserve determination
1: Despite section 174
2: If the Authority reserves its determination of a matter under subsection (1), it may, before providing a written determination of its findings in accordance with subsection (3), require the parties or any other person to provide any further evidence or information that the Authority thinks fit.
3: If the Authority reserves its determination of a matter under subsection (1), it must provide a written determination of its findings as soon as practicable and not later than the later of the following dates:
a: the day that is 3 months after the date on which the investigation meeting concluded; and
b: the day that is 3 months after the date on which the Authority received the last evidence or information from the parties or any other person.
4: However, the Authority may provide a written determination of its findings later than the latest date specified in subsection (3) if the Chief of the Authority decides exceptional circumstances exist. Section 174C inserted 6 March 2015 section 69 Employment Relations Amendment Act 2014
174D: Authority may determine matter without holding investigation meeting
1: Despite sections 174 174C
2: If the Authority determines a matter without holding an investigation meeting, it must provide a written determination of its findings as soon as practicable and not later than the day that is 3 months after the date on which the Authority received the last evidence or information from the parties or any other person.
3: However, the Authority may provide a written determination of its findings later than the latest date specified in subsection (2) if the Chief of the Authority decides exceptional circumstances exist. Section 174D inserted 6 March 2015 section 69 Employment Relations Amendment Act 2014
174E: Content of written determinations
A written determination provided by the Authority in accordance with section 174A(2) 174B(2) 174C(3) 174D(2)
a: must—
i: state relevant findings of fact; and
ii: state and explain its findings on relevant issues of law; and
iii: express its conclusions on the matters or issues it considers require determination in order to dispose of the matter; and
iv: specify what orders (if any) it is making; but
b: need not—
i: set out a record of all or any of the evidence heard or received; or
ii: record or summarise any submissions made by the parties; or
iii: indicate why it made, or did not make, specific findings as to the credibility of any evidence or person; or
iv: record the process followed in investigating and determining the matter. Section 174E inserted 6 March 2015 section 69 Employment Relations Amendment Act 2014
175: Seal of Authority
The Authority is to have a seal, which is to be judicially noticed by all courts and for all purposes. 1991 No 22 s 89
176: Protection of members of Authority, etc
1: A member of the Authority, in the performance of his or her duties under this Act, has and enjoys the same protection as a Justice of the Peace acting in his or her criminal jurisdiction has and enjoys under sections 4B to 4F
2: For the avoidance of doubt as to the privileges and immunities of members of the Authority and of parties, representatives, and witnesses in the proceedings of the Authority, it is declared that such proceedings are judicial proceedings. 1991 No 22 s 92 Section 176(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011
177: Referral of question of law
1: The Authority may, where a question of law arises during an investigation,—
a: refer that question of law to the court for its opinion; and
b: delay the investigation until it receives the court's opinion on that question.
2: Every reference under subsection (1) must be made in the prescribed manner.
3: The court must provide the Authority with its opinion on the question of law and the Authority must then continue its investigation in accordance with that opinion.
4: Subsection (1) does not apply—
a: to a question about the procedure that the Authority has followed, is following, or is intending to follow; and
b: without limiting paragraph (a), to a question about whether the Authority may follow or adopt a particular procedure. 1991 No 22 s 93 Section 177(4) added 1 December 2004 section 57 Employment Relations Amendment Act (No 2) 2004
178: Removal to court
generally
1: The Authority may, on its own motion or on the application of a party to a matter, order the removal of the matter, or any part of it, to the court to hear and determine the matter without the Authority investigating it.
2: The Authority may order the removal of the matter, or any part of it, to the court if—
a: an important question of law is likely to arise in the matter other than incidentally; or
b: the case is of such a nature and of such urgency that it is in the public interest that it be removed immediately to the court; or
c: the court already has before it proceedings which are between the same parties and which involve the same or similar or related issues; or
d: the Authority is of the opinion that in all the circumstances the court should determine the matter.
3: Where the Authority declines to remove any matter on application under subsection (1)
4: An order for removal to the court under this section may be made subject to such conditions as the Authority or the court, as the case may be, thinks fit.
5: Where the Authority, acting under subsection (2), orders the removal of any matter, or a part of it, to the court, the court may, if it considers that the matter or part was not properly so removed, order that the Authority investigate the matter.
6: This section does not apply—
a: to a matter, or part of a matter, about the procedure that the Authority has followed, is following, or is intending to follow; and
b: without limiting paragraph (a), to a matter, or part of a matter, about whether the Authority may follow or adopt a particular procedure. 1991 No 22 s 94 Section 178 heading amended 28 November 2023 section 89 Security Information in Proceedings (Repeals and Amendments) Act 2022 Section 178(1) substituted 1 April 2011 section 34(1) Employment Relations Amendment Act 2010 Section 178(3) amended 1 April 2011 section 34(2) Employment Relations Amendment Act 2010 Section 178(6) added 1 December 2004 section 58 Employment Relations Amendment Act (No 2) 2004
178AA: Removal to court of proceeding involving national security information
If the Attorney-General gives written notice to the Authority that the Crown intends to make an SI application (under section 32 section 44 Section 178AA inserted 28 November 2023 section 90 Security Information in Proceedings (Repeals and Amendments) Act 2022
178A: Challenge in respect of dismissal of frivolous or vexatious proceedings
1: A party to a matter before the Authority that was dismissed because the Authority determined it was frivolous or vexatious under clause 12A
2: A challenge under this section must be made in the prescribed manner within 28 days after the date that the matter is dismissed by the Authority.
3: The court must determine whether it considers the matter to be frivolous or vexatious.
4: If the court does not determine that the matter is frivolous or vexatious, it must order the Authority to investigate and determine the matter. Section 178A inserted 1 April 2011 section 35 Employment Relations Amendment Act 2010
179: Challenges to determinations of Authority
1: A party to a matter before the Authority who is dissatisfied with a written determination of the Authority under section 174A(2) 174B(2) 174C(3) 174D(2)
2: An election under subsection (1) must be made in the prescribed manner and within 28 days after the date of the determination.
3: The election must—
a: specify the determination, or the part of the determination, to which the election relates; and
b: state whether or not the party making the election is seeking a full hearing of the entire matter (in this Part referred to as a hearing de novo
4: If the party making the election is not seeking a hearing de novo
a: any error of law or fact alleged by that party; and
b: any question of law or fact to be resolved; and
c: the grounds on which the election is made, which grounds are to be specified with such reasonable particularity as to give full advice to both the court and the other parties of the issues involved; and
d: the relief sought.
5: Subsection (1) does not apply—
aa: to an oral determination or an oral indication of preliminary findings given by the Authority under section 174(a) or (b)
a: to a determination, or part of a determination, about the procedure that the Authority has followed, is following, or is intending to follow; and
b: without limiting paragraph (a), to a determination, or part of a determination, about whether the Authority may follow or adopt a particular procedure. 1991 No 22 s 95(1), (2) Section 179(1) replaced 6 March 2015 section 70(1) Employment Relations Amendment Act 2014 Section 179(2) replaced 6 March 2015 section 70(1) Employment Relations Amendment Act 2014 Section 179(5) added 1 December 2004 section 59 Employment Relations Amendment Act (No 2) 2004 Section 179(5)(aa) inserted 6 March 2015 section 70(2) Employment Relations Amendment Act 2014
179A: Limitation on challenges to certain determinations of Authority
1: This section applies to a determination of the Authority made—
a: for the purposes of sections 50A to 50I
b: under section 50J
2: A party may not elect, under section 179(1) section 50C(1) section 50J(3) Section 179A inserted 1 December 2004 section 60 Employment Relations Amendment Act (No 2) 2004
179B: Limitations on consideration by Employment Court of matters arising under Part 6AA
or 6AB
1: This section applies to an investigation by, or determination of, the Authority under Part 6AA or 6AB
2: The Authority may not refer a question of law to the court under section 177 Part 6AA or 6AB
3: No matter, or part of a matter, may be removed to the court under section 178 Part 6AA or 6AB
4: No party who is dissatisfied with a determination, or any part of a determination, of the Authority under Part 6AA or 6AB section 179 Section 179B inserted 1 July 2008 section 7 Employment Relations (Flexible Working Arrangements) Amendment Act 2007 Section 179B heading amended 1 April 2019 section 15(1) Domestic Violence—Victims' Protection Act 2018 Section 179B(1) amended 1 April 2019 section 15(2) Domestic Violence—Victims' Protection Act 2018 Section 179B(2) amended 1 April 2019 section 15(2) Domestic Violence—Victims' Protection Act 2018 Section 179B(3) amended 1 April 2019 section 15(2) Domestic Violence—Victims' Protection Act 2018 Section 179B(4) amended 1 April 2019 section 15(2) Domestic Violence—Victims' Protection Act 2018
179C: Limitations on consideration by Employment Court of matters arising under section 30D of Parental Leave and Employment Protection Act 1987
1: This section applies to a reference to the Authority under section 30I section 30D
2: The Authority may not refer a question of law to the court under section 177
3: No matter, or part of a matter, may be removed to the court under section 178
4: No party who is dissatisfied with a determination, or any part of a determination, of the Authority of a reference referred to in subsection (1) may elect, under section 179 Section 179C inserted 1 April 2016 section 83 Parental Leave and Employment Protection Amendment Act 2016
180: Election not to operate as stay
The making of an election under section 179
181: Report in relation to good faith
1: Where the election states that the person making the election is seeking a hearing de novo
a: facilitated rather than obstructed the Authority's investigation; and
b: acted in good faith towards each other during the investigation.
2: The court may request a report under subsection (1) only where the court considers, on the basis of the determination made by the Authority under section 174A(2) 174B(2) 174C(3) 174D(2)
3: The Authority must, before submitting the report to the court, give each party to the proceedings a reasonable opportunity to supply to the Authority written comments on the draft report.
4: A party who supplies written comments to the Authority under subsection (3) must, immediately after doing so, serve a copy of those comments on each other party to the proceedings.
5: The Authority must, in submitting the final report to the court, submit with it any written comments received from any party. Section 181(2) amended 6 March 2015 section 71 Employment Relations Amendment Act 2014
182: Hearings
1: Where the election states that the person making the election is seeking a hearing de novo de novo
2: The court may give a direction under subsection (1) only if—
a: it has requested a report under section 181(1)
b: it is satisfied,—
i: on the basis of that report; and
ii: after having had regard to any comments submitted under section 181(5) that the person making the election did not participate in the Authority's investigation of the matter in a manner that was designed to resolve the issues involved.
3: Where—
a: the court gives a direction under subsection (1); or
b: the election states that the person seeking the election is not seeking a hearing de novo the court must direct, in relation to the issues involved in the matter, the nature and extent of the hearing.
183: Decision
1: Where a party to a matter has elected under section 179
2: Once the court has made a decision, the determination of the Authority on the matter is set aside and the decision of the court on the matter stands in its place.
