Employment Relations Act 2000 (2000 No 24)

Section 3(a): amended, on 1 December 2004, by section 4(1) of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 3(a)(i): substituted, on 1 December 2004, by section 4(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 3(a)(ii): amended, on 1 December 2004, by section 4(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 3(a)(v): replaced, on 1 April 2016, by section 4(1) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 3(ab): inserted, on 1 April 2016, by section 4(2) of the Employment Relations Amendment Act 2016 (2016 No 9). 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 confi‐ dence; and 21 Reprinted as at Part 1 s 4 Employment Relations Act 2000 1 July 2021 (b) requires the parties to an employment relationship to be active and con‐ structive in establishing and maintaining a productive employment rela‐ tionship 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 pro‐ vide 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 confi‐ dentiality of the information (for example, to avoid unreasonable preju‐ dice 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 (despite section 52(3) of that Act); or (ii) the Privacy Act 2020 (despite section 24(1) of that Act): (b) an employer must not refuse to provide access to information under sub‐ section (1A)(c) merely because the information is contained in a docu‐ ment that includes confidential information. (1D) For the purposes of subsections (1B) and (1C), confidential information means information that is provided in circumstances where there is a mutual understanding (whether express or implied) of secrecy. (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 col‐ lective agreement: 22 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 1 s 4 (e) a union and another union that are parties to the same collective agree‐ ment: (f) a union and a member of another union where both unions are bargain‐ ing 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 commu‐ nicating 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 partici‐ pating in the pay equity claim resolution process under Part 4 of the Equal Pay Act 1972: (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 subsec‐ tion (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— 23 Reprinted as at Part 1 s 4A Employment Relations Act 2000 1 July 2021 (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, on 1 December 2004, by section 5(1) of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 4(1B): replaced, on 6 March 2015, by section 4 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 4(1C): replaced, on 6 March 2015, by section 4 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 4(1C)(a)(ii): replaced, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31).

Section 4(1D): inserted, on 6 March 2015, by section 4 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 4(4)(ba): inserted, on 1 December 2004, by section 5(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4(4)(bb): inserted, on 1 December 2004, by section 5(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4(4)(ea): inserted, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45).

Section 4(6): added, on 1 December 2004, by section 5(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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) is liable to a penalty under this Act if— (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 of the Equal Pay Act 1972; or (c) the failure was a breach of section 59B or section 59C.

Section 4A: inserted, on 1 December 2004, by section 6 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4A(b): replaced, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45). 24 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 2 s 5 Records relating to minimum entitlement provisions Heading: inserted, on 1 April 2016, by section 5 of the Employment Relations Amendment Act 2016 (2016 No 9). 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, on 1 April 2016, by section 5 of the Employment Relations Amendment Act 2016 (2016 No 9). Part 2 Preliminary provisions Interpretation 5 Interpretation In this Act, unless the context otherwise requires,— agreed hours of work means the hours of work specified in accordance with section 67C(1) applicable collective agreement means the collective agreement that is bind‐ ing on the relevant union and employer, at the relevant point in time in relation to an employee of the employer who is a member of the union Authority means the Employment Relations Authority established by section 156 bargaining, in relation to bargaining for a collective agreement,— (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 bar‐ gaining chief executive means the chief executive of the department Chief Judge means the Chief Judge of the court Chief of the Authority means the Chief of the Authority who holds office under section 166(1)(a) 25 Reprinted as at Part 2 s 5 Employment Relations Act 2000 1 July 2021 collective agreement means an agreement that is binding on— (a) 1 or more unions; and (b) 1 or more employers; and (c) 2 or more employees compliance order means an order made by the Authority or the court under section 137 or section 139 controlling third party means a person— (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 per‐ son; 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 direc‐ tion that an employer exercises, or is entitled to exercise, in relation to the employee court means the Employment Court constituted under this Act 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 means a demand notice issued under section 224(1) department, in any provision of this Act, means the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of that provision dispute means a dispute about the interpretation, application, or operation of an employment agreement dwellinghouse— (a) means any building or any part of a building to the extent that it is occu‐ pied 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 26 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 2 s 5 employee is defined in section 6 employer means a person employing any employee or employees; and includes a person engaging or employing a homeworker 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 means any of the employment relationships speci‐ fied in section 4(2) employment relationship problem includes a personal grievance, a dispute, and any other problem relating to or arising out of an employment relationship, but does not include any problem with the fixing of new terms and conditions of employment employment standards means any of the following: (a) the requirements of any of sections 64, 69Y, 69ZD, 69ZE, and 130: (b) the requirements of section 2AAC(a) and 2A of the Equal Pay Act 1972: (c) the minimum entitlements and payment for those under the Holidays Act 2003: (d) the requirements of sections 81 and 82 of the Holidays Act 2003: (e) the minimum entitlements under the Minimum Wage Act 1983: (f) the provisions of the Wages Protection Act 1983 essential service means a service specified in 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 dwell‐ inghouse or fixtures, fittings, or furniture in it); and (b) includes a person who is in substance so engaged, employed, or contrac‐ ted even though the form of the contract between the parties is techni‐ cally that of vendor and purchaser individual employment agreement means an employment agreement entered into by 1 employer and 1 employee who is not bound by a collective agreement that binds the employer 27 Reprinted as at Part 2 s 5 Employment Relations Act 2000 1 July 2021 intended agreement includes part of an intended agreement Judge means a Judge of the court; and includes an acting Judge Labour Inspector means an employee of the department designated under sec‐ tion 223 to be a Labour Inspector lawyer has the meaning given to it by section 6 of the Lawyers and Convey‐ ancers Act 2006 lockout has the meaning given to it by section 82 mediation includes mediation services provided under section 144 by the chief executive, and any other mediation services that are provided (whether by the chief executive or any other person) to help resolve employment relationship problems mediation services means the mediation services provided, under section 144, by the chief executive member of the Authority means a member of the Authority who holds office under section 166(1); and includes a temporary member who holds office under section 172 minimum entitlement provisions means— (a) the minimum entitlements and payment for those under the Holidays Act 2003; and (b) the minimum entitlements under the Minimum Wage Act 1983; and (c) the provisions of the Wages Protection Act 1983 Minister, in any provision of this Act, means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of that provision person intending to work means a person who has been offered, and accepted, work as an employee; and intended work has a corresponding mean‐ ing personal grievance or grievance has the meaning given to it by section 103 prescribed means prescribed by regulations made under this Act Registrar of the court means any employee of the department designated under section 198 to act as the Registrar of the court Registrar of Unions means the employee of the department appointed under section 27 to be the Registrar of Unions reinstatement is a remedy in a personal grievance raised by an employee that may be granted as described in section 123(1)(a) relevant Acts,— (a) in sections 223A and 223B, means the Acts specified in section 223(1), except section 69LA of this Act: 28 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 2 s 5 (b) in sections 223D to 223F, means the Acts specified in section 223(1), except Part 5 and section 69LA of this Act strike has the meaning given to it by section 81 union means a union registered under Part 4 wages includes amounts payable to an employee in respect of services provi‐ ded to the employer— (a) for time; or (b) for piece work; or (c) wholly or in part by way of commission wages and time record means a wages and time record kept pursuant to sec‐ tion 130 workplace means a place where an employee works from time to time; and includes a place where an employee goes to do work.

Section 5 agreed hours of work: inserted, on 1 April 2016, by section 6(1) of the Employment Rela‐ tions Amendment Act 2016 (2016 No 9).

Section 5 controlling third party: inserted, on 27 June 2020, by section 4 of the Employment Rela‐ tions (Triangular Employment) Amendment Act 2019 (LI 2019 No 36).

Section 5 coverage clause paragraph (a): substituted, on 1 December 2004, by section 7(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 5 dwellinghouse: substituted, on 1 December 2004, by section 7(2) of the Employment Rela‐ tions Amendment Act (No 2) 2004 (2004 No 86).

Section 5 employment standards: inserted, on 1 April 2016, by section 6(1) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 5 employment standards paragraph (b): replaced, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45).

Section 5 homeworker paragraph (b): amended, on 1 December 2004, by section 7(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 5 intended agreement: inserted, on 1 April 2011, by section 4 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 5 Judge: amended, on 1 March 2017, by section 4(1) of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 5 lawyer: inserted, on 1 March 2017, by section 4(2) of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 5 minimum entitlement provisions: inserted, on 1 April 2016, by section 6(2) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 5 minimum entitlements: repealed, on 1 April 2016, by section 6(2) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 5 reinstatement: inserted, on 12 December 2018, by section 46 of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 5 relevant Acts: replaced, on 6 March 2015, by section 5 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 5 wages: inserted, on 12 December 2018, by section 4 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 29 Reprinted as at Part 2 s 5A Employment Relations Act 2000 1 July 2021 5A Provisions affecting application of amendments to this Act Schedule 1AA contains application, savings, and transitional provisions relat‐ ing to amendments made to this Act after 1 January 2013 (see section 254).

Section 5A: inserted, on 6 March 2015, by section 6 of the Employment Relations Amendment Act 2014 (2014 No 61). 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 vol‐ unteer; and (ii) receives no reward for work performed as a volunteer; and (d) excludes, in relation to a film production, any of the following persons: (i) a person engaged in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musi‐ cian, dancer, or entertainer: (ii) a person engaged in film production work in any other capacity. (1A) However, subsection (1)(d) does not apply if the person is a party to, or covered by, a written employment agreement that provides that the person is an employee. (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 or the Sharemilking Agreements Act 1937. (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 30 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 2 s 6 (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 applica‐ tion. (7) In this section,— film means a cinematograph film, a video recording, and any other material record of visual moving images that is capable of being used for the subsequent display of those images; and includes any part of any film, and any copy or part of a copy of the whole or any part of a film film production means the production of a film or video game film production work— (a) means the following work performed, or services provided, in relation to a film production: (i) work performed, or services provided, by an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musi‐ cian, dancer, or entertainer (whether as an individual or not): (ii) pre-production work or services (whether on the set or off the set): (iii) production work or services (whether on the set or off the set): (iv) post-production work or services (whether on the set or off the set): (v) promotional or advertising work or services (whether on the set or off the set) by a person referred to in subparagraphs (i) to (iv); but (b) excludes work performed, or services provided, in respect of the produc‐ tion of any programme intended initially for broadcast on television video game means any video recording that is designed for use wholly or prin‐ cipally as a game video recording means any disc, magnetic tape, or solid state recording device containing information by the use of which 1 or more series of visual images may be produced electronically and shown as a moving picture.

Section 6(1)(d): added, on 30 October 2010, by section 4(1) of the Employment Relations (Film Pro‐ duction Work) Amendment Act 2010 (2010 No 120).

Section 6(1A): inserted, on 30 October 2010, by section 4(2) of the Employment Relations (Film Pro‐ duction Work) Amendment Act 2010 (2010 No 120). 31 Reprinted as at Part 2 s 6A Employment Relations Act 2000 1 July 2021

Section 6(4): amended, on 16 November 2009, by section 173 of the Real Estate Agents Act 2008 (2008 No 66).

Section 6(7): added, on 30 October 2010, by section 4(3) of the Employment Relations (Film Produc‐ tion Work) Amendment Act 2010 (2010 No 120). 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 pre‐ vails. (3) In this section, example includes any note that relates to the example.

Section 6A: inserted, on 14 September 2006, by section 5 of the Employment Relations Amendment Act 2006 (2006 No 41). Part 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. Compare: 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. Compare: 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 32 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 4 s 12 (b) any preference in relation to terms or conditions of employment (includ‐ ing 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. Compare: 1991 No 22 s 7

Section 9(3): added, on 1 December 2004, by section 8 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 or section 9. 11 Undue influence (1) A person must not exert undue influence, directly or indirectly, on another per‐ son 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. Compare: 1991 No 22 s 8 Part 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 33 Reprinted as at Part 4 s 13 Employment Relations Act 2000 1 July 2021 (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, on 12 December 2018, by section 5 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 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 accompan‐ ied by— (a) a copy of the society’s certificate of incorporation under the Incorporated Societies Act 1908; and (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 soci‐ ety is to promote its members’ collective employment interests; and (b) the society is incorporated under the Incorporated Societies Act 1908; and (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 34 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 4 s 18 (d) the society is independent of, and is constituted and operates at arm’s length from, any employer. (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, on 15 May 2012, by section 5 of the Employment Relations (Secret Bal‐ lot for Strikes) Amendment Act 2012 (2012 No 37). 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, to be registered as a union; and (b) is entitled to be registered as a union. (2) Immediately after registering a union, the Registrar of Unions must give a cer‐ tificate 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 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. 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. 35 Reprinted as at Part 4 s 18A Employment Relations Act 2000 1 July 2021 (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 activ‐ ities 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 activ‐ ities. (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 perform‐ ance 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 other‐ wise have received if the employee were performing their ordinary employ‐ ment 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, on 6 May 2019, by section 6 of the Employment Relations Amendment Act 2018 (2018 No 53). Access to workplaces 19 Workplace does not include dwellinghouse For the purposes of sections 20 to 25, workplace does not include a dwelling‐ house. 36 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 4 s 20 20 Access to workplaces (1) A representative of a union is entitled, in accordance with this section and sec‐ tions 20A and 21, to enter a workplace for 1 or more of the following purposes: (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 prem‐ ises 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 employ‐ ment 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 and 21 to enter the workplace for the purpose of the discussion,— (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). Compare: 1991 No 22 ss 13, 14(1)

Section 20(1): replaced, on 12 December 2018, by section 7 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 20(4): added, on 1 December 2004, by section 9 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 37 Reprinted as at Part 4 s 20A Employment Relations Act 2000 1 July 2021

Section 20(4): amended, on 1 April 2011, by section 5 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 20(5): added, on 1 December 2004, by section 9 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 20A Representative of union must obtain consent to enter workplace (1) Before entering a workplace under section 21, a representative of a union must request and obtain the consent of the employer or a representative of the employer. (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, covers the work done by employees at the workplace. (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 represen‐ tative 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 work‐ ing 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 sub‐ section (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 and 23 (which specify when access to workplaces may be denied). 38 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 4 s 21

Section 20A: inserted, on 1 April 2011, by section 6 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 20A(1A): inserted, on 12 December 2018, by section 8 of the Employment Relations Amendment Act 2018 (2018 No 53). 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) if the representative believes, on reasonable grounds, that a member of the union, to whom the purpose of the entry relates, is working or normally works in the workplace: (b) for a purpose specified in section 20(3) if the representative believes, on reasonable grounds, that the union’s membership rule covers an employee who is working or normally works in the workplace. (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 oper‐ ations 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 representa‐ tive 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. 39 Reprinted as at Part 4 s 22 Employment Relations Act 2000 1 July 2021 (5) [Repealed] Compare: 1991 No 22 s 14(2)–(4)

Section 21(5): inserted, on 12 December 2018, by section 9 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 21(5): repealed, on 1 April 2011, by section 7 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 might prejudice— (i) the security or defence of New Zealand; or (ii) the investigation or detection of offences. Compare: 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 sec‐ tion 24; and (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 work‐ place. 24 Issue of certificate of exemption (1) The chief executive may, for the purposes of section 23, issue a certificate of exemption to an employer who is an individual if the chief executive is satis‐ fied that the employer is a practising member of a religious society or order whose doctrines or beliefs preclude membership of any organisation or body other than the religious society or order of which the employer is a member. (2) The chief executive may revoke a certificate of exemption if— (a) the employer to whom it has been issued agrees; or 40 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 4 s 26 (b) it was issued in error; or (c) the chief executive is satisfied that the employer has ceased to be a per‐ son eligible to be issued with the certificate. 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) by unreasonably withholding consent in relation to a request by a representative of a union under section 20A(1) to enter a workplace; or (ab) fails to give reasons in writing for withholding consent to access to a workplace in accordance with section 20A(3); or (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 enter‐ ing the workplace; or (c) wilfully fails to comply with section 21. Compare: 1991 No 22 s 14(5)

Section 25(a): substituted, on 1 April 2011, by section 8 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 25(ab): inserted, on 1 April 2011, by section 8 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 25(ac): inserted, on 12 December 2018, by section 10 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 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 cal‐ endar 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 neces‐ sary 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 meet‐ ing to enable the employer’s operations to continue. 41 Reprinted as at Part 4 s 27 Employment Relations Act 2000 1 July 2021 (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 meet‐ ing; 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. Compare: 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: 42 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 4 s 30A (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, on 6 May 2019, by section 11 of the Employment Relations Amendment Act 2018 (2018 No 53). 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 informa‐ tion 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 informa‐ tion to prospective employees under section 63B(3)(b) in the specified form. (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. 43 Reprinted as at Part 5 s 31 Employment Relations Act 2000 1 July 2021 (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 informa‐ tion 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, on 6 May 2019, by section 11 of the Employment Relations Amendment Act 2018 (2018 No 53). Part 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 requires parties bar‐ gaining for a collective agreement to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to; and (aa) [Repealed] (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 con‐ stitutes 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, on 6 May 2019, by section 12 of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 31(aa): repealed, on 6 March 2015, by section 7 of the Employment Relations Amendment Act 2014 (2014 No 61). Good faith 32 Good faith in bargaining for collective agreement (1) The duty of good faith in section 4 requires a union and an employer bargain‐ ing for a collective agreement to do, at least, the following things: (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 44 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 32 sets out a process for conducting the bargaining in an effective and effi‐ cient 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) [Repealed] (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, information that is reasonably necessary to support or substantiate claims or responses to claims made for the pur‐ poses of the bargaining. (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 circum‐ stances 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 circum‐ stances and the circumstances of the union and the employer. (4) For the purposes of subsection (3)(d), circumstances, in relation to a union and an employer, include— (a) the operational environment of the union and the employer; and 45 Reprinted as at Part 5 s 33 Employment Relations Act 2000 1 July 2021 (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 in relation to bargaining for a collective agreement. (6) To avoid doubt, this section does not prevent an employer from communicating with the employer’s employees during collective bargaining (including, with‐ out 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, on 6 May 2019, by section 13 of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 32(1)(ca): repealed, on 6 March 2015, by section 8 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 32(6): added, on 1 April 2011, by section 9 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 requires a union and an employer bargain‐ ing for a collective agreement to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to. (2) For the purposes of subsection (1), genuine reason does not include— (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 in a collective agreement; or (c) the existence of an unsettled pay equity claim between an employer and a claimant under the Equal Pay Act 1972; or (d) the existence of a requirement to review a pay equity claim settlement under the Equal Pay Act 1972. (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 of Schedule 1B overrides subsection (3). (5) In this section and in clause 6 of Schedule 1B, multi-employer collective agreement means a single collective agreement involving 2 or more employ‐ ers.

Section 33: replaced, on 6 May 2019, by section 14 of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 33(2)(c): inserted, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45). 46 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 34

Section 33(2)(d): inserted, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45). 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 informa‐ tion 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 infor‐ mation 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 informa‐ tion. (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 47 Reprinted as at Part 5 s 35 Employment Relations Act 2000 1 July 2021 (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 (except section 6) enables an employer that is subject to that Act to withhold information that is required under section 32(1)(e).

Section 34(8): amended, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31). 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 applies. (2) The notice in the Gazette may, instead of setting out the code of good faith being approved, provide sufficient information to identify the code, specify the date on which it comes into force, and state where copies of the code may be obtained. (3) The purpose of a code of good faith is to provide guidance about the applica‐ tion of the duty of good faith in section 4 in relation to collective bargaining— (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 deter‐ mine its own procedure. 48 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 40 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) if— (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), the Minister may consult such persons and organisations as the Minister thinks appropriate. (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 that— (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. 49 Reprinted as at Part 5 s 41 Employment Relations Act 2000 1 July 2021 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 applic‐ able collective agreement expires: (ii) the date that is 60 days before the date on which the first applic‐ able 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 applic‐ able collective agreement expires: (ii) the date that is 40 days before the date on which the first applic‐ able 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 agree‐ ment being bargained for.

Section 41(3): replaced, on 12 December 2018, by section 15 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 41(4): replaced, on 12 December 2018, by section 15 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 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— 50 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 44A (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 bar‐ gaining for a collective agreement must draw the existence and coverage of the bargaining, and the intended parties to it, to the attention of all employees (whether or not members of a union concerned) whose work would be covered by the intended coverage clause if the collective agreement were entered into. (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 bargain‐ ing: (ii) 15 days after initiating the bargaining or receiving the notice, if 2 or more employers are identified as intended parties to the bar‐ gaining.

Section 43(1): amended, on 6 March 2015, by section 11(1) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 43(2): inserted, on 6 March 2015, by section 11(2) of the Employment Relations Amendment Act 2014 (2014 No 61). 44 When bargaining initiated (1) Bargaining for a collective agreement is initiated,— (a) if only 1 notice is required under section 42, on the day on which the notice is given: (b) if more than 1 notice is required under section 42, on the day on which the last notice is given. (2) Consolidated bargaining for a single collective agreement under section 50 is initiated on the day by which all the unions concerned agree to the request from the employer to consolidate bargaining initiated by the unions. 44A Employer may opt out of bargaining for collective agreement, or for agreement to join collective agreement, involving 2 or more employers [Repealed]

Section 44A: repealed, on 12 December 2018, by section 16 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 51 Reprinted as at Part 5 s 44B Employment Relations Act 2000 1 July 2021 44B How to opt out [Repealed]

Section 44B: repealed, on 12 December 2018, by section 16 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 44C Effect of opting out [Repealed]

Section 44C: repealed, on 12 December 2018, by section 16 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 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, the union or each union (as the case may require) must hold, in accordance with its rules, separate secret ballots of its members employed by each employer intended to be a party to the bargaining. (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 to each employer in respect of which a secret ballot has resulted in a decision in favour of bargaining for a single collective agreement. (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 52 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 47 (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 is— (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 con‐ siders 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 and 46, and those sections apply with all necessary modifications. (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 agree‐ ment may continue,— 53 Reprinted as at Part 5 s 48 Employment Relations Act 2000 1 July 2021 (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 agree‐ ment 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 agree‐ ment 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, and 47 do not apply to bargaining for a single collective agree‐ ment if— (a) the collective agreement is intended to replace a single collective agree‐ ment 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 cover‐ age 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 agree‐ ment 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 from different unions; and 54 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 50B (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 bar‐ gaining 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, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 50A Purpose of facilitating collective bargaining (1) The purpose of sections 50B to 50I is to provide a process that enables 1 or more parties to collective bargaining who are having serious difficulties in con‐ cluding a collective agreement to seek the assistance of the Authority in resolv‐ ing the difficulties. (2) Sections 50B to 50I do not— (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, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 con‐ cluding 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, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 55 Reprinted as at Part 5 s 50C Employment Relations Act 2000 1 July 2021 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; and (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 lock‐ out; 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 per‐ sons; or (b) the strike or lockout is likely to disrupt social, environmental, or eco‐ nomic interests and the effects of the disruption are likely to be wide‐ spread, 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, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 56 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 50G 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, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 con‐ tinues 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, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 50F(1): replaced, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45). 50G Proposals made or positions reached during facilitation (1) A proposal made by a party or a position reached by parties to collective bar‐ gaining during facilitation is not binding on a party after facilitation has come to an end. (2) This section— (a) applies to avoid doubt; and 57 Reprinted as at Part 5 s 50H Employment Relations Act 2000 1 July 2021 (b) is subject to any agreement of the parties.

Section 50G: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 recom‐ mendation.

Section 50H: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). Determining collective agreement if breach of duty of good faith Heading: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 pro‐ visions of the collective agreement being bargained for. (2) The Authority may fix the provisions of the collective agreement being bar‐ gained 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 under‐ mine the bargaining; and 58 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 51 (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 in rela‐ tion to the same bargaining and whether or not the breach is the same breach. (5) The effect of a determination of the Authority fixing the provisions of a collect‐ ive agreement is to make the collective agreement binding and enforceable as if it had been— (a) ratified as required by section 51; and (b) signed by the parties under section 54(1)(b). (6) Section 59 applies to the determination as if it were a collective agreement. (7) If the bargaining for the collective agreement was subject to facilitation under sections 50A to 50I, the member of the Authority who makes a determination under this section must not be the member of the Authority who conducted the facilitation if a party to the bargaining objects.

Section 50J: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). Authority may determine that bargaining has concluded [Repealed] Heading: repealed, on 12 December 2018, by section 17 of the Employment Relations Amendment Act 2018 (2018 No 53). 50K Authority may determine that bargaining has concluded [Repealed]

Section 50K: repealed, on 12 December 2018, by section 17 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 50KA Declaration or determination under section 50K not to be made if breach of duty of good faith by party seeking declaration [Repealed]

Section 50KA: repealed, on 12 December 2018, by section 17 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 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 pro‐ cedure notified under subsection (2). 59 Reprinted as at Part 5 s 52 Employment Relations Act 2000 1 July 2021 (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 agree‐ ment 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 agree‐ ment, 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) continues in force— (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 initiated collect‐ ive bargaining before the collective agreement expired and for the purpose of replacing the collective agreement. (2A) [Repealed] (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) [Repealed]

Section 53(2): amended, on 6 March 2015, by section 15(1) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 53(2A): repealed, on 12 December 2018, by section 18 of the Employment Relations Amendment Act 2018 (2018 No 53). 60 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 54

Section 53(4): repealed, on 12 December 2018, by section 18 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 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 agree‐ ment 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) [Repealed] (iii) a plain language explanation of the services available for the reso‐ lution of employment relationship problems, including a reference to the period of 90 days in section 114 within which a personal grievance must be raised; and (iv) a clause providing how the agreement can be varied; and (v) the date on which the agreement expires or an event on the occur‐ rence 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 if it— (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 61 Reprinted as at Part 5 s 55 Employment Relations Act 2000 1 July 2021 (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, on 6 May 2019, by section 19(1) of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 54(3)(a)(ii): repealed, on 1 December 2004, by section 15 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 54(4): inserted, on 6 May 2019, by section 19(2) of the Employment Relations Amendment Act 2018 (2018 No 53). 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 agree‐ ment; 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 under section 8 of the Minimum Wage Act 1983 may be paid wages at the rate specified in the permit,— (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 cancel‐ led 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. 62 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 56A

Section 56(1A): inserted, on 1 December 2004, by section 16 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 56(1A): amended, on 28 March 2007, by section 5(1) of the Minimum Wage Amendment Act 2007 (2007 No 12). 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 agree‐ ment 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 col‐ lective 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 agree‐ ment. (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 63 Reprinted as at Part 5 s 57 Employment Relations Act 2000 1 July 2021 (d) the union notifies all the parties to the collective agreement in accord‐ ance 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 agree‐ ment. (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 includes persons whom the employer might employ in the future.

Section 56A: inserted, on 1 December 2004, by section 17 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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) without taking section 53 into account. 64 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 5 s 59B 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 applies to copies of collective agreements delivered to the chief executive under subsection (1). (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, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 59A Interpretation In sections 59B and 59C, reached, in relation to a term or condition in bargain‐ ing for a collective agreement, means a term or condition that the parties have agreed or accepted should be a term or condition of the collective agreement if the agreement is concluded and ratified.

Section 59A: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 for an employer to agree that a term or condition of employment of an employee who is not bound by a collective agreement should be the same or substantially the same as a term or condition in a collective agreement that binds the employer. (2) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (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 agree‐ ment. (3) It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee should be the same or substantially the same as a term or condition reached in bargaining for a col‐ lective agreement. 65 Reprinted as at Part 5 s 59C Employment Relations Act 2000 1 July 2021 (4) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (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 bar‐ gaining. (5) It is not a breach of the duty of good faith in section 4 if anything referred to in subsection (2) or subsection (4) is done with the agreement of the union con‐ cerned. (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 agree‐ ment 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) [Repealed] (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 sec‐ tion is liable to a penalty under this Act.

Section 59B: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 59B(6)(e): repealed, on 6 March 2015, by section 16 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 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 for an employer to con‐ clude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions in another collective agreement to which the employer is a party. (2) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the intention of the employer is to undermine the other collective agree‐ ment; and 66 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 60 (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 for an employer to con‐ clude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions reached in bargaining for another collective agreement. (4) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the employer does so with the intention of undermining the other collect‐ ive 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 if anything referred to in subsection (2) or subsection (4) is done with the agreement of the parties to the other collective agreement or collective bargaining. (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 provi‐ sion: (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 agree‐ ment 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 sec‐ tion is liable to a penalty under this Act.

Section 59C: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). Part 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 67 Reprinted as at Part 6 s 60A Employment Relations Act 2000 1 July 2021 (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 employ‐ ers, 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, the implied term of mutual trust and confidence in the relationship between employee and employer.

Section 60(c)(ia): inserted, on 1 December 2004, by section 19(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 60(c)(ii): amended, on 1 December 2004, by section 19(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). Good faith Heading: inserted, on 6 May 2019, by section 20 of the Employment Relations Amendment Act 2018 (2018 No 53). 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, in relation to an employee and an employer, include— (a) the operational environment of the employee and employer; and (b) the resources available to the employee and employer.

Section 60A: inserted, on 1 December 2004, by section 20 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). Terms and conditions of employment if work covered by collective agreement Heading: inserted, on 6 May 2019, by section 21 of the Employment Relations Amendment Act 2018 (2018 No 53). 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 condi‐ tions that are— 68 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 62 (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 col‐ lective agreement; and (b) not inconsistent with the terms and conditions in the collective agree‐ ment. (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 condi‐ tions agreed under subsection (1); and (b) the employee and employer may, by mutual agreement, vary that indi‐ vidual 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 cover‐ ing 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); and (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. 69 Reprinted as at Part 6 s 62A Employment Relations Act 2000 1 July 2021 (4) If the work to be done by the new employee is covered by more than 1 collect‐ ive 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 of the Minimum Wage Act 1983, the terms and conditions under subsection (3) are subject to the terms of the permit relating to the wages to be paid.

Section 62: replaced, on 6 May 2019, by section 22 of the Employment Relations Amendment Act 2018 (2018 No 53). 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 employ‐ ment with the employer, provide the employee with a form approved by the chief executive under section 237AA that the employee may complete and return in accordance with subsection (4) for the purposes of— (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 sec‐ tion, 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 70 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 63 (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, on 6 May 2019, by section 22 of the Employment Relations Amendment Act 2018 (2018 No 53). 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) to an employee who is not a member of a union that is a party to a col‐ lective agreement that covers the work done by the employee. (2) The employee and the employee’s employer may, by mutual agreement, vary the individual employment agreement entered into under section 62 as they think fit.

Section 63: inserted, on 6 May 2019, by section 22 of the Employment Relations Amendment Act 2018 (2018 No 53). 63 Terms and conditions of employment of new employee who is not member of union [Repealed]

Section 63: repealed, on 6 March 2015, by section 18 of the Employment Relations Amendment Act 2014 (2014 No 61). 71 Reprinted as at Part 6 s 63A Employment Relations Act 2000 1 July 2021 Bargaining Heading: inserted, on 6 May 2019, by section 22 of the Employment Relations Amendment Act 2018 (2018 No 53). 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), in relation to additional terms and conditions to the applicable collective agreement: (b) under section 61(2), in relation to— (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 subpara‐ graph (i): (c) under section 62(3), in relation to additional terms and conditions for the first 30 days of an employee’s employment: (c) [Repealed] (d) under section 63(2), in relation to variations to terms and conditions of an individual employment agreement after the 30-day period: (d) [Repealed] (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 in relation to employee protection provisions in indi‐ vidual employment agreements: (h) under section 69N in relation to redundancy entitlements with a new employer. (2) The employer must do at least the following things: (a) provide to the employee a copy of the intended agreement under discus‐ sion; and (b) advise the employee that he or she is entitled to seek independent advice about the intended agreement; and (c) give the employee a reasonable opportunity to seek that advice; and (d) consider any issues that the employee raises and respond to them. 72 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 63B (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 employ‐ ment 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 cover‐ ing the work or type of work done by the named employees (whether done by those employees or any other employees). (6) [Repealed] (7) In this section, employee includes a prospective employee.