3: Despite subsection (2), a person may apply for review of the determination of the Authority under section 194 1991 No 22 s 95(4)–(7) Section 183(2) added 1 December 2004 section 61 Employment Relations Amendment Act (No 2) 2004 Section 183(3) added 1 December 2004 section 61 Employment Relations Amendment Act (No 2) 2004
184: Restriction on review
1: Except on the ground of lack of jurisdiction or as provided in section 179
1A: No review proceedings under section 194
a: the Authority has issued a determination under section 174A(2) 174B(2) 174C(3) 174D(2)
b: (if applicable) the party initiating the review proceedings has challenged the determination under section 179
c: the court has made a decision on the challenge under section 183
2: For the purposes of subsection (1), the Authority suffers from lack of jurisdiction only where,—
a: in the narrow and original sense of the term jurisdiction, it has no entitlement to enter upon the inquiry in question; or
b: the determination or order is outside the classes of determinations or orders which the Authority is authorised to make; or
c: the Authority acts in bad faith. Section 184(1A) inserted 1 December 2004 section 62 Employment Relations Amendment Act (No 2) 2004 Section 184(1A)(a) amended 6 March 2015 section 72 Employment Relations Amendment Act 2014
185: Staff of Authority
1: The chief executive may from time to time designate such number of employees of the department to act as officers of the Authority as may be required.
2: The officers designated under subsection (1) must act under the general direction of the chief executive.
3: The department is to provide such other employees as may be required to provide the Authority with such services and resources as may be necessary to enable it to effectively perform its functions and exercise its jurisdiction.
4: Subject to section 153(6) 1991 No 22 s 101 Employment Court
186: Employment Court
1: This section establishes a court of record, called the Employment Court, which, in addition to the jurisdiction and powers specially conferred on it by this Act or any other Act, has all the powers inherent in a court of record.
2: The court established by subsection (1) is declared to be the same court as the Employment Court established by section 103 of the Employment Contracts Act 1991 1991 No 22 s 103
187: Jurisdiction of court
1: The court has exclusive jurisdiction—
a: to hear and determine elections under section 179
b: to hear and determine actions for the recovery of penalties under this Act for a breach of any provision of this Act (being a provision that provides for the penalty to be recovered in the court):
c: to hear and determine questions of law referred to it by the Authority under section 177
d: to hear and determine applications for leave to have matters before the Authority removed into the court under section 178(3)
e: to hear and determine matters removed into the court under section 178 or 178AA
f: to hear and determine, under section 6(5)
i: an employee within the meaning of this Act; or
ii: a worker or employee within the meaning of any of the Acts referred to in section 223(1)
g: to order compliance under section 139
ga: to hear and determine proceedings for a declaration of breach, pecuniary penalty order, compensation order, or banning order under Part 9A
h: to hear and determine proceedings founded on tort and resulting from or related to a strike or lockout:
i: to hear and determine any application for an injunction of a type specified in section 100
j: to hear and determine any application for review of the type referred to in section 194
k: to issue warrants under section 231
ka: to hear and determine any application for review of the type referred to in section 237D
l: to exercise its powers in respect of any offence against this Act:
m: to exercise such other functions and powers as are conferred on it by this or any other Act , including the Screen Industry Workers Act 2022
2: The court does not have jurisdiction to entertain an application for summary judgment.
3: Except as provided in this Act, no other court has jurisdiction in relation to any matter that, under subsection (1), is within the exclusive jurisdiction of the court. 1991 No 22 s 104(1)(a), (c), (d), (e), (j), (l), (m), (n), (o) Section 187(1)(e) amended 28 November 2023 section 91 Security Information in Proceedings (Repeals and Amendments) Act 2022 Section 187(1)(ga) inserted 1 April 2016 section 23 Employment Relations Amendment Act 2016 Section 187(1)(ka) inserted 1 March 2017 section 5 Employment Relations Amendment Act (No 2) 2016 Section 187(1)(m) amended 30 December 2022 section 105 Screen Industry Workers Act 2022
188: Role in relation to jurisdiction
1: The general role of the court in relation to its jurisdiction is to hear and determine matters within its jurisdiction and to exercise its powers.
2: Where any matter comes before the court for decision, the court—
a: must, whether through a Judge or through an officer of the court, first consider whether an attempt has been made to resolve the matter by the use of mediation; and
b: must direct that mediation or further mediation, as the case may require, be used before the court hears the matter, unless the court considers that the use of mediation or further mediation—
i: will not contribute constructively to resolving the matter; or
ii: will not, in all the circumstances, be in the public interest; or
iii: will undermine the urgent or interim nature of the proceedings; and
c: must, in the course of hearing and determining any matter, consider from time to time, as the court thinks fit, whether to direct the parties to use mediation.
3: Where the court gives a direction under subsection (2)(b) or (c), 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 court are suspended until the parties have done so or the court otherwise directs (whichever first occurs).
4: It is not a function of the court to advise or direct the Authority in relation to—
a: the exercise of its investigative role, powers, and jurisdiction; or
b: the procedure—
i: that it has followed, is following, or is intending to follow; or
ii: without limiting subparagraph (i), that it may follow or adopt.
5: This section applies subject to section 188A Section 188(4) substituted 1 December 2004 section 63 Employment Relations Amendment Act (No 2) 2004 Section 188(5) inserted 1 April 2016 section 24 Employment Relations Amendment Act 2016
188A: When mediation in relation to breach of employment standards is appropriate
1: If an application is made for a declaration or an order under section 142B 142E 142J 142M
2: However, if the matter relates principally to an alleged breach of employment standards relating to an employee (other than an application under section 142B 142E 142J 142M
a: the court is satisfied that mediation will be a cheaper and quicker way to clarify disputed facts or otherwise assist the court in considering the application; or
b: the alleged breach appears to be minor and inadvertent; or
c: both parties agree; or
d: the court is satisfied that, in the circumstances and having regard to section 3(ab) Section 188A inserted 1 April 2016 section 25 Employment Relations Amendment Act 2016
189: Equity and good conscience
1: In all matters before it, the court has, for the purpose of supporting successful employment relationships and promoting good faith behaviour, jurisdiction to determine them in such manner and to make such decisions or orders, not inconsistent with this or any other Act or with any applicable collective agreement or the particular individual employment agreement, as in equity and good conscience it thinks fit.
2: The court may accept, admit, and call for such evidence and information as in equity and good conscience it thinks fit, whether strictly legal evidence or not. 1991 No 22 ss 104(3), 126(1)
190: Application of other provisions
1: The court has, in relation to matters within its jurisdiction, and in addition to the powers specifically conferred on it by this Act or any other Act, the powers conferred on the Authority by sections 162 164
2: For the purposes of subsection (1), sections 162 164
a: as if, for the word Authority court
b: as if, for the word member Judge
c: with all other necessary modifications.
3: In addition to the powers described in subsection (1), the court has the same powers of the High Court to make a freezing order and a search order as provided for in the High Court Rules 2016 Section 190(3) added 1 April 2011 section 36 Employment Relations Amendment Act 2010 Section 190(3) amended 18 October 2016 section 183(c) Senior Courts Act 2016
191: Other provisions relating to proceedings of court
The provisions of Schedule 3
192: Application to collective agreements of law relating to contracts
1: The court may not, under section 162 section 190(1)
2: Despite subsection (1), the court may, instead of making an order of the kind described in that subsection,—
a: make an order—
i: suspending some aspect of the agreement; and
ii: directing the parties to the collective agreement to reopen bargaining with regard to the suspended aspect of the agreement; and
b: in addition to an order under paragraph (a), make an order requiring the parties to make use of mediation in the bargaining required by paragraph (a)(ii); and
c: in addition to orders under paragraphs (a) and (b), make a declaration that the employees and employers covered by the collective agreement (or either of them) are, or are not, to have the right to strike or lock out available to them, while the bargaining required by the order under paragraph (a)(ii) continues.
3: Every declaration under subsection (2)(c) must state the date on which the right to strike or lock out is to become available or is to cease to be available. 1991 No 22 s 104(2)
193: Proceedings not to be questioned
1: Except on the ground of lack of jurisdiction or as provided in sections 213 214 217 218
2: For the purposes of subsection (1), the court suffers from lack of jurisdiction only where,—
a: in the narrow and original sense of the term jurisdiction, it has no entitlement to enter upon the inquiry in question; or
b: the decision or order is outside the classes of decisions or orders which the court is authorised to make; or
c: the court acts in bad faith. 1991 No 22 s 104(5), (6)
194: Application for review
1: If any person wishes to apply for review under the Judicial Review Procedure Act 2016
a: the Authority; or
b: an officer of the Authority or the court; or
c: an employer, or that employer's representative; or
d: a union, or that union's representative; or
e: the Registrar of Unions; or
f: the Minister; or
g: the chief executive; or
h: any other person— of a statutory power or statutory power of decision (as defined by section 4 sections 17 to 21 subpart 4 of Part 3 Part 4 clauses 1 to 5 7 to 11 subpart 4
2: Despite any other Act or rule of law, but subject to section 184(1A)
3: Where a right of appeal (which includes, for the purposes of this subsection, the right to make an election under section 179 Public Service Act 2020 or the Education and Training Act 2020
4: A Judge may at any time and after hearing such persons, if any, as the Judge thinks fit, give such directions prescribing the procedure to be followed in any particular case under this section as the Judge deems expedient having regard to the exigencies of the case and the interests of justice. 1991 No 22 s 105 Section 194(1) amended 7 August 2020 section 135 Public Service Act 2020 Section 194(1) amended 1 August 2020 section 668 Education and Training Act 2020 Section 194(1) amended 1 March 2017 section 24 Judicial Review Procedure Act 2016 Section 194(2) amended 1 December 2004 section 64 Employment Relations Amendment Act (No 2) 2004 Section 194(3) amended 7 August 2020 section 135 Public Service Act 2020 Section 194(3) amended 1 August 2020 section 668 Education and Training Act 2020
194A: Application for review by certain employees
1: This section applies to any exercise, refusal to exercise, or proposed or purported exercise of a statutory power or statutory power of decision by an employer if that exercise, refusal to exercise, or proposed or purported exercise of the statutory power or statutory power of decision is or gives rise to an employment relationship problem.
2: When subsection (1) applies, the employee or former employee concerned—
a: must use the employment relationship problem-solving provisions in this Act to deal with the problem; and
b: may not bring an application for review in relation to the problem in the court or the High Court. Section 194A inserted 1 December 2004 section 65 Employment Relations Amendment Act (No 2) 2004
195: Non-attendance or refusal to co-operate
1: Every person commits an offence, and is liable on conviction by the court to a fine not exceeding $5,000, who, after being summoned under this Act as a witness,—
a: refuses or neglects, without sufficient cause, to attend as a witness before the Authority or the court or to produce to the Authority or the court any books, papers, documents, records, or things required by the summons to be produced; or
b: refuses, without sufficient cause, to be sworn or to give evidence or, having been sworn, refuses to answer any question that the person is lawfully required by the Authority or the court to answer concerning the proceedings.
2: No person summoned under this Act as a witness is liable to a fine under this Act unless there has been paid or tendered to that person in accordance with clause 6 clause 7 1991 No 22 s 127
196: Application of Contempt of Court Act 2019
1: Subparts 2 4 sections 25 26(1) and (2)
2: Those provisions apply to proceedings of the Employment Court as if—
a: references to a court include the Employment Court; and
b: references to a Judge or judicial officer include a Judge of the Employment Court; and
c: references to an officer of the court include an officer of the Employment Court.
3: Those provisions apply to proceedings of the Employment Relations Authority as if—
a: references to a judicial officer include the Employment Relations Authority; and
b: references to disrupting the proceedings of a court or disobeying any order or direction of the court made in the course of the hearing of any proceedings include disruption of the proceedings of the Authority and disobedience of any order or direction of the Authority given in the course of the hearing of any proceedings; and
c: a disruption of the proceedings of the Authority includes the disruption of an investigation meeting held by the Authority. Section 196 replaced 26 August 2020 section 29 Contempt of Court Act 2019
197: Constitution of court
The court consists of—
a: 1 Judge called the Chief Judge of the Employment Court:
b: at least 2 other Judges who are to be called Judges of the Employment Court. 1991 No 22 s 110
198: Registrar and officers of court
1: The chief executive may from time to time designate such number of employees of the department to act as Registrars of the court as may be required, and appoint such other officers of the court as may be required.
2: Subject to section 153(6) 1991 No 22 s 111
198A: Registrar may take affidavit
A Registrar may take an affidavit. Section 198A inserted 1 March 2017 section 7 Employment Relations Amendment Act (No 2) 2016
199: Seal of court
The court is to have a seal, which is to be judicially noticed by all courts and for all purposes. 1991 No 22 s 112 Judges of the court
200: Appointment of Judges
1: The Judges of the court are to be appointed by the Governor-General on the advice of the Attorney-General.
2: A person may be appointed a Judge only if—
a: that person has for at least 7 years held a New Zealand practising certificate as a barrister or as a barrister and solicitor; or
b: that person—
i: holds a degree in law granted or issued by any university within New Zealand; and
ii: has been admitted as a barrister and solicitor of the High Court; and
iii: has held a practising certificate in a jurisdiction specified by Order in Council—
A: for at least 7 years; or
B: for a lesser number of years but when that number of years is added to the number of years the person has held a New Zealand practising certificate the total number of years is at least 7.
3: The jurisdiction of the court is not affected by any vacancy in the number of Judges of the court.
4: The Attorney-General must publish information explaining his or her process for—
a: seeking expressions of interest for the appointment of Judges of the court; and
b: nominating a person for appointment as a Judge of the court.
5: A Judge must not practise as a lawyer.
6: An order under subsection (2)(b)(iii) is secondary legislation ( see Part 3 1991 No 22 s 113(1), (2), (8) 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 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 200(2) replaced 1 March 2017 section 8(1) Employment Relations Amendment Act (No 2) 2016 Section 200(4) replaced 1 March 2017 section 8(2) Employment Relations Amendment Act (No 2) 2016 Section 200(5) inserted 1 March 2017 section 8(2) Employment Relations Amendment Act (No 2) 2016 Section 200(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
200AA: Judge not to undertake other employment or hold other office
1: A Judge of the court must not undertake any other paid employment or hold any other office (whether paid or not) without the approval of the Chief Judge.
2: An approval under subsection (1) may be given only if the Chief Judge is satisfied that undertaking the employment or holding the office is consistent with the Judge's judicial office.
3: However, subsection (1) does not apply to another office if an enactment permits or requires the office to be held by a Judge. Section 200AA inserted 1 March 2017 section 9 Employment Relations Amendment Act (No 2) 2016
200AB: Protocol relating to activities of Judges
1: The Chief Justice must develop and publish a protocol containing guidance on—
a: the employment, or types of employment, that he or she considers may be undertaken consistent with being a Judge; and
b: the offices, or types of offices, that he or she considers may be held consistent with being a Judge.
2: The Chief Justice may develop and publish a protocol under subsection (1) only after consultation with the Chief Judge. Section 200AB inserted 1 March 2017 section 9 Employment Relations Amendment Act (No 2) 2016
200A: Judges act on full-time basis but may be authorised to act part-time
1: A person acts as a Judge of the court on a full-time basis unless he or she is authorised by the Attorney-General to act on a part-time basis.
2: The Attorney-General may, in accordance with subsection (4), authorise a Judge appointed under section 200
3: To avoid doubt, an authorisation under subsection (2) may take effect as from a Judge's appointment or at any other time, and may be given more than once in respect of the same Judge.
4: The Attorney-General may authorise a Judge to act on a part-time basis only—
a: on the request of the Judge; and
b: with the concurrence of the Chief Judge.
5: In considering whether to concur under subsection (4), the Chief Judge must have regard to the ability of the court to discharge its obligations in an orderly and expeditious way.
6: A Judge who is authorised to act on a part-time basis must resume acting on a full-time basis at the end of the authorised part-time period.
7: The basis on which a Judge acts must not be altered during the term of the Judge's appointment without the Judge's consent, but consent under this subsection is not necessary if the alteration is required by subsection (6).
8: If any question arises as to the number of Judges of the court,—
a: a Judge who is acting on a full-time basis counts as 1:
b: a Judge who is acting on a part-time basis counts as an appropriate fraction of 1. Section 200A inserted 20 May 2004 section 4 Employment Relations Amendment Act 2004
201: Seniority
1: Subject to subsections (2) and (3), the Judges of the court other than the Chief Judge have seniority among themselves according to the dates of their appointments as Judges of the court.
2: If 2 or more of them are both appointed on the same day, they have seniority according to the precedence assigned to them by the Governor-General or, failing any such assignment, according to the order in which they take the judicial oath.
3: Every permanent Judge has seniority over every acting 1991 No 22 s 113(7) Section 201(3) amended 1 March 2017 section 10 Employment Relations Amendment Act (No 2) 2016
202: Senior Judge to act as Chief Judge in certain circumstances
1: While any vacancy exists in the office of Chief Judge, or during any absence from New Zealand of the Chief Judge, the senior Judge of the court in New Zealand has authority to act as Chief Judge and to execute the duties of that office and to exercise all powers that may be lawfully exercised by the Chief Judge.
2: Whenever by reason of illness or any cause other than absence from New Zealand the Chief Judge is prevented from exercising the duties of the office, the Governor-General may authorise the senior Judge of the court to act as Chief Judge until the Chief Judge resumes those duties, and during that period to execute the duties of that office and to exercise all powers that may be lawfully exercised by the Chief Judge. 1991 No 22 s 114
203: Judges to have immunities of High Court Judges
The Judges have all the immunities of a Judge of the High Court.
204: Protection of Judges against removal from office
1: A Judge of the court may not be removed from office except by the Sovereign or the Governor-General, acting upon the address of the House of Representatives.
2: An address under subsection (1) may be moved only on the grounds of—
a: the Judge's misbehaviour; or
b: the Judge's incapacity to discharge the functions of the Judge's office. 1986 No 114 s 23 1991 No 22 s 113(3), (4)
205: Age of retirement
Every Judge of the court must retire from office on attaining the age of 70 1991 No 22 s 113(6) Section 205 amended 6 March 2007 section 4 Employment Relations Amendment Act 2007
206: Salaries and allowances of Judges
1: There is to be paid to each Judge of the court, out of public money, without further appropriation than this section,—
a: a salary at such rate as the Remuneration Authority
b: such allowances as are from time to time determined by the Remuneration Authority
c: such additional allowances, being travelling allowances or other incidental or minor allowances, as may be determined from time to time by the Governor-General.
2: In the case of the Chief Judge, the rate of salary and the allowances determined may be higher than those for the other Judges.
3: The salary of a Judge is not to be reduced while the Judge holds office.
3A: The salary and allowances payable for a period during which a Judge acts on a part-time basis must be calculated and paid as a pro rata proportion of the salary and allowances for a full-time equivalent position.
3B: For the purpose of subsection (3), the payment of salary and allowances on a pro rata basis under subsection (3A) is not a reduction of salary.
4: Any determination made under subsection (1)(c), and any provision of any such determination, may be made so as to come into force on a date specified in the determination, being the date of the making of the determination or any other date, whether before or after the date of the making of the determination or the date of the commencement of this section.
5: Every determination made under subsection (1)(c), and every provision of any such determination, in respect of which no date is specified under subsection (4) comes into force on the date of the making of the determination. 1991 No 22 s 115 Section 206(1)(a) amended 1 April 2003 section 4(1) Remuneration Authority (Members of Parliament) Amendment Act 2002 Section 206(1)(b) amended 1 April 2003 section 4(1) Remuneration Authority (Members of Parliament) Amendment Act 2002 Section 206(3A) inserted 20 May 2004 section 5 Employment Relations Amendment Act 2004 Section 206(3B) inserted 20 May 2004 section 5 Employment Relations Amendment Act 2004
207: Appointment of
acting
1: The Governor-General may from time to time, whenever in the Governor-General's opinion it is necessary or expedient to make a temporary appointment, appoint 1 or more acting Judges
2: The period so specified may not exceed 2 years or, in the case of a person who has attained the age of 70
3: Except as provided in subsection (4), no person may be appointed as a Judge under this section unless that person is eligible for appointment as a Judge under section 200
4: A person may, subject to subsection (2), be appointed as an acting Judge under this section if he or she is a former Judge of the court or a current or former District Court Judge.
4A: A superannuation subsidy must not be paid to a person who is appointed as an acting Judge under this section.
4B: Subsection (1) does not apply to a compulsory employer contribution within the meaning of section 101A
5: The power conferred by this section may be exercised at any time, even though there may be 1 or more persons holding the office of Judge, whether under section 200
6: Every Judge appointed under this section is to be paid—
a: such salary, not exceeding the salary payable for the time being to Judges other than the Chief Judge, as the Governor-General in Council directs; and
b: the allowances to which the Judge would be entitled if the Judge were appointed under section 200
7: Nothing in the Remuneration Authority Act 1977 1991 No 22 s 116 Section 207 heading amended 1 March 2017 section 11(1) Employment Relations Amendment Act (No 2) 2016 Section 207(1) amended 1 March 2017 section 11(2) Employment Relations Amendment Act (No 2) 2016 Section 207(2) amended 6 March 2007 section 5(1) Employment Relations Amendment Act 2007 Section 207(4) replaced 1 March 2017 section 11(3) Employment Relations Amendment Act (No 2) 2016 Section 207(4A) inserted 1 March 2017 section 11(3) Employment Relations Amendment Act (No 2) 2016 Section 207(4B) inserted 1 March 2017 section 11(3) Employment Relations Amendment Act (No 2) 2016 Section 207(7) amended 1 April 2003 section 4(1) Remuneration Authority (Members of Parliament) Amendment Act 2002
208: Sittings
1: Subject to section 209
2: Sittings of the court are to be held at such times and places as are from time to time fixed by the court.