Section 63A: inserted, on 1 December 2004, by section 23 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 63A(1)(c): inserted, on 6 May 2019, by section 23(1) of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 63A(1)(c): repealed, on 6 March 2015, by section 19(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 63A(1)(d): inserted, on 6 May 2019, by section 23(1) of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 63A(1)(d): repealed, on 6 March 2015, by section 19(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 63A(1)(e): replaced, on 6 May 2019, by section 23(2) of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 63A(1)(g): amended, on 6 March 2015, by section 19(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 63A(1)(h): amended, on 6 March 2015, by section 19(4) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 63A(2)(a): amended, on 1 April 2011, by section 10(1) of the Employment Relations Amend‐ ment Act 2010 (2010 No 125).

Section 63A(2)(b): amended, on 1 April 2011, by section 10(2) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 63A(6): inserted, on 6 May 2019, by section 23(3) of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 63A(6): repealed, on 6 March 2015, by section 19(5) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 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). 73 Reprinted as at Part 6 s 64 Employment Relations Act 2000 1 July 2021 (2) The employer must, in addition to doing the things described in section 63A(2), inform the prospective employee— (a) that a collective agreement exists and covers work to be done by the pro‐ spective employee; and (b) that the prospective employee may join a union that is a party to the col‐ lective 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 con‐ ditions 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 pro‐ spective employee and employer that are no less favourable to the employee than the terms and conditions in the collective agree‐ ment. (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, on 6 May 2019, by section 24 of the Employment Relations Amendment Act 2018 (2018 No 53). Individual employment agreements Heading: inserted, on 6 May 2019, by section 24 of the Employment Relations Amendment Act 2018 (2018 No 53). 64 Employer must retain copy of individual employment agreement or individual terms and conditions of employment (1) When section 63A applies, the employer must retain a signed copy of the employee’s individual employment agreement or the current terms and condi‐ tions of employment that make up the employee’s individual terms and condi‐ tions of employment (as the case may be). 74 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 65 (2) If an employer has provided an employee with an intended agreement under section 63A(2)(a), the employer must retain a copy of that intended agreement even if the employee has not— (a) signed the intended agreement; or (b) agreed to any of the terms and conditions specified in the intended agreement. (3) If requested by the employee, the employer must, as soon as is reasonably practicable, provide the employee with a copy of the employee’s— (a) individual employment agreement or current terms and conditions of employment retained under subsection (1); 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, to a penalty imposed by the Authority. (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. (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, on 1 July 2011, by section 11 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 64(4): amended, on 1 April 2016, by section 7 of the Employment Relations Amendment Act 2016 (2016 No 9). 65 Form and content of individual employment agreement (1) The individual employment agreement of an employee— (a) must be in writing; and (b) may contain such terms and conditions as the employee and employer think fit. (2) However, the individual employment agreement— (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 75 Reprinted as at Part 6 s 65A Employment Relations Act 2000 1 July 2021 (iv) any agreed hours of work specified in accordance with section 67C or, if no hours of work are agreed, an indication of the arrangements relating to the times the employee is to work; and (v) the wages or salary payable to the employee; and (vi) a plain language explanation of the services available for the reso‐ lution of employment relationship problems, including a reference to the period of 90 days in section 114 within which a personal grievance must be raised; and (b) must not contain anything— (i) contrary to law; or (ii) inconsistent with this Act. (3) [Repealed] (4) An employer who fails to comply with this section is liable, in an action brought by a Labour Inspector or the employee concerned, to a penalty imposed by the Authority.

Section 65 heading: replaced, on 6 March 2015, by section 20(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 65(1): amended, on 6 March 2015, by section 20(2) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 65(2)(a)(iv): amended, on 1 April 2016, by section 8(1) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 65(3): repealed, on 6 March 2015, by section 20(3) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 65(4): added, on 1 April 2011, by section 12 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 65(4): amended, on 1 April 2016, by section 8(2) of the Employment Relations Amendment Act 2016 (2016 No 9). Specific terms and conditions of employment Heading: inserted, on 12 December 2018, by section 25 of the Employment Relations Amendment Act 2018 (2018 No 53). 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 sub‐ section (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. 76 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 66

Section 65A: inserted, on 1 December 2004, by section 26 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 reason‐ able 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 for‐ mer employee elects to treat that term as ineffective.

Section 66(3)(c): added, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 66(4): added, on 1 December 2004, by section 27 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 77 Reprinted as at Part 6 s 67 Employment Relations Act 2000 1 July 2021

Section 66(5): added, on 1 December 2004, by section 27 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 66(6): added, on 1 December 2004, by section 27 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 after the commencement of the employment,— (a) the fact of the probation period must be specified in writing in the employment agreement; and (b) neither the fact that the probation period is specified, nor what is speci‐ fied in respect of it, affects the application of the law relating to unjusti‐ fiable dismissal to a situation where the employee is dismissed in reli‐ ance on that agreement during or at the end of the probation period. (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 if the employee elects, at any time, to treat that term as ineffective.

Section 67(1): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67(1)(a): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67(1)(b): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67(2): added, on 1 December 2004, by section 28 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 67(3): added, on 1 December 2004, by section 28 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 67(3): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106). 67A When 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 a small-to-medium-sized employer and an employee who has not previously been employed by the small-to-medium-sized employer. (2) For the purposes of this section and section 67B,— small-to-medium-sized employer means an employer who employs fewer than 20 employees at the beginning of the day on which the employment agree‐ ment is entered into 78 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 67B trial provision means a written provision in an employment agreement that states, or is to the effect, that— (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 small-to-medium-sized employer may dismiss the employee; and (c) if the small-to-medium-sized 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, on 6 May 2019, by section 36 of the Employment Relations Amendment Act 2018 (2018 No 53). 67B Effect of trial provision under section 67A (1) This section applies if a small-to-medium-sized employer terminates an employment agreement containing a trial provision under section 67A by giv‐ ing the employee notice of the termination before the end of the trial period, whether the termination takes effect before, at, or after the end of the trial period. (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 sec‐ tion 103(1)(b) to (j). (4) An employee whose employment agreement contains a trial provision is, in all other respects (including access to mediation services), to be treated no differ‐ ently from an employee whose employment agreement contains no trial provi‐ sion 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 of dealing in good faith with the employee, the small-to-medium-sized employer is not required to com‐ ply with section 4(1A)(c) in making a decision whether to terminate an employment agreement under this section; and (b) the small-to-medium-sized employer is not required to comply with a request under section 120 that relates to terminating an employment agreement under this section.

Section 67B: inserted, on 1 March 2009, by section 7 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67B(1): amended, on 6 May 2019, by section 37(1) of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 79 Reprinted as at Part 6 s 67C Employment Relations Act 2000 1 July 2021

Section 67B(3): amended, on 31 March 2017, by section 4 of the Regulatory Systems (Workplace Relations) Amendment Act 2017 (2017 No 13).

Section 67B(5)(a): amended, on 6 May 2019, by section 37(2) of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 67B(5)(b): amended, on 6 May 2019, by section 37(2) of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 67C Agreed hours of work (1) Hours of work agreed by an employer and employee must be specified as fol‐ lows: (a) in the case of an employee covered by a collective agreement,— (i) in the collective agreement; and (ii) if section 61 applies, in the employee’s additional terms and con‐ ditions of employment included under that section; or (b) in the case of an employee covered by an individual employment agree‐ ment, in the employee’s individual employment agreement. (2) In subsection (1), hours of work includes any or all of the following: (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, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9). 67D Availability provision (1) In this section and section 67E, an availability provision means a provision in an employment agreement under which— (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— 80 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 67E (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 com‐ pensation to the employee for making himself or herself available to per‐ form 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 availa‐ bility 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 hav‐ ing 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 sal‐ ary. (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, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9). 67E Employee may refuse to perform certain work An employee is entitled to refuse to perform work in addition to any guaran‐ teed 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 avail‐ able to perform work under the availability provision. 81 Reprinted as at Part 6 s 67F Employment Relations Act 2000 1 July 2021

Section 67E: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 if the employer— (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, experi‐ ence, or skills employed in the same or substantially similar circum‐ stances; 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 includes anything that has a detrimental effect on that employee’s employment, job performance, or job sat‐ isfaction.

Section 67F: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 speci‐ fied in the employee’s employment agreement under subsection (2)(b). 82 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 67G (4) The period of notice specified under subsection (2)(a) must be determined hav‐ ing 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 can‐ cellation 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 can‐ cellation 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 employ‐ ment 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 sec‐ tions 8 and 9 of the Holidays Act 2003. (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 means a period of work performed in a system of work in which periods of work— (a) are continuous or effectively continuous; and (b) may occur at different times on different days of the week.

Section 67G: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9). 83 Reprinted as at Part 6 s 67H Employment Relations Act 2000 1 July 2021 67H Secondary employment provisions (1) In this section, a secondary employment provision is a provision in an employee’s employment agreement that— (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 may relate to— (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 provi‐ sions.

Section 67H: inserted, on 1 April 2016, by section 9 of the Employment Relations Amendment Act 2016 (2016 No 9). Unfair bargaining Heading: inserted, on 12 December 2018, by section 26 of the Employment Relations Amendment Act 2018 (2018 No 53). 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); and 84 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6 s 69 (b) the other party to the agreement (person B) or another person who is acting on person B’s behalf— (i) knows of the circumstances described in the paragraph or para‐ graphs that apply to person A; or (ii) ought to know of the circumstances in the paragraph or para‐ graphs that apply to person A because person B or the other per‐ son is aware of facts or other circumstances from which it can be reasonably inferred that the paragraph or paragraphs apply to per‐ son 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 influ‐ ence, or duress; or (d) where section 63A applied, did not have the information or the oppor‐ tunity to seek advice as required by that section. (3) In this section, individual employment agreement includes a term or condi‐ tion of an individual employment agreement. (4) Except as provided in this section, a party to an individual employment agree‐ ment must not challenge or question the agreement on the ground that it is unfair or unconscionable.

Section 68(2)(d): amended, on 1 December 2004, by section 29 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 69 Remedies for unfair bargaining (1) If a party to an individual employment agreement is found to have bargained unfairly under section 68, the Authority may do 1 or more of the following things: (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. 85 Reprinted as at Part 6AA s 69AA Employment Relations Act 2000 1 July 2021 (2) The Authority must not make an order under subsection (1)(b) unless the requirements in section 164 have been met, and that section applies accord‐ ingly with all necessary modifications. Part 6AA Flexible working Part 6AA: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105). 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 (flexible working short-term for people affected by family violence)); and (b) require an employer to deal with a request as soon as possible but not later than 1 month after receiving it; and (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, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AA(a): replaced, on 1 April 2019, by section 4 of the Domestic Violence—Victims’ Pro‐ tection Act 2018 (2018 No 21).

Section 69AA(a): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69AA(b): amended, on 6 March 2015, by section 22(2) of the Employment Relations Amendment Act 2014 (2014 No 61). 69AAA Interpretation In this Part, unless the context otherwise requires,— additional terms that need variation, in relation to an employee, means 1 or more of the following: (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— 86 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6AA s 69AAA (i) that is not a term covered by paragraphs (a) to (c) of this defin‐ ition 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 violence child has the meaning given to it in section 8 of the Family Violence Act 2018 family violence has the meaning given to it in section 9 of the Family Violence Act 2018 mediation means mediation provided under section 144 person affected by family violence means a person who is 1 or both of the following: (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 means a request made under this Part that— (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 (flexible working short-term for people affected by family vio‐ lence)); and (c) is made by the employee or on the employee’s behalf working arrangements, in relation to an employee, means 1 or more of the following: (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 violence, additional terms that need variation.

Section 69AAA: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Work‐ ing Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AAA additional terms that need variation: inserted, on 1 April 2019, by section 5(1) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 69AAA additional terms that need variation paragraph (d)(ii): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69AAA child: inserted, on 1 April 2019, by section 5(1) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 69AAA child: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 87 Reprinted as at Part 6AA s 69AAB Employment Relations Act 2000 1 July 2021

Section 69AAA domestic violence: repealed, on 1 July 2019, by section 259(1) of the Family Vio‐ lence Act 2018 (2018 No 46).

Section 69AAA family violence: inserted, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69AAA non-compliance with section 69AAE: repealed, on 6 March 2015, by section 23 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69AAA person affected by domestic violence: repealed, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69AAA person affected by family violence: inserted, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69AAA request: replaced, on 1 April 2019, by section 5(2) of the Domestic Violence—Vic‐ tims’ Protection Act 2018 (2018 No 21).

Section 69AAA request paragraph (b): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69AAA working arrangements paragraph (d): inserted, on 1 April 2019, by section 5(3) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 69AAA working arrangements paragraph (d): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). Employee’s statutory right to make request Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105). 69AAB When employee may make request An employee may make a request at any time.

Section 69AAB: replaced, on 6 March 2015, by section 24 of the Employment Relations Amendment Act 2014 (2014 No 61). 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) [Repealed] (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. 88 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6AA s 69AAF

Section 69AAC: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Work‐ ing Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AAC(d): repealed, on 6 March 2015, by section 25 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 69AAD Limitation on frequency of requests [Repealed]

Section 69AAD: repealed, on 6 March 2015, by section 26 of the Employment Relations Amendment Act 2014 (2014 No 61). Duties of employer Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105). 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); and (b) state the ground for refusal; and (c) explain the reasons for that ground.

Section 69AAE: replaced, on 6 March 2015, by section 27 of the Employment Relations Amendment Act 2014 (2014 No 61). 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 sub‐ section (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— 89 Reprinted as at Part 6AA s 69AAG Employment Relations Act 2000 1 July 2021 (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, on 1 July 2008, by section 5 of the Employment Relations (Flexible Work‐ ing Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AAF(1): replaced, on 6 March 2015, by section 28 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). Resolving disputes Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105). 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 circum‐ stances. (2) This section applies subject to section 69AAH(2).

Section 69AAG: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Work‐ ing Arrangements) Amendment Act 2007 (2007 No 105). 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 to a Labour Inspector who must, to the extent practicable in the circumstances, assist the employee and employer to resolve the matter. (3) If, after completion of the process under subsection (2), the employee is dissat‐ isfied with the result, the employee may refer the matter to mediation. (4) For the purposes of subsection (3), non-compliance with section 69AAE is an employment relationship problem.

Section 69AAH: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Work‐ ing Arrangements) Amendment Act 2007 (2007 No 105). 69AAI Application to Authority (1) This section applies if— (a) an employee believes that his or her employer has not complied with section 69AAE; and (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. 90 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6AA s 69AAL (3) An application under subsection (2) must be made within 12 months after the relevant date. (4) [Repealed] (5) In subsection (3), relevant date means,— (a) if the employer notifies a refusal within 1 month after receiving a request, the date on which the employer notifies the employee of the employer’s refusal: (b) in any other case, the date 1 month after the employer received the employee’s request.

Section 69AAI: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Work‐ ing Arrangements) Amendment Act 2007 (2007 No 105).

Section 69AAI(4): repealed, on 6 March 2015, by section 29(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69AAI(5)(a): amended, on 6 March 2015, by section 29(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69AAI(5)(b): amended, on 6 March 2015, by section 29(2) of the Employment Relations Amendment Act 2014 (2014 No 61). 69AAJ Penalty (1) An employer who does not comply with section 69AAE is liable to a penalty not exceeding $2,000, imposed by the Authority. (2) The penalty is payable to the employee concerned.

Section 69AAJ: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Work‐ ing Arrangements) Amendment Act 2007 (2007 No 105). 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 sec‐ tion 69AAE; and (b) to the extent provided by sections 69AAH to 69AAJ.

Section 69AAK: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Work‐ ing Arrangements) Amendment Act 2007 (2007 No 105). Review of Part [Repealed] Heading: repealed, on 6 March 2015, by section 30 of the Employment Relations Amendment Act 2014 (2014 No 61). 69AAL Review of operation of Part after 2 years [Repealed]

Section 69AAL: repealed, on 6 March 2015, by section 30 of the Employment Relations Amendment Act 2014 (2014 No 61). 91 Reprinted as at Part 6AB s 69AB Employment Relations Act 2000 1 July 2021 Part 6AB Flexible working short-term for people affected by family violence Part 6AB: inserted, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21). Part 6AB heading: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 69AB Object of this Part The object of this Part is to— (a) provide employees who are people affected by family violence with a statutory right to make, or to have made on their behalf, a request for a short-term (2-month or shorter) variation of their working arrangements (including any additional terms that need variation), for the purpose of assisting the employees to deal with the effects on the employees of being people affected by family violence; and (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 violence is required and not produced, or the request cannot be accom‐ modated reasonably on certain non-accommodation grounds; and (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, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21).

Section 69AB(a): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69AB(c): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 69ABA Interpretation In this Part, unless the context otherwise requires,— additional terms that need variation, in relation to an employee, means 1 or more of the following: (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 defin‐ ition or by paragraphs (a) to (c) of the definition in this section of working arrangements; and 92 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6AB s 69ABA (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 violence child has the meaning given to it in section 8 of the Family Violence Act 2018 family violence has the meaning given to it in section 9 of the Family Violence Act 2018 mediation means mediation provided under section 144 non-compliance with section 69ABE includes, without limitation, making a wrong determination under 1 or both of section 69ABF(1)(a) and (b) person affected by family violence means a person who is 1 or both of the following: (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 means a request made under this Part that— (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, in relation to an employee, means 1 or more of the following: (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, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21).

Section 69ABA additional terms that need variation paragraph (d)(ii): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69ABA child: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69ABA domestic violence: repealed, on 1 July 2019, by section 259(1) of the Family Vio‐ lence Act 2018 (2018 No 46).

Section 69ABA family violence: inserted, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69ABA person affected by domestic violence: repealed, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69ABA person affected by family violence: inserted, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 93 Reprinted as at Part 6AB s 69ABB Employment Relations Act 2000 1 July 2021 Employee’s statutory right to make request Heading: inserted, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21). 69ABB When and why employee may make request (1) An employee who is a person affected by family violence may make a request— (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 violence. (2) Subsection (1) applies regardless of how long ago the family violence occur‐ red, and even if the family violence occurred before the person became an employee. (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) does not prevent a request also being made under Part 6AA by or on behalf of the employee for a permanent, or fixed-period longer than 2 months, variation under that Part of the employee’s working arrangements (as defined in section 69AAA).

Section 69ABB: inserted, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21).

Section 69ABB(1): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69ABB(1)(b): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69ABB(2): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 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 violence; and 94 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6AB s 69ABEA (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, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21).

Section 69ABC(d): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). Duties of employer Heading: inserted, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21). 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 vio‐ lence support services. (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); and (b) state the ground or grounds for refusal; and (c) explain the reasons for that ground or those grounds.

Section 69ABE: inserted, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21).

Section 69ABE(2): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 69ABEA Proof of family violence (1) An employer may require proof that an employee is a person affected by family violence to be produced— (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 95 Reprinted as at Part 6AB s 69ABF Employment Relations Act 2000 1 July 2021 (b) the employer requires the proof within 3 working days after the employer receives the request. Compare: 2003 No 129 s 68 Section 69ABEA: inserted, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Pro‐ tection Act 2018 (2018 No 21). Section 69ABEA heading: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). Section 69ABEA(1): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 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 was not pro‐ duced within 10 working days after the employer receives the request: (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, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21). 96 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6AB s 69ABH Resolving disputes Heading: inserted, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21). 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 means,— (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, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21). 69ABH Mediation after initial reference to Labour Inspector (1) This section applies if the employee is dissatisfied with the result of the refer‐ ence under section 69ABG(2)(a) to a Labour Inspector. (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, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21). 97 Reprinted as at Part 6AB s 69ABI Employment Relations Act 2000 1 July 2021 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 refer‐ ence under section 69ABG(2)(b) or 69ABH(2) to mediation. (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, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21). 69ABJ Penalty (1) An employer who does not comply with section 69ABE is liable to a penalty under this Act imposed by the Authority. (2) The penalty is payable to the employee concerned. (3) For the purposes of the 6-month time limit in section 135(5), the date on which the cause of action for the recovery of the penalty first became known to the employee, or should reasonably have become known to the employee, must be taken to be a date after, as the case requires,— (a) the relevant date under section 69ABG(3); or (b) the applicable date under section 69ABI(3)(a) or (b).

Section 69ABJ: inserted, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21). 69ABK Limitation on challenging employer An employee may challenge his or her employer’s refusal of a request, or fail‐ ure to respond to a request, only— (a) if the employee believes his or her employer has not complied with sec‐ tion 69ABE; and (b) to the extent provided by sections 69ABG to 69ABJ.

Section 69ABK: inserted, on 1 April 2019, by section 6 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21). 98 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69B Part 6A Continuity of employment if employees’ work affected by restructuring Part 6A: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41). Subpart 1—Specified categories of employees Subpart 1: substituted, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 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 per‐ formed by another person. (2) The categories of employees— (a) are the categories of employees specified in Schedule 1A; and (b) are specified in Schedule 1A because they are employees— (i) who are employed in sectors in which restructuring of an employ‐ er’s business occurs frequently; and (ii) whose terms and conditions of employment tend to be under‐ mined 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 redun‐ dancy 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) [Repealed]

Section 69A: replaced, on 6 March 2015, by section 31 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69A(4): repealed, on 6 May 2019, by section 38 of the Employment Relations Amendment Act 2018 (2018 No 53). 69B Interpretation In this subpart, unless the context otherwise requires,— 99 Reprinted as at Part 6A s 69B Employment Relations Act 2000 1 July 2021 agreement means a contract or arrangement contracting in has the meaning set out in section 69C contracting out has the meaning set out in section 69C independent contractor means a person engaged to perform work under an agreement that is not an employment agreement new employer has the meaning set out in section 69D redundancy entitlements includes redundancy compensation 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 receiver‐ ship or liquidation specified date has the meaning given to it by 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 agree‐ ment that is not an employment agreement subsequent contracting has the meaning set out in section 69C work, in relation to work performed by an employee, includes part of the work performed by the employee.

Section 69B: substituted, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41).

Section 69B associated person: repealed, on 6 May 2019, by section 39 of the Employment Rela‐ tions Amendment Act 2018 (2018 No 53).

Section 69B exempt employer: repealed, on 6 May 2019, by section 39 of the Employment Rela‐ tions Amendment Act 2018 (2018 No 53). 100 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69C

Section 69B specified date: inserted, on 6 March 2015, by section 32 of the Employment Relations Amendment Act 2014 (2014 No 61). 69C Meaning of contracting in, contracting out, and subsequent contracting (1) In this subpart, unless the context otherwise requires, contracting in means a situation where— (a) a person (person A) has an agreement with another person (person B) under which person B performs work as an independent contractor for person A; and (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 per‐ forms 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 means a situation where— (a) a person (person A) enters into an agreement with another person (per‐ son B) under which person B is to perform work as an independent con‐ tractor for person A; and (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 applies whether or not the work is to be per‐ formed by— (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 means a situation where— (a) a person (person A) has an agreement with another person (person B) under which person B performs work as an independent contractor for person A; and (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 per‐ forms the work expires or is terminated; and (d) person A enters into an agreement with another person (person C) under which person C is to perform the work as an independent contractor for person A. (5) The definition of subsequent contracting applies whether or not— 101 Reprinted as at Part 6A s 69CA Employment Relations Act 2000 1 July 2021 (a) the work concerned has previously been the subject of a subsequent con‐ tracting: (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, and sub‐ sequent contracting, references to work in relation to person A— (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 inde‐ pendent contractor or as a subcontractor.

Section 69C: substituted, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 69CA Exempt employer [Repealed]

Section 69CA: repealed, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 69CB Warranty [Repealed]

Section 69CB: repealed, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 69CC Persons warranty to be provided to [Repealed]

Section 69CC: repealed, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 69CD Provision of information for purposes of giving warranty [Repealed]

Section 69CD: repealed, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 69CE When warranty must be provided [Repealed]

Section 69CE: repealed, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 69D Meaning of new employer (1) In section 69I, new employer,— 102 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69E (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 transfer‐ red. (2) In the rest of this subpart, new employer means the person to whom an employee— (a) may elect or has elected to transfer under section 69I; or (b) has transferred under that section.

Section 69D: replaced, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 69DA Associated person [Repealed]

Section 69DA: repealed, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 69E Examples of contracting in, contracting out, and subsequent contracting (1) This section contains examples of contracting in, contracting out, and subse‐ quent contracting. (2) Whether, in the following examples, an employee comes within the protection provided by this subpart depends on whether section 69F applies to the employee. (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 agree- ment 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. 103 Reprinted as at Part 6A s 69E Employment Relations Act 2000 1 July 2021 Employees of the independent contractor to whom section 69F applies may elect to transfer to the rest home. 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 contrac- tor expiring or being terminated, the agreement between the independent contrac- tor and the subcontractor expires or is terminated. Employees of the subcontractor to whom section 69F applies may elect to transfer to the rest home. 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 ser- vices 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 applies may elect to transfer to the independent contractor. 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 applies may elect to transfer to the subcontractor. 104 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69E 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 applies may elect to transfer to the subcontractor. (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 applies may elect to transfer to the second independent contractor. Note In example E, it does not matter whether the agreement between the airport oper- ator and the first independent contractor constitutes a contracting out. In example E, the persons relate to the definition of subsequent contracting as fol- lows: • 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 subcon- tractor to provide food catering services at the airport. The employees of the first subcontractor to whom section 69F applies may elect to transfer to the second subcontractor. Note In example F, the subsequent contracting occurs at the subcontracting level. 105 Reprinted as at Part 6A s 69F Employment Relations Act 2000 1 July 2021 In example F, the persons relate to the definition of subsequent contracting as fol- lows: • the independent contractor is person A: • the first subcontractor is person B: • the second subcontractor is person C.

Section 69E: replaced, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 69F Application of this subpart (1) This subpart applies to an employee if— (a) the employee is in a category specified in Schedule 1A; and (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, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 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, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 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 elec‐ tion under section 69I; and (b) if the employees have a right to make an election under section 69I, an opportunity to exercise that right; and (c) information sufficient for the employees to make an informed decision about whether to exercise any right to make an election; and 106 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69G (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 para‐ graphs (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) relating to employees who elect to transfer will be provi‐ ded to the new employer; and (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 Pri‐ vacy 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). 107 Reprinted as at Part 6A s 69H Employment Relations Act 2000 1 July 2021 (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 means— (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, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 69G(2)(e)(iii): amended, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31). 69H Employee bargaining for alternative arrangements (1) To avoid doubt, an employee may, after the employee’s employer has complied with section 69G(1) and before deciding whether to exercise any right to elect to transfer to the new employer, bargain with the employee’s employer for alternative arrangements. (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, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 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), elect to transfer to the new employer. (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. 108 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69J (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 trans‐ fer 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 per‐ formed 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 contrac- tor 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 inde- pendent 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 means the date on which the restructuring takes effect.

Section 69I: replaced, on 6 May 2019, by section 40 of the Employment Relations Amendment Act 2018 (2018 No 53). 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 entitle‐ ments whether legislative or otherwise. (2) To avoid doubt, and without limiting subsection (1),— 109 Reprinted as at Part 6A s 69K Employment Relations Act 2000 1 July 2021 (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, bereave‐ ment leave, and family violence leave; and (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 of that Act, not taken before the date of transfer; and (B) any annual holidays not taken before the date of transfer; and (C) any alternative holidays not taken or exchanged for pay‐ ment under section 61 of that Act before the date of trans‐ fer: (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, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41).

Section 69J(2)(a)(i): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 69J(2)(a)(i): amended, on 1 April 2019, by section 7 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21). 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 110 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69L (iii) person B or of a subcontractor in the definition of subsequent con‐ tracting; 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) that is— (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, to transfer to the new employer. (3) If the employee elects, under section 69I, to transfer to the new employer, then the following provisions apply: (a) if the restructuring is a contracting out, the employee’s terms and condi‐ tions of employment must be read and applied as if the term agreed under section 66(1) were linked to the expiry or termination of the agree‐ ment between person A and person B (or a subcontractor): (b) if the restructuring is a contracting in, the employee’s terms and condi‐ tions 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) were linked to the expiry or termination of the con‐ tract or arrangement between person A and person C (or a subcon‐ tractor): (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, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 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 entitle‐ ments 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 of the Education and Training Act 2020. 111 Reprinted as at Part 6A s 69LA Employment Relations Act 2000 1 July 2021

Section 69L: substituted, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41).

Section 69L(2): amended, on 1 August 2020, by section 668 of the Education and Training Act 2020 (2020 No 38). 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, ser‐ vice-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 spe‐ cified 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 speci‐ fied 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 entitle‐ ments that accrued before the specified date but would not have been paid to the employee if the employee had resigned and ceased employ‐ ment with his or her previous employer on the day before the specified date (for example, costs relating to sick leave not taken before the speci‐ fied 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,— 112 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69LC (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, on 6 March 2015, by section 40 of the Employment Relations Amendment Act 2014 (2014 No 61). 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 entitle‐ ments 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 (in which case, sections 145 to 153 apply, with any necessary modifications); or (b) referred to in section 154. (4) If proceedings are commenced before the Authority, the Authority must deter‐ mine the apportionment of the costs of the service-related entitlements in accordance with section 69LA(3).

Section 69LB: inserted, on 6 March 2015, by section 40 of the Employment Relations Amendment Act 2014 (2014 No 61). 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 113 Reprinted as at Part 6A s 69M Employment Relations Act 2000 1 July 2021 (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 pro‐ ceedings 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, on 6 March 2015, by section 40 of the Employment Relations Amendment Act 2014 (2014 No 61). 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, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 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), to transfer to a new employer; and (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— 114 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69OAA (i) does not provide for redundancy entitlements for those reasons or in those circumstances; or (ii) does not expressly exclude redundancy entitlements for those rea‐ sons 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 agree‐ ment on appropriate redundancy entitlements.

Section 69N: substituted, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 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), the employee or new employer may apply to the Authority to investigate the bargaining relating to the matter. (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 employ‐ ment agreement for redundancy in circumstances other than restructur‐ ing: (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 employ‐ ment with another employer: (f) any other relevant matter that the Authority thinks fit.

Section 69O: substituted, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 69OAA False warranty: exempt employer [Repealed]

Section 69OAA: repealed, on 6 May 2019, by section 41 of the Employment Relations Amendment Act 2018 (2018 No 53). 115 Reprinted as at Part 6A s 69OA Employment Relations Act 2000 1 July 2021 Subpart 2—Disclosure of information relating to transfer of employees Subpart 2: substituted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41). Subpart 2 heading: replaced, on 6 March 2015, by section 42 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 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, on 6 March 2015, by section 43 of the Employment Relations Amendment Act 2014 (2014 No 61). 69OB Interpretation (1) In this subpart,— employee transfer costs information, in relation to a proposed restructur‐ ing,— (a) means information about employment-related entitlements of the employees who would be eligible to elect, under section 69I, to transfer to a new employer if the proposed restructuring were to proceed and the new employer were not an exempt employer; and (b) includes— (i) the number of employees who would be eligible to make an elec‐ tion; 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 cap‐ acity 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 116 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69OC (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 cur‐ rent terms and conditions of employment that make up the employee’s individual terms and conditions of employment, or the relevant collective agreement (as the case may be); and (B) a copy of the wages and time record; and (C) a copy of the holiday and leave record; and (D) a copy of the employee’s tax code declaration; and (E) details of any employer contribution (as defined in section 4(1) of the KiwiSaver Act 2006) and any deductions of contributions from the employee’s wages for the purposes of the KiwiSaver Act 2006; and (F) details of any deductions from the employee’s wages made under section 36 of the Student Loan Scheme Act 2011; and (G) details of any deductions from the employee’s wages made under Part 10 of the Child Support Act 1991; but (b) does not include any information about the employee that is subject to a statutory or contractual requirement to maintain confidentiality. (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, on 13 December 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41).

Section 69OB(1): replaced, on 6 March 2015, by section 44 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 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 117 Reprinted as at Part 6A s 69OC Employment Relations Act 2000 1 July 2021 (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 restruc‐ turing) 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) [Repealed] (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) [Repealed] (3B) [Repealed] 118 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69OD (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) [Repealed] (6) Employee transfer costs information provided under this section must be provi‐ ded— (a) in aggregate form; and (b) to the extent practicable, in a form that protects the privacy of the employees concerned. (7) [Repealed]

Section 69OC: inserted, on 13 December 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41).

Section 69OC(1): replaced, on 6 March 2015, by section 45(1) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 69OC(2): replaced, on 6 March 2015, by section 45(1) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 69OC(2A): repealed, on 6 May 2019, by section 42 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 69OC(3A): repealed, on 6 May 2019, by section 42 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 69OC(3B): repealed, on 6 May 2019, by section 42 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 69OC(3C): inserted, on 6 March 2015, by section 45(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OC(5): repealed, on 6 March 2015, by section 45(3) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 69OC(7): repealed, on 6 May 2019, by section 42 of the Employment Relations Amendment Act 2018 (2018 No 53). 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 subcon‐ tracted 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). 119 Reprinted as at Part 6A s 69OE Employment Relations Act 2000 1 July 2021 (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 provi‐ ded— (a) in aggregate form; and (b) to the extent practicable, in a form that protects the privacy of the employees concerned.

Section 69OD: inserted, on 13 December 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41).

Section 69OD(6)(a)(ii): amended, on 6 March 2015, by section 46 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OD(6)(b)(ii): amended, on 6 March 2015, by section 46 of the Employment Relations Amendment Act 2014 (2014 No 61). 69OE Updating disclosure of employee transfer costs information (1) This section applies if— (a) employee transfer costs information has been provided under section 69OC or 69OD; and (b) after the provision of the information, there is a change in the employ‐ ment-related entitlements or circumstances that the information relates to; and (c) the change makes the information provided out of date. 120 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69OEA (2) The person who provided the employee transfer costs information must, imme‐ diately after the change in the employment-related entitlements or circum‐ stances, provide to the person who was originally provided with the informa‐ tion 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 infor‐ mation 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 infor‐ mation; 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 informa‐ tion. (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, on 13 December 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 69OEA Disclosure of individualised employee information (1) This section applies if an employee elects to transfer under section 69I to a new employer. (2) The employee’s employer must provide the new employer with individualised employee information about the employee. (3) The employee’s employer must provide the individualised employee informa‐ tion— (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 subsec‐ tion (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. 121 Reprinted as at Part 6A s 69OF Employment Relations Act 2000 1 July 2021 (5) The employee’s employer must, immediately after the change in the matters or circumstances, provide the new employer with the information details, specify‐ ing— (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, on 6 March 2015, by section 47 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69OEA(7): amended, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31). 69OF Employer who is subject to Official Information Act 1982 Nothing in the Official Information Act 1982 (except section 6) enables an employer that is subject to that Act to withhold information that is requested under this subpart.

Section 69OF: inserted, on 13 December 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 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, on 13 December 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). Subpart 3—Other employees Subpart 3: added, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41). 69OH Object of this subpart The object of this subpart is to provide protection to employees to whom sub‐ part 1 does not apply if, as a result of a restructuring, their work is to be per‐ formed by or on behalf of another person and, to this end, to require their employment agreements to contain employee protection provisions relating to negotiations between the employer and the other person about the transfer of affected employees to the other person.

Section 69OH: inserted, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 69OI Interpretation (1) In this subpart, unless the context otherwise requires,— employee means an employee to whom Schedule 1A does not apply 122 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6A s 69OI employee protection provision means a 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 deter‐ mine what entitlements, if any, are available for employees who do not transfer to the new employer new employer, in relation to a restructuring, means,— (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 receiver‐ ship or liquidation. (2) For the purposes of this subpart, an employee is an affected employee if,— (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 substan‐ tially similar) is, or is to be, performed by or on behalf of another per‐ son. 123 Reprinted as at Part 6A s 69OJ Employment Relations Act 2000 1 July 2021 (3) 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 69OI: inserted, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 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, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). 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, on 14 September 2006, by section 6 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41). Subpart 4—Review of Part [Repealed] Subpart 4: repealed, on 6 March 2015, by section 48 of the Employment Relations Amendment Act 2014 (2014 No 61). 69OL Review of operation of Part after 3 years [Repealed]

Section 69OL: repealed, on 6 March 2015, by section 48 of the Employment Relations Amendment Act 2014 (2014 No 61). Part 6B Bargaining fees Part 6B: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 69P Interpretation In this Part, unless the context otherwise requires,— bargaining fee means an amount payable by an employee to a union under a bargaining fee clause, whether payable as a lump sum or on a periodical basis 124 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6B s 69R bargaining fee clause means a provision in a collective agreement that, subject to this Part,— (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 col‐ lective 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 col‐ lective agreement.

Section 69P: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 agree‐ ment; and (b) then been agreed to in a secret ballot held in accordance with this sec‐ tion. (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 agree‐ ment 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, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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 pro‐ vide the employees referred to in section 69S(a) to (c) with a copy of the col‐ 125 Reprinted as at Part 6B s 69S Employment Relations Act 2000 1 July 2021 lective agreement that contains the bargaining fee clause and notify them in writing that— (a) their terms and conditions of employment will comprise the terms and conditions of employment specified in the collective agreement (includ‐ ing 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, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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) that the employee does not agree to pay the bargaining fee.

Section 69S: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 69T Bargaining fee clause binding on employer and employee While a bargaining fee clause applies to an employee,— 126 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6C s 69X (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, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 69V Expiry of bargaining fee clause A bargaining fee clause expires when the collective agreement that contains the clause expires.

Section 69V: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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, and 68(2)(c)); and (b) overrides the Wages Protection Act 1983.

Section 69W: inserted, on 1 December 2004, by section 30 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). Part 6C Breastfeeding facilities and breaks Part 6C: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feed‐ ing, and Other Matters) Amendment Act 2008 (2008 No 58). 69X Interpretation In this Part, unless the context otherwise requires,— breastfeeding includes expressing breast milk work period has the same meaning as in section 69ZC.

Section 69X: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58). 127 Reprinted as at Part 6C s 69Y Employment Relations Act 2000 1 July 2021 69Y Employer’s obligation (1) An employer must ensure that, so far as is reasonable and practicable in the cir‐ cumstances,— (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 includes— (a) the employer’s operational environment; and (b) the employer’s resources.

Section 69Y: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58). 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 is a paid break to the same extent as it would be if taken separately under Part 6D.

Section 69Z: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58). 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, a code of employment practice relating to an employer’s obligation under section 69Y.

Section 69ZA: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58). 69ZB Penalty An employer who does not comply with section 69Y is liable to a penalty imposed by the Authority.

Section 69ZB: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58). 128 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6D s 69ZD Part 6D Rest breaks and meal breaks Part 6D: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feed‐ ing, and Other Matters) Amendment Act 2008 (2008 No 58). 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 employ‐ ee’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, on 6 May 2019, by section 43 of the Employment Relations Amendment Act 2018 (2018 No 53). 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. 129 Reprinted as at Part 6D s 69ZE Employment Relations Act 2000 1 July 2021 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), the employee is entitled to the following: (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, on 6 May 2019, by section 43 of the Employment Relations Amendment Act 2018 (2018 No 53). 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) applies, an employer must, so far as is reasonable and prac‐ ticable, provide the employee with the rest break in the middle of the work period. Work period between 4 hours and 6 hours (4) If section 69ZD(3) applies, an employer must, so far as is reasonable and prac‐ ticable, provide the employee with— (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. 130 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6D s 69ZEA Work period between 6 hours and 8 hours (5) If section 69ZD(4) applies, an employer must, so far as is reasonable and prac‐ ticable, provide the employee with— (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) apply, an employer must, so far as is reasonable and practicable, provide the employee with— (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) apply, an employer must, so far as is reasonable and practicable, provide the employee with the breaks as follows: (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, on 6 May 2019, by section 43 of the Employment Relations Amendment Act 2018 (2018 No 53). 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) if subsection (2) or (3) applies. (2) This subsection applies if— 131 Reprinted as at Part 6D s 69ZEB Employment Relations Act 2000 1 July 2021 (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 pub‐ lic 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, on 6 May 2019, by section 43 of the Employment Relations Amendment Act 2018 (2018 No 53). 69ZEB Compensatory measures (1) If the employer and employee are unable to reach agreement under section 69ZEA(4), an employee is entitled to, and the employee’s employer must pro‐ vide the employee with, compensatory measures. (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 accord‐ ance with section 69ZD(1); and (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 accumu‐ lation of time off work that may be taken on 1 or more occasions); or (ii) financial compensation; or 132 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 6D s 69ZF (iii) both time off work at an alternative time and financial compensa‐ tion. (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 alterna‐ tive 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 ordin‐ ary rate of pay.

Section 69ZEB: replaced, on 6 May 2019, by section 43 of the Employment Relations Amendment Act 2018 (2018 No 53). 69ZF Penalty An employer who does not comply with any of sections 69ZD to 69ZEB is liable to a penalty imposed by the Authority.

Section 69ZF: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

Section 69ZF: amended, on 6 March 2015, by section 51 of the Employment Relations Amendment Act 2014 (2014 No 61). 133 Reprinted as at Part 6D s 69ZG Employment Relations Act 2000 1 July 2021 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 or 69ZE or fails to comply with section 69ZEA or 69ZEB— (a) has no effect to the extent that it does so; but (b) is not an illegal contract under subpart 5 of Part 2 of the Contract and Commercial Law Act 2017. (3) [Repealed]

Section 69ZG: replaced, on 6 March 2015, by section 52 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 69ZG(2): replaced, on 6 May 2019, by section 44 of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 69ZG(3): repealed, on 6 May 2019, by section 44 of the Employment Relations Amendment Act 2018 (2018 No 53). 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, on 6 May 2019, by section 45 of the Employment Relations Amendment Act 2018 (2018 No 53). 134 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 7 s 72 Part 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, in relation to a union or an employer, means an employee who is a member of a union employment relations education means employment relations education approved under section 72 specified date means— (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 means,— (a) if a collective agreement does not provide a specified date as an alterna‐ tive 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, on 1 December 2004, by section 31 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 72 Minister to approve employment relations education (1) The Minister may, for the purposes of this Part, approve courses of employ‐ ment relations education. (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, on 1 December 2004, by section 32 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 135 Reprinted as at Part 7 s 73 Employment Relations Act 2000 1 July 2021 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, unless the employer agrees to the allocation of additional days. (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, unless the employer agrees that the leave may be carried forward to the next year. 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 specified date in a year, and is determined in accordance with the following table: Full-time equivalent eligible employees as at the 30th day before the specified date in a Maximum number of days of employment relations year 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, on 1 December 2004, by section 33(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 74(1) table: amended, on 1 December 2004, by section 33(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 136 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 7 s 78 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 edu‐ cation 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 employ‐ ment 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 and 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 137 Reprinted as at Part 7 s 79 Employment Relations Act 2000 1 July 2021 (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 sub‐ section (1) on behalf of the eligible employee. (4) In subsection (2), day means a day of the week other than a day in the period beginning with 25 December in any year and ending with 5 January in the fol‐ lowing year.

Section 78(3A): inserted, on 1 December 2004, by section 34 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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 of the Holidays Act 2003 or average daily pay cal‐ culated in accordance with section 9A of that Act (as the case may be) for every day or part of a day taken by the employee as employment relations edu‐ cation leave. (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, on 1 April 2011, by section 18 of the Holidays Amendment Act 2010 (2010 No 126).

Section 79(2): amended, on 1 April 2002, by section 337(1) of the Accident Compensation Act 2001 (2001 No 49).

Section 79(2): amended on 3 March 2010, pursuant to section 5(1)(b) of the Accident Compensation Amendment Act 2010 (2010 No 1). Part 8 Strikes and lockouts 80 Object of this Part The object of this Part is— 138 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8 s 81 (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 lock‐ outs 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) [Repealed] (c) to ensure that where a strike or lockout is threatened in an essential ser‐ vice, there is an opportunity for a mediated solution to the problem.

Section 80(ba): inserted, on 6 March 2015, by section 53 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 80(bb): repealed, on 12 December 2018, by section 27 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). Interpretation 81 Meaning of strike (1) In this Act, strike means an act that— (a) is the act of a number of employees who are or have been in the employ‐ ment 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 concer‐ ted action, whether express or, as the case requires, implied, made or entered into by the employees. (2) In this Act, strike does not include an employees’ meeting authorised— (a) by an employer; or (b) by an employment agreement; or (c) by this Act. (3) In this Act, to strike means to become a party to a strike. Compare: 1991 No 22 s 61

Section 81(1)(b): amended, on 14 May 2013, by section 6 of the Employment Relations (Secret Bal‐ lot for Strikes) Amendment Act 2012 (2012 No 37). 139 Reprinted as at Part 8 s 82 Employment Relations Act 2000 1 July 2021 82 Meaning of lockout (1) In this Act, lockout means an act that— (a) is the act of an employer— (i) in closing the employer’s place of business, or suspending or dis‐ continuing 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 agree‐ ments; 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 means to become a party to a lockout. Compare: 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. 140 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8 s 85 (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 mem‐ bers of the union who were entitled to vote.

Section 82A: inserted, on 14 May 2013, by section 7 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37). 82B Terms of question for secret ballot The question to be voted on in a secret ballot for the purposes of section 82A is whether the member of the union is in favour of the strike.

Section 82B: inserted, on 14 May 2013, by section 7 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37). 82C When requirement for secret ballot does not apply Sections 82A and 82B do not apply if the proposed strike is lawful under sec‐ tion 84 (which relates to lawful strikes on the grounds of safety or health).

Section 82C: inserted, on 14 May 2013, by section 7 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37). 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; and (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 avail‐ able under a declaration made by the court under section 192(2)(c). Compare: 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. Compare: 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 that are founded on tort; or (b) to proceedings under section 100 for the grant of an injunction; or (c) to any action or proceedings— (i) for a breach of an employment agreement; or 141 Reprinted as at Part 8 s 86 Employment Relations Act 2000 1 July 2021 (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 has occurred, a party to those proceedings who alleges that participation in the strike or lockout was lawful by virtue of section 84 has the burden of proving that allegation. Compare: 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; or (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 or 93, as the case may be: (ii) in the case of a lockout, the employer has failed to comply with the notice requirements in section 86B or 94, as the case may be; or (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; or (e) relates to any matter dealt with in Part 3; or (f) is in an essential service and the requirements as to notice that are con‐ tained in section 90 or section 91, as the case may be, have not been complied with; or 142 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8 s 86A (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); or (b) to a collective agreement that is still in force after the first of the collect‐ ive 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 is not to be taken into account. Compare: 1991 No 22 s 63(a)–(d), (f), (g)

Section 86(1)(aa): inserted, on 14 May 2013, by section 8 of the Employment Relations (Secret Bal‐ lot for Strikes) Amendment Act 2012 (2012 No 37).

Section 86(1)(ba): inserted, on 6 March 2015, by section 54 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 86(1)(da): inserted, on 1 December 2004, by section 35 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). Notice of strike or lockout Heading: inserted, on 6 March 2015, by section 55 of the Employment Relations Amendment Act 2014 (2014 No 61). 86A Notice of strike (1) No employees may strike— (a) unless participation in the strike is lawful under section 83 or 84; and (b) without having given to the employees’ employer and to the chief execu‐ tive 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— 143 Reprinted as at Part 8 s 86B Employment Relations Act 2000 1 July 2021 (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 par‐ ticular 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 (strikes in essential services): (b) section 93 (procedure to provide public with notice before strike in cer‐ tain passenger transport services): (c) section 589 of the Education and Training Act 2020 (strikes in schools to be notified).

Section 86A: inserted, on 6 March 2015, by section 55 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 86A(3A): inserted, on 12 December 2018, by section 28 of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 86A(4)(c): amended, on 1 August 2020, by section 668 of the Education and Training Act 2020 (2020 No 38). 86B Notice of lockout (1) No employer may lock out any employees— (a) unless participation in the lockout is lawful under section 83 or 84; and (b) without having given to the employees’ union or unions and to the chief executive notice of the employer’s intention to lock out; and (c) before the date and time specified in the notice as the date and time on which the lockout will begin. (2) The notice required under subsection (1) 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 144 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8 s 88 (iv) the date and time on which the lockout will begin; and (v) the date and time on which, or an event on the occurrence of which, the lockout will end; and (vi) the names of the employees who will be locked out. (3) The lockout notice must be signed by the employer or on the employer’s behalf. (4) To avoid doubt, this section does not apply if notice is required under any of the following provisions: (a) section 91 (lockouts in essential services): (b) section 94 (procedure to provide public with notice before lockout in certain passenger transport services).

Section 86B: inserted, on 6 March 2015, by section 55 of the Employment Relations Amendment Act 2014 (2014 No 61). 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) con‐ tinues 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. Compare: 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. 145 Reprinted as at Part 8 s 89 Employment Relations Act 2000 1 July 2021 (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 suspen‐ ded 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; and (b) seek other remedies under this Act in respect of the suspension, includ‐ ing (without limitation) arrears of wages. (5) In this section, non-striking employee means an employee who is in the employer’s employment and who is not on strike. Compare: 1991 No 22 s 66(1), (2) 89 Basis of suspension Where an employer suspends an employee under section 87 or section 88, the employer must indicate to the employee, at the time of the employee’s suspen‐ sion, the section under which the suspension is being effected. Compare: 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 or section 84; and (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 of Schedule 1; and 146 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8 s 91 (ii) no less than 3 days in the case of an essential service described in Part B of Schedule 1; and (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. Compare: 1991 No 22 s 69

Section 90(1)(b)(ii): replaced, on 6 March 2015, by section 56(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 90(3)(d): replaced, on 6 March 2015, by section 56(2) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 90(3)(e): inserted, on 6 March 2015, by section 56(2) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 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 or section 84; and (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 147 Reprinted as at Part 8 s 92 Employment Relations Act 2000 1 July 2021 (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 of Schedule 1; and (ii) no less than 3 days in the case of an essential service described in Part B of Schedule 1; and (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. Compare: 1991 No 22 s 70

Section 91(1)(b)(ii): replaced, on 6 March 2015, by section 57(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 91(3)(d): replaced, on 6 March 2015, by section 57(2) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 91(3)(da): inserted, on 6 March 2015, by section 57(3) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 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) or section 91(1)(b)(i), the chief executive must ensure that mediation services are provided as soon as possible to the parties to the proposed strike or lockout for the purpose of assisting the parties to avoid the need for the strike or lockout. 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 or section 84; and 148 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8 s 94 (b) without the employee’s union giving his or her employer notice in writ‐ ing 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 noti‐ fied 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 means the carriage of passengers on any road, whether or not for hire or reward, by means of a large passenger service vehicle within the meaning of that term in section 2(1) of the Land Transport Act 1998 (not including any service speci‐ fied as an exempt service in the regulations or the rules made under that Act).

Section 93(2)(d): replaced, on 6 March 2015, by section 58 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 93(2)(e): inserted, on 6 March 2015, by section 58 of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 93(5): substituted, on 1 October 2007, by section 95(6) of the Land Transport Amendment Act 2005 (2005 No 77). 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 or section 84; and 149 Reprinted as at Part 8 s 95 Employment Relations Act 2000 1 July 2021 (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, on 6 March 2015, by section 59(1) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 94(2)(da): inserted, on 6 March 2015, by section 59(2) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 95 Penalty for breach of section 93(4) or 94(4) (1) An employer who fails to comply with section 93(4) or 94(4) is liable to a pen‐ alty imposed by the court under this Act. (2) Except as provided in this section, an employer is under no liability (whether under this Act or the general law) for a failure to comply with section 93(4) or 94(4).

Section 95: replaced, on 6 March 2015, by section 60 of the Employment Relations Amendment Act 2014 (2014 No 61). Withdrawal of notice of strike or lockout Heading: inserted, on 6 March 2015, by section 61 of the Employment Relations Amendment Act 2014 (2014 No 61). 95AA Withdrawal of notice of strike or lockout (1) A strike notice given under section 86A, 90, or 93 may be withdrawn at any time by a representative of the employees’ union giving written notice of the withdrawal to— (a) the employees’ employer; and (b) the chief executive. 150 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8 s 95E (2) A lockout notice given under section 86B, 91, or 94 may be withdrawn at any time by the employer or a representative of the employer giving written notice of the withdrawal to— (a) the employees’ union or unions; and (b) the chief executive.

Section 95AA: inserted, on 6 March 2015, by section 61 of the Employment Relations Amendment Act 2014 (2014 No 61). Interpretation [Repealed] Heading: repealed, on 12 December 2018, by section 29 of the Employment Relations Amendment Act 2018 (2018 No 53). 95A Meaning of partial strike and specified pay deduction [Repealed]

Section 95A: repealed, on 12 December 2018, by section 29 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). Specified pay deductions in relation to partial strike [Repealed] Heading: repealed, on 12 December 2018, by section 29 of the Employment Relations Amendment Act 2018 (2018 No 53). 95B Employer may make specified pay deductions in relation to partial strike [Repealed]

Section 95B: repealed, on 12 December 2018, by section 29 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 95C Notice of specified pay deduction [Repealed]

Section 95C: repealed, on 12 December 2018, by section 29 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 95D Calculation of specified pay deduction [Repealed]

Section 95D: repealed, on 12 December 2018, by section 29 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 95E Relationship between specified pay deduction and minimum wage [Repealed]

Section 95E: repealed, on 12 December 2018, by section 29 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 151 Reprinted as at Part 8 s 95F Employment Relations Act 2000 1 July 2021 Rights of union in relation to specified pay deductions [Repealed] Heading: repealed, on 12 December 2018, by section 29 of the Employment Relations Amendment Act 2018 (2018 No 53). 95F Union may request information about specified pay deduction [Repealed]

Section 95F: repealed, on 12 December 2018, by section 29 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 95G Employer must respond to request for information about specified pay deduction [Repealed]

Section 95G: repealed, on 12 December 2018, by section 29 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 95H Resolution of problem relating to specified pay deduction [Repealed]

Section 95H: repealed, on 12 December 2018, by section 29 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 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 par‐ ticipation 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. Compare: 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 sub‐ section (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 152 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8 s 99 (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 per‐ forms 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. Compare: 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 occur‐ ring, 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. 153 Reprinted as at Part 8 s 100 Employment Relations Act 2000 1 July 2021 (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 partici‐ pation in a strike or lockout that is lawful under section 83 or 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. Compare: 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 pro‐ ceedings 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) [Repealed] (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) [Repealed] (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 or 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 com‐ menced in the District Court or the High Court. (4) [Repealed] (5) [Repealed] Compare: 1991 No 22 s 74

Section 100(1)(b): amended, on 6 March 2015, by section 63(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 100(1)(c): repealed, on 12 December 2018, by section 30(1) of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 100(2)(b): amended, on 6 March 2015, by section 63(3) of the Employment Relations Amendment Act 2014 (2014 No 61). 154 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8A s 100A

Section 100(2)(c): repealed, on 12 December 2018, by section 30(1) of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 100(4): repealed, on 12 December 2018, by section 30(2) of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 100(5): repealed, on 12 December 2018, by section 30(2) of the Employment Relations Amendment Act 2018 (2018 No 53). Part 8A Codes of employment practice and code of good faith for public health sector Part 8A: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). Codes of employment practice Heading: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 100A Codes of employment practice (1) The Minister may, by notice in the Gazette, approve 1 or more codes of employment practice. (2) The notice in the Gazette may, instead of setting out the code of employment practice being approved,— (a) provide sufficient information to identify the code; and (b) specify the date on which the code comes into force; and (c) state where copies of the code may be obtained. (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) or any regulations made under those Acts— (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 approved under this section is not a legislative instrument but is a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act. 155 Reprinted as at Part 8A s 100B Employment Relations Act 2000 1 July 2021

Section 100A: inserted, on 1 December 2004, by section 36 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 100A(4): amended, on 6 November 2020, by section 27(1) of the Equal Pay Amendment Act 2020 (2020 No 45).

Section 100A(5): inserted, on 6 November 2020, by section 27(2) of the Equal Pay Amendment Act 2020 (2020 No 45). 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, on 1 December 2004, by section 36 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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 proceed‐ ings as evidence of whether the enactment to which it relates has been com‐ plied 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. Compare: 2015 No 70 s 226

Section 100C: replaced, on 6 November 2020, by section 28 of the Equal Pay Amendment Act 2020 (2020 No 45). Code of good faith for public health sector Heading: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 100D Code of good faith for public health sector (1) Schedule 1B contains a code of good faith for the public health sector. (2) The code— (a) applies subject to the other provisions of this Act and any other enact‐ ment; and (b) in particular, does not limit the application of the duty of good faith in section 4 in relation to the public health sector. (3) Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4 has been complied with. (4) It is a breach of the duty of good faith in section 4 for a person to whom the code applies to fail to comply with the code. 156 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 8A s 100F (5) This section does not prevent a code of good faith approved under section 35 or a code of employment practice approved under section 100A applying in rela‐ tion to the public health sector. (6) However, in the case of any inconsistency, the code set out in Schedule 1B pre‐ vails over a code approved under section 35 or section 100A.

Section 100D: inserted, on 1 December 2004, by section 36 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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) not less than three-quarters of district health boards; and (ii) unions who represent not less than three-quarters of union mem‐ bers employed by district health boards; and (b) the Minister has consulted the Minister of Health and such other persons and organisations as he or she considers appropriate.

Section 100E: inserted, on 1 December 2004, by section 36 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 100F Code of good faith for employment relationships in relation to provision of services by New Zealand Police (1) Schedule 1C contains a code of good faith for employment relationships in relation to the provision of services by the New Zealand Police. (2) The code— (a) applies subject to the other provisions of this Act and any other enact‐ ment; and (b) in particular, does not limit the application of the duty of good faith in section 4 in relation to the New Zealand Police. (3) Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4 has been complied with. (4) It is a breach of the duty of good faith in section 4 for a person to whom the code applies to fail to comply with the code. (5) This section does not prevent a code of good faith approved under section 35 or a code of employment practice approved under section 100A applying to employment relationships in relation to the provision of services by the New Zealand Police. 157 Reprinted as at Part 8A s 100G Employment Relations Act 2000 1 July 2021 (6) However, in the case of any inconsistency, the code set out in Schedule 1C pre‐ vails over a code approved under section 35 or 100A.

Section 100F: inserted, on 1 October 2008, by section 120 of the Policing Act 2008 (2008 No 72). 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 rela‐ tionships 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 organisa‐ tions 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 has the same meaning as in section 55 of the Policing Act 2008.

Section 100G: inserted, on 1 October 2008, by section 120 of the Policing Act 2008 (2008 No 72). Part 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 facili‐ tate the raising of personal grievances with employers; and (c) [Repealed] (d) to ensure that the role of the Authority and the court in resolving employment relationship problems is to determine the rights and obliga‐ tions of the parties rather than to fix terms and conditions of employ‐ ment. 158 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 103

Section 101(ab): inserted, on 1 December 2004, by section 37 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 101(c): repealed, on 1 April 2011, by section 14 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 means any grievance that an employee may have against the employee’s employer or former employer because of a claim— (a) that the employee has been unjustifiably dismissed; or (b) that the employee’s employment, or 1 or more conditions of the employ‐ ee’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 employ‐ ment; or (da) that the employee has been treated adversely in the employee’s employ‐ ment on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family violence; or (e) that the employee has been racially harassed in the employee’s employ‐ ment; or (f) that the employee has been subject to duress in the employee’s employ‐ ment 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 employ‐ ment agreement not being in accordance with section 67C, 67D, 67G, or 67H; or (i) that the employee’s employer has contravened section 67F or 67G(3); or (j) that the employee’s employer has, in relation to the employee,— (i) engaged in adverse conduct for a prohibited health and safety rea‐ son; or 159 Reprinted as at Part 9 s 103 Employment Relations Act 2000 1 July 2021 (ii) contravened section 92 of the Health and Safety at Work Act 2015 (which prohibits coercion or inducement). (2) For the purposes of this Part, a representative, in relation to an employer and in relation to an alleged personal grievance, means a person— (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 dis‐ puted interpretation, application, or operation, of any provision of any employ‐ ment agreement. (4) For the purposes of sections 103B, 115A, and 123A, the provisions of this Act that describe, define terms relating to, and provide for the application of the grounds for a personal grievance under subsection (1) apply with all necessary modifications as if— (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. Compare: 1991 No 22 s 27

Section 103(1)(da): inserted, on 1 April 2019, by section 8 of the Domestic Violence—Victims’ Pro‐ tection Act 2018 (2018 No 21).

Section 103(1)(da): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 103(1)(f): amended, on 14 September 2006, by section 7(1) of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 103(1)(g): added, on 14 September 2006, by section 7(2) of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 103(1)(g): amended, on 10 September 2008, by section 7(1) of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

Section 103(1)(h): replaced, on 1 April 2016, by section 10 of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 103(1)(i): inserted, on 1 April 2016, by section 10 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 103(1)(i): amended, on 17 December 2016, by section 44 of the Statutes Amendment Act 2016 (2016 No 104).

Section 103(1)(j): inserted, on 4 April 2016, by section 5 of the Employment Relations Amendment Act 2015 (2015 No 73).

Section 103(4): inserted, on 27 June 2020, by section 5 of the Employment Relations (Triangular Employment) Amendment Act 2019 (LI 2019 No 36). 160 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 103B 103A Test of justification (1) For the purposes of section 103(1)(a) and (b), the question of whether a dis‐ missal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2). (2) The test is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred. (3) In applying the test in subsection (2), the Authority or the court must con‐ sider— (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 dis‐ missing 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 fol‐ lowed by the employer if the defects were— (a) minor; and (b) did not result in the employee being treated unfairly.

Section 103A: substituted, on 1 April 2011, by section 15 of the Employment Relations Amendment Act 2010 (2010 No 125). 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; and (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 occur‐ red while the employee was working under the control or direction of a controlling third party. 161 Reprinted as at Part 9 s 104 Employment Relations Act 2000 1 July 2021 (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 has been complied with; and (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 griev‐ ance. (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, on 27 June 2020, by section 6 of the Employment Relations (Triangular Employment) Amendment Act 2019 (LI 2019 No 36). 104 Discrimination (1) For the purposes of section 103(1)(c), an employee is discriminated against in that employee’s employment if the employee’s employer or a representative of that employer, by reason directly or indirectly of any of the prohibited grounds of discrimination specified in section 105, or the employee’s union membership status or involvement in union activities in terms of 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, experi‐ ence, or skills employed in the same or substantially similar circum‐ stances; 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. 162 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 106 (2) For the purposes of this section, detriment includes anything that has a detri‐ mental effect on the employee’s employment, job performance, or job satisfac‐ tion. (3) This section is subject to the exceptions set out in section 106. Compare: 1991 No 22 s 28(1)

Section 104(1): amended, on 11 June 2019, by section 31 of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 104(1): amended, on 4 April 2016, by section 6 of the Employment Relations Amendment Act 2015 (2015 No 73). 105 Prohibited grounds of discrimination for purposes of section 104 (1) The prohibited grounds of discrimination referred to in section 104 are the pro‐ hibited grounds of discrimination set out in section 21(1) of the Human Rights Act 1993, namely— (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) of the Human Rights Act 1993. 106 Exceptions in relation to discrimination (1) Section 104 must be read subject to the following provisions of the Human Rights Act 1993 dealing with exceptions in relation to employment matters: (a) section 24 (which provides for an exception in relation to crews of ships and aircraft): (b) section 25 (which provides for an exception in relation to work involv‐ ing national security): (c) section 26 (which provides for an exception in relation to work per‐ formed outside New Zealand): 163 Reprinted as at Part 9 s 106 Employment Relations Act 2000 1 July 2021 (d) section 27 (which provides for exceptions in relation to authenticity and privacy): (e) section 28 (which provides for exceptions for purposes of religion): (f) section 29 (which provides for exceptions in relation to disability): (g) section 30 (which provides for exceptions in relation to age): (h) section 31 (which provides for an exception in relation to employment of a political nature): (i) section 32 (which provides for an exception in relation to family status): (j) [Repealed] (k) section 34 (which relates to regular forces and Police): (l) section 35 (which provides a general qualification on exceptions): (m) section 70 (which relates to superannuation schemes). (2) For the purposes of subsection (1), sections 24 to 35 of the Human Rights Act 1993 must be read as if they referred to section 104 of this Act, rather than to section 22 of that Act. In particular,— (a) references in sections 24 to 29, 31, and 32 of that Act to section 22 of that Act must be read as if they were references to section 104(1); and (b) references in section 30 or section 34 of that Act— (i) to section 22(1)(a) or 22(1)(b) of that Act must be read as if they were references to section 104(1)(a); and (ii) to section 22(1)(c) of that Act must be read as if they were refer‐ ences to section 104(1)(b); and (iii) to section 22(1)(d) of that Act must be read as if they were refer‐ ences to section 104(1)(c). (3) Nothing in section 104 includes as discrimination— (a) anything done or omitted for any of the reasons set out in paragraph (a) or paragraph (b) of section 73(1) of the Human Rights Act 1993 (which relate to measures to ensure equality); or (b) preferential treatment granted by reason of any of the reasons set out in paragraph (a) or paragraph (b) of section 74 of the Human Rights Act 1993 (which relate to pregnancy, childbirth, or family responsibilities); or (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) of the Human Rights Act 1993 (which is a savings provision in relation to retirement ages specified in certain employment contracts). (4) Despite section 104, an employee is not discriminated against in that employ‐ ee’s employment simply because the employee’s employment agreement or terms and conditions of employment are different from those of another 164 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 107 employee employed by the same employer by reason of the employee being a member of a union. (5) Section 104 must be read subject to section 9(3).