3: Sittings may be fixed either for a particular case or generally for a class of cases then before the court and ripe for hearing.
4: The court may be adjourned from time to time and from place to place by the Judge or by the Registrar of the court, whether at any sitting or at any time before the time fixed for the sitting. 1991 No 22 s 117
209: Full court
1: The Chief Judge may direct that the court must sit as a full court to hear and determine any proceedings, case, or question.
2: The full court comprises,—
a: as presiding member, the Chief Judge or a Judge nominated by the Chief Judge:
b: at least 2 other Judges nominated by the Chief Judge. 1991 No 22 s 119
210: Quorum and decision of court
1: Where, in relation to any proceedings, case, or question, the court consists of more than 1 Judge, the presence of at least 2 Judges is necessary to constitute a sitting of the court for the purposes of those proceedings, or that case or question, except as otherwise expressly provided.
2: The decision of a majority of the Judges present at the sitting of the court is the decision of the court.
3: Where the Judges present at a sitting of the court are equally divided in opinion, the decision of the court, for the purposes of subsection (2), is the decision of the Chief Judge if the Chief Judge is present or, if the Chief Judge is not present, the decision of the most senior of the Judges present.
4: The decision of the court in every case must be signed by a Judge, and may be issued by a Judge or by the Registrar of the court. 1991 No 22 s 120
211: Statement of case for Court of Appeal
In any matter before the court the Judge may, of the Judge's own motion, or on the application of any party, state a case for the Court of Appeal on any question of law arising in the matter, excluding any question as to the construction of any employment agreement. 1991 No 22 s 122
212: Court may make rules
1: The court may from time to time make rules (not inconsistent with this Act or with any regulations made under this Act) for the purpose of regulating the practice and procedure of the court and the proceedings of parties.
2: To the extent that the court does not make rules under subsection (1) regulating the practice and procedure of the court under—
a: section 99
b: section 100
c: section 194 proceedings in the court under those sections are to be regulated by the rules applicable to proceedings founded on tort, injunctions, and judicial review in the High Court, as far as they are applicable and with all necessary modifications.
3: To the extent that the court does not make rules under subsection (1) regulating the practice and procedure of the court under—
a: section 142B
b: section 142E
c: section 142J
d: section 142M proceedings in the court under those sections are to be regulated by the rules applicable to civil proceedings in the High Court, as far as they are applicable and with all necessary modifications.
4: Rules under subsection (1) are secondary legislation ( see Part 3 1991 No 22 s 130 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 It is not required to be published LA19 s 73(2) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 212(3) inserted 1 April 2016 section 26 Employment Relations Amendment Act 2016 Section 212(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Review of proceedings
213: Review of proceedings before court
1: If, in relation to any proceedings before the court, any person wishes to apply for a review under the Judicial Review Procedure Act 2016
2: Despite anything in any other Act or rule of law, the application or proceedings referred to in subsection (1) must be made to or brought in the Court of Appeal.
3: The Court of Appeal or a Judge of that court may at any time and after hearing such persons, if any, as it or the Judge thinks fit, give such directions prescribing the procedure to be followed in any particular case under this section as it or the Judge considers expedient having regard to the exigencies of the case and the interests of justice and the object of this Act.
4: The decision of the Court of Appeal on any such matter is final and conclusive, and there is no right of review of or appeal against the court's decision. 1991 No 22 s 131 Section 213(1) amended 1 March 2017 section 24 Judicial Review Procedure Act 2016 Appeals
214: Appeals
1: A party to a proceeding under this Act who is dissatisfied with a decision of the court (other than a decision on the construction of an individual employment agreement or a collective employment agreement) as being wrong in law may, with the leave of the Court of Appeal, appeal to the Court of Appeal against the decision; and section 56
2: A party desiring to appeal to the Court of Appeal under this section against a decision of the Employment Court must, within 28 days after the date of the issue of the decision or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by rules of court, for leave to appeal to that court.
3: The Court of Appeal may grant leave accordingly if, in the opinion of that court, the question of law involved in that appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
4: The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.
5: In its determination of an appeal, the Court of Appeal may confirm, modify, or reverse the decision appealed against or any part of that decision.
6: Neither an application for leave to appeal nor an appeal operates as a stay of proceedings on the decision to which the application or the appeal relates unless the court or the Court of Appeal so orders.
7: 1991 No 22 s 135 Section 214 heading amended 1 January 2004 section 48(1) Supreme Court Act 2003 Section 214(1) substituted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 214(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 214(7) repealed 1 January 2004 section 48(1) Supreme Court Act 2003
214AA: Appeals against decisions under Part 9A
1: A party to a proceeding for a declaration of breach, pecuniary penalty order, compensation order, or banning order under Part 9A
2: An appeal under subsection (1) does not require the leave of the Court of Appeal.
3: Section 56
4: In determining an appeal, the Court of Appeal may confirm, modify, or reverse the decision, or any part of the decision, appealed against.
5: An appeal under subsection (1) does not operate as a stay of proceedings to which the appeal relates unless the Court of Appeal orders otherwise. Section 214AA inserted 1 April 2016 section 27 Employment Relations Amendment Act 2016 Section 214AA(3) amended 1 March 2017 section 27 Employment Relations Amendment Act 2016
214A: Appeals to Supreme Court on question of law in exceptional circumstances
1: A party to a proceeding under this Act who is dissatisfied with a decision of the court (other than a decision on the construction of an individual employment agreement or a collective employment agreement) as being wrong in law may, with the leave of the Supreme Court, appeal to the Supreme Court against the decision.
2: In its determination of the appeal, the Supreme Court may confirm, modify, or reverse the decision appealed against or any part of that decision.
3: Neither an application for leave to appeal nor an appeal operates as a stay of proceedings on the decision to which the application or the appeal relates unless the court or the Supreme Court so orders.
4: This section is subject to section 75 Section 214A inserted 1 January 2004 section 48(1) Supreme Court Act 2003 Section 214A(4) amended 1 March 2017 section 183(b) Senior Courts Act 2016
215: Court of Appeal may refer appeals back for reconsideration
1: Despite anything in section 214
2: In giving a direction under this section, the Court of Appeal must—
a: advise the court of its reasons for so doing; and
b: give the court such directions as it thinks just as to the rehearing or reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.
3: In reconsidering the matter, the court must have regard to—
a: the Court of Appeal's reasons for giving a direction under subsection (1); and
b: the Court of Appeal's directions under subsection (2)(b). 1991 No 22 s 136 Special provision in respect of appeals
216: Obligation to have regard to special jurisdiction of court
In determining an appeal under section 214 section 218
a: the special jurisdiction and powers of the court; and
b: the object of this Act and the objects of the relevant Parts of this Act; and
c: in particular, the provisions of sections 189 190 193 219 221 1991 No 22 s 137 Other appeals
217: Appeal to Court of Appeal against conviction or order or sentence in respect of contempt of court
1: Any person who has been convicted of an offence against this Act, and any person against whom an order (other than an order to the effect only that a person be taken into custody until the rising of the court) has been made under section 140(6) section 196 a charge
2: Subsection (1) does not apply to an offence under section 142R Criminal Procedure Act 2011 1991 No 22 s 133 Section 217(1) amended 1 April 2016 section 28(1) Employment Relations Amendment Act 2016 Section 217(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 217(2) inserted 1 April 2016 section 28(2) Employment Relations Amendment Act 2016
218: Appeal to Court of Appeal in respect of order on application for review
Any party to an application for review or other proceeding under section 194 section 56 1991 No 22 s 134 Section 218 amended 1 March 2017 section 183(b) Senior Courts Act 2016 Miscellaneous provisions
219: Validation of informal proceedings, etc
1: If anything which is required or authorised to be done by this Act is not done within the time allowed, or is done informally, the court, or the Authority, as the case may be, may in its discretion, on the application of any person interested, make an order extending the time within which the thing may be done, or validating the thing so informally done.
2: Nothing in this section authorises the court to make any such order in respect of judicial proceedings then already instituted in any court other than the court. 1991 No 22 s 138
220: Documents under seal and certain signatures to be judicially noticed
1: Every document bearing the seal of the Authority or the court is to be received in evidence without further proof, and the signature of a member of the Authority, or of a Judge, or of the Registrar of the court, or of an officer of the Authority is to be judicially noticed in or before any court or before any person or officer acting judicially or under any power or authority conferred by this Act, if the signature is attached to some order, certificate, or other official document made or purporting to be made under this Act or under any Act or provision of an Act repealed by this Act.
2: No proof is required of the handwriting or official position of any person acting under this section. 1991 No 22 s 139
221: Joinder, waiver, and extension of time
In order to enable the court or the Authority, as the case may be, to more effectually dispose of any matter before it according to the substantial merits and equities of the case, it may, at any stage of the proceedings, of its own motion or on the application of any of the parties, and upon such terms as it thinks fit, by order,—
a: direct parties to be joined or struck out; and
b: amend or waive any error or defect in the proceedings; and
c: subject to section 114(4)
d: generally give such directions as are necessary or expedient in the circumstances. 1991 No 22 s 140
222: Application of Official Information Act 1982
Nothing in the Official Information Act 1982 1991 No 22 s 102(b)
222A: Information regarding reserved judgments
The Chief Judge must, in consultation with the Chief Justice,—
a: publish information about the process by which parties to proceedings before the court may obtain information about the status of any reserved judgment in those proceedings; and
b: periodically publish information about the number of judgments of the court that he or she considers is outstanding beyond a reasonable time for delivery; and
c: publish information about reserved judgments that he or she considers is useful. Section 222A inserted 1 March 2017 section 12 Employment Relations Amendment Act (No 2) 2016
222B: Recusal guidelines
The Chief Judge must, in consultation with the Chief Justice, develop and publish guidelines to assist Judges to decide if they should recuse themselves from a proceeding. Section 222B inserted 1 March 2017 section 12 Employment Relations Amendment Act (No 2) 2016
222C: Judge may make order restricting commencement or continuation of proceeding
1: A Judge may make an order restricting a person from commencing or continuing civil proceedings in the Employment Court.
2: The order may have—
a: a limited effect (a limited order
b: an extended effect (an extended order
3: A limited order restrains a party from commencing or continuing civil proceedings on a particular matter in the Employment Court.
4: An extended order restrains a party from commencing or continuing civil proceedings on a particular or related matter in the Employment Court.
5: Nothing in this section limits the court’s inherent power to control its own proceedings. Section 222C inserted 1 March 2017 section 12 Employment Relations Amendment Act (No 2) 2016
222D: Grounds for making section 222C order
1: A Judge may make a limited order under section 222C
2: A Judge may make an extended order under section 222C
3: In determining whether the proceedings are or were totally without merit, the Judge may take into account the nature of any other interlocutory application or appeal involving the party to be restrained, but is not limited to those considerations.
4: The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
5: For the purpose of this section and sections 222E 222F Section 222D inserted 1 March 2017 section 12 Employment Relations Amendment Act (No 2) 2016
222E: Terms of section 222C order
1: An order made under section 222C
2: An order made under section 222C Section 222E inserted 1 March 2017 section 12 Employment Relations Amendment Act (No 2) 2016
222F: Procedure and appeals relating to section 222C orders
1: A party to any proceeding may apply for a limited order or an extended order.
2: A Judge may make an order under section 222C section 222C order
3: An application for leave to continue or commence a civil proceeding by a party subject to a section 222C
4: An application for leave must be determined on the papers, unless the Judge considers that an oral hearing should be conducted because there are exceptional circumstances and it is appropriate to do so in the interests of justice.
5: A Judge’s determination of an application for leave is final.
6: The party against whom a section 222C
7: The appellant in an appeal under subsection (6) or the applicant for the section 222C
8: A court determining an appeal under this section has the same powers as the court appealed from has to determine an application or appeal, as the case may be. Section 222F inserted 1 March 2017 section 12 Employment Relations Amendment Act (No 2) 2016
11: General provisions
Chief executive Heading inserted 1 April 2016 section 29 Employment Relations Amendment Act 2016
223AAA: Functions of chief executive
The functions of the chief executive under this Act are—
a: to promote the objects of this Act by, among other things,—
i: providing information and advice about employment relationships, including the rights and obligations of employees, employers, and other interested parties; and
ii: promoting the effective resolution of employment relationship problems by providing problem and dispute resolution services; and
iii: publishing information, reports, and guidelines about employment relationships; and
iv: publishing comments about employment relationship matters in relation to particular persons; and
b: to maintain a strategy for promoting compliance with, and enforcement of, the Acts specified in section 223(1)
c: to perform any other functions and duties conferred on the chief executive by or under the Acts specified in section 223(1) Section 223AAA inserted 1 April 2016 section 29 Employment Relations Amendment Act 2016 Labour Inspectors
223: Labour Inspectors
1: The chief executive may designate as Labour Inspectors such employees of the department as the chief executive from time to time considers necessary for the purposes of—
a: this Act; and
ab: the Support Workers (Pay Equity) Settlements Act 2017
b: the Equal Pay Act 1972
ba:
c: the Holidays Act 2003
ca: the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016
d: the Minimum Wage Act 1983
da: the Parental Leave and Employment Protection Act 1987
e: the Volunteers Employment Protection Act 1973
f: the Wages Protection Act 1983
2: Every Labour Inspector is to have a warrant of designation signed by the chief executive and must produce it for inspection if requested to do so in the course of the Labour Inspector's duties. 1991 No 22 s 143 Section 223(1)(ab) inserted 1 July 2017 section 20(4) Care and Support Workers (Pay Equity) Settlement Act 2017 Section 223(1)(ab) amended 7 August 2020 section 23(2)(c) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 223(1)(ba) repealed 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Section 223(1)(c) substituted 1 April 2004 section 91(2) Holidays Act 2003 Section 223(1)(ca) inserted 25 February 2016 section 31(4) Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 Section 223(1)(da) inserted 1 July 2002 section 6 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
223A: Functions of Labour Inspector
The functions of a Labour Inspector include—
a: determining whether the provisions of the relevant Acts have been complied with; and
b: taking all reasonable steps to ensure that the relevant Acts are complied with; and
c: monitoring and enforcing compliance with employment standards; and
d: performing any other functions conferred by or under the relevant Acts.
e: Section 223A inserted 1 April 2011 section 37 Employment Relations Amendment Act 2010 Section 223A(c) replaced 1 April 2016 section 30 Employment Relations Amendment Act 2016 Section 223A(d) replaced 1 April 2016 section 30 Employment Relations Amendment Act 2016 Section 223A(e) repealed 1 April 2016 section 30 Employment Relations Amendment Act 2016 Enforceable undertakings Heading inserted 1 April 2011 section 37 Employment Relations Amendment Act 2010
223B: Enforceable undertakings
1: A Labour Inspector and an employer may agree in writing that the employer will undertake by a specified date (an enforceable undertaking
a: rectify the breach of any provision of the relevant Acts; or
b: pay money owed to an employee under a provision of the relevant Acts; or
c: take any other action that the Labour Inspector determines is appropriate having regard to the nature of the breach of the provision of the relevant Act.
2: The employer may withdraw or vary an enforceable undertaking agreed under subsection (1) at any time, but only with the consent of the Labour Inspector. Section 223B inserted 1 April 2011 section 37 Employment Relations Amendment Act 2010
223C: Enforcement of undertakings
1: An enforceable undertaking may be enforced by the Authority making a compliance order under section 137
2: An employer who fails to comply with an enforceable undertaking that remains in force is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.
3: If the enforceable undertaking relates to a monetary settlement, the enforceable undertaking may be enforced by using, as if the undertaking were an order enforceable under section 141 Section 223C inserted 1 April 2011 section 37 Employment Relations Amendment Act 2010 Improvement notices Heading inserted 1 April 2011 section 37 Employment Relations Amendment Act 2010
223D: Labour Inspector may issue improvement notice
1: A Labour Inspector who believes on reasonable grounds that any employer is failing, or has failed, to comply with any provision of the relevant Acts may issue the employer with an improvement notice that requires the employer to comply with the provision.
2: An improvement notice issued under subsection (1) must state—
a: the provision that the Labour Inspector reasonably believes that the employer is failing, or has failed, to comply with; and
b: the Labour Inspector's reasons for believing that the employer is failing, or has failed, to comply with the provision; and
c: the nature and extent of the employer's failure to comply with the provision; and
d: the steps that the employer could take to comply with the provision; and
e: the date before which the employer must comply with the provision.
3: An improvement notice may state the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).
4: An improvement notice may be issued—
a: by giving it to the employer concerned; or
b: if the employer does not accept the improvement notice, by leaving it in the employer’s presence and drawing the employer’s attention to it.
5: An improvement notice may not be issued in the period commencing on 17 December and ending with the close of 8 January in the following year.
6: An improvement notice may be enforced by the making by the Authority of a compliance order under section 137 Section 223D inserted 1 April 2011 section 37 Employment Relations Amendment Act 2010
223E: Objection to improvement notice
1: An employer may, within 28 days after the improvement notice is issued to the employer, lodge with the Authority an objection to the notice.
2: The function of the Authority in respect of an objection is to determine—
a: whether the employer is failing, or has failed, to comply with the specified provision of the relevant Acts; and
b: the nature and extent of the employer's failure to comply with the provision; and
c: the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).
3: The Authority may confirm, vary, or rescind the improvement notice as the Authority thinks fit. Section 223E inserted 1 April 2011 section 37 Employment Relations Amendment Act 2010
223F: Penalty
1: An employer who fails to comply with an improvement notice issued under section 223D
2: If subsection (1) applies, a Labour Inspector may not also bring an action seeking a penalty in respect of the same matter under any of the relevant Acts. Section 223F inserted 1 April 2011 section 37 Employment Relations Amendment Act 2010
223G: Withdrawal of improvement notice
An improvement notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of an improvement notice does not prevent another improvement notice being served in relation to the same matter. Section 223G inserted 1 April 2011 section 37 Employment Relations Amendment Act 2010 Demand notices
224: Demand notice
1: A Labour Inspector (or a person authorised by a Labour Inspector to do so) may serve on an employer a demand notice, in the prescribed form, if—
a: an employee makes a complaint to the Labour Inspector, or the Labour Inspector believes on reasonable grounds, that an employee has not received wages or holiday pay or other money payable by the employer to the employee under the Minimum Wage Act 1983 Holidays Act 2003
b: the Labour Inspector has given the employer not less than 7 days to comment on the complaint or the grounds for the Labour Inspector's belief; and
c: the Labour Inspector, after considering any comments made by the employer under paragraph (b), is satisfied that the employee is entitled to the wages or holiday pay or other money; and
d: the Labour Inspector is satisfied that the employer is not willing to pay the wages or holiday pay or other money to the employee in a reasonable manner or within a reasonable time.
2: A demand notice must be served—
a: by giving it to the employer concerned; or
b: if the employer does not accept the demand notice, by leaving it in the employer's presence and drawing the employer's attention to it.
3: A demand notice may not be served in the period commencing on 17 December and ending with the close of 8 January in the following year.
4: A demand notice has no effect to the extent, if any, that it claims money (being wages or holiday pay or other money) that was payable more than 6 years earlier than the date on which the demand notice is served on the employer concerned. Section 224(1)(a) replaced 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023
225: Objections to demand notice
1: An employer may lodge with the Authority an objection to a demand notice.
2: An objection must be lodged by an employer with the Authority within 28 days after the demand notice is served on the employer.
3: A demand notice has the consequences specified in subsection (4)—
a: if no objection is lodged before the close of the period specified in subsection (2); or
b: if any objection lodged before the close of the period specified in subsection (2) is withdrawn (whether before or after the close of that period).
4: The consequences are that the demand notice—
a: imposes a legal requirement on the employer to comply with it; and
b: is prima facie evidence before the court or the Authority or (for the purposes of paragraph (d), before the District Court
c: may be enforced by the making by the Authority of a compliance order under section 137
d: is enforceable as a judgment debt under section 141 Section 225(4)(b) amended 1 March 2017 section 261 District Court Act 2016
226: Authority to determine objection
1: The function of the Authority in respect of an objection is to determine whether or not the whole or part of the wages or holiday pay or other money specified in the notice is due to the employee by the employer and, if so, the amount payable.