Section 106(1)(j): repealed, on 5 May 2007, by section 6(2) of the Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16).

Section 106(1)(m): added, on 1 December 2004, by section 39 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 106(2)(a): amended, on 5 May 2007, by section 6(3) of the Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16).

Section 106(4): inserted, on 11 June 2019, by section 32 of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 106(5): inserted, on 11 June 2019, by section 32 of the Employment Relations Amendment Act 2018 (2018 No 53). 107 Definition of union membership status or involvement in union activities for purposes of section 104 (1) For the purposes of section 104, involvement in union activities means that, within the 18 months before the action complained of, the employee— (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 other‐ wise 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 employ‐ ment 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 mat‐ ters relating to the employment of those employees. (2) For the purposes of section 104, union membership status means that, within the 18 months before the action complained of, the employee— (a) was a member of a union; or (b) intended to join a union. (2) [Repealed] Compare: 1991 No 22 s 28(2) 165 Reprinted as at Part 9 s 108 Employment Relations Act 2000 1 July 2021

Section 107 heading: amended, on 11 June 2019, by section 33(1) of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 107(1): amended, on 11 June 2019, by section 33(2) of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 107(1)(ba): inserted, on 1 December 2004, by section 40 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 107(2): inserted, on 11 June 2019, by section 33(3) of the Employment Relations Amend‐ ment Act 2018 (2018 No 53).

Section 107(2): repealed, on 4 April 2016, by section 7 of the Employment Relations Amendment Act 2015 (2015 No 73). 108 Sexual harassment (1) For the purposes of sections 103(1)(d) and 123(d), an employee is sexually harassed in that employee’s employment if that employee’s employer or a representative of that employer— (a) directly or indirectly makes a request of that employee for sexual inter‐ course, 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 employ‐ ee’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 unwel‐ come 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) and 123(d), an employee is also sexu‐ ally harassed in that employee’s employment (whether by a co-employee or by a client or customer of the employer), if the circumstances described in sec‐ tion 117 have occurred. Compare: 1991 No 22 s 29 108A Adverse treatment in employment of people affected by family violence (1) For the purposes of sections 103(1)(da) and 123(1)(d), an employee is treated adversely in the employee’s employment on the ground that the employee 166 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 109 is, or is suspected or assumed or believed to be, a person affected by family violence if, on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family violence (as that term is defined in section 69ABA), that employee’s employer or a representative of that employer— (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, experi‐ ence, or skills employed in the same or substantially similar circum‐ stances; 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 violence occurred or is suspected or assumed or believed to have occurred, and even if the family violence occurred or is suspected or assumed or believed to have occurred before the person became an employee.

Section 108A: inserted, on 1 April 2019, by section 9 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 108A heading: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 108A(1): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 108A(2): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 109 Racial harassment For the purposes of sections 103(1)(e) and 123(d), an employee is racially harassed in the employee’s employment if the employee’s employer or a rep‐ resentative of that employer uses language (whether written or spoken), or vis‐ ual material, or physical behaviour that directly or indirectly— (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 167 Reprinted as at Part 9 s 110 Employment Relations Act 2000 1 July 2021 (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), an employee is subject to duress in that employee’s employment in relation to membership or non-membership of a union or employees organisation if that employee’s employer or a represen‐ tative of that employer directly or indirectly— (a) makes membership of a union or employees organisation or of a particu‐ lar 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 with‐ hold 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 organisa‐ tion 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 par‐ ticular union or employees organisation, to resign from or leave any employment; or (vi) to participate in the formation of a union or employees organisa‐ tion; or (vii) not to participate in the formation of a union or employees organ‐ isation. (2) In this section and in section 103(1)(f), employees organisation means any group, society, association, or other collection of employees other than a union, however described and whether incorporated or not, that exists in whole or in part to further the employment interests of the employees belonging to it. Compare: 1991 No 22 s 30 168 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 110A 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 if the employer or a representative of the employer, 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, experi‐ ence, or skills employed in the same or substantially similar circum‐ stances; 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 of the Health and Safety at Work Act 2015. (3) An employer may be found to have engaged in adverse conduct for a prohibi‐ ted 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 pre‐ sumed 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) if the employer proves that— (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 or other relevant health and safety legislation (as defined in section 16 of that Act). (6) For the purposes of this section,— (a) an employer also engages in adverse conduct if the employer or a repre‐ sentative of the employer, in relation to the employee,— (i) organises to take any action referred to in subsection (1) or threat‐ ens 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: 169 Reprinted as at Part 9 s 111 Employment Relations Act 2000 1 July 2021 (b) detriment includes anything that has a detrimental effect on the employ‐ ee’s employment, job performance, or job satisfaction.

Section 110A: replaced, on 4 April 2016, by section 8 of the Employment Relations Amendment Act 2015 (2015 No 73).

Section 110A(5): amended, on 31 March 2017, by section 5 of the Regulatory Systems (Workplace Relations) Amendment Act 2017 (2017 No 13). 111 Definitions relating to personal grievances Each of the terms personal grievance, discrimination, sexual harassment, adverse treatment in employment of people affected by family violence, racial harassment, duress, and adverse conduct for prohibited health and safety reason have in any employment agreement the meanings given to those terms by sections 103, 104, 105, 106, 107, 108, 108A, 109, 110, and 110A unless the employment agreement gives an extended meaning to the term. Compare: 1991 No 22 s 31

Section 111: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 111: amended, on 1 April 2019, by section 10(1) of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21).

Section 111: amended, on 1 April 2019, by section 10(2) of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21).

Section 111: amended, on 4 April 2016, by section 9 of the Employment Relations Amendment Act 2015 (2015 No 73). 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, the employee may take 1, but not both, of the fol‐ lowing steps: (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. Compare: 1991 No 22 s 39 170 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 114

Section 112(2): substituted, on 1 January 2002, by section 71(1) of the Human Rights Amendment Act 2001 (2001 No 96).

Section 112(3): added, on 1 December 2004, by section 41 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 112(4): added, on 1 December 2004, by section 41 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 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) Every employee who wishes to raise a personal grievance must, subject to sub‐ sections (3) and (4), raise the grievance with his or her employer within 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 the later, 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 90-day period, the employee may apply to the Authority for leave to raise the personal grievance after the expiration of that 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 occa‐ sioned by exceptional circumstances (which may include any 1 or more of the circumstances set out in section 115); and (b) considers it just to do so. (5) In any case where the Authority grants leave under subsection (4), the Author‐ ity must direct the employer and employee to use mediation to seek to mutually resolve the grievance. 171 Reprinted as at Part 9 s 115 Employment Relations Act 2000 1 July 2021 (6) No action may be commenced in the Authority or the court in relation to a per‐ sonal grievance more than 3 years after the date on which the personal griev‐ ance was raised in accordance with this section. Compare: 1991 No 22 s 33 115 Further provision regarding exceptional circumstances under section 114 For the purposes of section 114(4)(a), exceptional circumstances include— (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 con‐ sider raising the grievance within the period specified in section 114(1); or (b) where the employee made reasonable arrangements to have the griev‐ ance 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 prob‐ lems that is required by section 54 or section 65, as the case may be; or (d) where the employer has failed to comply with the obligation under sec‐ tion 120(1) to provide a statement of reasons for dismissal. 115A Notifying controlling third party of personal grievance (1) For the purposes of section 103B, this section is 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 90-day employee notification period; or (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 sub‐ section (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 90-day notification period. 172 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 117 (3) If the controlling third party does not consent to being notified after the rele‐ vant 90-day notification period, the employee or the employer may apply to the Authority for leave to notify the controlling third party after the expiration of that period. (4) On an application under subsection (3), the Authority, after giving the control‐ ling third party an opportunity to be heard, may grant leave accordingly, sub‐ ject 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 Author‐ ity 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 employee notification period means 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 90-day employer notification period means the period of 90 days beginning with the date on which the employer’s employee raised the personal grievance with the employer relevant 90-day notification period means the 90-day employee notification period or the 90-day employer notification period.

Section 115A: inserted, on 27 June 2020, by section 7 of the Employment Relations (Triangular Employment) Amendment Act 2019 (LI 2019 No 36). 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. Compare: 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) is made to an employee by a person (not being a representative of the employer) who is in the employ of the employee’s employer or who is a customer or cli‐ ent of the employer; or (b) an employee is subjected to behaviour of the kind described in section 108(1)(b) by a person (not being a representative of the employer) who is in the employ of the employee’s employer or who is a customer or cli‐ ent of the employer; or (c) an employee is subjected to behaviour of the kind described in section 109 by a person (not being a representative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer. 173 Reprinted as at Part 9 s 118 Employment Relations Act 2000 1 July 2021 (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. Compare: 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) either— (i) makes to that employee after the complaint a request of the kind described in section 108(1)(a); or (ii) subjects that employee after the complaint to behaviour of the kind described in section 108(1)(b) or section 109; and (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. Compare: 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 representa‐ tive took any action or omitted any action as described in any of para‐ graphs (a) to (c) of section 104(1) in relation to that employee; and (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, the employee establishes that he or she was a person described in 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) and alleged by the employee. 174 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 123

Section 119(1)(b): amended, on 11 June 2019, by section 34 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 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 dis‐ missal, 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. Compare: 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. Compare: 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. Compare: 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 175 Reprinted as at Part 9 s 123A Employment Relations Act 2000 1 July 2021 (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 practi‐ ces are a significant factor in the personal grievance, recommendations to the employer concerning the action the employer should take to pre‐ vent 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 vio‐ lence, recommendations to the employer— (i) concerning the action the employer should take in respect of the person who made the request referred to in section 108(1)(a) or was guilty of the harassing behaviour or of the adverse treatment on that ground, which action may include the transfer of that per‐ son, the taking of disciplinary action against that person, or the taking of rehabilitative action in respect of that person: (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 finan‐ cial position of the employer requires it. Compare: 1991 No 22 s 40

Section 123(1)(ca): inserted, on 1 December 2004, by section 42(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 123(1)(d): replaced, on 1 April 2019, by section 11 of the Domestic Violence—Victims’ Pro‐ tection Act 2018 (2018 No 21).

Section 123(1)(d): amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46).

Section 123(2): added, on 1 December 2004, by section 42(2) of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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, joined a controlling third party to the proceed‐ ings to resolve the personal grievance; and (c) determines that the actions of the controlling third party caused or con‐ tributed to the situation that gave rise to the personal grievance. 176 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 126 (2) The Authority or the court may, if satisfied that it is just to do so, order the con‐ trolling 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 and against the controlling third party under subsection (2) in a way that reflects the extent to which the actions of each contributed to the situation that gave rise to the personal grievance. (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, on 27 June 2020, by section 8 of the Employment Relations (Triangular Employment) Amendment Act 2019 (LI 2019 No 36). 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. Compare: 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 per‐ sonal 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, on 12 December 2018, by section 47 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 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 177 Reprinted as at Part 9 s 127 Employment Relations Act 2000 1 July 2021 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. Compare: 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 sub‐ section (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 sec‐ tion. (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 griev‐ ance. (2) If this section applies then, subject to subsection (3) and section 124, the Authority must, whether or not it provides for any of the other remedies provi‐ ded for in section 123, order the employer to pay to the employee the lesser of a sum equal to that lost remuneration or to 3 months’ ordinary time remuner‐ ation. 178 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 130 (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. Compare: 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. Compare: 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) showing, in the case of each employee employed by that employer,— (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 cal‐ culation: (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 179 Reprinted as at Part 9 s 130 Employment Relations Act 2000 1 July 2021 (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), it is sufficient compliance with subsection (1)(g) if those usual hours and pay are stated in— (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 of an employee who is remunerated by way of salary include any additional hours worked by the employee in accord‐ ance with the employee’s employment agreement. (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 to represent an employee, provide that employee or person immediately with access to or a copy of or an extract from any part or all of the wages and time record relating to the employment of the employee by the employer at any time in the preceding 6 years at which the employer was obliged to keep such a record. (3) [Repealed] (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. Compare: 1991 No 22 s 47

Section 130(1)(g): replaced, on 1 April 2016, by section 11(1) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 130(1A): inserted, on 1 April 2016, by section 11(2) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 130(1B): inserted, on 1 April 2016, by section 11(2) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 130(1C): inserted, on 1 April 2016, by section 11(2) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 130(1D): inserted, on 1 April 2016, by section 11(2) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 130(3): repealed, on 1 April 2016, by section 11(3) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 130(5): inserted, on 1 April 2016, by section 11(4) of the Employment Relations Amendment Act 2016 (2016 No 9). 180 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 132 131 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 pre‐ scribed 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. Compare: 1991 No 22 s 48(1)

Section 131(1A): inserted, on 1 December 2004, by section 43 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 132 Failure to keep or produce records (1) Where any claim is brought before the Authority under section 131 to recover wages or other money payable to an employee, the employee may call evi‐ dence to show that— (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). Compare: 1991 No 22 s 50 181 Reprinted as at Part 9 s 133 Employment Relations Act 2000 1 July 2021 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 and 178 (which allow for the referral or removal of certain matters to the Employment Court); and (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. Compare: 1991 No 22 s 51 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, the Authority or court (as the case may be) must have regard to all relevant matters, including— (a) the object stated in section 3; and (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. 182 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 135

Section 133A: inserted, on 1 April 2016, by section 12 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 employ‐ ment agreement is liable to a penalty imposed by the Authority. Compare: 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, on 1 April 2011, by section 17 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 183 Reprinted as at Part 9 s 135A Employment Relations Act 2000 1 July 2021 whom the penalty is sought has previously failed to comply with an improve‐ ment 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, within 6 months after the earlier of— (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, an action for the recovery of a penalty under this Act in relation to the same matter must be commenced within 3 months after the refusal. Compare: 1991 No 22 s 53

Section 135(2)(a): amended, on 1 April 2011, by section 18(1) of the Employment Relations Amend‐ ment Act 2010 (2010 No 125).

Section 135(2)(b): amended, on 1 April 2011, by section 18(2) of the Employment Relations Amend‐ ment Act 2010 (2010 No 125).

Section 135(4A): inserted, on 1 December 2004, by section 44(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 135(4B): inserted, on 1 April 2011, by section 18(3) of the Employment Relations Amend‐ ment Act 2010 (2010 No 125).

Section 135(5): substituted, on 1 December 2004, by section 44(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 135(5): amended, on 1 April 2019, by section 12 of the Domestic Violence—Victims’ Protec‐ tion Act 2018 (2018 No 21).

Section 135(6): inserted, on 1 April 2016, by section 13 of the Employment Relations Amendment Act 2016 (2016 No 9). 135A Chief executive or Labour Inspector may enforce payment of penalty The chief executive or a Labour Inspector may recover in the District Court as a debt due to the Crown any penalty ordered by the Authority or the court under section 135 to be paid to the Crown.

Section 135A: inserted, on 1 April 2016, by section 14 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 135A: amended, on 1 March 2017, by section 14 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 Crown Bank Account. 184 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 137 (2) The Authority or the court may order that the whole or any part of any penalty recovered must be paid to any person. Compare: 1991 No 22 s 54

Section 136(1): amended, on 25 January 2005, pursuant to section 65R(3) of the Public Finance Act 1989 (1989 No 44). 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 (except subpart 2), 6B, 6C, 6D, 7, and 9; or (iii) any terms of settlement or decision that section 151 provides may be enforced by compliance order; or (iiia) an enforceable undertaking that section 223C(1) provides may be enforced by compliance order; or (iiib) an improvement notice that section 223D(6) provides may be enforced by compliance order; or (iiic) any terms of a pay equity claim settlement under section 13ZH of the Equal Pay Act 1972; or (iv) a demand notice that section 225(4) provides may be enforced by compliance order; or (v) sections 73 and 74 of the Public Service Act 2020 and sections 597 and 600 of the Education and Training Act 2020; or (vi) sections 76 to 80 of the Public Service Act 2020 and sections 585 to 596 and 660 of the Education and Training Act 2020; or (vii) section 11(3)(c) of the Health and Disability Services Act 1993; or (viii) clauses 5 and 6 of Schedule 1 of the Broadcasting Act 1989; or (ix) sections 83, 83A, and 83B of the Fire Service Act 1975; or (x) clauses 18, 19, and 21 of Schedule 5 of the Accident Compensa‐ tion Act 2001; or (xi) Part 3 and sections 589 and 600 of the Education and Training Act 2020; or (xi) [Repealed] (b) any order, determination, direction, or requirement made or given under this Act by the Authority or a member or officer of the Authority. (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 185 Reprinted as at Part 9 s 138 Employment Relations Act 2000 1 July 2021 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 require‐ ment. (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 organisa‐ tion) who alleges that that person has been affected by non-observance or non-compliance of the kind described in subsection (1). (b) [Repealed] Compare: 1991 No 22 s 55(1), (2)

Section 137(1)(a)(ii): substituted, on 13 December 2006, by section 8 of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 137(1)(a)(ii): amended, on 1 April 2019, by section 13 of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 137(1)(a)(ii): amended, on 1 April 2009, by section 9 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

Section 137(1)(a)(iiia): inserted, on 1 April 2011, by section 19 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 137(1)(a)(iiib): inserted, on 1 April 2011, by section 19 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 137(1)(a)(iiic): inserted, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45).

Section 137(1)(a)(v): replaced, on 7 August 2020, by section 135 of the Public Service Act 2020 (2020 No 40).

Section 137(1)(a)(vi): replaced, on 7 August 2020, by section 135 of the Public Service Act 2020 (2020 No 40).

Section 137(1)(a)(x): substituted, on 1 April 2002, by section 337(1) of the Accident Compensation Act 2001 (2001 No 49).

Section 137(1)(a)(x): amended on 3 March 2010, pursuant to section 5(1)(b) of the Accident Com‐ pensation Amendment Act 2010 (2010 No 1).

Section 137(1)(a)(xi): inserted, on 1 August 2020, by section 668 of the Education and Training Act 2020 (2020 No 38).

Section 137(1)(a)(xi): repealed, on 4 April 2016, by section 10 of the Employment Relations Amend‐ ment Act 2015 (2015 No 73).

Section 137(4): substituted, on 5 May 2003, by section 33(4) of the Health and Safety in Employ‐ ment Amendment Act 2002 (2002 No 86).

Section 137(4)(b): repealed, on 4 April 2016, by section 10 of the Employment Relations Amend‐ ment Act 2015 (2015 No 73). 138 Further provisions relating to compliance order by Authority (1) The power given to the Authority by section 137(2) may be exercised by the Authority— 186 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 139 (a) of its own motion; or (b) on the application of— (i) any party to the matter; or (ii) [Repealed] (iii) in the case of sections 223C, 223D(6), and 225(4)(c), a Labour Inspector. (2) Before exercising its power under section 137(2) in relation to a person who is not a party to the matter, the Authority must give that person an opportunity to appear or be represented before the Authority. (3) Any time specified by the Authority under section 137 may from time to time be extended by the Authority on the application of the person who is required to obey the order. (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 hap‐ pening 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), it may then adjourn the matter, without imposing any penalty or mak‐ ing a final determination, to enable the compliance order to be complied with while the matter is adjourned. (6) Where any person fails to comply with a compliance order made under section 137, the person affected by the failure may apply to the court for the exercise of its powers under section 140(6). Compare: 1991 No 22 s 55(3)–(7)

Section 138(1)(b): substituted, on 5 May 2003, by section 33(5) of the Health and Safety in Employ‐ ment Amendment Act 2002 (2002 No 86).

Section 138(1)(b)(ii): repealed, on 4 April 2016, by section 11 of the Employment Relations Amend‐ ment Act 2015 (2015 No 73).

Section 138(1)(b)(iii): added, on 1 April 2011, by section 20 of the Employment Relations Amend‐ ment Act 2010 (2010 No 125).

Section 138(4A): inserted, on 1 December 2004, by section 46 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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; or 187 Reprinted as at Part 9 s 140 Employment Relations Act 2000 1 July 2021 (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 wit‐ ness, 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 organisa‐ tion) 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 sub‐ section (2). Compare: 1991 No 22 s 56(1), (2)

Section 139(1A): inserted, on 1 April 2016, by section 15(1) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 139(2): amended, on 1 April 2016, by section 15(2) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9). 140 Further provisions relating to compliance order by court (1) The power given to the court by section 139(2) may be exercised by the court— (a) on the application of any party to the proceedings; or (b) except where the proceedings are commenced under section 139(4), of its own motion. (2) Before exercising its power under section 139(2) in relation to a person who is not a party to the proceedings, the court must give that person an opportunity to appear or be represented before the court. (3) Any time specified by the court under section 139 may from time to time be extended by the court on the application of the person who is required to obey the order. (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 hap‐ pening of a specified event. 188 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 140AA (5) Where the court makes a compliance order of the kind described in section 139(2), it may then adjourn the proceedings, without imposing any penalty or fine or making a final determination, to enable the compliance order to be com‐ plied with while the proceedings are adjourned. (6) Where any person fails to comply with a compliance order made under section 139, or where the court, on an application under section 138(6), is satisfied that any person has failed to comply with a compliance order made under section 137, the court may do 1 or more of the following things: (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. Compare: 1991 No 22 s 56(3)–(7)

Section 140(7): inserted, on 1 April 2016, by section 17 of the Employment Relations Amendment Act 2016 (2016 No 9). 140AA Sanctions for breaches without compliance order (1) This section applies in relation to an order, determination, direction, or require‐ ment referred to in section 137(1)(b) or 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, determin‐ ation, 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) with‐ out first making a compliance order. (3) However, the court must not do any of the things specified in section 140(6)(a) to (e) unless the court— (a) has provided the person in default with the opportunity to make submis‐ sions 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 189 Reprinted as at Part 9 s 140A Employment Relations Act 2000 1 July 2021 (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, on 1 April 2016, by section 16 of the Employment Relations Amendment Act 2016 (2016 No 9). 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, or 69OEA; or (b) there are reasonable grounds to believe that a person will not observe or comply with section 69OC, 69OD, 69OE, or 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, or 69OEA; or (b) non-observance of or non-compliance with section 69OC, 69OD, 69OE, or 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 relates: (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, or 69OEA, that person may take action against another person by applying to the Authority for an order of the kind described in subsection (2). (6) The power given to the Authority by subsection (2) may be exercised by the Authority— 190 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9 s 141 (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), and 161 apply, with all necessary modifications, to a compliance order under subsection (2) as if the compliance order were a compliance order made under section 137(2). (8) For the purposes of section 161(1), any non-observance of or non-compliance with or proposed non-observance of or non-compliance with section 69OC, 69OD, 69OE, or 69OEA or failure to comply with a compliance order under subsection (2) is to be treated as if it were an employment relationship prob‐ lem.

Section 140A: inserted, on 13 December 2006, by section 9 of the Employment Relations Amend‐ ment Act 2006 (2006 No 41).

Section 140A heading: amended, on 6 March 2015, by section 64(1) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 140A(1)(a): amended, on 6 March 2015, by section 64(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 140A(1)(b): amended, on 6 March 2015, by section 64(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 140A(2)(a): amended, on 6 March 2015, by section 64(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 140A(2)(b): amended, on 6 March 2015, by section 64(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 140A(4)(ba): inserted, on 6 March 2015, by section 64(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 140A(4)(bb): inserted, on 6 March 2015, by section 64(3) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 140A(5): amended, on 6 March 2015, by section 64(2) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 140A(8): amended, on 6 March 2015, by section 64(2) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 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) by the Authority or the court (including an order imposing a fine) may be filed in the District Court, and is then enforceable in the same manner as an order made or judgment given by the District Court. (2) To avoid doubt, an order imposing a fine is enforceable under Part 3 of the Summary Proceedings Act 1957. Compare: 1991 No 22 s 58

Section 141(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 141(1): amended, on 1 April 2016, by section 18(1) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9). 191 Reprinted as at Part 9 s 142 Employment Relations Act 2000 1 July 2021

Section 141(2): inserted, on 1 April 2016, by section 18(2) of the Employment Relations Amendment Act 2016 (2016 No 9). 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. Part 9A Additional provisions relating to enforcement of employment standards Part 9A: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142A Object of this Part (1) The object of this Part is to provide additional enforcement measures to pro‐ mote the more effective enforcement of employment standards (especially min‐ imum 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 entitle‐ ment 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 attrib‐ uted to bodies corporate and principals; and (d) providing certain defences to breaches of minimum entitlement provi‐ sions. (2) The provisions in this Part are in addition to the provisions in— (a) sections 133 to 142; and (b) sections 223 to 235. 192 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9A s 142C

Section 142A: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). Declarations of breach Heading: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142B Court may make declarations of breach (1) A Labour Inspector (but no other person) may apply to the court for a declar‐ ation 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 ser‐ ious, 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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 evi‐ dence in relation to the person of the matters that must be stated in it under section 142D. 193 Reprinted as at Part 9A s 142D Employment Relations Act 2000 1 July 2021

Section 142C: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). Pecuniary penalty orders Heading: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 declar‐ ation of breach is determined.

Section 142E: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142F Matters court to have regard to in determining amount of pecuniary penalty In determining an appropriate pecuniary penalty under section 142E, the court must have regard to all relevant matters, including— (a) the object stated in section 3; and (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 194 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9A s 142I 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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142G Maximum amount of pecuniary penalty If the court determines that it should make a pecuniary penalty order, the maxi‐ mum 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 corpo‐ rate from the breach.

Section 142G: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 as a debt due to the Crown any pecuniary penalty ordered by the court under sec‐ tion 142E.

Section 142H: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 142H: amended, on 1 March 2017, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 195 Reprinted as at Part 9A s 142J Employment Relations Act 2000 1 July 2021 Compensation orders Heading: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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) has suffered, or is likely to suffer, loss or damage because of the breach. (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 declar‐ ation of breach is determined.

Section 142J: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142K Application of section 132 of this Act and section 83 of Holidays Act 2003

Section 132 of this Act and section 83 of the Holidays Act 2003 apply for the purposes of section 142J to the extent that they are relevant to the breach in respect of which the compensation order is being sought.

Section 142K: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142L Terms of compensation orders (1) If section 142J applies, the court may make any order it thinks just to compen‐ sate an aggrieved employee in whole or in part for the loss or damage, or to prevent or reduce the loss or damage, referred to in that section. (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 means— (a) any person in breach; or (b) any person involved in the breach. 196 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9A s 142N

Section 142L: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). Banning orders Heading: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 persist‐ ently been involved in the breach of, 1 or more employment standards; or (c) the person has been convicted of an offence under section 351 of the Immigration Act 2009. (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 per‐ son 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 or 142ZD (as the case may be) in relation to that past breach.

Section 142M: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 means— (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: 197 Reprinted as at Part 9A s 142O Employment Relations Act 2000 1 July 2021 (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 part‐ nership: (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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142O Duration of banning order A banning order under section 142M has effect for— (a) 10 years; or (b) any shorter period specified in the order.

Section 142O: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 stating— (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) must give the chief executive at least 10 working days’ written notice of that intention. (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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 198 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9A s 142U 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 or the High Court to a fine not exceeding $200,000, a term of imprisonment not exceeding 3 years, or both.

Section 142R: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 142R: amended, on 1 March 2017, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). Standard of proof Heading: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). Interrelationship of orders Heading: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 for the same conduct. (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. 199 Reprinted as at Part 9A s 142V Employment Relations Act 2000 1 July 2021

Section 142U: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). Insurance against pecuniary penalties unlawful and of no effect Heading: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 pen‐ alty 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 of the Contract and Com‐ mercial Law Act 2017 or otherwise. (2) A person must not— (a) enter into, or offer to enter into, a policy or contract described in subsec‐ tion (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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 142V(1)(b): amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5). Liability of persons involved in breach, bodies corporate, and principals Heading: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142W Involvement in breaches (1) In this Act, a person is involved in a breach if the breach is a breach of employment standards and the person— (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. 200 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9A s 142Y (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 partner‐ ship: (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 admin‐ istration of the entity. (4) This section does not apply to proceedings for offences.

Section 142W: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 142W(2): replaced, on 31 March 2017, by section 6 of the Regulatory Systems (Workplace Relations) Amendment Act 2017 (2017 No 13).

Section 142W(3): replaced, on 31 March 2017, by section 6 of the Regulatory Systems (Workplace Relations) Amendment Act 2017 (2017 No 13). 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; and (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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 201 Reprinted as at Part 9A s 142Z Employment Relations Act 2000 1 July 2021 (c) the person is a person involved in the breach within the meaning of sec‐ tion 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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 corpo‐ rate, 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 neces‐ sary 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, in relation to a person, includes the knowledge, intention, opinion, belief, or purpose of the person and the person’s reasons for that intention, opinion, belief, or purpose.

Section 142Z: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 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. 202 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 9A s 142ZC (2) Conduct engaged in on behalf of a person other than a body corporate (A) by any of the following must be treated, for the purposes of this Act, as having been engaged in also by 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, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). Defences relating to breach of minimum entitlement provisions Heading: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142ZB Proceedings in which defences apply The defences described in sections 142ZC and 142ZD apply to the following proceedings in relation to a breach of a minimum entitlement provision: (a) an action to recover wages or other money under section 142Y of this Act, section 77A of the Holidays Act 2003, section 11AA of the Min‐ imum Wage Act 1983, or section 11A of the Wages Protection Act 1983: (b) an action to recover a penalty under section 135 of this Act, section 76 of the Holidays Act 2003, section 10 of the Minimum Wage Act 1983, or section 13 of the Wages Protection Act 1983: (c) an application under section 142E for a pecuniary penalty order: (d) an application under section 142J for a compensation order: (e) an application under section 142M(1)(a) for a banning order.

Section 142ZB: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142ZC Defences for person in breach (1) In a proceeding referred to in section 142ZB against a person (A) for a breach of a minimum entitlement provision, it is a defence if A proves that— (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. 203 Reprinted as at Part 9A s 142ZD Employment Relations Act 2000 1 July 2021 (2) In a proceeding referred to in section 142ZB(d), a defence under subsection (1) does not apply to the extent that the compensation is in relation to wages or other money owed as a result of a breach of a minimum entitlement provision. (3) For the purposes of subsection (1)(a) and (b), another person does not include a director, an employee, or an agent of A.

Section 142ZC: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). 142ZD Defences for person involved in breach (1) This section applies if— (a) a person (A) breaches a minimum entitlement provision; and (b) another person (B) is involved in the breach. (2) In a proceeding referred to in section 142ZB against B for involvement in the breach of a minimum entitlement provision, it is a defence if B proves that— (a) B’s involvement in the breach was due to reasonable reliance on infor‐ mation 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 does not include a director, an employee, or an agent of B.

Section 142ZD: inserted, on 1 April 2016, by section 19 of the Employment Relations Amendment Act 2016 (2016 No 9). Part 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 obliga‐ tions 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 204 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 144 (e) recognise that there will always be some cases that require judicial inter‐ vention; 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 proced‐ ural 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, on 1 December 2004, by section 47(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 143(fa): inserted, on 1 December 2004, by section 47(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). Mediation services 144 Mediation services (1) The chief executive must employ or engage persons to provide mediation ser‐ vices to support all employment relationships. (1A) For the purposes of this section, employment relationships include those between an employer and an employee employed by the employer where the work performed is under the control or direction of a controlling third party. (2) Those mediation services may include— (a) the provision of general information about employment rights and obli‐ gations: (b) the provision of information about what services are available for per‐ sons (including unions and other bodies corporate) who have employ‐ ment relationship problems: (c) other services that assist the smooth conduct of employment relation‐ ships: (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, on 27 June 2020, by section 9 of the Employment Relations (Triangular Employment) Amendment Act 2019 (LI 2019 No 36). 205 Reprinted as at Part 10 s 144A Employment Relations Act 2000 1 July 2021 144A Dispute resolution services (1) Nothing in this Act prevents the chief executive from providing dispute reso‐ lution services to parties in work-related relationships that are not employment relationships. (2) Services provided in accordance with this section proceed on the basis speci‐ fied in writing by the chief executive.

Section 144A: inserted, on 1 December 2004, by section 48 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 145 Provision of mediation services (1) The chief executive, by way of general instructions under section 153(2) and (3),— (a) may decide how the mediation services required by section 144 are to be provided; and (b) may, in order to promote fast and effective resolutions, treat matters pre‐ sented 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 prob‐ lem); 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 para‐ graph. (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, on 1 December 2004, by section 49 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 206 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 147 146 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 dis‐ pute promptly and effectively; and (ab) may offer mediation services on the basis that, prior to the commence‐ ment 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 (with any necessary modifications); and (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 proced‐ ures 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 fol‐ lowing or the position the party has adopted about the employment rela‐ tionship 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. 207 Reprinted as at Part 10 s 148 Employment Relations Act 2000 1 July 2021

Section 147(2)(ab): inserted, on 1 December 2004, by section 50(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 147(2)(ac): inserted, on 1 April 2011, by section 21 of the Employment Relations Amend‐ ment Act 2010 (2010 No 125).

Section 147(3): added, on 1 December 2004, by section 50(2) of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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 proceed‐ ings, 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 applies to any statement, admis‐ sion, document, or information disclosed or made in the course of the provision of mediation services to the person providing those services. (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 state‐ ment, 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 exis‐ ted 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 208 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 149 (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) or section 150(2). 148A Certain entitlements may be subject to mediation and agreed terms of settlement (1) The entitlements specified in subsection (3) may be the subject of— (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) must not sign agreed terms of settlement in which a party agrees to forgo all, or part, of the party’s 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, the 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, on 1 April 2011, by section 22 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 148A heading: replaced, on 1 April 2016, by section 20(1) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 148A(1): amended, on 1 April 2016, by section 20(2) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 148A(2): amended, on 1 April 2016, by section 20(3) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 148A(3): inserted, on 1 April 2016, by section 20(4) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 148A(3): amended, on 7 August 2020, by section 23(2)(a) of the Support Workers (Pay Equity) Settlements Amendment Act 2020 (2020 No 50).

Section 148A(3): amended, on 1 July 2017, by section 20(2) of the Care and Support Workers (Pay Equity) Settlement Act 2017 (2017 No 24). 149 Settlements (1) Where a problem is resolved, whether through the provision of mediation ser‐ vices or otherwise, any person— (a) who is employed or engaged by the chief executive to provide the ser‐ vices; and 209 Reprinted as at Part 10 s 149A Employment Relations Act 2000 1 July 2021 (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 author‐ ity, 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 of the Contract and Commercial Law Act 2017; and (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, on 1 December 2004, by section 51(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 149(3)(ab): amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 149(3A): inserted, on 1 April 2011, by section 23 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 149(4): added, on 1 December 2004, by section 51(2) of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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,— 210 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 150 (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 per‐ son 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 other‐ wise, except for enforcement purposes.

Section 149A: inserted, on 1 April 2011, by section 24 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 deci‐ sion before the Authority or the court, whether by action, appeal, appli‐ cation for review, or otherwise. 211 Reprinted as at Part 10 s 150A Employment Relations Act 2000 1 July 2021 (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, on 1 December 2004, by section 52 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 150A Payment on resolution of problem (1) Any payment by one party to another, required by any agreed terms of settle‐ ment under section 149(3) or decision under section 150(3), must be paid directly to the other party and not to a representative of that party, and the party receiving the payment may not receive, or agree to receive, payment in any other manner. (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 receiv‐ ing or has received legal aid under the Legal Services Act 2000 for any matter related to the employment relationship problem giving rise to the mediation; or (b) prevent a payment being made to the other party’s solicitor.

Section 150A: inserted, on 1 December 2004, by section 53 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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; or (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, the procedure applicable under section 141.

Section 151: substituted, on 1 April 2011, by section 25 of the Employment Relations Amendment Act 2010 (2010 No 125). 212 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 153 152 Mediation services not to be questioned as being inappropriate (1) No mediation services may be challenged or called in question in any proceed‐ ings 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 and 150 prevents any agreed terms of settlement signed under section 149 or any decision made and signed under section 150 from being challenged or called in question on the ground that,— (a) in the case of terms signed under section 149, the provisions of subsec‐ tions (2) and (3) of that section (which relate to knowledge about the effect of a settlement) were not complied with; and (b) in the case of a decision made and signed under section 150, the provi‐ sions of subsections (2) and (3) of that section (which relate to know‐ ledge about the effect of conferring decision-making power on the per‐ son providing mediation services) were not complied with. 153 Independence of mediation personnel (1) The chief executive must ensure that any person employed or engaged to pro‐ vide 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 man‐ ner 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 medi‐ ation services may— (a) hold office, at the same time, as a member of the Authority; or 213 Reprinted as at Part 10 s 154 Employment Relations Act 2000 1 July 2021 (b) be employed, at the same time, to staff or support— (i) the Authority under section 185; or (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. Compare: 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 applies in respect of that submission; and (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 Author‐ ity. 157 Role of Authority (1) The Authority is an investigative body that has the role of resolving employ‐ ment relationship problems by establishing the facts and making a determin‐ ation according to the substantial merits of the case, without regard to techni‐ calities. (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) [Repealed] 214 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 159 (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, on 1 April 2011, by section 26 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 157(3): substituted, on 1 April 2011, by section 26 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 Author‐ ity— (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 circum‐ stances; 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) [Repealed] (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. 215 Reprinted as at Part 10 s 159AA Employment Relations Act 2000 1 July 2021

Section 159(1)(b)(iii): amended, on 1 April 2011, by section 27(1) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 159(1)(b)(iv): added, on 1 April 2011, by section 27(1) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 159(1A): repealed, on 1 April 2016, by section 21(1) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 159(3): inserted, on 1 April 2016, by section 21(2) of the Employment Relations Amendment Act 2016 (2016 No 9). 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 consid‐ ering 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), mediation is appropriate.

Section 159AA: inserted, on 1 April 2016, by section 22 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 medi‐ ation. (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) or (1A). (3) Despite subsection (2), the Authority may give priority to proceedings referred to in section 161(1)(la) over other matters, even if no attempt has been made to resolve the subject matter of those proceedings by mediation.

Section 159A: inserted, on 1 April 2011, by section 28 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 159A(3): inserted, on 6 March 2015, by section 65 of the Employment Relations Amendment Act 2014 (2014 No 61). 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 per‐ son: 216 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 161 (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 an investigation meeting: (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, on 1 December 2004, by section 54 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 160(2A): inserted, on 1 April 2011, by section 29(1) of the Employment Relations Amend‐ ment Act 2010 (2010 No 125).

Section 160(4): added, on 1 April 2011, by section 29(2) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 160(4): amended, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48). 161 Jurisdiction (1) The Authority has exclusive jurisdiction to make determinations about employ‐ ment relationship problems generally, including— (a) disputes about the interpretation, application, or operation of an employ‐ ment 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) [Repealed] (cc) [Repealed] (d) matters alleged to arise under section 68 because a party to an individual employment agreement has bargained unfairly: 217 Reprinted as at Part 10 s 161 Employment Relations Act 2000 1 July 2021 (daa) determining whether an employer has complied with section 69AAE: (dab) determining whether an employer has complied with section 69ABE (including, without limitation, whether the employer has avoided non- compliance with section 69ABE, as that term is defined in section 69ABA): (da) investigating bargaining under section 69O and, if necessary, determin‐ ing redundancy entitlements under that section: (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) [Repealed] (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 of the Equal Pay Act 1972: (iii) under section 76 of the Holidays Act 2003: (iiia) under section 25 of the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016: (iv) under section 10 of the Minimum Wage Act 1983: (v) under section 13 of the Wages Protection Act 1983: (n) compliance orders under section 137: 218 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 161 (o) objections under section 225 to demand notices: (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 of the Patents Act 2013: (qc) determining whether an employer has complied with section 30D of the Parental Leave and Employment Protection Act 1987: (qd) all matters arising under the Equal Pay Act 1972 and, in particular,— (i) determining equal pay claims and unlawful discrimination claims: (ii) determining disputes as to whether a pay equity claim is arguable: (iii) determining disputes as to whether work is comparable work for the purpose of assessing a pay equity claim: (iv) determining disputes as to whether work is in fact undervalued: (v) fixing remuneration that is consistent with pay equity under that Act: (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 of that Act: (vii) determining whether to provide for recovery of an amount of remuneration for past work, and the amount to provide, under sec‐ tion 13ZZD of that Act: (viii) determining the applicable start date for the purposes of section 13ZZE of that Act: (r) any other action (being an action that is not directly within the jurisdic‐ tion 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), (d), (da), (f), and (qd), the Authority does not have jurisdiction to make a determination about any matter relating to— (a) bargaining; or (b) the fixing of new terms and conditions of employment. 219 Reprinted as at Part 10 s 161 Employment Relations Act 2000 1 July 2021 (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. Compare: 1991 No 22 s 79(1)(b)–(g), (j)

Section 161(1)(ca): inserted, on 1 December 2004, by section 55(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 161(1)(cb): inserted, on 1 December 2004, by section 55(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 161(1)(cba): repealed, on 12 December 2018, by section 35(1) of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 161(1)(cc): repealed, on 1 April 2019, by section 14(1) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 161(1)(daa): inserted, on 1 April 2019, by section 14(2) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 161(1)(dab): inserted, on 1 April 2019, by section 14(2) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 161(1)(da): inserted, on 1 December 2004, by section 55(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 161(1)(da): amended, on 14 September 2006, by section 10 of the Employment Relations Amendment Act 2006 (2006 No 41).

Section 161(1)(ea): inserted, on 27 June 2020, by section 10 of the Employment Relations (Triangu‐ lar Employment) Amendment Act 2019 (LI 2019 No 36).

Section 161(1)(ga): inserted, on 6 March 2015, by section 66(2) of the Employment Relations Amendment Act 2014 (2014 No 61).

Section 161(1)(la): repealed, on 12 December 2018, by section 35(1) of the Employment Relations Amendment Act 2018 (2018 No 53).

Section 161(1)(m)(iia): inserted, on 1 July 2017, by section 20(3) of the Care and Support Workers (Pay Equity) Settlement Act 2017 (2017 No 24).

Section 161(1)(m)(iia): amended, on 7 August 2020, by section 23(2)(b) of the Support Workers (Pay Equity) Settlements Amendment Act 2020 (2020 No 50).

Section 161(1)(m)(iib): inserted, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45).

Section 161(1)(m)(iii): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 161(1)(m)(iiia): inserted, on 25 February 2016, by section 31(3) of the Home and Commu‐ nity Support (Payment for Travel Between Clients) Settlement Act 2016 (2016 No 2).

Section 161(1)(qa): inserted, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 161(1)(qb): inserted, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 161(1)(qc): inserted, on 1 April 2016, by section 83 of the Parental Leave and Employment Protection Amendment Act 2016 (2016 No 8).

Section 161(1)(qd): inserted, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45).

Section 161(2): amended, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45).

Section 161(2): amended, on 12 December 2018, by section 35(2) of the Employment Relations Amendment Act 2018 (2018 No 53). 220 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 164

Section 161(2): amended, on 1 December 2004, by section 55(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 162 Application of law relating to contracts Subject to sections 163 and 164, the Authority may, in any matter related to an employment agreement, make any order that the High Court or the District Court may make under any enactment or rule of law relating to contracts, including— (a) Part 2 of the Contract and Commercial Law Act 2017: (b) the Fair Trading Act 1986. (c) [Repealed] (d) [Repealed] (e) [Repealed] (f) [Repealed] (g) [Repealed] Compare: 1991 No 22 s 104(1)(h)

Section 162: amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Section 162(a): replaced, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 162(b): replaced, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 162(c): repealed, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 162(d): repealed, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 162(e): repealed, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 162(f): repealed, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).

Section 162(g): repealed, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5). 163 Restriction on Authority’s power in relation to collective agreements The Authority may not, under section 162 or any other provision of this Act, make in respect of a collective agreement an order cancelling or varying the agreement or any term of the agreement. Compare: 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) or section 162, the power to make an order cancelling or varying an individual employment agreement or any term of such an agreement, the Authority may make such an order only if— 221 Reprinted as at Part 10 s 165 Employment Relations Act 2000 1 July 2021 (a) the Authority (whether or not it gave any direction under section 159(1)(b) in relation to the matter)— (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. Compare: 1991 No 22 s 104(2) 165 Other provisions relating to investigations of Authority The provisions of Schedule 2 have effect in relation to the Authority and mat‐ ters within its jurisdiction. 166 Membership of Authority (1) The Authority consists of— (a) 1 member who is to be appointed as the Chief of the Employment Rela‐ tions 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) [Repealed] Compare: 1991 No 22 s 81(1), (2)

Section 166(3): repealed, on 1 April 2011, by section 30 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 mem‐ bers 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 222 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 166B 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), the Chief of the Authority may provide a report to the Minister in respect of any member of the Authority in regard to the member’s adherence to and compliance with any instructions issued under subsection (2)(a).

Section 166A: inserted, on 1 April 2011, by section 31 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 exer‐ cise 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, on 6 March 2015, by section 67 of the Employment Relations Amendment Act 2014 (2014 No 61). 223 Reprinted as at Part 10 s 167 Employment Relations Act 2000 1 July 2021 167 Appointment of members Each member of the Authority is to be appointed by the Governor-General on the recommendation of the Minister. Compare: 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 impar‐ tially perform his or her duties as a member of the Authority. Compare: 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, the Minister must, if the Chief of the Authority has provided a report in respect of the member under section 166A(3), consider that report. Compare: 1991 No 22 s 83

Section 169(3): added, on 1 April 2011, by section 32 of the Employment Relations Amendment Act 2010 (2010 No 125). 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, adjudged bankrupt. (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. Compare: 1991 No 22 s 84

Section 170(2): amended, on 3 December 2007, by section 445 of the Insolvency Act 2006 (2006 No 55). 171 Salaries and allowances (1) There is to be paid to each member of the Authority, out of public money, with‐ out further appropriation than this section,— (a) a salary at such rate or in accordance with such scale of rates as the Remuneration Authority from time to time determines; and (b) subject to subsection (2), such allowances as are from time to time deter‐ mined by the Remuneration Authority. 224 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 172A (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; and the provisions of that Act apply accordingly as if the member were a member of a statutory board and the travelling were in the service of a statutory board. (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, the rate of salary and the allowances determined may be higher than those for the other members of the Authority. (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. Compare: 1991 No 22 s 86(1)–(3)

Section 171(1)(a): amended, on 1 April 2003, by section 4(1) of the Remuneration Authority (Mem‐ bers of Parliament) Amendment Act 2002 (2002 No 54).

Section 171(1)(b): amended, on 1 April 2003, by section 4(1) of the Remuneration Authority (Mem‐ bers of Parliament) Amendment Act 2002 (2002 No 54).

Section 171(3): amended, on 13 January 2020, by section 4 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63). 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 to a member of the Author‐ ity, as the Governor-General directs; and (b) the allowances to which that person would be entitled if that person held office under section 166(1). Compare: 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 of the Intelligence and Security Act 2017 about whether an individual should be granted a security clearance; and 225 Reprinted as at Part 10 s 173 Employment Relations Act 2000 1 July 2021 (b) a report on the recommendation has not previously been prepared by the Inspector-General of Intelligence and Security under section 185 of that Act. (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 docu‐ ments 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 means the Inspector-General of Intelligence and Security holding office under section 157 of the Intelligence and Security Act 2017 New Zealand Security Intelligence Service means the New Zealand Security Intelligence Service continued by section 7 of the Intelligence and Security Act 2017.

Section 172A: inserted, on 28 September 2017, by section 264 of the Intelligence and Security Act 2017 (2017 No 10). 173 Procedure (1) The Authority, in exercising its powers and performing its functions, must— (a) comply with the principles of natural justice; and (b) act in a manner that is reasonable, having regard to its investigative role. (2) The Authority may exercise its powers under section 160 in the absence of 1 or more of the parties. (3) However, if the Authority acts under subsection (2), the Authority must pro‐ vide 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. 226 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 173A (4) To avoid doubt, subsections (2) and (3) do not limit the powers of the Authority to make ex parte orders (except a freezing order or search order as provided for in the 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, on 1 April 2011, by section 33 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 173(4): amended, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48). 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 mem‐ ber 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 investi‐ gated 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. 227 Reprinted as at Part 10 s 174 Employment Relations Act 2000 1 July 2021 (6) However, a recommendation under subsection (5) need not comply with sec‐ tion 174E(a) (which relates to the content of a determination made by the Authority).

Section 173A: inserted, on 1 April 2011, by section 33 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 173A(6): amended, on 6 March 2015, by section 68 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 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, on 6 March 2015, by section 69 of the Employment Relations Amendment Act 2014 (2014 No 61). 174A Oral determinations (1) If the Authority gives an oral determination under section 174(a), it must— (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 practic‐ able and not later than 1 month after the date on which the investigation meet‐ ing 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 cir‐ cumstances exist. (4) The Authority may amend an oral determination when it is recorded under sub‐ section (2) if it is necessary to correct a mistake caused by an error or omission in the determination.

Section 174A: inserted, on 6 March 2015, by section 69 of the Employment Relations Amendment Act 2014 (2014 No 61). 174B Oral indication of preliminary findings (1) If the Authority gives an oral indication of its preliminary findings under sec‐ tion 174(b), it— (a) must— 228 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 174C (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 con‐ clusions; and (b) may express the oral indication of its preliminary findings as being sub‐ ject 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 prac‐ ticable and not later than the later of the following dates: (a) the day that is 3 months after the date on which the investigation meet‐ ing 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, on 6 March 2015, by section 69 of the Employment Relations Amendment Act 2014 (2014 No 61). 174C Authority may reserve determination (1) Despite section 174, the Authority may reserve its determination of a matter if it is satisfied that there are good reasons as to why it is not practicable for it to provide an oral determination or an oral indication of its preliminary findings at the conclusion of the investigation meeting. (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 fur‐ ther 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 meet‐ ing 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. 229 Reprinted as at Part 10 s 174D Employment Relations Act 2000 1 July 2021 (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, on 6 March 2015, by section 69 of the Employment Relations Amendment Act 2014 (2014 No 61). 174D Authority may determine matter without holding investigation meeting (1) Despite sections 174 and 174C, the Authority may determine a matter without holding an investigation meeting. (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, on 6 March 2015, by section 69 of the Employment Relations Amendment Act 2014 (2014 No 61). 174E Content of written determinations A written determination provided by the Authority in accordance with section 174A(2), 174B(2), 174C(3), or 174D(2)— (a) must— (i) state relevant findings of fact; and (ii) state and explain its findings on relevant issues of law; and (iii) express its conclusions on the matters or issues it considers require determination in order to dispose of the matter; and (iv) specify what orders (if any) it is making; but (b) need not— (i) set out a record of all or any of the evidence heard or received; or (ii) record or summarise any submissions made by the parties; or (iii) indicate why it made, or did not make, specific findings as to the credibility of any evidence or person; or (iv) record the process followed in investigating and determining the matter.

Section 174E: inserted, on 6 March 2015, by section 69 of the Employment Relations Amendment Act 2014 (2014 No 61). 230 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 178 175 Seal of Authority The Authority is to have a seal, which is to be judicially noticed by all courts and for all purposes. Compare: 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 of the Just‐ ices of the Peace Act 1957. (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. Compare: 1991 No 22 s 92

Section 176(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81). 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 ques‐ tion. (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 fol‐ lowing, 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. Compare: 1991 No 22 s 93

Section 177(4): added, on 1 December 2004, by section 57 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 178 Removal to court (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— 231 Reprinted as at Part 10 s 178A Employment Relations Act 2000 1 July 2021 (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 sub‐ section (1), or a part of it, to the court, the party applying for the removal may seek the special leave of the court for an order of the court that the matter or part be removed to the court, and in any such case the court must apply the cri‐ teria set out in paragraphs (a) to (c) of subsection (2). (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. Compare: 1991 No 22 s 94

Section 178(1): substituted, on 1 April 2011, by section 34(1) of the Employment Relations Amend‐ ment Act 2010 (2010 No 125).

Section 178(3): amended, on 1 April 2011, by section 34(2) of the Employment Relations Amend‐ ment Act 2010 (2010 No 125).

Section 178(6): added, on 1 December 2004, by section 58 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 178A Challenge in respect of dismissal of frivolous or vexatious proceedings (1) A party to a matter before the Authority that was dismissed because the Authority determined it was frivolous or vexatious under clause 12A of Sched‐ ule 2 may challenge that determination in the court. (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. 232 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 179 (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, on 1 April 2011, by section 35 of the Employment Relations Amendment Act 2010 (2010 No 125). 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), or 174D(2) (or any part of that determination) may elect to have the matter heard by the court. (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 hear‐ ing 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, the election must specify, in addition to the matters specified in subsection (3),— (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 spe‐ cified 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); and (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 determin‐ ation, about whether the Authority may follow or adopt a particular pro‐ cedure. Compare: 1991 No 22 s 95(1), (2)

Section 179(1): replaced, on 6 March 2015, by section 70(1) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 179(2): replaced, on 6 March 2015, by section 70(1) of the Employment Relations Amend‐ ment Act 2014 (2014 No 61).

Section 179(5): added, on 1 December 2004, by section 59 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 233 Reprinted as at Part 10 s 179A Employment Relations Act 2000 1 July 2021

Section 179(5)(aa): inserted, on 6 March 2015, by section 70(2) of the Employment Relations Amendment Act 2014 (2014 No 61). 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; or (b) under section 50J. (2) A party may not elect, under section 179(1), to have the matter heard by the court unless the matter is whether 1 or more of the grounds in section 50C(1) or section 50J(3) exist.

Section 179A: inserted, on 1 December 2004, by section 60 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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 if the question of law arises during an investigation of the Authority under Part 6AA or 6AB. (3) No matter, or part of a matter, may be removed to the court under section 178 if the matter, or the part of the matter, arises under Part 6AA or 6AB. (4) No party who is dissatisfied with a determination, or any part of a determin‐ ation, of the Authority under Part 6AA or 6AB may elect, under section 179, to have the matter heard by the court.

Section 179B: inserted, on 1 July 2008, by section 7 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Section 179B heading: amended, on 1 April 2019, by section 15(1) of the Domestic Violence—Vic‐ tims’ Protection Act 2018 (2018 No 21).

Section 179B(1): amended, on 1 April 2019, by section 15(2) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 179B(2): amended, on 1 April 2019, by section 15(2) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 179B(3): amended, on 1 April 2019, by section 15(2) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21).

Section 179B(4): amended, on 1 April 2019, by section 15(2) of the Domestic Violence—Victims’ Protection Act 2018 (2018 No 21). 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 of the Parental Leave and Employment Protection Act 1987 for a determination as to whether the employer has complied with section 30D of that Act. 234 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 181 (2) The Authority may not refer a question of law to the court under section 177 if the question of law arises during an investigation of the Authority into a refer‐ ence referred to in subsection (1). (3) No matter, or part of a matter, may be removed to the court under section 178 if the matter, or the part of the matter, arises during an investigation of the Authority into a reference referred to in subsection (1). (4) No party who is dissatisfied with a determination, or any part of a determin‐ ation, of the Authority of a reference referred to in subsection (1) may elect, under section 179, to have the matter heard by the court.

Section 179C: inserted, on 1 April 2016, by section 83 of the Parental Leave and Employment Pro‐ tection Amendment Act 2016 (2016 No 8). 180 Election not to operate as stay The making of an election under section 179 does not operate as a stay of pro‐ ceedings on the determination of the Authority unless the court, or the Author‐ ity, so orders. 181 Report in relation to good faith (1) Where the election states that the person making the election is seeking a hear‐ ing de novo, the Authority must, if the court so requests, as soon as practicable, submit to the court a written report giving the Authority’s assessment of the extent to which the parties involved in the investigation have— (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 con‐ siders, on the basis of the determination made by the Authority under section 174A(2), 174B(2), 174C(3), or 174D(2), that any party may not have partici‐ pated in the Authority’s investigation of the matter in a manner that was designed to resolve the issues involved. (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, on 6 March 2015, by section 71 of the Employment Relations Amendment Act 2014 (2014 No 61). 235 Reprinted as at Part 10 s 182 Employment Relations Act 2000 1 July 2021 182 Hearings (1) Where the election states that the person making the election is seeking a hear‐ ing de novo, the hearing held pursuant to that election is to be a hearing de novo unless the parties agree otherwise or the court otherwise directs. (2) The court may give a direction under subsection (1) only if— (a) it has requested a report under section 181(1); and (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 to have that matter heard by the court, the court must make its own decision on that matter and any relevant issues. (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. Compare: 1991 No 22 s 95(4)–(7)

Section 183(2): added, on 1 December 2004, by section 61 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 183(3): added, on 1 December 2004, by section 61 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 184 Restriction on review (1) Except on the ground of lack of jurisdiction or as provided in section 179, no determination, order, or proceedings of the Authority are removable to any court by way of certiorari or otherwise, or are liable to be challenged, appealed against, reviewed, quashed, or called in question in any court. (1A) No review proceedings under section 194 may be initiated in relation to any matter before the Authority unless— 236 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 186 (a) the Authority has issued a determination under section 174A(2), 174B(2), 174C(3), or 174D(2) (as the case may be) on all matters relat‐ ing to the subject of the review application between the parties to the matter; and (b) (if applicable) the party initiating the review proceedings has challenged the determination under section 179; and (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 jurisdic‐ tion only where,— (a) in the narrow and original sense of the term jurisdiction, it has no entitle‐ ment 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, on 1 December 2004, by section 62 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 184(1A)(a): amended, on 6 March 2015, by section 72 of the Employment Relations Amend‐ ment Act 2014 (2014 No 61). 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 direc‐ tion of the chief executive. (3) The department is to provide such other employees as may be required to pro‐ vide 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), any employee designated under subsection (1) or provided to the Authority under subsection (3) may also hold any other office or position in the department. Compare: 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. 237 Reprinted as at Part 10 s 187 Employment Relations Act 2000 1 July 2021 (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. Compare: 1991 No 22 s 103 187 Jurisdiction of court (1) The court has exclusive jurisdiction— (a) to hear and determine elections under section 179 for a hearing of a matter previously determined by the Authority, whether under this Act or any other Act conferring jurisdiction on the Authority: (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: (f) to hear and determine, under section 6(5), any question whether any per‐ son is to be declared to be— (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 speci‐ fied 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. 238 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 188 (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. Compare: 1991 No 22 s 104(1)(a), (c), (d), (e), (j), (l), (m), (n), (o)

Section 187(1)(ga): inserted, on 1 April 2016, by section 23 of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 187(1)(ka): inserted, on 1 March 2017, by section 5 of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62). 188 Role in relation to jurisdiction (1) The general role of the court in relation to its jurisdiction is to hear and deter‐ mine 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. 239 Reprinted as at Part 10 s 188A Employment Relations Act 2000 1 July 2021

Section 188(4): substituted, on 1 December 2004, by section 63 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 188(5): inserted, on 1 April 2016, by section 24 of the Employment Relations Amendment Act 2016 (2016 No 9). 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, or 142M, the court must not give a direction that the parties use mediation or further mediation. (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, or 142M), the court may give a direction to use mediation or further mediation, but only if— (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 sec‐ tion 3(ab), mediation is appropriate.

Section 188A: inserted, on 1 April 2016, by section 25 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 agree‐ ment 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. Compare: 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 and 164. (2) For the purposes of subsection (1), sections 162 and 164 apply, in relation to the court,— (a) as if, for the word “Authority”, there were substituted the word “court”; and 240 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 193 (b) as if, for the word “member”, there were substituted the word “Judge”; and (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 provi‐ ded for in the High Court Rules 2016.

Section 190(3): added, on 1 April 2011, by section 36 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 190(3): amended, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48). 191 Other provisions relating to proceedings of court The provisions of Schedule 3 have effect in relation to the court and matters within its jurisdiction. 192 Application to collective agreements of law relating to contracts (1) The court may not, under section 162 (as applied by section 190(1)), make in respect of a collective agreement an order cancelling or varying the agreement or any term of the agreement. (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 bargain‐ ing 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 para‐ graph (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. Compare: 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, and 218, no decision, order, or proceedings of the court are remova‐ ble to any court by certiorari or otherwise, or are liable to be challenged, appealed against, reviewed, quashed, or called in question in any court. 241 Reprinted as at Part 10 s 194 Employment Relations Act 2000 1 July 2021 (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 entitle‐ ment 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. Compare: 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, or bring proceedings seeking a writ or order of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction, in relation to the exercise, refusal to exercise, or proposed or purported exercise by— (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 of the Judicial Review Procedure Act 2016) conferred by or under this Act or any of the provisions of sections 17 to 21, subpart 4 of Part 3, Part 4, and clauses 1 to 5 and 7 to 11 of Schedule 8 of the Public Service Act 2020 or subpart 4 of Part 6 of the Education and Training Act 2020, the provisions of subsections (2) to (4) of this section apply. (2) Despite any other Act or rule of law, but subject to section 184(1A), the court has full and exclusive jurisdiction to hear and determine any application or pro‐ ceedings of the type referred to in subsection (1) and all such applications or proceedings must be made to or brought in the court. (3) Where a right of appeal (which includes, for the purposes of this subsection, the right to make an election under section 179) is conferred on any person under this Act or the Public Service Act 2020 or the Education and Training Act 2020 in respect of any matter, that person may not make an application under subsection (1) in respect of that matter unless any appeal brought by that person in the exercise of that right of appeal has first been determined. (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 242 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 195 particular case under this section as the Judge deems expedient having regard to the exigencies of the case and the interests of justice. Compare: 1991 No 22 s 105

Section 194(1): amended, on 7 August 2020, by section 135 of the Public Service Act 2020 (2020 No 40).

Section 194(1): amended, on 1 August 2020, by section 668 of the Education and Training Act 2020 (2020 No 38).

Section 194(1): amended, on 1 March 2017, by section 24 of the Judicial Review Procedure Act 2016 (2016 No 50).

Section 194(2): amended, on 1 December 2004, by section 64 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 194(3): amended, on 7 August 2020, by section 135 of the Public Service Act 2020 (2020 No 40).