2: A determination by the Authority that any wages or holiday pay or other money is due is enforceable as a judgment debt under section 141
227: Withdrawal of demand notice
A demand notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of a demand notice does not prevent another demand notice being served in relation to the same matter. Actions to recover wages or holiday pay, etc
228: Actions by Labour Inspector
1: A Labour Inspector may commence an action on behalf of an employee to recover any wages or holiday pay or other money payable by an employer to that employee under the Minimum Wage Act 1983 Holidays Act 2003
2: If a Labour Inspector commences an action under subsection (1), the Labour Inspector must not issue an improvement notice under section 223D section 224
3: Sections 131 132 Section 228(1) replaced 20 December 2023 section 7(1) Fair Pay Agreements Act Repeal Act 2023 Section 228(2) substituted 1 April 2011 section 38 Employment Relations Amendment Act 2010 Powers
229: Powers of Labour Inspectors
1: For the purpose of performing his or her functions and duties under any Act specified in section 223(1) sections 230 to 233
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, 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 person at any premises of the kind described in paragraph (a) and the power to interview any employer or any employee:
c: the power to require the production of, and to inspect and take copies from,—
i: any wages and time record or any holiday and leave record
ii: any other document held which records the remuneration of any employees:
iii: any other document that the Labour Inspector reasonably believes may assist in determining whether the requirements of the Acts referred to in section 223(1)
d: the power to require any employer to supply to the Labour Inspector a copy of the wages and time record or holiday and leave record
e: the power to inspect, and take copies of, any record kept under section 98
f: the power to question any employer about compliance with any of the Acts referred to in section 223(1)
2: An employer must comply with a requirement under subsection (1)(c) while the Labour Inspector is with the employer, or, if that is not practicable, within 10 working days.
2A: An employer must comply with a requirement under subsection (1)(d) immediately after receiving it, or, if that is not practicable, within 10 working days of the date on which the requirement is received.
3: Every employer who, without reasonable cause, fails to comply with any requirement made of that employer under subsection (1)(c) or (d) within the period required by subsection (2) or (2A) , in an action brought by a Labour Inspector,
4: Where a Labour Inspector alleges that any person has not observed or not complied with any provision of section 130(1) section 223(1) section 137
5: No person is, during an interview or in answer to a question
5A: A person is not excused from answering a Labour Inspector’s questions under subsection (1) on the grounds that doing so might expose the person to a pecuniary penalty under Part 9A
6: Despite subsection (1), the power of a Labour Inspector to enter any defence area within the meaning of the Defence Act 1990 section 93
7: 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 and is a provision of any of the Acts referred to in section 223(1) 1991 No 22 s 144 Section 229(1)(a) amended 1 October 2008 section 116(a)(ii) Policing Act 2008 Section 229(1)(c)(i) amended 1 April 2004 section 91(2) Holidays Act 2003 Section 229(1)(c)(iii) inserted 1 April 2016 section 32(1) Employment Relations Amendment Act 2016 Section 229(1)(d) amended 1 April 2004 section 91(2) Holidays Act 2003 Section 229(2) replaced 6 January 2024 section 17(1) Worker Protection (Migrant and Other Employees) Act 2023 Section 229(2A) inserted 6 January 2024 section 17(1) Worker Protection (Migrant and Other Employees) Act 2023 Section 229(3) amended 6 January 2024 section 17(2) Worker Protection (Migrant and Other Employees) Act 2023 Section 229(3) amended 1 December 2004 section 66 Employment Relations Amendment Act (No 2) 2004 Section 229(5) amended 6 January 2024 section 17(3) Worker Protection (Migrant and Other Employees) Act 2023 Section 229(5A) inserted 1 April 2016 section 32(2) Employment Relations Amendment Act 2016
229A: Investigating question of employment
1: For the purpose of performing the Labour Inspector’s functions and duties under any Act specified in section 223(1) sections 229(5), (5A), and (6) 230 to 233
a: any place is a workplace; or
b: any person performing work is an employee (as distinct, for example, from an independent contractor or a volunteer); or
c: any person for whom work is being performed is an employer.
2: In relation to the exercise of those powers in such an investigation, section 229
a: the power of entry under section 229(1)(a)
b: the power to interview under section 229(1)(b)
c: employee section 229(1)(a)
d: employer
e: the powers under section 229(1)(c) and (d)
3: Every person for whom work is performed and who, without reasonable cause, fails to comply with any requirement made of that person under section 229(1)(c) or (d) Section 229A inserted 13 January 2020 section 5 Regulatory Systems (Workforce) Amendment Act 2019
230: Entry of dwellinghouses
No Labour Inspector may, under section 229 229A
a: has the consent of an occupier of that dwellinghouse; or
b: is authorised to do so by a warrant issued under section 231 1992 No 96 s 31(2) Section 230 amended 13 January 2020 section 6 Regulatory Systems (Workforce) Amendment Act 2019
231: Entry warrant
A Judge who, on application made on oath, is satisfied that there is reasonable ground for believing that a dwellinghouse—
a: is a place in which any person is employed or is the only practicable means through which such a place may be entered; or
b: in any case to which section 229A may issue a warrant authorising a Labour Inspector named in it to enter that dwellinghouse or any part of that dwellinghouse that is, or is the only practicable means through which the Inspector may enter, a place where any person is employed. 1992 No 96 s 31(3) Section 231(a) replaced 13 January 2020 section 7 Regulatory Systems (Workforce) Amendment Act 2019 Section 231(b) replaced 13 January 2020 section 7 Regulatory Systems (Workforce) Amendment Act 2019
232: Compilation of wages and time record
1: Where an employer fails to produce, in response to a requirement under section 229(1)(c)(i)
a: to compile a wages and time record; and
b: to deliver a written copy of the record compiled under paragraph (a) to the Labour Inspector.
2: The notice must specify—
a: the employee in respect of which, and the period in relation to which, the wages and time record must be compiled; and
b: the date by which the wages and time record must be both compiled and delivered to the Labour Inspector (which date must be at least 30 days after the date of the notice).
3: If an employer fails to comply with a notice under subsection (1), written evidence of the contents of the employer's wages and time record, in relation to the period specified in the notice, may not, in any proceedings under this Act, be produced by the employer without the consent of the other party or parties or the leave of the Authority.
4: Every employer who, without reasonable cause, fails to comply with a notice given to that employer under subsection (1) is liable , in an action brought by a Labour Inspector,
5: In this section, a wages and time record, if applicable, includes a holiday and leave record kept under section 81 Section 232(4) amended 1 December 2004 section 67 Employment Relations Amendment Act (No 2) 2004 Section 232(5) added 1 April 2004 section 91(2) Holidays Act 2003
233: Obligations of Labour Inspectors
1: In entering any premises under the authority of section 229(1)(a) 229A section 231
2: Every Labour Inspector who enters any premises under the authority of section 229(1)(a) 229A section 231 section 223(2)
3: Where a Labour Inspector enters any premises under the authority of section 229(1)(a) 229A section 231
4: That written notice must state—
a: the identity of the person who entered the premises; and
b: the fact that the person is a Labour Inspector; and
c: the date and time of the entry; and
d: the reasons for the entry.
5: 1991 No 22 s 145 Section 233(1) amended 13 January 2020 section 8 Regulatory Systems (Workforce) Amendment Act 2019 Section 233(2) amended 13 January 2020 section 8 Regulatory Systems (Workforce) Amendment Act 2019 Section 233(3) amended 13 January 2020 section 8 Regulatory Systems (Workforce) Amendment Act 2019 Section 233(5) repealed 1 April 2016 section 33 Employment Relations Amendment Act 2016
233A: Obligation of Labour Inspector and department not to disclose information
1: Neither a Labour Inspector who inspects, or is supplied with a copy of, a document under section 229 229A section 223(1) or the Immigration Act 2009
2: This section applies subject to section 233B Section 233A inserted 1 April 2016 section 34 Employment Relations Amendment Act 2016 Section 233A(1) amended 6 January 2024 section 18 Worker Protection (Migrant and Other Employees) Act 2023 Section 233A(1) amended 13 January 2020 section 9 Regulatory Systems (Workforce) Amendment Act 2019
233B: Information sharing
1: A Labour Inspector and the department may provide to a regulatory agency any information, or a copy of any document, that the Labour Inspector or department—
a: holds in relation to the performance or exercise of its functions, duties, or powers under or in relation to the Acts specified in section 223(1)
b: considers may assist the regulatory agency in the performance or exercise of the regulatory agency’s functions, duties, or powers under or in relation to any enactment.
2: A regulatory agency may provide a Labour Inspector or the department with any information, or a copy of any document, that the regulatory agency—
a: holds in relation to the performance or exercise of its functions, duties, or powers under or in relation to any enactment; and
b: considers may assist the Labour Inspector or department in the performance or exercise of its functions, duties, or powers under or in relation to any of the Acts specified in section 223(1)
3: A Labour Inspector, the department, or a regulatory agency who provides information or a copy of a document under this section may impose conditions relating to the provision of the information, including conditions relating to—
a: the storage and use of, or access to, anything provided:
b: the copying, returning, or disposing of any documents provided.
4: This section applies subject to any other enactment, including the Privacy Act 2020
5: This section overrides provisions in contracts, deeds, and other documents that are inconsistent with this section.
6: In this section, regulatory agency
a: an immigration officer under the Immigration Act 2009
b: the Inland Revenue Department:
c: the Ministry of Social Development:
d: the Ministry for Primary Industries:
e: the New Zealand Police:
f: the Registrar of Companies:
g: WorkSafe New Zealand and any agency designated under section 28B
h: any other department of State, person, or organisation defined in regulations as a regulatory agency for the purposes of this section. Section 233B inserted 1 April 2016 section 34 Employment Relations Amendment Act 2016 Section 233B(4) amended 1 December 2020 section 217 Privacy Act 2020
234: Circumstances in which officers, directors, or agents of company liable for minimum wages and holiday pay
Section 234 repealed 1 April 2016 section 35 Employment Relations Amendment Act 2016
235: Obstruction
1: A person commits an offence who, without reasonable cause,—
a: obstructs, delays, hinders, or deceives; or
b: causes to be obstructed, delayed, hindered, or deceived,— any Labour Inspector while the Labour Inspector is lawfully exercising or performing any power, function, or duty.
2: A person who commits an offence against subsection (1) is liable on conviction by the court to a fine not exceeding $10,000. Infringement offences Heading inserted 1 April 2016 section 36 Employment Relations Amendment Act 2016
235A: Interpretation
In sections 235B to 235F infringement fee section 235E infringement offence
a: a failure by an employer to comply with the requirements of section 64(1) or (2) 65(1)(a) 130(1) section 81(2)
b: breaches of this Act that are prescribed by regulations as infringement offences:
c: a failure by an employer to comply with a requirement made under section 229(1)(d) Section 235A inserted 1 April 2016 section 36 Employment Relations Amendment Act 2016 Section 235A amended 6 January 2024 section 19(1) Worker Protection (Migrant and Other Employees) Act 2023 Section 235A infringement fee inserted 6 January 2024 section 19(2) Worker Protection (Migrant and Other Employees) Act 2023 Section 235A infringement offence inserted 6 January 2024 section 19(2) Worker Protection (Migrant and Other Employees) Act 2023 Section 235A infringement offence replaced 30 March 2025 section 11 Regulatory Systems (Immigration and Workforce) Amendment Act 2025 Section 235A infringement offence inserted 6 January 2024 section 19(3) Worker Protection (Migrant and Other Employees) Act 2023
235B: Infringement offences
1: If a person is alleged to have committed an infringement offence, the person may—
a: be proceeded against by filing a charging document under section 14
b: be issued with an infringement notice under section 235C
2: Proceedings commenced in the way described in subsection (1)(a) do not require section 21(1)(a)
3: See section 21 Section 235B inserted 1 April 2016 section 36 Employment Relations Amendment Act 2016 Section 235B(1)(b) replaced 6 January 2024 section 20(1) Worker Protection (Migrant and Other Employees) Act 2023 Section 235B(2) amended 6 January 2024 section 20(2) Worker Protection (Migrant and Other Employees) Act 2023 Section 235B(3) inserted 6 January 2024 section 20(3) Worker Protection (Migrant and Other Employees) Act 2023
235C: When infringement notice may be issued
A Labour Inspector may issue an infringement notice to a person if the Labour Inspector believes on reasonable grounds that the person is committing, or has committed, an infringement offence. Section 235C replaced 6 January 2024 section 21 Worker Protection (Migrant and Other Employees) Act 2023
235D: Revocation of infringement notice before payment made
1: A Labour Inspector may revoke an infringement notice before—
a: the infringement fee is paid; or
b: an order for payment of a fine is made or deemed to be made by a court under section 21
2: The Labour Inspector must take reasonable steps to ensure that the person to whom the notice was issued is made aware of the revocation of the notice.