Section 194(3): amended, on 1 August 2020, by section 668 of the Education and Training Act 2020 (2020 No 38). 194A Application for review by certain employees (1) This section applies to any exercise, refusal to exercise, or proposed or purpor‐ ted 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 employ‐ ment 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, on 1 December 2004, by section 65 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86). 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 wit‐ ness,— (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, hav‐ ing been sworn, refuses to answer any question that the person is law‐ fully 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 243 Reprinted as at Part 10 s 196 Employment Relations Act 2000 1 July 2021 clause 6 of Schedule 2 the amount fixed under subclause (3) of that clause or in accordance with clause 7 of Schedule 3 the amount fixed under subclause (3) of that clause. Compare: 1991 No 22 s 127 196 Application of Contempt of Court Act 2019 (1) Subparts 2 and 4 of Part 2 and sections 25 and 26(1) and (2) of the Contempt of Court Act 2019 apply with the necessary modifications to proceedings of the Employment Court and the Employment Relations Authority. (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 Employ‐ ment Court; and (c) references to an officer of the court include an officer of the Employ‐ ment 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, on 26 August 2020, by section 29 of the Contempt of Court Act 2019 (2019 No 44). 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. Compare: 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. 244 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 200 (2) Subject to section 153(6), an employee designated under subsection (1) may also hold any other office or position in the Authority or the department. Compare: 1991 No 22 s 111 198A Registrar may take affidavit A Registrar may take an affidavit.

Section 198A: inserted, on 1 March 2017, by section 7 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 199 Seal of court The court is to have a seal, which is to be judicially noticed by all courts and for all purposes. Compare: 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 certifi‐ cate 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. 245 Reprinted as at Part 10 s 200AA Employment Relations Act 2000 1 July 2021 (5) A Judge must not practise as a lawyer. Compare: 1991 No 22 s 113(1), (2), (8)

Section 200(2): replaced, on 1 March 2017, by section 8(1) of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 200(4): replaced, on 1 March 2017, by section 8(2) of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 200(5): inserted, on 1 March 2017, by section 8(2) of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 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 satis‐ fied 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 per‐ mits or requires the office to be held by a Judge.

Section 200AA: inserted, on 1 March 2017, by section 9 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 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 con‐ sistent 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, on 1 March 2017, by section 9 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 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 to act on a part-time basis for any specified period. (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— 246 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 202 (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 sub‐ section 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 frac‐ tion of 1.

Section 200A: inserted, on 20 May 2004, by section 4 of the Employment Relations Amendment Act 2004 (2004 No 43). 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 appoint‐ ments 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, fail‐ ing any such assignment, according to the order in which they take the judicial oath. (3) Every permanent Judge has seniority over every acting Judge. Compare: 1991 No 22 s 113(7)

Section 201(3): amended, on 1 March 2017, by section 10 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 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 Zea‐ land 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 exe‐ 247 Reprinted as at Part 10 s 203 Employment Relations Act 2000 1 July 2021 cute the duties of that office and to exercise all powers that may be lawfully exercised by the Chief Judge. Compare: 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 Representa‐ tives. (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. Compare: 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 years. Compare: 1991 No 22 s 113(6)

Section 205: amended, on 6 March 2007, by section 4 of the Employment Relations Amendment Act 2007 (2007 No 2). 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 from time to time determines; and (b) such allowances as are from time to time determined by the Remuner‐ ation Authority; and (c) such additional allowances, being travelling allowances or other inciden‐ tal 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 sal‐ ary 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. 248 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 207 (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. Compare: 1991 No 22 s 115

Section 206(1)(a): amended, on 1 April 2003, by section 4(1) of the Remuneration Authority (Mem‐ bers of Parliament) Amendment Act 2002 (2002 No 54).

Section 206(1)(b): amended, on 1 April 2003, by section 4(1) of the Remuneration Authority (Mem‐ bers of Parliament) Amendment Act 2002 (2002 No 54).

Section 206(3A): inserted, on 20 May 2004, by section 5 of the Employment Relations Amendment Act 2004 (2004 No 43).

Section 206(3B): inserted, on 20 May 2004, by section 5 of the Employment Relations Amendment Act 2004 (2004 No 43). 207 Appointment of acting Judges (1) The Governor-General may from time to time, whenever in the Governor-Gen‐ eral’s opinion it is necessary or expedient to make a temporary appointment, appoint 1 or more acting Judges of the court to hold office for such period as is specified in the warrant of appointment. (2) The period so specified may not exceed 2 years or, in the case of a person who has attained the age of 70 years, 12 months; but any person appointed under this section may from time to time be reappointed. (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 of the KiwiSaver Act 2006. (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 sec‐ tion 200 or this section. (6) Every Judge appointed under this section is to be paid— 249 Reprinted as at Part 10 s 208 Employment Relations Act 2000 1 July 2021 (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 limits the provisions of sub‐ section (6). Compare: 1991 No 22 s 116

Section 207 heading: amended, on 1 March 2017, by section 11(1) of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62).

Section 207(1): amended, on 1 March 2017, by section 11(2) of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 207(2): amended, on 6 March 2007, by section 5(1) of the Employment Relations Amend‐ ment Act 2007 (2007 No 2).

Section 207(4): replaced, on 1 March 2017, by section 11(3) of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 207(4A): inserted, on 1 March 2017, by section 11(3) of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 207(4B): inserted, on 1 March 2017, by section 11(3) of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 207(7): amended, on 1 April 2003, by section 4(1) of the Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54). 208 Sittings (1) Subject to section 209, the jurisdiction of the court is to be exercised by a Judge sitting alone. (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. Compare: 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. Compare: 1991 No 22 s 119 250 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 212 210 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 ques‐ tion, 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 opin‐ ion, 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. Compare: 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 ques‐ tion of law arising in the matter, excluding any question as to the construction of any employment agreement. Compare: 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 (jurisdiction of court in relation to torts); and (b) section 100 (jurisdiction of court in relation to injunctions); and (c) section 194 (application for review),— 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 modifica‐ tions. (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 (declarations of breach); and (b) section 142E (pecuniary penalty orders); and (c) section 142J (compensation orders); and 251 Reprinted as at Part 10 s 213 Employment Relations Act 2000 1 July 2021 (d) section 142M (banning orders),— 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. Compare: 1991 No 22 s 130

Section 212(3): inserted, on 1 April 2016, by section 26 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 or bring proceed‐ ings seeking a writ or order of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or an injunction, the provisions of subsections (2) to (4) apply. (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 prescrib‐ ing 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. Compare: 1991 No 22 s 131

Section 213(1): amended, on 1 March 2017, by section 24 of the Judicial Review Procedure Act 2016 (2016 No 50). Appeals 214 Appeals on question of law (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 of the Senior Courts Act 2016 applies to any such appeal. (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. 252 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 214AA (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) [Repealed] Compare: 1991 No 22 s 135

Section 214 heading: amended, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

Section 214(1): substituted, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

Section 214(1): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).

Section 214(7): repealed, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53). 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 who is dissatisfied with the decision of the court may appeal to the Court of Appeal against the decision on a question of fact or law, or both. (2) An appeal under subsection (1) does not require the leave of the Court of Appeal. (3) Section 56 of the Senior Courts Act 2016 applies to an appeal under subsection (1). (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, on 1 April 2016, by section 27 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 214AA(3): amended, on 1 March 2017, by section 27 of the Employment Relations Amend‐ ment Act 2016 (2016 No 9). 253 Reprinted as at Part 10 s 214A Employment Relations Act 2000 1 July 2021 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 of the Senior Courts Act 2016 (which pro‐ vides that the Supreme Court must not give leave to appeal directly to it against a decision made in a court other than the Court of Appeal unless it is satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court).

Section 214A: inserted, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

Section 214A(4): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48). 215 Court of Appeal may refer appeals back for reconsideration (1) Despite anything in section 214, the Court of Appeal may in any case, instead of determining an appeal under that section, direct the court to reconsider, either generally or in respect of any specified matters, the whole or any speci‐ fied part of the matter to which the appeal relates. (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). Compare: 1991 No 22 s 136 254 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 218 Special provision in respect of appeals 216 Obligation to have regard to special jurisdiction of court In determining an appeal under section 214 or section 218, the Court of Appeal must have regard to— (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, and 221. Compare: 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 per‐ son be taken into custody until the rising of the court) has been made under section 140(6) or section 196, may appeal to the Court of Appeal against the order as if that person were a defendant who had been convicted on a charge and sentenced by the High Court. (2) Subsection (1) does not apply to an offence under section 142R, but the Crim‐ inal Procedure Act 2011 applies to that offence. Compare: 1991 No 22 s 133

Section 217(1): amended, on 1 April 2016, by section 28(1) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9).

Section 217(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 217(2): inserted, on 1 April 2016, by section 28(2) of the Employment Relations Amendment Act 2016 (2016 No 9). 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 who is dissatisfied with any final or interlocutory order in respect of the appli‐ cation may appeal to the Court of Appeal; and section 56 of the Senior Courts Act 2016 applies to any such appeal. Compare: 1991 No 22 s 134

Section 218: amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48). 255 Reprinted as at Part 10 s 219 Employment Relations Act 2000 1 July 2021 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 inter‐ ested, 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. Compare: 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 Author‐ ity, or of a Judge, or of the Registrar of the court, or of an officer of the Author‐ ity 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. Compare: 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 effec‐ tually 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), extend the time within which anything is to or may be done; and (d) generally give such directions as are necessary or expedient in the cir‐ cumstances. Compare: 1991 No 22 s 140 256 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 10 s 222C 222 Application of Official Information Act 1982 Nothing in the Official Information Act 1982 applies to any information held by the department or the Authority or the court in relation to any proceedings brought before the Authority or the court. Compare: 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, on 1 March 2017, by section 12 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 222B Recusal guidelines The Chief Judge must, in consultation with the Chief Justice, develop and pub‐ lish guidelines to assist Judges to decide if they should recuse themselves from a proceeding.

Section 222B: inserted, on 1 March 2017, by section 12 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 222C Judge may make order restricting commencement or continuation of proceeding (1) A Judge may make an order restricting a person from commencing or continu‐ ing civil proceedings in the Employment Court. (2) The order may have— (a) a limited effect (a limited order); or (b) an extended effect (an extended order). (3) A limited order restrains a party from commencing or continuing civil proceed‐ ings on a particular matter in the Employment Court. (4) An extended order restrains a party from commencing or continuing civil pro‐ ceedings 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 pro‐ ceedings.

Section 222C: inserted, on 1 March 2017, by section 12 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 257 Reprinted as at Part 10 s 222D Employment Relations Act 2000 1 July 2021 222D Grounds for making section 222C order (1) A Judge may make a limited order under section 222C if, in civil proceedings about the same matter in the court, the Judge considers that at least 2 or more of the proceedings are or were totally without merit. (2) A Judge may make an extended order under section 222C if, in at least 2 pro‐ ceedings about any matter considered by the court, the Judge considers that the proceedings are or were totally without merit. (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 consider‐ ations. (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 and 222F, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct pro‐ ceeding.

Section 222D: inserted, on 1 March 2017, by section 12 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 222E Terms of section 222C order (1) An order made under section 222C may restrain a party from commencing or continuing any civil proceeding (whether generally or against any particular person or persons) of any type specified in the order without first obtaining the leave of the court. (2) An order made under section 222C, whether limited or extended, has effect for a period of up to 3 years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed 5 years) if he or she is satisfied that there are exceptional circumstances justifying the longer period.

Section 222E: inserted, on 1 March 2017, by section 12 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 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 (a section 222C order) either on an application under subsection (1) or on his or her own initiative. (3) An application for leave to continue or commence a civil proceeding by a party subject to a section 222C order may be made without notice, but the court may direct that the application for leave be served on any specified person. (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 excep‐ tional 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. 258 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 223AAA (6) The party against whom a section 222C order is made may appeal against the order to the Court of Appeal. (7) The appellant in an appeal under subsection (6) or the applicant for the section 222C order concerned may, with the leave of the Supreme Court, appeal against the determination of that appeal to the Supreme Court. (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, on 1 March 2017, by section 12 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). Part 11 General provisions Chief executive Heading: inserted, on 1 April 2016, by section 29 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 relation‐ ships, including the rights and obligations of employees, employ‐ ers, 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); and (c) to perform any other functions and duties conferred on the chief execu‐ tive by or under the Acts specified in section 223(1).

Section 223AAA: inserted, on 1 April 2016, by section 29 of the Employment Relations Amendment Act 2016 (2016 No 9). 259 Reprinted as at Part 11 s 223 Employment Relations Act 2000 1 July 2021 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; and (b) the Equal Pay Act 1972; and (c) the Holidays Act 2003; and (ca) the Home and Community Support (Payment for Travel Between Cli‐ ents) Settlement Act 2016; and (d) the Minimum Wage Act 1983; and (da) the Parental Leave and Employment Protection Act 1987; and (e) the Volunteers Employment Protection Act 1973; and (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. Compare: 1991 No 22 s 143

Section 223(1)(ab): inserted, on 1 July 2017, by section 20(4) of the Care and Support Workers (Pay Equity) Settlement Act 2017 (2017 No 24).

Section 223(1)(ab): amended, on 7 August 2020, by section 23(2)(c) of the Support Workers (Pay Equity) Settlements Amendment Act 2020 (2020 No 50).

Section 223(1)(c): substituted, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 223(1)(ca): inserted, on 25 February 2016, by section 31(4) of the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 (2016 No 2).

Section 223(1)(da): inserted, on 1 July 2002, by section 6 of the Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 (2002 No 7). 223A Functions of Labour Inspector The functions of a Labour Inspector include— (a) determining whether the provisions of the relevant Acts have been com‐ plied 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) [Repealed] 260 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 223C

Section 223A: inserted, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 223A(c): replaced, on 1 April 2016, by section 30 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 223A(d): replaced, on 1 April 2016, by section 30 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 223A(e): repealed, on 1 April 2016, by section 30 of the Employment Relations Amendment Act 2016 (2016 No 9). Enforceable undertakings Heading: inserted, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125). 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) to— (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, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125). 223C Enforcement of undertakings (1) An enforceable undertaking may be enforced by the Authority making a com‐ pliance order under section 137. (2) An employer who fails to comply with an enforceable undertaking that remains in force is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority. (3) If the enforceable undertaking relates to a monetary settlement, the enforceable undertaking may be enforced by using, as if the undertaking were an order enforceable under section 141, the procedure applicable under section 141.

Section 223C: inserted, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125). 261 Reprinted as at Part 11 s 223D Employment Relations Act 2000 1 July 2021 Improvement notices Heading: inserted, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 provi‐ sion; 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, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 speci‐ fied provision of the relevant Acts; and (b) the nature and extent of the employer’s failure to comply with the provi‐ sion; and 262 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 224 (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, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125). 223F Penalty (1) An employer who fails to comply with an improvement notice issued under section 223D is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority. (2) If subsection (1) applies, a Labour Inspector may not also bring an action seek‐ ing a penalty in respect of the same matter under any of the relevant Acts.

Section 223F: inserted, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125). 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, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125). 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 or the Holidays Act 2003; and (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— 263 Reprinted as at Part 11 s 225 Employment Relations Act 2000 1 July 2021 (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 Decem‐ ber 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): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129). 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 sub‐ section (2); or (b) if any objection lodged before the close of the period specified in sub‐ section (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 pur‐ poses of paragraph (d), before the District Court) that the employer owes to the employee the wages or holiday pay or other money specified in the notice; and (c) may be enforced by the making by the Authority of a compliance order under section 137; and (d) is enforceable as a judgment debt under section 141 (which applies with any necessary modifications).

Section 225(4)(b): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49). 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 pay‐ able. 264 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 229 (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 (which applies with any necessary modifications). 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 or the 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 or serve a demand notice under section 224 in respect of the same wages or holiday pay or other money. (3) Sections 131 and 132 apply, with the necessary modifications, to actions com‐ menced under subsection (1).

Section 228(1): amended, on 1 April 2016, by section 31 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 228(1): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 228(2): substituted, on 1 April 2011, by section 38 of the Employment Relations Amendment Act 2010 (2010 No 125). 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), every Labour Inspector has, subject to sections 230 to 233, the following powers: (a) the power to enter, at any reasonable hour, any premises where any per‐ son 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,— 265 Reprinted as at Part 11 s 229 Employment Relations Act 2000 1 July 2021 (i) any wages and time record or any holiday and leave record whether kept under this Act or any other Act: (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) have been complied with: (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 or employment agreement or both of any employee of that employer: (e) the power to inspect, and take copies of, any record kept under section 98 of strikes and lockouts: (f) the power to question any employer about compliance with any of the Acts referred to in section 223(1). (2) Where any Labour Inspector makes any requirement of an employer under sub‐ section (1)(c) or subsection (1)(d), that employer must forthwith comply with that requirement. (3) Every employer who, without reasonable cause, fails to comply with any requirement made of that employer under subsection (1)(c) or subsection (1)(d) is liable, in an action brought by a Labour Inspector, to a penalty under this Act imposed by the Authority. (4) Where a Labour Inspector alleges that any person has not observed or not com‐ plied with any provision of section 130(1) or of subsection (2) of this section or of any of the Acts referred to in section 223(1), that Labour Inspector may commence proceedings against that other person in respect of the non-observ‐ ance or non-compliance by applying to the Authority under section 137 for an order of the kind described in subsection (1) of that section, and the provisions of that section apply accordingly with all necessary modifications. (5) No person is, on examination or inquiry under this section, required to give to any question any answer tending to incriminate that person. (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 pecu‐ niary penalty under Part 9A, but any answers given are not admissible in crim‐ inal proceedings or in proceedings under that Part for pecuniary penalties. (6) Despite subsection (1), the power of a Labour Inspector to enter any defence area within the meaning of the Defence Act 1990 is subject to any regulations made under section 93 of that Act. (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). Compare: 1991 No 22 s 144 266 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 229A

Section 229(1)(a): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 229(1)(c)(i): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 229(1)(c)(iii): inserted, on 1 April 2016, by section 32(1) of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 229(1)(d): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 229(3): amended, on 1 December 2004, by section 66 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 229(5A): inserted, on 1 April 2016, by section 32(2) of the Employment Relations Amend‐ ment Act 2016 (2016 No 9). 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), a Labour Inspector may, subject to sections 229(5), (5A), and (6) and 230 to 233, also exercise any of the powers under section 229 to investigate whether— (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 is to be read with any appropriate modifications, including that— (a) the power of entry under section 229(1)(a) applies with respect to any premises where the Labour Inspector has reasonable grounds to believe work is being performed; and (b) the power to interview under section 229(1)(b) applies with respect to any person present in such premises; and (c) employee, except in the reference in section 229(1)(a) to any other employee of the department, includes any person who performs work; and (d) employer includes any person for whom work is performed; and (e) the powers under section 229(1)(c) and (d) apply with respect to any record or document that the Labour Inspector reasonably believes may assist in determining a matter referred to in subsection (1)(a) to (c). (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) as modified by subsection (2)(e) is liable, in an action brought by a Labour Inspector, to a penalty under this Act imposed by the Authority.

Section 229A: inserted, on 13 January 2020, by section 5 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63). 267 Reprinted as at Part 11 s 230 Employment Relations Act 2000 1 July 2021 230 Entry of dwellinghouses No Labour Inspector may, under section 229 or 229A, enter in or be on any dwellinghouse unless he or she either— (a) has the consent of an occupier of that dwellinghouse; or (b) is authorised to do so by a warrant issued under section 231. Compare: 1992 No 96 s 31(2)

Section 230: amended, on 13 January 2020, by section 6 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63). 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 applies, is a place in which any per‐ son performs work or is the only practicable means through which such a place may be entered,— 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 practic‐ able means through which the Inspector may enter, a place where any person is employed. Compare: 1992 No 96 s 31(3)

Section 231(a): replaced, on 13 January 2020, by section 7 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63).

Section 231(b): replaced, on 13 January 2020, by section 7 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63). 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 wages and time record or, in response to a requirement under section 229(1)(d), a copy of a wages and time record, a Labour Inspector may, by written notice given to that employer, require that employer— (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). 268 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 233 (3) If an employer fails to comply with a notice under subsection (1), written evi‐ dence 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, to a penalty under this Act imposed by the Authority. (5) In this section, a wages and time record, if applicable, includes a holiday and leave record kept under section 81 of the Holidays Act 2003.

Section 232(4): amended, on 1 December 2004, by section 67 of the Employment Relations Amend‐ ment Act (No 2) 2004 (2004 No 86).

Section 232(5): added, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129). 233 Obligations of Labour Inspectors (1) In entering any premises under the authority of section 229(1)(a) or 229A or under the authority of a warrant issued under section 231, a Labour Inspector is bound by any existing reasonable safety and health procedures and require‐ ments applying at the premises and, to the extent that such procedures or requirements reasonably limit or prohibit the entry of persons other than employees to particular parts of the premises, may not enter such parts. (2) Every Labour Inspector who enters any premises under the authority of section 229(1)(a) or 229A or under the authority of a warrant issued under section 231 must, on first entering those premises, and, if requested, at any subsequent time, produce to the employer or a representative of the employer that person’s warrant under section 223(2) or the warrant issued under section 231, as the case may require. (3) Where a Labour Inspector enters any premises under the authority of section 229(1)(a) or 229A or under the authority of a warrant issued under section 231 and is unable, despite reasonable efforts, to find at those premises the employer or any representative of the employer, that Labour Inspector must, after the entry and inspection and before leaving those premises, leave at those premises a written notice addressed to the employer. (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) [Repealed] Compare: 1991 No 22 s 145 269 Reprinted as at Part 11 s 233A Employment Relations Act 2000 1 July 2021

Section 233(1): amended, on 13 January 2020, by section 8 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63).

Section 233(2): amended, on 13 January 2020, by section 8 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63).

Section 233(3): amended, on 13 January 2020, by section 8 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63).

Section 233(5): repealed, on 1 April 2016, by section 33 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 docu‐ ment under section 229 or 229A nor the department may disclose to any person any information obtained as a result of the inspection of the document or the supply of the copy, unless the disclosure is for the purposes of an Act specified in section 223(1). (2) This section applies subject to section 233B.

Section 233A: inserted, on 1 April 2016, by section 34 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 233A(1): amended, on 13 January 2020, by section 9 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63). 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 depart‐ ment— (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); and (b) considers may assist the regulatory agency in the performance or exer‐ cise 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 perform‐ ance 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: 270 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 235 (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 means— (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 of the Health and Safety in Employment Act 1992: (h) any other department of State, person, or organisation defined in regula‐ tions as a regulatory agency for the purposes of this section.

Section 233B: inserted, on 1 April 2016, by section 34 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 233B(4): amended, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31). 234 Circumstances in which officers, directors, or agents of company liable for minimum wages and holiday pay [Repealed]

Section 234: repealed, on 1 April 2016, by section 35 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 per‐ forming 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. 271 Reprinted as at Part 11 s 235A Employment Relations Act 2000 1 July 2021 Infringement offences Heading: inserted, on 1 April 2016, by section 36 of the Employment Relations Amendment Act 2016 (2016 No 9). 235A Interpretation In sections 235B to 235F, infringement offence means— (a) a failure by an employer to comply with the requirements of section 64(1) or (2) or 130(1) of this Act or section 81(2) of the Holidays Act 2003: (b) breaches of this Act that are prescribed by regulations as infringement offences.

Section 235A: inserted, on 1 April 2016, by section 36 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 of the Criminal Procedure Act 2011; or (b) be served with an infringement notice as provided in section 235D. (2) Proceedings commenced in the way described in subsection (1)(a) require the leave of a District Court Judge or Registrar under section 21(1)(a) of the Sum‐ mary Proceedings Act 1957.

Section 235B: inserted, on 1 April 2016, by section 36 of the Employment Relations Amendment Act 2016 (2016 No 9). 235C Infringement notices (1) An infringement notice may be issued to a person if there are reasonable grounds for believing that the person is committing, or has committed, an infringement offence. (2) Only a Labour Inspector may issue an infringement notice.

Section 235C: inserted, on 1 April 2016, by section 36 of the Employment Relations Amendment Act 2016 (2016 No 9). 235D Procedural requirements for infringement notices (1) An infringement notice may be served on a person who the Labour Inspector believes has committed the infringement offence— (a) by delivering it, or a copy of it, personally to the person; or (b) by sending it, or a copy of it, by post, addressed to the person at the per‐ son’s last known place of residence or business. (2) An infringement notice sent under subsection (1)(b) must be treated as having been served on the person on the date it was posted. 272 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 235F (3) An infringement notice must be in the prescribed form and must contain— (a) details of the alleged infringement offence that are sufficient to fairly inform a person of the time, place, and nature of the alleged offence; and (b) the amount of the infringement fee; and (c) an address at which the infringement fee may be paid; and (d) the time within which the infringement fee must be paid; and (e) a summary of the provisions of section 21(10) of the Summary Proceed‐ ings Act 1957; and (f) a statement that the person served with the notice has a right to request a hearing; and (g) a statement of what will happen if the person served with the notice does not pay the fee and does not request a hearing; and (h) any other prescribed matters. (4) If an infringement notice has been issued, proceedings in respect of the infringement offence to which the notice relates may be commenced in accord‐ ance with section 21 of the Summary Proceedings Act 1957 and, in that case,— (a) reminder notices may be prescribed; and (b) in all other respects, section 21 of the Summary Proceedings Act 1957 applies with all necessary modifications. (5) Reminder notices must contain the prescribed information.

Section 235D: inserted, on 1 April 2016, by section 36 of the Employment Relations Amendment Act 2016 (2016 No 9). 235E Infringement fees (1) The infringement fee payable for an infringement offence is— (a) $1,000 for an infringement offence specified in section 235A(a): (b) the infringement fee specified in regulations for an infringement offence prescribed by regulations under section 235A(b). (2) However, the maximum aggregate infringement fees an employer is liable to pay in a 3-month period is $20,000, whether for breaches of the same provision or breaches of different provisions.

Section 235E: inserted, on 1 April 2016, by section 36 of the Employment Relations Amendment Act 2016 (2016 No 9). 235F Payment of infringement fee All infringement fees received must be paid into a Crown Bank Account.

Section 235F: inserted, on 1 April 2016, by section 36 of the Employment Relations Amendment Act 2016 (2016 No 9). 273 Reprinted as at Part 11 s 235G Employment Relations Act 2000 1 July 2021 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, on 1 April 2016, by section 36 of the Employment Relations Amendment Act 2016 (2016 No 9). 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 Cli‐ ents) 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. 274 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 237

Section 236(4)(b): substituted, on 1 April 2002, by section 337(1) of the Accident Compensation Act 2001 (2001 No 49).

Section 236(4)(b): amended on 3 March 2010, pursuant to section 5(1)(b) of the Accident Compensa‐ tion Amendment Act 2010 (2010 No 1).

Section 236(4)(ba): inserted, on 1 July 2017, by section 20(5) of the Care and Support Workers (Pay Equity) Settlement Act 2017 (2017 No 24).

Section 236(4)(ba): amended, on 7 August 2020, by section 23(2)(d) of the Support Workers (Pay Equity) Settlements Amendment Act 2020 (2020 No 50).

Section 236(4)(d): substituted, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 236(4)(da): inserted, on 25 February 2016, by section 31(5) of the Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 (2016 No 2).

Section 236(4)(h): amended, on 1 October 2008, pursuant to section 130(4) of the Policing Act 2008 (2008 No 72).

Section 236(4)(i): replaced, on 7 August 2020, by section 135 of the Public Service Act 2020 (2020 No 40). Miscellaneous provisions 237 Regulations 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 wit‐ nesses 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: 275 Reprinted as at Part 11 s 237 Employment Relations Act 2000 1 July 2021 (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 post‐ ponement; and (ii) for restrictions to apply (after the expiry of the period of post‐ ponement 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) or 237C(1) is to be made, including, without limitation, requiring the application to be in a form approved for the purpose by the chief executive: (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 giv‐ ing full effect to the provisions of this Act and for its due administration. Compare: 1991 No 22 s 146

Section 237(faa): inserted, on 1 March 2017, by section 13 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62).

Section 237(fab): inserted, on 1 March 2017, by section 13 of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 237(fac): inserted, on 1 March 2017, by section 13 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62).

Section 237(fad): inserted, on 1 March 2017, by section 13 of the Employment Relations Amend‐ ment Act (No 2) 2016 (2016 No 62).

Section 237(fae): inserted, on 1 March 2017, by section 13 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62).

Section 237(fa): inserted, on 1 April 2016, by section 37 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 237(fb): inserted, on 1 April 2016, by section 37 of the Employment Relations Amendment Act 2016 (2016 No 9).

Section 237(fc): inserted, on 1 April 2016, by section 37 of the Employment Relations Amendment Act 2016 (2016 No 9). 276 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 237A 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, on 6 March 2015, by section 73 of the Employment Relations Amendment Act 2014 (2014 No 61). 237A Amendments to Schedule 1A (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Schedule 1A to add, delete, or amend categories of employees. (2) The Minister may recommend the making of an Order in Council to amend Schedule 1A to add a category of employees only if the Minister is satisfied that the employees in the category of employees— (a) are employed in a sector in which restructuring of an employer’s busi‐ ness 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 to amend a category of employees only if the Minister is satisfied that the employees in the category of employees (if the category is amended in accordance with the recommendation) will satisfy the criteria in subsection (2). (4) The Minister may recommend the making of an Order in Council to amend Schedule 1A to delete a category of employees only if the Minister is satisfied that the employees in the category of employees no longer satisfy the criteria in subsection (2). (5) Before recommending the making of an Order in Council to amend Schedule 1A, the Minister must— (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 277 Reprinted as at Part 11 s 237A Employment Relations Act 2000 1 July 2021 (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, represen‐ tatives 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 if the information were requested under that Act. (7) In this section, restructuring has the same meaning as in section 69B.

Section 237A: inserted, on 12 December 2018, by section 48 of the Employment Relations Amend‐ ment Act 2018 (2018 No 53). 237A Amendments to Schedule 1A [Repealed]

Section 237A: repealed, on 6 March 2015, by section 74 of the Employment Relations Amendment Act 2014 (2014 No 61). 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 proceed‐ ing 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 inter‐ est. (4) No fee is payable for an application for the exercise of a power specified in subsection (1). Compare: 1947 No 16 s 123(1)(ba), (bb), (2)

Section 237B: inserted, on 1 March 2017, by section 14 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 278 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 239 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 determin‐ ation of— (a) an application for the exercise of a power specified in section 237B(1); or (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). Compare: 1947 No 16 s 123(1)(bc), (2)

Section 237C: inserted, on 1 March 2017, by section 14 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 237D Reviews of decisions of Registrars concerning fees (1) A person who disagrees with a decision of a Registrar of the court under regu‐ lations made under section 237B(1) may apply to a Judge for a review of that decision. (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. Compare: 1947 No 16 s 123A

Section 237D: inserted, on 1 March 2017, by section 14 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 238 No contracting out The provisions of this Act have effect despite any provision to the contrary in any contract or agreement. Compare: 1991 No 22 s 147 239 New Schedule 3 substituted in Police Act 1958 Amendment(s) incorporated in the Act(s). 279 Reprinted as at Part 11 s 240 Employment Relations Act 2000 1 July 2021 240 Consequential amendments The enactments specified in Schedule 5 are amended in the manner indicated in that schedule. 241 Repeals The enactments specified in Schedule 6 are repealed. 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 does not apply in relation to any individual employment contract to which subsection (1) applies. 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, a collective employment contract that is continued in force by section 243 is, for the purpose of sections 40(2) and 41 and Part 8, to be treated as if it were a collective agreement and as if the date of the expiry of that collective agreement were the earlier of— (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 and 248, the grievance and disputes procedures that, under section 32 or section 44 of the Employment Contracts Act 1991, are con‐ tained— (a) in any individual employment contract that is continued in force by sec‐ tion 242; or (b) in any collective employment contract that is continued in force by sec‐ tion 243— are, as from the commencement of this Act, of no effect. 280 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 246 (2) Subject to sections 247 and 248,— (a) the parties to every individual employment contract that is continued in force by section 242; and (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 are members of a union,— (a) an employer of employees covered by that collective employment con‐ tract; or (b) a union whose members are bound by that collective employment con‐ tract— 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 determin‐ ing 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 speci‐ fied date (being a date after 1 July 2001 but before the date on which that col‐ lective 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. 281 Reprinted as at Part 11 s 247 Employment Relations Act 2000 1 July 2021 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 com‐ pleted 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. Compare: 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 and subsection (4). (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); but (b) if commenced after 30 June 2001, must be in accordance with section 113(1) and Part 9. Compare: 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 that are within the jurisdiction of the Employment Tribunal: (b) determining or completing any proceedings in relation to a cause of action of the type referred to in section 248 that are within the jurisdic‐ tion of the Employment Tribunal: (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 282 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 251 the Employment Tribunal by the repealed enactments, which apply accordingly with all necessary modifications. Compare: 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 Employ‐ ment Tribunal may be appointed from time to time under section 87 of the Employment Contracts Act 1991 and the provisions of that Act, including, in particular, the provisions of sections 84, 86, and 92, apply in relation to any temporary members so appointed as if that Act had not been repealed. (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 Tribu‐ nal under subsection (1) is a person who, immediately before the commence‐ ment 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 continu‐ ous. (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 that are not determined before the close of 31 January 2001: (b) to determine or complete any proceedings in relation to a cause of action of the type referred to in section 248 that are within the jurisdiction of the Employment Tribunal: (c) to exercise any other jurisdiction conferred on any such temporary mem‐ ber 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 modi‐ fications. 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 283 Reprinted as at Part 11 s 252 Employment Relations Act 2000 1 July 2021 (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 Employ‐ ment 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 that are not determined either before the close of 31 January 2001 by the Employment Tribunal or after the close of 31 January 2001 by a temporary member of the Employment Tribunal appointed under 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) of the Employment Court constituted under the Employment Contracts Act 1991 are, without further appointment, deemed as from the commencement of that day to have been appointed as Judges of the Employment Court constituted under this Act.

Section 253(2): amended, on 1 March 2017, by section 15 of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). 284 Reprinted as at 1 July 2021 Employment Relations Act 2000 Part 11 s 254 254 Application, savings, and transitional provisions relating to amendments to Act The application, savings, and transitional provisions set out in Schedule 1AA, which relate to amendments made to this Act after 1 January 2013, have effect for the purposes of this Act.

Section 254: inserted, on 6 March 2015, by section 76 of the Employment Relations Amendment Act 2014 (2014 No 61). 285 Reprinted as at Schedule 1AA Employment Relations Act 2000 1 July 2021 Schedule 1AA Application, savings, and transitional provisions relating to amendments made to this Act after 1 January 2013 ss 5A, 254 Schedule 1AA: inserted, on 6 March 2015, by section 77 of the Employment Relations Amendment Act 2014 (2014 No 61). Part 1 Provisions relating to Employment Relations Amendment Act 2014, Employment Relations Amendment Act 2016, and Employment Relations Amendment Act (No 2) 2016 Schedule 1AA Part 1 heading: inserted, on 12 December 2018, by section 49(1) of the Employment Relations Amendment Act 2018 (2018 No 53). 1 Interpretation In this Part,— 2014 Act means the Employment Relations Amendment Act 2014 2016 Act means the Employment Relations Amendment Act 2016 2016 (No 2) Act means the Employment Relations Amendment Act (No 2) 2016. Schedule 1AA clause 1: replaced, on 1 March 2017, by section 16(1) of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). Schedule 1AA clause 1: amended, on 12 December 2018, by section 49(2) of the Employment Rela‐ tions Amendment Act 2018 (2018 No 53). 2 Application, savings, and transitional provisions arising from 2014 Act Amendments to section 4 (Parties to employment relationship to deal with each other in good faith) (1) Despite the amendments made to section 4 of this Act by section 4 of the 2014 Act, section 4 of this Act (as it was immediately before it was amended by the 2014 Act) continues to apply in relation to proposed decisions referred to in section 4 of this Act— (a) if the proposed decision was notified to the employee before the com‐ mencement of the 2014 Act; and (b) whether the final decision on that proposal was made before, on, or after the commencement of the 2014 Act. Amendments to Part 5 (Collective bargaining) (2) Section 33 of this Act (as replaced by section 9 of the 2014 Act) applies to all bargaining, whether the bargaining commenced before, on, or after the com‐ mencement of the 2014 Act. 286 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1AA (3) Section 53 of this Act (as amended by section 15(1) of the 2014 Act) applies in relation to bargaining commenced by an employer, whether the bargaining commenced before, on, or after the commencement of the 2014 Act. Amendments to Part 6AA (Flexible working) (4) Part 6AA of this Act (as amended by sections 22 to 30 of the 2014 Act) applies in relation to a request made under that Part before the commencement of the 2014 Act as follows: (a) if the 3 months provided for in section 69AAE of this Act (as it was immediately before it was amended by the 2014 Act) expires within 1 month of the commencement of sections 22 to 30 of the 2014 Act, Part 6AA of this Act (as it was immediately before it was amended by the 2014 Act) continues to apply in relation to that request: (b) if paragraph (a) does not apply, the employer must treat the request as having been made on the commencement of sections 22 to 30 of the 2014 Act, and Part 6AA of this Act (as amended by the 2014 Act) applies in relation to that request. Amendments to Part 6A (Continuity of employment if employees’ work affected by restructuring) (5) Subclause (6) applies to restructurings (within the meaning of Part 6A of this Act as it was immediately before the commencement of the 2014 Act) for which the agreements are concluded before the commencement of the 2014 Act, even if the restructurings they relate to are to take effect after the com‐ mencement of the 2014 Act. (6) Part 6A of this Act (as it was immediately before the commencement of the 2014 Act) continues to apply to the restructurings as if the 2014 Act had not been passed. Amendments to Part 8 (Strikes and lockouts) (7) Sections 80, 86, 90, 91, 93, and 94 of this Act (as amended by sections 53, 54, and 56 to 59 of the 2014 Act) and sections 86A and 86B of this Act (as inserted by section 55 of the 2014 Act) apply in relation to strikes and lockouts that commenced before, and continue on or after, the commencement of the 2014 Act as follows: (a) the union or the employer (as the case may be) must give notice in accordance with this Act (as amended by the 2014 Act) on the com‐ mencement of the 2014 Act: (b) however, if a notice given by the union or the employer before the com‐ mencement of the 2014 Act— (i) complies fully with the notice requirements of this Act (as amended by the 2014 Act), no further notice is required: (ii) complies partly with the notice requirements of this Act (as amended by the 2014 Act), those notice requirements are satisfied 287 Reprinted as at Schedule 1AA Employment Relations Act 2000 1 July 2021 by the union or employer providing notice of the additional mat‐ ters required under this Act (as amended by the 2014 Act), and the provisions of this Act referred to in this subsection must be read accordingly. (8) Section 95AA of this Act (as inserted by section 61 of the 2014 Act) applies to a notice— (a) given under subclause (7)(a); or (b) referred to in subclause (7)(b). (9) Despite section 95B of this Act (as inserted by section 62 of the 2014 Act), an employer must not make a specified deduction of pay in relation to— (a) any partial strike that ended before the commencement of the 2014 Act; or (b) any period of a partial strike that occurred before the commencement of the 2014 Act. Amendments to Part 10 (Institutions) (10) Section 174 of this Act (as it was immediately before the 2014 Act) continues to apply to matters commenced in the Authority before the commencement of the 2014 Act as if the 2014 Act had not been passed. Repeal of section 237A (11) On the commencement of the 2014 Act, any request made under section 237A(3)(a) of this Act lapses and, to avoid doubt, neither the Minister nor any other person is required to take any action, or any further action, in relation to such a request. 3 Application, savings, and transitional provisions arising from 2016 Act (1) The amendments made by the 2016 Act do not apply to conduct that occurred before the commencement of that Act. (2) If a collective agreement (the previous agreement) is in force immediately before the commencement of the 2016 Act (whether or not bargaining has been initiated under section 41(3) or (4)), sections 67C to 67H (as inserted by sec‐ tion 9 of that Act) apply to— (a) any collective agreement that replaces the previous agreement, on the commencement of the replacement agreement; and (b) an individual employment agreement that comes into force under section 61(2)(a), based on the previous agreement and any additional terms and conditions agreed under section 61(1), on the commencement of the individual employment agreement. (3) If an individual employment agreement has been entered into, or has come into force under section 61(2)(a), before the commencement of the 2016 Act, sec‐ 288 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1AA tions 67C to 67H (as inserted by section 9 of that Act) apply to the agreement from 1 April 2017. (4) Subclause (1) applies subject to subclauses (5) to (7). (5) The amendment to section 140 (made by section 17 of the 2016 Act) (which relates to compliance orders made by the court) applies to an order imposing a fine whether the breach that the fine relates to occurred before, on, or after the commencement of the 2016 Act. (6) Sections 159AA (inserted by section 22 of the 2016 Act) and 188A (inserted by section 25 of the 2016 Act) (both relating to when mediation in relation to breaches of employment standards is appropriate)— (a) apply only to proceedings filed after the commencement of the 2016 Act; but (b) may apply to conduct whether it occurred before, on, or after the com‐ mencement of the 2016 Act. (7) Section 234 (which relates to the circumstances in which officers, directors, or agents of a company are liable for minimum wages and holiday pay) continues to apply (despite its repeal by section 35 of the 2016 Act) to proceedings brought in relation to conduct that occurred before the commencement of the 2016 Act, whether or not the proceedings were brought before that commence‐ ment. Schedule 1AA clause 3: inserted, on 1 April 2016, by section 38(2) of the Employment Relations Amendment Act 2016 (2016 No 9). 4 Application, savings, and transitional provision arising from 2016 (No 2) Act A person holding office as a temporary Judge under section 207 immediately before the commencement of this clause continues to hold office on the same terms as if he or she were appointed as an acting Judge under section 207. Schedule 1AA clause 4: inserted, on 1 March 2017, by section 16(2) of the Employment Relations Amendment Act (No 2) 2016 (2016 No 62). Part 1A Provisions relating to Part 1 of Domestic Violence—Victims’ Protection Act 2018 Schedule 1AA Part 1A: inserted, on 1 April 2019, by section 16(3) of the Domestic Violence—Vic‐ tims’ Protection Act 2018 (2018 No 21). 4A Interpretation In this Part, 2018 Part means Part 1 of the Domestic Violence—Victims’ Pro‐ tection Act 2018. Schedule 1AA clause 4A: inserted, on 1 April 2019, by section 16(3) of the Domestic Violence— Victims’ Protection Act 2018 (2018 No 21). 289 Reprinted as at Schedule 1AA Employment Relations Act 2000 1 July 2021 Provisions relating to flexible working short-term for people affected by family violence Schedule 1AA heading: inserted, on 1 April 2019, by section 16(3) of the Domestic Violence—Vic‐ tims’ Protection Act 2018 (2018 No 21). Schedule 1AA heading: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 4B Application to pre-commencement family violence Part 6AB applies even if all or any of the family violence occurred before the commencement of the 2018 Part. Schedule 1AA clause 4B: inserted, on 1 April 2019, by section 16(3) of the Domestic Violence— Victims’ Protection Act 2018 (2018 No 21). Schedule 1AA clause 4B heading: amended, on 1 July 2019, by section 259(1) of the Family Vio‐ lence Act 2018 (2018 No 46). Schedule 1AA clause 4B: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). Provisions relating to adverse treatment in employment of people affected by family violence Schedule 1AA heading: inserted, on 1 April 2019, by section 16(3) of the Domestic Violence—Vic‐ tims’ Protection Act 2018 (2018 No 21). Schedule 1AA heading: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). 4C Application to pre-commencement family violence Sections 103(1)(da), 108A, 111, and 123(1)(d) apply even if all or any of the family violence occurred before the commencement of the 2018 Part. Schedule 1AA clause 4C: inserted, on 1 April 2019, by section 16(3) of the Domestic Violence— Victims’ Protection Act 2018 (2018 No 21). Schedule 1AA clause 4C heading: amended, on 1 July 2019, by section 259(1) of the Family Vio‐ lence Act 2018 (2018 No 46). Schedule 1AA clause 4C: amended, on 1 July 2019, by section 259(1) of the Family Violence Act 2018 (2018 No 46). Part 2 Provisions relating to Employment Relations Amendment Act 2018 Schedule 1AA Part 2: inserted, on 12 December 2018, by section 49(3) of the Employment Relations Amendment Act 2018 (2018 No 53). 5 Interpretation In this Part, 2018 Act means the Employment Relations Amendment Act 2018. 290 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1AA Provisions relating to collective bargaining and unions 6 Duty to conclude applies to bargaining initiated before commencement Sections 31 to 33 of this Act (as amended by sections 12 to 14 of the 2018 Act) apply to all bargaining that has not concluded before the commencement of sections 12 to 14 of the 2018 Act, whether the bargaining was initiated before or on the commencement of sections 12 to 14 of the 2018 Act. 7 Existing opt-out notice under section 44B continues to have effect Sections 44B(3), 44C, and 53(2A) (as they were immediately before they were repealed by sections 16 and 18 of the 2018 Act) continue to apply in relation to an opt-out notice given before the commencement of this clause in accordance with section 44B (as it was immediately before it was repealed by section 16 of the 2018 Act). 8 Existing declarations or determinations under section 50K continue to have effect (1) The following continue to have effect as if sections 17, 18, and 35 of the 2018 Act had not come into force: (a) any declaration or determination made by the Authority under section 50K(3) or (4) or 50KA(2) before the commencement of this clause: (b) any orders or recommendations made by, or directions issued by, the Authority under section 50KA(5) before the commencement of this clause. (2) Sections 53(4) and 161(1)(cba) (as they were immediately before they were repealed by sections 18 and 35 of the 2018 Act) continue to apply in relation to any declaration or determination made by the Authority under section 50K(3) before the commencement of this clause. (3) However, an application made under section 50K (as it was immediately before it was repealed by section 17 of the 2018 Act) that is not determined or dis‐ missed before the commencement of this clause must be treated as if it had not been made. 9 Requirement for collective agreement to include rates of wages or salary applies only to collective agreement concluded on or after commencement (1) Section 54 (as amended by section 19 of the 2018 Act) applies to a collective agreement concluded on or after the commencement of section 19 of the 2018 Act whether bargaining for the agreement was initiated before, on, or after the commencement of section 19 of the 2018 Act. (2) Section 54 (as it was immediately before it was amended by section 19 of the 2018 Act) continues to apply to a collective agreement concluded before the commencement of section 19 of the 2018 Act. 291 Reprinted as at Schedule 1AA Employment Relations Act 2000 1 July 2021 10 Amendments relating to new employees apply to employees who enter into IEAs on or after commencement (1) Sections 62 and 62A of this Act (as inserted by section 22 of the 2018 Act) apply to a new employee who commences work with an employer, or signs an employment agreement with an employer, on or after the commencement of section 22 of the 2018 Act. (2) Section 63B of this Act (as inserted by section 24 of the 2018 Act) applies to an employer who is bargaining with an individual on or after the commence‐ ment of section 24 of the 2018 Act for terms and conditions of employment for the first 30 days of the individual’s employment under section 62 (as inserted by section 22 of the 2018 Act) whether the bargaining was initiated before, on, or after the commencement of section 22 of the 2018 Act. 11 Union may provide information about role and functions of union for employer to pass on to new employees before commencement of section 24 of 2018 Act (1) If the union requests, on or after the commencement of section 11 of the 2018 Act but before the commencement of section 24 of the 2018 Act, that an employer provide certain specified information to new employees, the refer‐ ence to section 63B(3)(b) in section 30A (as inserted by section 11 of the 2018 Act) must be read as if section 63B(3)(b) had already commenced. (2) However, an employer who receives information under section 30A before the commencement of section 24 of the 2018 Act is required to provide the infor‐ mation only on or after the commencement of section 63B(3)(b) (as inserted by section 24 of the 2018 Act). 12 Specified pay deductions must cease on commencement (1) An employer who is making specified pay deductions from the salary or wages of an employee under section 95B must cease the deductions on the com‐ mencement of sections 29 and 30 of the 2018 Act. (2) Sections 95F to 95H and section 100(1)(c), (2)(c), (4), and (5) (as they were immediately before they were repealed by sections 29 and 30 of the 2018 Act) continue to apply in relation to any specified pay deductions made before the commencement of this clause. Provisions relating to trial periods of 90 days or less 13 Trial provisions contained in employment agreements entered into before commencement continue to apply A trial provision contained in an employment agreement entered into before the commencement of sections 36 and 37 of the 2018 Act in accordance with section 67A (as it was immediately before it was replaced by section 36) of the 292 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1AA 2018 Act continues to apply as if sections 36 and 37 of the 2018 Act had not commenced. Provision relating to rest breaks and meal breaks 14 Employees receiving compensatory measures before commencement of section 43 of 2018 Act (1) This provision applies to an employee who is receiving compensatory meas‐ ures under sections 69ZEA and 69ZEB (as they were immediately before they were replaced by section 43 of the 2018 Act) (existing compensatory meas‐ ures). (2) On the commencement of section 43 of the 2018 Act, if an exemption under section 69ZEA(1) applies to an employer providing existing compensatory measures,— (a) 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 that specified in Part 6D; but (b) if the employer and employee are unable to reach agreement under para‐ graph (a), the employee is entitled to, and the employee’s employer must provide the employee with, compensatory measures in accordance with section 69ZEB (as replaced by section 43 of the 2018 Act). (3) On the commencement of section 43 of the 2018 Act, if an exemption under section 69ZEA(1) does not apply to an employer providing existing compensa‐ tory measures, the employee is entitled to, and the employee’s employer must provide the employee with, rest breaks and meal breaks in accordance with sections 69ZD and 69ZE (as replaced by section 43 of the 2018 Act). (4) On and from the commencement of section 43 of the 2018 Act, the employee continues to be entitled to receive the existing compensatory measures until the earlier of the following: (a) the coming into force of an agreement between the employer and the employee under subclause (2)(a): (b) the employer provides the employee with compensatory measures under subclause (2)(b). (5) The provisions of this clause have effect despite any provision to the contrary in any contract or agreement. Provision relating to remedy of reinstatement 15 Remedy of reinstatement in personal grievance proceedings (1) Any personal grievance proceedings brought before the Authority or the court (or a court on appeal), but not finally determined or completed, before the com‐ mencement of this clause must be determined or completed under the law as it was at the time the proceedings were brought. 293 Reprinted as at Schedule 1AA Employment Relations Act 2000 1 July 2021 (2) Any personal grievance proceedings brought before the Authority or the court (or a court on appeal) on or after the commencement of this clause must be determined in accordance with section 125 as replaced by section 47 of the 2018 Act. (3) Subclause (2) applies irrespective of whether the action alleged to amount to a personal grievance occurred or came to the notice of the employee before, on, or after the commencement of section 47 of the 2018 Act. Part 3 Provision relating to Employment Relations (Triangular Employment) Amendment Act 2019 Schedule 1AA Part 3: inserted, on 27 June 2020, by section 11 of the Employment Relations (Trian‐ gular Employment) Amendment Act 2019 (LI 2019 No 36). 16 Application of sections 103(4), 103B, 115A, and 123A Sections 103(4), 103B, 115A, and 123A apply if 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, after the commencement of the Employment Relations (Triangular Employment) Amendment Act 2019. Schedule 1AA clause 16: inserted, on 27 June 2020, by section 11 of the Employment Relations (Tri‐ angular Employment) Amendment Act 2019 (LI 2019 No 36). 294 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1 Schedule 1 Essential services ss 5, 90, 91 Part A 1 The production, processing, or supply of manufactured gas or natural gas (including liquefied natural gas). 2 The production, processing, distribution, or sale of petroleum, whether refined or not. 2A The production or supply of electricity. Schedule 1 Part A clause 2A: inserted, on 30 June 2012, by section 11 of the Public Finance (Mixed Ownership Model) Amendment Act 2012 (2012 No 45). 3 The operational management of a State enterprise (within the meaning of sec‐ tion 2 of the State-Owned Enterprises Act 1986) or a mixed ownership model company (within the meaning of section 45P of the Public Finance Act 1989) that is a generator of electricity. Schedule 1 Part A clause 3: replaced, on 30 June 2012, by section 11 of the Public Finance (Mixed Ownership Model) Amendment Act 2012 (2012 No 45). 4 The supply of water to the inhabitants of a city, district, or other place. 5 The disposal of sewage. 6 The delivery of designated services (within the meaning of section 6 of the Fire and Emergency New Zealand Act 2017) by employees of Fire and Emergency New Zealand. Schedule 1 Part A clause 6: replaced, on 1 July 2017, by section 197 of the Fire and Emergency New Zealand Act 2017 (2017 No 17). 7 The provision of all necessary services in connection with the arrival, berthing, loading, unloading, and departure of ships at a port. 8 The operation of— (a) a service for the carriage of passengers or goods by water between the North Island and the South Island or between the South Island and Stew‐ art Island; or (b) a service necessary for the operation of a service referred to in paragraph (a). 9 The operation of— 295 Reprinted as at Schedule 1 Employment Relations Act 2000 1 July 2021 (a) an air transport service, being a service by aircraft for the public carriage of passengers or goods for hire or reward (but excluding an air topdress‐ ing service); or (b) a service necessary for the operation of an air transport service referred to in paragraph (a). 10 The operation of an ambulance service for sick or injured persons. 11 The operation of— (a) a hospital care institution within the meaning of section 58(4) of the Health and Disability Services (Safety) Act 2001; or (b) a service necessary for the operation of such an institution. Schedule 1 Part A clause 11: substituted, on 1 October 2002, by section 58(1) of the Health and Disa‐ bility Services (Safety) Act 2001 (2001 No 93). 12 The manufacture or supply of surgical and dialysis solutions. 13 The manufacture or supply of a pharmaceutical that is for the time being listed in the pharmaceutical schedule under the New Zealand Public Health and Disa‐ bility Act 2000. Schedule 1 Part A clause 13: substituted, on 1 January 2001, by section 111(1) of the New Zealand Public Health and Disability Act 2000 (2000 No 91). 14 The operation of a residential welfare institution or prison. 15 The production of butter or cheese or of any other product of milk or cream and the processing, distribution, or sale of milk, cream, butter, or cheese or of any other product of milk or cream. 16 The provision of Police emergency response services as defined in clause 3 of Schedule 1C. Schedule 1 Part A clause 16: added, on 1 October 2008, by section 121 of the Policing Act 2008 (2008 No 72). Part B 1 The holding and preparation of an animal that— (a) is a mammal or bird; and (b) is held and prepared for the purposes of commercial slaughter and subse‐ quent processing of its meat and offal for human or animal consumption, whether in the domestic market or the export market.

Schedule 1 Part B clause 1: replaced, on 6 March 2015, by section 75 of the Employment Relations Amendment Act 2014 (2014 No 61). 296 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1 2 The operation of meat inspection services associated with the slaughtering or supply of meat for domestic consumption. Compare: 1991 No 22 Schedule 3 297 Reprinted as at Schedule 1A Employment Relations Act 2000 1 July 2021 Schedule 1A Employees to whom subpart 1 of Part 6A applies ss 69C, 237A Schedule 1A: inserted, on 1 December 2004, by section 69 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). Employees who provide the following services in the specified sectors, facilities, or places of work: (a) cleaning services, food catering services, caretaking, or laundry services for the education sector (being the public and private pre-school, primary, secondary, and tertiary educational institutions): (b) cleaning services, food catering services, orderly services, or laundry services for the health sector (being any hospital, as defined by the Hospitals Act 1957 and any hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992): (c) cleaning services, food catering services, orderly services, or laundry services in the age-related residential care sector: (d) cleaning services or food catering services in the public service (as defined in section 10 of the Public Service Act 2020) or local government sector: (e) cleaning services or food catering services in relation to any airport facility or for the aviation sector: (f) cleaning services or food catering services in relation to any other workplace: (g) services in the security sector,— (i) including any 1 or more of the following in any workplace: (A) guarding real or personal property belonging to another person: (B) monitoring in real time, from any part of a premises, images from a camera or similar device on the same premises: (C) services provided by a crowd controller employee (as defined in section 19 of the Private Security Personnel and Private Investiga‐ tors Act 2010): (D) escort duty and courtroom custodial duty as those terms are defined in section 3 of the Corrections Act 2004: (E) mobile security patrols: (F) collecting cash from any premises; but (ii) excluding services of the type described in the following sections of the Private Security Personnel and Private Investigators Act 2010: (A) section 13 (meaning of private investigator employee): (B) section 14 (meaning of security technician employee): (C) section 15 (meaning of security consultant employee): 298 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1A (D) section 16 (meaning of confidential document destruction agent employee): (E) section 16A (meaning of repossession employee): (F) section 18 (meaning of personal guard employee); and (iii) excluding services carried out by any of the following persons: (A) an appointed court security officer (as defined in section 2 of the Courts Security Act 1999): (B) an officer (as defined in section 3(1) of the Corrections Act 2004) other than a person appointed or engaged under section 17(2) of that Act to undertake escort duties or courtroom custodial duties: (C) a Police employee (as defined in section 4 of the Policing Act 2008). Schedule 1A paragraph (d): amended, on 7 August 2020, by section 135 of the Public Service Act 2020 (2020 No 40). Schedule 1A paragraph (f): amended, on 4 April 2016, by section 12 of the Employment Relations Amendment Act 2015 (2015 No 73).

Schedule 1A paragraph (g): inserted, on 1 July 2021, by clause 4 (and see clause 3 for transitional provisions) of the Employment Relations (Extending Part 6A Protections to Security Officers) Order 2021 (LI 2021/58). 299 Reprinted as at Schedule 1B Employment Relations Act 2000 1 July 2021 Schedule 1B Code of good faith for public health sector s 100D Schedule 1B: inserted, on 1 December 2004, by section 69 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 1 Application (1) This code applies to the following parties to an employment relationship in the public health sector: (a) district health boards: (b) employees of district health boards: (c) unions whose members are employees of district health boards: (d) other employers to the extent that they provide services to district health boards or the New Zealand Blood Service: (e) employees of the employers referred to in paragraph (d) to the extent that they are engaged in providing services to district health boards or the New Zealand Blood Service: (f) unions whose members are employees referred to in paragraph (e): (g) the New Zealand Blood Service: (h) employees of the New Zealand Blood Service: (i) unions whose members are employees of the New Zealand Blood Ser‐ vice. (2) However, to avoid doubt, subclause (1)(d) and (e) applies in relation to the pro‐ vision of services only if the services are provided to a district health board or the New Zealand Blood Service in its role as a provider of services. (3) Before a district health board or the New Zealand Blood Service enters into an agreement or arrangement with another employer for the provision of services to the district health board or the New Zealand Blood Service, the district health board or the New Zealand Blood Service must notify the employer that this code will apply to the employer in relation to the provision of those ser‐ vices. (4) However, failure to comply with subclause (3) does not affect the validity of an agreement or arrangement referred to in that subclause. 2 Purpose The purpose of this code is— (a) to promote productive employment relationships in the public health sector: (b) to require the parties to make or continue a commitment— 300 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1B (i) to develop, maintain, and provide high quality public health ser‐ vices; and (ii) to the safety of patients; and (iii) to engage constructively and participate fully and effectively in all aspects of their employment relationships: (c) to recognise the importance of— (i) collective arrangements; and (ii) the role of unions in the public health sector. 3 Interpretation In this code, unless the context otherwise requires,— good employer has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000 health professional means— (a) an employee who provides services to patients as a health practitioner (as defined in section 5 of the Health Practitioners Competence Assur‐ ance Act 2003); and (b) any other employee who works in a recognised clinical discipline pro‐ viding services for the purpose of assessing, improving, protecting, or managing the physical or mental health of individuals or groups of indi‐ viduals industrial action means a strike or a lockout life preserving services means— (a) crisis intervention for the preservation of life: (b) care required for therapeutic services without which life would be jeop‐ ardised: (c) urgent diagnostic procedures required to obtain information on poten‐ tially life-threatening conditions: (d) crisis intervention for the prevention of permanent disability: (e) care required for therapeutic services without which permanent disability would occur: (f) urgent diagnostic procedures required to obtain information on condi‐ tions that could potentially lead to permanent disability services— (a) has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000; and (b) to avoid doubt,— 301 Reprinted as at Schedule 1B Employment Relations Act 2000 1 July 2021 (i) includes cleaning services, food catering services, laundry ser‐ vices, and orderly services; but (ii) does not include building construction services. Schedule 1B clause 3 life preserving services paragraph (d): added, on 22 December 2006, by clause 4 of the Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395). Schedule 1B clause 3 life preserving services paragraph (e): added, on 22 December 2006, by clause 4 of the Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395). Schedule 1B clause 3 life preserving services paragraph (f): added, on 22 December 2006, by clause 4 of the Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395). General 4 General requirements (1) In all aspects of their employment relationship, the parties must— (a) engage constructively; and (b) participate fully and effectively. (2) In their employment relationship, the parties must— (a) behave openly and with courtesy and respect towards each other; and (b) create and maintain open, effective, and clear lines of communication, including providing information in a timely manner; and (c) recognise the role of health professionals as advocates for patients; and (d) make time to meet as and when required— (i) to address not only the industrial issues between the parties but also issues facing the public health sector, the employer, and the employees; and (ii) to search for solutions that will result in productive employment relationships and the enhanced delivery of services; and (iii) to ensure that any change is managed effectively; and (e) recognise the time and resource constraints that may affect their ability to participate fully, and make allowances for those constraints. (3) To enable employees and their unions to comply with subclause (1), employers must ensure that appropriate steps are taken in their workplaces to encourage, enable, and facilitate employee and union involvement. (4) The parties must use their best endeavours to resolve, in a constructive manner, any differences between them. (5) Subclauses (2) to (4) do not limit subclause (1). 302 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1B 5 Obligation to be good employer Every employer must be a good employer. 6 Collective bargaining and collective agreements (1) The parties must support collective bargaining, including multi-employer col‐ lective agreements, where it is practical and reasonable to do so. (2) The parties must, as far as practical and reasonable, support the definition of coverage that best recognises the parties’ commitment to collective employ‐ ment arrangements. 7 Principles of the Treaty of Waitangi The parties must recognise and support Part 3 of the New Zealand Public Health and Disability Act 2000 which, in order to recognise the principles of the Treaty of Waitangi and with a view to improving health outcomes for Maori, provides mechanisms to enable Maori to contribute to decision-making on, and to participate in the delivery of, health and disability services. Collective bargaining 8 Agreement on clinical expert or other suitable person As part of the arrangement required under section 32(1)(a), the parties must make every endeavour to agree on a clinical expert or other suitable person for the purposes of clause 13(1). 9 Specific things employers must not do during collective bargaining During collective bargaining employers must not— (a) communicate directly with union members in relation to the collective bargaining; or (b) negotiate with employees who are not union members with a view to undermining or influencing the collective bargaining; or (c) attempt to discourage employees from joining or remaining with the union; or (d) contract out services with a view to undermining or influencing the col‐ lective bargaining; or (e) terminate or fail to renew a contract with another employer who is pro‐ viding public health services through its employees, with a view to undermining or influencing any collective bargaining between the other employer and its employees. 10 Mutual obligations (1) During collective bargaining each party must— (a) give thorough and reasonable consideration to the other’s proposals; and 303 Reprinted as at Schedule 1B Employment Relations Act 2000 1 July 2021 (b) not act in a manner that undermines the other or the authority of the other; and (c) not deliberately attempt to provoke a breakdown in the bargaining; and (d) where appropriate, consider ways in which they may take into account tikanga Maori (Maori customary values and practices) in the bargaining. (2) If agreement cannot be reached or the collective bargaining is in difficulty, the parties must give favourable consideration to attending mediation without delay, and must consider third party decision-making. (3) The parties must recognise that collective bargaining and collective agreements need to— (a) provide for the opportunity for participation of union officials, delegates, and members in decision-making where those decisions may have an impact on the work or working environment of those members; and (b) provide for the release of employees to participate in decision-making where appropriate, acknowledging the key role of union delegates in the collective representation of union members; and (c) provide for union delegates to carry out their roles, including the time needed for communication and consultation with members, and for union delegate education. Patient safety 11 General obligation for employers to provide for patient safety during industrial action During industrial action, employers must provide for patient safety by ensuring that life preserving services are available to prevent a serious threat to life or permanent disability. 12 Contingency plans (1) As soon as notice of industrial action is received or given, an employer must develop (if it has not already done so) a contingency plan and take all reason‐ able and practicable steps to ensure that it can provide life preserving services if industrial action occurs. (2) If an employer believes that it cannot arrange to deliver any life preserving ser‐ vice during industrial action without the assistance of members of the union, the employer must make a request to the union seeking the union’s and its members’ agreement to maintain or to assist in maintaining life preserving ser‐ vices. (3) The request must include specific details about— (a) the life preserving service the employer seeks assistance to maintain; and 304 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1B (b) the employer’s contingency plan relating to that life preserving service; and (c) the support it requires from union members. (4) A request must be made by the close of the day after the date of the notice of industrial action. (5) As soon as practicable after the employer has made a request but not later than 4 days after the date of the notice of industrial action, the parties must meet and negotiate in good faith and make every reasonable effort to agree on— (a) the extent of the life preserving service necessary to provide for patient safety during the industrial action; and (b) the number of staff necessary to enable the employer to provide that life preserving service; and (c) a protocol for the management of emergencies which require additional life preserving services. (6) An agreement reached between the parties must be recorded in writing. 13 Adjudication (1) If the parties cannot reach agreement under clause 12(5) they must, within 5 days after the date of the notice of industrial action, refer the matter for adjudi‐ cation by a clinical expert or other suitable person as agreed under clause 8. (2) The adjudicator must conduct the adjudication in a manner he or she considers appropriate and must— (a) receive and consider representations from the parties; and (b) in consultation with the parties, seek expert advice if the adjudicator considers that it is necessary to do so; and (c) attempt to resolve any differences between the parties to enable them to reach agreement and, if that is not possible, make a determination bind‐ ing on the parties; and (d) provide a determination to the parties as soon as possible but not later than 7 days after the date of notice of industrial action. (3) The parties must use their best endeavours to give effect to the determination. (4) The parties must bear their own costs in relation to an adjudication. Public comments 14 Recognition of employees’ right to make public comments (1) Employers must respect and recognise the right of their employees to comment publicly and engage in public debate on matters within their expertise and experience as employees. (2) However, this clause applies subject to clauses 15 to 17. 305 Reprinted as at Schedule 1B Employment Relations Act 2000 1 July 2021 15 Employee must first raise matter with employer Before an employee exercises the right specified in clause 14(1) in relation to the operations of his or her employer, the employee must first— (a) raise the matter with his or her employer; and (b) provide a reasonable time for his or her employer to respond. 16 When employee may make public comments about employer’s operations If the employee is dissatisfied with his or her employer’s response or there is no response from his or her employer, the employee may exercise the right spe‐ cified in clause 14(1) if the employee makes it clear that he or she is— (a) speaking in a personal capacity; or (b) speaking on behalf of a union with its authority to do so. 17 Confidentiality When exercising the right specified in clause 14(1), an employee must not breach patient confidentiality or professional confidentiality. 18 Rights of union not affected To avoid doubt, clauses 14 to 16 do not prevent a union from making public comments or engaging in public debate on any matter relating to the public health sector. Continuity of employment 19 Outsourcing or direct provision of services (1) This clause applies if— (a) an employer is a district health board or the New Zealand Blood Service; and (b) the employer obtains services from its employees; and (c) the employer engages or arranges for another employer to provide some or all of those services— (i) to the employer (outsourcing); or (ii) direct to patients (direct provision). (2) The employees referred to in subclause (1)(b) who are affected by the out‐ sourcing or direct provision are entitled to be employed by the other employer on the same terms and conditions as applied to the employees immediately before the outsourcing or direct provision took effect. 20 Change in provider of outsourced services (1) This clause applies if— 306 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1B (a) a district health board or the New Zealand Blood Service has outsourced (within the meaning of clause 19(1)(c)(i)) the provision of services to it by another employer; and (b) the agreement or arrangement under which the other employer provides those services comes to an end; and (c) the district health board or the New Zealand Blood Service makes an agreement or arrangement with a new employer to provide some or all of those services to it. (2) The employees of the employer referred to in subclause (1)(b) who are affected by the outsourcing are entitled to be employed by the other employer on the same terms and conditions as applied to the employees immediately before the agreement or arrangement referred to in subclause (1)(b) came to an end. 21 Obligation to notify provisions of clauses 19 and 20 (1) Before a district health board or the New Zealand Blood Service enters into an agreement or arrangement with a new employer to which clause 19 or clause 20 applies, it must notify the employer of the provisions of clause 19 or clause 20, whichever applies in the circumstances. (2) However, failure to comply with subclause (1) does not affect the validity of an agreement or arrangement referred to in that subclause. (3) This clause is in addition to clause 1(3). Remedying breaches of good faith 22 Notice of breach If a party believes that another party has breached the duty of good faith in section 4, it must bring this to the attention of the party in breach at an early stage. 23 Obligation of party in breach A party in breach must— (a) if the breach can be made good, make good the breach by making every endeavour to restore the other party to the position the other party was in before the breach; or (b) if the breach cannot be made good, provide an explanation to the other party. Transitional 24 Transitional (1) This code does not apply to anything done or any matter arising before the commencement of the code. 307 Reprinted as at