3: The revocation of an infringement notice before the infringement fee is paid is not a bar to any other enforcement action against the person to whom the notice was issued in respect of the same matter. Section 235D replaced 6 January 2024 section 21 Worker Protection (Migrant and Other Employees) Act 2023
235DA: What infringement notice must contain
An infringement notice must be in the form prescribed in regulations made under section 237
a: details of the alleged infringement offence that fairly inform a person of the time, place, and nature of the alleged offence:
b: the amount of the infringement fee:
c: the address of the department:
d: how the infringement fee may be paid:
e: the time within which the infringement fee must be paid:
f: a summary of the provisions of section 21(10)
g: a statement that the person served with the notice has a right to request a hearing:
h: a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing:
i: any other matters prescribed in the regulations. Section 235DA inserted 6 January 2024 section 21 Worker Protection (Migrant and Other Employees) Act 2023
235DB: How infringement notice may be served
1: An infringement notice may be served on a person who the Labour Inspector believes is committing or has committed an infringement offence by—
a: delivering it to the person or, if the person refuses to accept it, bringing it to the person’s notice; or
b: leaving it for the person at the person’s last known place of residence with another person who appears to be of or over the age of 14 years; or
c: leaving it for the person at the person’s place of business or work with another person; or
d: sending it to the person by prepaid post addressed to the person’s last known place of residence or place of business or work; or
e: sending it to an electronic address of the person in any case where the person does not have a known place of residence or business in New Zealand.
2: Unless the contrary is shown,—
a: an infringement notice (or a copy of it) sent by prepaid post to a person under subsection (1) is to be treated as having been served on that person on the fifth working day after the date on which it was posted; and
b: an infringement notice sent to a valid electronic address is to be treated as having been served at the time the electronic communication first entered an information system that is outside the control of the department. Section 235DB inserted 6 January 2024 section 21 Worker Protection (Migrant and Other Employees) Act 2023
235DC: Reminder notices
A reminder notice must be in the form prescribed in regulations made under section 237 Section 235DC inserted 6 January 2024 section 21 Worker Protection (Migrant and Other Employees) Act 2023
235E: Infringement fees
1: The infringement fee,—
a: for an infringement offence specified in paragraph (a) or (c) of the definition of that term in section 235A
b: for an infringement offence prescribed by regulations under paragraph (b) of the definition of that term in section 235A
2: However, the maximum aggregate infringement fees that an employer is liable to pay in a 3-month period for infringement offences specified in paragraph (a) or (b) of the definition of infringement offence in section 235A Section 235E replaced 6 January 2024 section 21 Worker Protection (Migrant and Other Employees) Act 2023
235EA: Infringement fine
The maximum fine that can be imposed by the court in relation to an infringement offence is double the amount of the infringement fee. Section 235EA inserted 6 January 2024 section 21 Worker Protection (Migrant and Other Employees) Act 2023
235F: Payment of infringement fee
All infringement fees received must be paid into a Crown Bank Account. Section 235F inserted 1 April 2016 section 36 Employment Relations Amendment Act 2016
235G: Infringement fee and penalty not payable for the same conduct
A person is not liable to pay an infringement fee and penalty under this Act for the same conduct. Section 235G inserted 1 April 2016 section 36 Employment Relations Amendment Act 2016 Representation
236: Representation
1: Where any Act to which this section applies confers on any employee the right to do anything or take any action—
a: in respect of an employer; or
b: in the Authority or the court,— that employee may choose any other person to represent the employee for the purpose.
2: Where any Act to which this section applies confers on an employer the right to do anything or take any action—
a: in respect of an employee; or
b: in the Authority or the court,— that employer may choose any other person to represent that employer for the purpose.
3: Any person purporting to represent any employee or employer must establish that person's authority for that representation.
4: The Acts to which this section applies are—
a: this Act:
b: the Accident Compensation Act 2001
ba: the Support Workers (Pay Equity) Settlements Act 2017
c: the Equal Pay Act 1972
d: the Holidays Act 2003
da: the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016
e: the Human Rights Act 1993
f: the Minimum Wage Act 1983
g: the Parental Leave and Employment Protection Act 1987
h: the Policing Act 2008
i: the Public Service Act 2020
j: the Wages Protection Act 1983 Section 236(4)(b) substituted 1 April 2002 section 337(1) Accident Compensation Act 2001 Section 236(4)(b) amended 3 March 2010 section 5(1)(b) Accident Compensation Amendment Act 2010 Section 236(4)(ba) inserted 1 July 2017 section 20(5) Care and Support Workers (Pay Equity) Settlement Act 2017 Section 236(4)(ba) amended 7 August 2020 section 23(2)(d) Support Workers (Pay Equity) Settlements Amendment Act 2020 Section 236(4)(d) substituted 1 April 2004 section 91(2) Holidays Act 2003 Section 236(4)(da) inserted 25 February 2016 section 31(5) Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 Section 236(4)(h) amended 1 October 2008 section 130(4) Policing Act 2008 Section 236(4)(i) replaced 7 August 2020 section 135 Public Service Act 2020 Miscellaneous provisions
237: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing the forms for the purposes of this Act:
b: prescribing the duties of officers of the Authority, of the Registrar of the court, and of any other officers or persons acting in execution of this Act:
c: prescribing any act or thing necessary to supplement or render more effectual the provisions of this Act as to the conduct of proceedings before the Authority or the court:
d: prescribing the procedure in relation to the conduct of matters before the Authority or the court:
e: prescribing procedures in relation to the issue of summonses to witnesses and to the hearing of evidence on oath:
f: prescribing charges or fees in relation to—
i: services provided by the chief executive under this Act; or
ii: the functions of the Authority or the court:
faa: in relation to a service performed by a Registrar of the court under this Act and specified in regulations made under paragraph (fab), authorising a Registrar of the court to charge a reasonable fee calculated on the actual expense incurred in performing the service:
fab: specifying the services (other than services for which a fee is already prescribed under this Act) performed by a Registrar of the court under this Act for which that person may charge a fee:
fac: making provision in relation to the postponement, under the regulations, of the payment of any fee, which provision may (without limitation) include provision—
i: for the recovery of the fee after the expiry of the period of postponement; and
ii: for restrictions to apply (after the expiry of the period of postponement and so long as the fee remains unpaid) on the steps that may be taken in the proceedings in respect of which the fee is payable:
fad: providing for the manner in which an application for the exercise of a power specified in section 237B(1) 237C(1)
fae: providing for the refund of fees paid for a review of a decision of a Registrar of the court, if the decision is overturned in its entirety by a Judge:
fa: prescribing regulatory agencies for the purposes of section 233B(6)
fb: prescribing infringement offences for the purposes of section 235A(b)
fc: prescribing infringement fees (not exceeding $1,000) for the purposes of section 235E(1)(b)
g: providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
2: Regulations under this section are secondary legislation ( see Part 3 1991 No 22 s 146 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 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 237(1)(faa) inserted 1 March 2017 section 13 Employment Relations Amendment Act (No 2) 2016 Section 237(1)(fab) inserted 1 March 2017 section 13 Employment Relations Amendment Act (No 2) 2016 Section 237(1)(fac) inserted 1 March 2017 section 13 Employment Relations Amendment Act (No 2) 2016 Section 237(1)(fad) inserted 1 March 2017 section 13 Employment Relations Amendment Act (No 2) 2016 Section 237(1)(fae) inserted 1 March 2017 section 13 Employment Relations Amendment Act (No 2) 2016 Section 237(1)(fa) inserted 1 April 2016 section 37 Employment Relations Amendment Act 2016 Section 237(1)(fb) inserted 1 April 2016 section 37 Employment Relations Amendment Act 2016 Section 237(1)(fc) inserted 1 April 2016 section 37 Employment Relations Amendment Act 2016 Section 237(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
237AA: Chief executive may approve forms
1: The chief executive may approve and issue any forms that the chief executive considers necessary for the purposes of this Act, not being forms prescribed by regulations made under this Act.
2: Every document purporting to be in a form approved and issued by the chief executive under and for the purposes of this Act is deemed to have been so approved and issued unless the chief executive certifies otherwise. Section 237AA inserted 6 March 2015 section 73 Employment Relations Amendment Act 2014
237A: Amendments to Schedule 1A
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Schedule 1A
2: The Minister may recommend the making of an Order in Council to amend Schedule 1A
a: are employed in a sector in which restructuring of an employer’s business occurs frequently; and
b: have terms and conditions of employment that tend to be undermined by the restructuring of an employer’s business; and
c: have little bargaining power.
3: The Minister may recommend the making of an Order in Council to amend Schedule 1A
4: The Minister may recommend the making of an Order in Council to amend Schedule 1A
5: Before recommending the making of an Order in Council to amend Schedule 1A
a: receive a request to add, amend, or delete a category of employees from a person or an organisation that—
i: clearly identifies the category of employees to which the request relates; and
ii: specifies the sector in which the category of employees provides service; and
iii: includes evidence that the relevant employees satisfy or no longer satisfy (as applicable) the criteria in subsection (2); and
b: receive a report from the department on whether the employees in the category of employees satisfy the criteria in subsection (2); and
c: provide the report to, and consult, any employers, employees, representatives of employers or employees, or other persons or organisations as the Minister considers appropriate.
6: Nothing in subsection (5)(c) requires the making available of information that could properly be withheld in accordance with the provisions of the Official Information Act 1982
6A: An order under this section is secondary legislation ( see Part 3
7: In this section, restructuring section 69B 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 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 237A inserted 12 December 2018 section 48 Employment Relations Amendment Act 2018 Section 237A(6A) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
237A: Amendments to Schedule 1A
Section 237A repealed 6 March 2015 section 74 Employment Relations Amendment Act 2014
237B: Regulations providing for waiver, etc, of fees
1: In order to promote access to justice, the Governor-General may, by Order in Council, make regulations authorising a Registrar of the court to waive, reduce, or postpone the payment of a fee required in connection with a proceeding or an intended proceeding, or to refund in whole or in part a fee that has already been paid.
2: Regulations made under subsection (1) must provide that a Registrar of the court may exercise a power under the regulations only if he or she is satisfied on the basis of prescribed criteria that—
a: the person responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or
b: unless 1 or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued.
3: For the purposes of subsection (2), regulations may prescribe criteria—
a: for assessing a person's ability to pay a fee; and
b: for identifying proceedings that concern matters of genuine public interest.
4: No fee is payable for an application for the exercise of a power specified in subsection (1).
5: Regulations under this section are secondary legislation ( see Part 3 1947 No 16 s 123(1)(ba), (bb), (2) 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 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 237B inserted 1 March 2017 section 14 Employment Relations Amendment Act (No 2) 2016 Section 237B(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
237C: Postponement of fees
1: The Governor-General may, by Order in Council, make regulations authorising a Registrar of the court to postpone the payment of a fee pending the determination of—
a: an application for the exercise of a power specified in section 237B(1)
b: an application for review under section 237D
2: No fee is payable for an application for the exercise of a power specified in subsection (1).
3: Regulations under this section are secondary legislation ( see Part 3 1947 No 16 s 123(1)(bc), (2) 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 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 237C inserted 1 March 2017 section 14 Employment Relations Amendment Act (No 2) 2016 Section 237C(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
237D: Reviews of decisions of Registrars concerning fees
1: A person who disagrees with a decision of a Registrar of the court under regulations made under section 237B(1)
2: The application must be made within—
a: 20 working days after the date on which the applicant is notified of the decision; or
b: any further time that the Judge allows on application, which may be made either before or after the expiry of that period.
3: The application may be made informally.
4: A review is—
a: conducted by way of rehearing of the matter in respect of which the Registrar of the court made the decision; and
b: dealt with on the papers, unless the Judge directs otherwise.
5: The Judge may confirm, modify, or reverse the decision of the Registrar of the court.
6: No fee is payable on the application. 1947 No 16 s 123A Section 237D inserted 1 March 2017 section 14 Employment Relations Amendment Act (No 2) 2016
238: No contracting out
The provisions of this Act have effect despite any provision to the contrary in any contract or agreement. 1991 No 22 s 147
238A: Provisions relating to COVID-19 vaccinations
Section 238A repealed 26 November 2024 clause 18
239: New Schedule 3 substituted in Police Act 1958
Amendment(s) incorporated in the Act(s)
240: Consequential amendments
The enactments specified in Schedule 5
241: Repeals
The enactments specified in Schedule 6 Transitional provisions
242: Enforcement of existing individual employment contracts
1: Every individual employment contract within the meaning of the Employment Contracts Act 1991 that is in force immediately before the commencement of this Act continues in force according to its tenor and is enforceable in the Authority or the court.
2: Part 6
243: Enforcement of existing collective employment contracts
1: Every collective employment contract within the meaning of the Employment Contracts Act 1991 that is in force immediately before the commencement of this Act continues in force according to its tenor and is enforceable in the Authority or the court.
2: This section is subject to sections 244 to 246
244: Existing collective employment contracts and collective bargaining
Subject to section 246 section 243 sections 40(2) 41 Part 8
a: the date on which the collective employment contract is expressed to expire; or
b: 31 July 2003.
245: Existing procedures in relation to disputes and personal grievances
1: Subject to sections 247 248
a: in any individual employment contract that is continued in force by section 242
b: in any collective employment contract that is continued in force by section 243 are, as from the commencement of this Act, of no effect.
2: Subject to sections 247 248
a: the parties to every individual employment contract that is continued in force by section 242
b: the parties to every collective employment contract that is continued in force by section 243 are, as from the commencement of this Act, subject to the problem resolution regime provided for in this Act.
246: Expiration of existing collective employment contracts
1: Where any employees who are covered by a collective employment contract that is continued in force by section 243
a: an employer of employees covered by that collective employment contract; or
b: a union whose members are bound by that collective employment contract— may conduct a secret ballot of such of the employees covered by that collective employment contract as are members of the union for the purpose of determining whether a majority of those employees is in favour of the date of the expiry of that collective employment contract being 1 July 2001 or some other specified date (being a date after 1 July 2001 but before the date on which that collective employment contract is expressed to expire).
2: Subject to subsection (3), where a majority of the valid votes recorded in any secret ballot conducted for the purposes of subsection (1) is in favour of the date of the expiry of the collective employment contract to which the ballot relates being 1 July 2001 or some other specified date, that date becomes, in relation to such of the employees of the employer as are immediately before that date members of the union in respect of which the ballot was conducted, the date of the expiry of that collective employment contract and that collective employment contract is deemed to have been amended accordingly.
3: Where the date of the expiry of a collective employment contract is changed under subsection (2), that collective employment contract—
a: does not expire in respect of any employee of the employer who is covered by the collective employment contract but who, immediately before the new date of the expiry of the collective employment contract, is not a member of the union in respect of whose members the ballot was conducted; but
b: continues in force according to its tenor in relation to any employee to whom paragraph (a) applies; but
c: if the union in respect of whose members the ballot was conducted was a party to the collective employment contract, that union ceases, on the new date of expiry, to be a party to the collective employment contract.
247: Existing proceedings
1: All applications, actions, appeals, proceedings, and other matters under any Act which, before the commencement of this section, have been made or referred under the Employment Contracts Act 1991 or any other Act amended or repealed by that Act or by this Act to the Court of Appeal or the Employment Court or the Employment Tribunal, and which have not been determined or completed at the commencement of this section are to be determined or completed by the Court of Appeal, Employment Court, or Employment Tribunal, as the case may require, as if this Act had not been passed.
2: Subsection (1) is subject to sections 249 to 252 1991 No 22 s 182(1)
248: Existing causes of action
1: Subject to the applicable period of limitation, the repeal by this Act of any existing Act or provision does not extinguish any existing cause of action.
2: Where any cause of action has arisen before the commencement of this section under any of the provisions repealed by this Act and at that date no proceedings have been initiated in respect of that cause of action under those provisions, those provisions continue to apply to any proceedings commenced in respect of any such cause of action as if this Act had not been passed.
3: Subsection (2) is subject to sections 249 to 252
4: Where any cause of action has arisen before the commencement of this section in relation to the dismissal of an employee, proceedings in the Employment Tribunal in respect of that cause of action,—
a: if commenced before the close of 30 June 2001, may be other than in accordance with section 113(1)
b: if commenced after 30 June 2001, must be in accordance with section 113(1) Part 9 1991 No 22 s 183(1), (2)
249: Employment Tribunal
Despite the repeals effected by this Act, the Employment Tribunal is to remain in office until the close of 31 January 2001 for the purpose of—
a: determining or completing any proceedings under section 247
b: determining or completing any proceedings in relation to a cause of action of the type referred to in section 248
c: exercising any other jurisdiction given to it by this Act,— and for those purposes the Employment Tribunal has all necessary powers, and may exercise, despite the repeals effected by this Act, the powers conferred on the Employment Tribunal by the repealed enactments, which apply accordingly with all necessary modifications. 1991 No 22 s 186(1)
250: Exercise of powers of Employment Tribunal after 31 January 2001
1: Despite the repeals effected by this Act, temporary members of the Employment Tribunal may be appointed from time to time under section 87 of the Employment Contracts Act 1991 sections 84, 86, and 92
2: An appointment under subsection (1) may be made before or after the close of 31 January 2001.
3: Where any person appointed as a temporary member of the Employment Tribunal under subsection (1) is a person who, immediately before the commencement of this Act, held office as a member of the Employment Tribunal, the conditions of service of every such temporary member (except those as to his or her term of office) are to be the same as they would have been if both periods of service as a member of the Employment Tribunal had been continuous.
4: Any temporary member of the Employment Tribunal who is in office after the close of 31 January 2001 by virtue of an appointment under subsection (1) has jurisdiction, in the name of the Employment Tribunal,—
a: to determine or complete any proceedings under section 247
b: to determine or complete any proceedings in relation to a cause of action of the type referred to in section 248
c: to exercise any other jurisdiction conferred on any such temporary member by this Act.
5: For the purposes of subsection (4), any temporary member of the Employment Tribunal to whom subsection (4) applies has, and may exercise, despite the repeals effected by this Act, the powers conferred on the Employment Tribunal by the repealed enactments, which apply accordingly with all necessary modifications.
251: Exercise of powers of Authority before close of 31 January 2001
1: The Chief of the Employment Tribunal may, at any time before the close of 31 January 2001,—
a: exercise, in the name of the Authority, such of the jurisdiction and the powers of the Authority as the Chief of the Employment Tribunal thinks fit; or
b: appoint any member or temporary member of the Employment Tribunal to exercise, in the name of the Authority, in the period beginning on 2 October 2000 and ending with the close of 31 January 2001, such of the powers of the Authority as the Chief of the Employment Tribunal thinks fit; or
c: both exercise jurisdiction and powers under paragraph (a) and make appointments under paragraph (b).
2: The Chief of the Authority may appoint any member or temporary member of the Employment Tribunal to exercise, in the name of the Authority, in the period specified in subsection (1)(b), such of the jurisdiction and the powers of the Authority as the Chief of the Authority thinks fit.
3: Any appointment made under subsection (1)(b) or subsection (2), unless sooner revoked by the Chief of the Employment Tribunal or the Chief of the Employment Authority, expires with the close of 31 January 2001.
252: Exercise by Authority of powers of Tribunal after 31 January 2001
Despite the repeals effected by this Act, the Chief of the Authority may from time to time appoint any member of the Authority—
a: to determine and complete, in the name of the Employment Tribunal, any proceedings under section 247 section 250
b: to exercise any other jurisdiction conferred on the Employment Tribunal or any temporary member of the Employment Tribunal by this Act.
253: Existing appointments
1: The person who immediately before 2 October 2000 holds office as the Chief Judge of the Employment Court constituted by the Employment Contracts Act 1991 is, without further appointment, deemed as from the commencement of that day to have been duly appointed as the Chief Judge of the Employment Court under this Act.
2: The persons who immediately before 2 October 2000 hold office as Judges (other than acting Judges Section 253(2) amended 1 March 2017 section 15 Employment Relations Amendment Act (No 2) 2016
254: Application, savings, and transitional provisions relating to amendments to Act
The application, savings, and transitional provisions set out in Schedule 1AA Section 254 inserted 6 March 2015 section 76 Employment Relations Amendment Act 2014