Schedule 1B Employment Relations Act 2000 1 July 2021 (2) However, subclause (1) applies subject to subclauses (3) and (4). (3) Subclause (1) does not prevent the code applying in relation to— (a) a collective agreement entered into before the commencement of the code; or (b) bargaining for a collective agreement that began before the commence‐ ment of the code. (4) Clause 20 applies even though the agreement or arrangement referred to in clause 20(1)(b) was entered into before the commencement of the code. 308 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1C Schedule 1C Code of good faith for employment relationships in relation to provision of services by Police ss 100F, 100G Schedule 1C: inserted, on 1 October 2008, by section 122 of the Policing Act 2008 (2008 No 72). 1 Application (1) This code applies to the following parties: (a) the New Zealand Police (the Police): (b) Police employees: (c) service organisations: (d) other employers to the extent that they provide services to the Police: (e) employees of the employers referred to in paragraph (d) to the extent that they are engaged in providing services to the Police: (f) unions whose members are employees referred to in paragraph (e) (other unions). (2) However, to avoid doubt, subclause (1)(d) and (e) applies in relation to the pro‐ vision of services only if the services are provided to the Police in its role as a provider of Police emergency response services. (3) Before the Police enters into an agreement or arrangement with another employer for the provision of services to the Police, it must notify the employer that this code will apply to the employer in relation to the provision of those services. (4) However, failure to comply with subclause (3) does not affect the validity of an agreement or arrangement referred to in that subclause. 2 Purpose The purpose of this code is— (a) to promote productive employment relationships in relation to the provi‐ sion of services by the Police: (b) to require the parties to make or continue a commitment— (i) to the safety of the public and Police employees; and (ii) to develop, maintain, and provide high quality policing services; and (iii) to engage constructively and participate fully and effectively in all aspects of their employment relationships: (c) to recognise the importance of— (i) collective arrangements; and (ii) the role of service organisations and other unions. 309 Reprinted as at Schedule 1C Employment Relations Act 2000 1 July 2021 3 Interpretation In this schedule, unless the context otherwise requires,— industrial action means a strike by, or a lockout of, Police employees Police emergency response services means services provided by the Police that directly or indirectly enable maintenance of the Police’s effective response to calls for service where— (a) people are injured or in danger; or (b) there is a serious, immediate, or imminent risk to life or property; or (c) a crime is being or has just been committed and the offenders are still at the scene or have just left service organisation has the same meaning as in section 55 of the Policing Act 2008. General 4 General requirements (1) In all aspects of their employment relationship, the parties must— (a) engage constructively; and (b) participate fully and effectively. (2) In their employment relationship, the parties must— (a) behave openly and with courtesy and respect towards each other; and (b) create and maintain open, effective, and clear lines of communication, including providing information in a timely manner; and (c) recognise the role of Police employees as advocates for public safety; and (d) make time to meet as and when required— (i) to address not only the industrial issues between the parties but also issues facing the Police, the other employers, and the employees; and (ii) to search for solutions that will result in productive employment relationships and the enhanced delivery of services; and (iii) to ensure that any change is managed effectively; and (e) recognise the time and resource constraints that may affect their ability to participate fully, and make allowances for those constraints. (3) To enable employees, service organisations, and other unions to comply with subclause (1), employers must ensure that appropriate steps are taken in their workplaces to encourage, enable, and facilitate employee, service organisation, and other union involvement. 310 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1C (4) The parties must use their best endeavours to resolve, in a constructive manner, any differences between them. (5) Subclauses (2) to (4) do not limit subclause (1). Collective bargaining 5 Agreement on suitable person As part of the arrangement required under section 32(1)(a), the parties must make every endeavour to agree on a suitable person for the purposes of clause 11(1). 6 Collective bargaining and collective agreements (1) The parties must support collective bargaining where it is practical and reason‐ able to do so. (2) The parties must, as far as practical and reasonable, support the definition of coverage that best recognises the parties’ commitment to collective employ‐ ment arrangements. 7 Specific things employers must not do during collective bargaining During collective bargaining employers must not— (a) communicate directly with service organisation or other union members in relation to the collective bargaining; or (b) negotiate with employees who are not service organisation or other union members with a view to undermining or influencing the collective bargaining; or (c) attempt to discourage employees from joining or remaining with the ser‐ vice organisation or other union; or (d) contract out services with a view to undermining or influencing the col‐ lective bargaining. 8 Mutual obligations (1) During collective bargaining each party must— (a) give thorough and reasonable consideration to the other’s proposals; and (b) not act in a manner that undermines the other or the authority of the other; and (c) not deliberately attempt to provoke a breakdown in the bargaining. (2) If agreement cannot be reached or the collective bargaining is in difficulty, the parties must give favourable consideration to attending mediation without delay, and must consider third party decision-making. (3) The parties must recognise that collective bargaining and collective agreements need to— 311 Reprinted as at Schedule 1C Employment Relations Act 2000 1 July 2021 (a) provide for the opportunity for participation of service organisation, and other union, officials, delegates, and members in decision-making where those decisions may have an impact on the work or working environ‐ ment of those members; and (b) provide for the release of employees to participate in decision-making where appropriate, acknowledging the key role of service organisation, and other union, delegates in the collective representation of their mem‐ bers; and (c) provide for service organisation, and other union, delegates to carry out their roles, including the time needed for communication and consult‐ ation with members, and for delegate education. Public safety 9 Obligation for Police to provide for public safety during industrial action During industrial action, the Police must provide for public safety by ensuring that emergency response services are available. 10 Contingency plans (1) As soon as notice of industrial action is received or given, the Police must develop (if it has not already done so) a contingency plan and take all reason‐ able and practicable steps to ensure that it can provide Police emergency response services if industrial action occurs. (2) If the Police believes it cannot arrange to deliver Police emergency response services during industrial action without the assistance of members of a service organisation or organisations, or other union or unions, the Police must make a request to the relevant service organisation or other union seeking the service organisation’s, or other union’s, and its members’ agreement to maintain or to assist in maintaining Police emergency response services. (3) The request must include specific details about— (a) the Police emergency response service the Police seeks assistance to maintain; and (b) the Police’s contingency plan relating to that Police emergency response service; and (c) the support it requires from service organisation, or other union, mem‐ bers. (4) A request must be made by the close of the day after the date of the notice of industrial action. (5) As soon as practicable after the Police has made a request, but not later than 4 days after the date of the notice of industrial action, the parties must meet and negotiate in good faith and make every reasonable effort to agree on— 312 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 1C (a) the extent of the Police emergency response service necessary to provide for public safety during the industrial action; and (b) the number of employees necessary to enable the Police to provide that Police emergency response service; and (c) a protocol for the management of emergencies that require additional emergency response services. (6) An agreement reached between the parties must be recorded in writing. 11 Adjudication (1) If the parties cannot reach agreement under clause 10(5) they must, within 5 days after the date of the notice of industrial action, refer the matter for adjudi‐ cation by a suitable person as agreed by the parties under clause 5. (2) The adjudicator must conduct the adjudication in a manner he or she considers appropriate and must— (a) receive and consider representations from the parties; and (b) in consultation with the parties, seek expert advice if the adjudicator considers that it is necessary to do so; and (c) attempt to resolve any differences between the parties to enable them to reach agreement and, if that is not possible, make a determination bind‐ ing on the parties; and (d) provide a determination to the parties as soon as possible but not later than 7 days after the date of notice of industrial action. (3) The parties must use their best endeavours to give effect to the determination. (4) The parties must bear their own costs in relation to any adjudication. Public comments during collective bargaining 12 Recognition of service organisation members’ right to make public comments during collective bargaining (1) The Police must respect and recognise the right of service organisation mem‐ bers to comment publicly and engage in public debate during collective bar‐ gaining on matters relevant to the collective bargaining. (2) This clause applies subject to clauses 13 to 15. 13 Employee must first raise matter with employer Before a service organisation member exercises the right specified in clause 12(1) in relation to the operations of the Police, the employee must first— (a) raise the matter with the Police; and (b) provide a reasonable time for the Police to respond. 313 Reprinted as at

Schedule 1C Employment Relations Act 2000 1 July 2021 14 When service organisation member may make public comments If the service organisation member is dissatisfied with the Police’s response or there is no response from the Police, the service organisation member may exercise the right specified in clause 12(1) if the service organisation member makes it clear that he or she is— (a) speaking in a personal capacity; or (b) speaking on behalf of the service organisation with its authority to do so. 15 Confidentiality When exercising the right specified in clause 12(1), a service organisation member employee must not breach legal or operational requirements of confi‐ dentiality in respect of individual cases, operations, or investigations. 16 Rights of service organisation not affected To avoid doubt, clauses 12 to 15 do not prevent a service organisation, or other union, or its representatives from making public comments or engaging in pub‐ lic debate on any matter relating to the Police. 17 Transitional provision This code applies to bargaining for any collective agreement which began before the commencement of the code. 314 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 2 Schedule 2 Provisions having effect in relation to Employment Relations Authority s 165 1 Construction of employment agreements and statutory provisions (1) The Authority may, in performing its role, deal with any question related to the employment relationship, including— (a) any question connected with an employment agreement, being a ques‐ tion that arises in the course of any investigation by the Authority: (b) any question connected with the construction of this Act or of any other Act, being a question that arises in the course of any investigation by the Authority. (2) Subclause (1)(b) has effect in relation to a question even though that question concerns the meaning of this Act (being the Act under which the Authority is constituted) or of an Act under which the Authority operates in a particular case. Compare: 1991 No 22 s 79(1)(h), (i) 2 Representation of parties (1) Any party or person involved in a matter before the Authority, or called upon to appear before the Authority, may— (a) appear personally; or (b) be represented— (i) by an officer or member of a union; or (ii) by an agent; or (iii) by a barrister or solicitor. (2) The Authority may order any person to appear before it or be represented before it. Compare: 1991 No 22 s 90 3 Privileged communications (1) Where any party to any matter before the Authority is represented by a person other than a barrister or solicitor, any communications between that party and that person in relation to those proceedings are as privileged as they would have been if that person had been a barrister or solicitor. (2) In subclause (1), party, in relation to any matter before the Authority, includes any person who— (a) appears or is represented before the Authority; or 315 Reprinted as at Schedule 2 Employment Relations Act 2000 1 July 2021 (b) under clause 2(2) is ordered to appear or be represented before the Authority. 4 Reopening of investigation (1) The Authority may order an investigation to be reopened upon such terms as it thinks reasonable, and in the meantime to stay the effect of any order previ‐ ously made. (2) The reopened investigation need not be carried out by the same member of the Authority. Compare: 1991 No 22 s 91(1), (4) 4A Service outside New Zealand Any document relating to a matter before the Authority may be served out of New Zealand— (a) by leave of the Authority; and (b) in accordance with regulations made under this Act. Schedule 2 clause 4A: inserted, on 1 December 2004, by section 70 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 5 Witness summons (1) For the purposes of any matter before the Authority, the Authority may, on the application of any party to the matter, or of its own volition, issue a summons to any person requiring that person to attend before the Authority and give evi‐ dence. (2) The summons must be in the prescribed form, and may require the person to produce before the Authority any books, papers, documents, records, or things in that person’s possession or under that person’s control in any way relating to the matter. (3) The power to issue a summons under this clause may be exercised by the Authority or a member of the Authority, or by any officer of the Authority pur‐ porting to act by the direction or with the authority of the Authority or a mem‐ ber of the Authority. Compare: 1991 No 22 s 96 6 Witnesses’ expenses (1) Every person attending the Authority on a summons, and every other person giving evidence before the Authority, is entitled, subject to subclause (2), to be paid, by the party calling that person, witnesses’ fees, allowances, and travel‐ ling expenses according to the scales for the time being prescribed by regula‐ tions made under the Criminal Procedure Act 2011, and those regulations apply accordingly. (2) The Authority may disallow the whole or any part of any sum payable under subclause (1). 316 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 2 (3) On each occasion on which the Authority issues a summons under clause 5, the Authority, or the person exercising the power of the Authority under subclause (3) of that clause, must fix an amount that, on the service of the summons, or at some other reasonable time before the date on which the witness is required to attend, is to be paid or tendered to the witness. (4) The amount fixed under subclause (3) of this clause is to be the estimated amount of the allowances and travelling expenses (but not fees) to which, in the opinion of the Authority or person, the witness will be entitled, according to the prescribed scales, if the witness attends at the time and place specified in the summons. (5) Where the Authority, on its own volition, issues a summons to any person under clause 5(1),— (a) that person, if he or she attends the Authority on that summons, is entitled, subject to subclause (2), to be paid by the department the amount of the witnesses’ fees, allowances, and travelling expenses spe‐ cified in subclause (1); and (b) the department must provide any amount fixed under subclause (3) as the amount required to be paid or tendered to that person. Compare: 1991 No 22 s 96 Schedule 2 clause 6(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81). 7 Evidence at distance (1) For the purpose of obtaining the evidence of witnesses at a distance, the Authority or, while the Authority is not sitting, any member of the Authority, has all the powers and functions of a District Court Judge under the District Court Act 2016. (2) The provisions of the District Court Act 2016 relating to the taking of evidence at a distance apply, with the necessary modifications, as if the Authority were the District Court. (3) Despite subclause (2) evidence may, for the purposes of this Act, be taken at a distance by a Registrar of the District Court. Compare: 1991 No 22 s 96 Schedule 2 clause 7(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49). Schedule 2 clause 7(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49). Schedule 2 clause 7(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49). 317 Reprinted as at Schedule 2 Employment Relations Act 2000 1 July 2021 8 Power to take evidence on oath (1) The Authority may take evidence on oath and, for that purpose, any member of the Authority, or any other person acting under the express or implied direction of the Authority or a member of the Authority, may administer an oath. (2) On any charge for perjury it is sufficient to prove that the oath was adminis‐ tered in accordance with subclause (1). Compare: 1991 No 22 s 96 Schedule 2 clause 8(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81). 9 Party competent as witness Any party to a matter before the Authority is competent to give evidence in the matter and may be compelled to give evidence as a witness. Compare: 1991 No 22 s 96 10 Power to prohibit publication (1) The Authority may, in respect of any matter, order that all or any part of any evidence given or pleadings filed or the name of any party or witness or other person not be published, and any such order may be subject to such conditions as the Authority thinks fit. (2) Where a matter is resolved by the Authority making a consent order as to the terms of settlement, the Authority may make an order prohibiting the publica‐ tion of all or part of the contents of that settlement, subject to such conditions as the Authority thinks fit. Compare: 1991 No 22 s 97 11 Power to award interest (1) In any matter involving the recovery of any money, the Authority may, if it thinks fit, order the inclusion, in the sum for which judgment is given, of inter‐ est, calculated in accordance with Schedule 2 of the Interest on Money Claims Act 2016, on the whole or part of the money for the whole or part of the period between the date when the cause of action arose and the date of payment in accordance with the determination of the Authority. (2) Without limiting the Authority’s discretion under subclause (1), in deciding whether to order the inclusion of interest, the Authority must consider whether there has been long-standing and repeated non-compliance with a demand notice. (3) [Repealed] Schedule 2 clause 11: substituted, on 1 April 2011, by section 39(1) of the Employment Relations Amendment Act 2010 (2010 No 125). Schedule 2 clause 11(1): replaced, on 1 January 2018, by section 29 of the Interest on Money Claims Act 2016 (2016 No 51). 318 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 2 Schedule 2 clause 11(3): repealed, on 1 January 2018, by section 29 of the Interest on Money Claims Act 2016 (2016 No 51). 12 Power to proceed if any party fails to attend If, without good cause shown, any party to a matter before the Authority fails to attend or be represented, the Authority may act as fully in the matter before it as if that party had duly attended or been represented. Compare: 1991 No 22 s 100 12A Power to dismiss frivolous or vexatious proceedings (1) The Authority may, at any time in any proceedings before it, dismiss a matter or defence that the Authority considers to be frivolous or vexatious. (2) In any such case, the order of the Authority may include an order for payment of costs and expenses against the party bringing the matter or defence. Schedule 2 clause 12A: inserted, on 1 April 2011, by section 39(1) of the Employment Relations Amendment Act 2010 (2010 No 125). 13 No invalidity for want of form No determination or order of the Authority, and no matter before the Authority, is to be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form. Compare: 1991 No 22 s 104(4) 14 Withdrawal of matter (1) Where any matter is before the Authority, it may at any time be withdrawn by the applicant or appellant. (2) For the purposes of subclause (1), a matter before the Authority must be treated as having been withdrawn if no action on the matter has been taken by a party or the Authority for at least 3 years. Compare: 1991 No 22 s 88(8) Schedule 2 clause 14(2): added, on 1 April 2011, by section 39(1) of the Employment Relations Amendment Act 2010 (2010 No 125). 15 Power to award costs (1) The Authority may order any party to a matter to pay to any other party such costs and expenses (including expenses of witnesses) as the Authority thinks reasonable. (2) The Authority may apportion any such costs and expenses between the parties or any of them as it thinks fit, and may at any time vary or alter any such order in such manner as it thinks reasonable. Compare: 1991 No 22 s 98 319 Reprinted as at Schedule 2 Employment Relations Act 2000 1 July 2021 16 Investigation to continue on change in Authority Where any change takes place in the member constituting the Authority, any investigation then in progress does not abate and is not affected, but is to con‐ tinue and is to be dealt with by the Authority as if no change had taken place; but the Authority may require evidence to be retaken where necessary. Compare: 1991 No 22 s 128 17 Urgency Where any person applies to the Authority to accord urgency to an investiga‐ tion, the Authority must consider that application and may, if satisfied that it is necessary and just to do so, order that the investigation take place as soon as practicable. Compare: 1991 No 22 s 118 18 Investigation not to abate by reason of death (1) An investigation by the Authority does not abate by reason of any vacancy in the membership of the Authority, or of the death of any party to the matter being investigated. (2) In the latter case, the legal personal representative of the deceased party is to be substituted in the deceased party’s stead. Compare: 1991 No 22 s 129 320 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 3 Schedule 3 Provisions having effect in relation to Employment Court s 191 1 Construction of employment agreements and statutory provisions (1) The court may, in exercising its jurisdiction, hear and determine any question related to the employment relationship, including— (a) any question connected with an employment agreement, being a ques‐ tion that arises in the course of any proceedings properly brought before the court: (b) any question connected with the construction of this Act or of any other Act, being a question that arises in the course of any proceedings prop‐ erly brought before the court. (2) Subclause (1)(b) has effect in relation to a question even though that question concerns the meaning of this Act (being the Act under which the court is con‐ stituted) or of an Act under which the court operates in a particular case. Compare: 1991 No 22 s 104(1)(f), (i) 2 Appearance of parties (1) Any party to any proceedings before the court, and any other person appearing before the court, may— (a) appear personally; or (b) be represented— (i) by an officer or member of a union; or (ii) by an agent; or (iii) by a barrister or solicitor. (2) In any proceedings the court may allow to appear or to be represented any per‐ son who applies to the court for leave to appear or be represented and who, in the opinion of the court, is justly entitled to be heard; and the court may order any other person so to appear or be represented. Compare: 1991 No 22 s 123 3 Privileged communications (1) Where any party to proceedings before the court is represented by a person other than a barrister or solicitor, any communications between that party and that person in relation to those proceedings and to the matter in issue (if it has been before the Authority) are as privileged as they would have been if that person had been a barrister or solicitor. (2) In subclause (1), party, in relation to proceedings before the court, includes any person who, under clause 2(2),— 321 Reprinted as at Schedule 3 Employment Relations Act 2000 1 July 2021 (a) is allowed to appear or be represented in those proceedings; or (b) is ordered to appear or be represented in those proceedings. 4 Evidence Any party to any proceedings before the court may give and call evidence. Compare: 1991 No 22 s 123(1) 5 Rehearing (1) The court has in every proceeding, on the application of an original party to the proceeding, the power to order a rehearing to be had upon such terms as it thinks reasonable, and in the meantime to stay proceedings. (2) Despite subclause (1), a rehearing may not be granted on an application made more than 28 days after the decision or order, unless the court is satisfied that the application could not reasonably have been made sooner. (3) The application— (a) must be served on the opposite party not less than 7 clear days before the day fixed for the hearing; and (b) must state the grounds on which the application is made. (4) Those grounds must be verified by affidavit. (5) The application does not operate as a stay of proceedings unless the court so orders. (6) The rehearing need not take place before the Judge by whom the proceedings were originally heard. Compare: 1991 No 22 s 125 5A Service outside New Zealand Any document relating to a matter before the court may be served out of New Zealand— (a) by leave of the court; and (b) in accordance with regulations made under this Act. Schedule 3 clause 5A: inserted, on 1 December 2004, by section 71 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86). 6 Witness summons (1) For the purposes of any proceedings before the court, the court may, on the application of any party to those proceedings, or of its own volition, issue a summons to any person requiring that person to attend before the court and give evidence at the hearing of those proceedings. (2) A summons may not be issued under subclause (1) to a member of the Author‐ ity. 322 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 3 (3) The summons must be in the prescribed form, and may require the person to produce before the court any books, papers, documents, records, or things in that person’s possession or under that person’s control in any way relating to the proceedings. (4) The power to issue a summons under this section may be exercised by the court or a Judge, or by any officer of the court purporting to act by the direction or with the authority of the court or a Judge. Compare: 1991 No 22 s 126(2)(a), (b) 7 Witnesses’ expenses (1) Every person attending the court on a summons, and every other person giving evidence before the court, is entitled, subject to subclause (2), to be paid, by the party calling that person, witnesses’ fees, allowances, and travelling expenses according to the scales for the time being prescribed by regulations made under the Criminal Procedure Act 2011, and those regulations apply accordingly. (2) The court may disallow the whole or any part of any sum payable under sub‐ clause (1). (3) On each occasion on which the court issues a summons under clause 6, the court, or the person exercising the power of the court under subclause (4) of that clause, must fix an amount that, on the service of the summons, or at some other reasonable time before the date on which the witness is required to attend, is to be paid or tendered to the witness. (4) The amount fixed under subclause (3) is to be the estimated amount of the allowances and travelling expenses (but not fees) to which, in the opinion of the court or person, the witness will be entitled, according to the prescribed scales, if the witness attends at the time and place specified in the summons. Compare: 1991 No 22 s 126(2)(d) Schedule 3 clause 7(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81). 8 Evidence at distance (1) For the purpose of obtaining the evidence of witnesses at a distance, the court, or, while the court is not sitting, any Judge, has all the powers and functions of a District Court Judge under the District Court Act 2016. (2) The provisions of the District Court Act 2016 relating to the taking of evidence at a distance apply, with the necessary modifications, as if the court were the District Court. (3) Despite subclause (2) evidence may, for the purposes of this Act, be taken at a distance by a Registrar of the District Court. Compare: 1991 No 22 s 126(2)(f) 323 Reprinted as at Schedule 3 Employment Relations Act 2000 1 July 2021 Schedule 3 clause 8(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49). Schedule 3 clause 8(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49). Schedule 3 clause 8(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49). 9 Power to take evidence on oath (1) The court may take evidence on oath, and for that purpose any Judge, or any other person acting under the express or implied direction of the court or a Judge, may administer an oath. (2) On any charge for perjury it is sufficient to prove that the oath was adminis‐ tered in accordance with subclause (1). Compare: 1991 No 22 s 126(2)(g), (h) Schedule 3 clause 9(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81). 10 Party competent as witness Any party to proceedings before the court is competent to give evidence in those proceedings and may be compelled to give evidence as a witness. Compare: 1991 No 22 s 126(2)(i) 11 Power to dispense with evidence In any proceedings the court may, if it thinks fit, dispense with any evidence on any matters on which all parties to the proceedings have agreed. Compare: 1991 No 22 s 126(3) 12 Power to prohibit publication (1) In any proceedings the court may order that all or any part of any evidence given or pleadings filed or the name of any party or witness or other person not be published, and any such order may be subject to such conditions as the court thinks fit. (2) Where proceedings are resolved by the court making a consent order as to the terms of settlement, the court may make an order prohibiting the publication of all or part of the contents of that settlement, subject to such conditions as the court thinks fit. Compare: 1991 No 22 s 109 13 Discovery (1) The court may, in relation to discovery that relates to proceedings brought or intended to be brought in the court, or intended to be brought in the Authority, make any order that the District Court may make under section 105 or 106 of the District Court Act 2016; and those sections apply accordingly with all necessary modifications. 324 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 3 (2) Every application for an order under section 105 or 106 of the District Court Act 2016 (as applied by subclause (1)) is to be dealt with in accordance with regulations made under this Act. (3) Nothing in subclauses (1) and (2) limits the making of rules under section 212 or regulations under section 237. Schedule 3 clause 13(1): substituted, on 1 April 2011, by section 39(2) of the Employment Relations Amendment Act 2010 (2010 No 125). Schedule 3 clause 13(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49). Schedule 3 clause 13(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49). 14 Power to award interest In any proceedings for the recovery of any money, the court may, if it thinks fit, order that the amount awarded include interest, calculated in accordance with

Schedule 2 of the Interest on Money Claims Act 2016, on the whole or part of the money for the whole or part of the period between the date when the cause of action arose and the date of payment in accordance with the judgment. Schedule 3 clause 14: replaced, on 1 January 2018, by section 29 of the Interest on Money Claims Act 2016 (2016 No 51). 15 Power to dismiss frivolous or vexatious proceedings (1) The court may, at any time in any proceedings before it, dismiss a matter or defence that the court considers to be frivolous or vexatious. (2) In any such case, the order of the court may include an order for payment of costs and expenses against the party bringing the matter or defence before the Authority. Schedule 3 clause 15: substituted, on 1 April 2011, by section 39(2) of the Employment Relations Amendment Act 2010 (2010 No 125). 16 Power to proceed if any party fails to attend If, without good cause shown, any party to proceedings before the court fails to attend or be represented, the court may act as fully in the matter before it as if that party had duly attended or been represented. Compare: 1991 No 22 s 124 17 Proceedings not invalid for want of form No decision or order of the court, and no proceedings before the court, are to be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form. Compare: 1991 No 22 s 104(4) 325 Reprinted as at Schedule 3 Employment Relations Act 2000 1 July 2021 18 Withdrawal of proceedings (1) Where any matter is before the court, it may at any time be withdrawn by the applicant or appellant. (2) To avoid doubt, if a matter is withdrawn under subclause (1), it does not affect any other matters before the court that form part of the same proceedings. Compare: 1991 No 22 s 106 Schedule 3 clause 18(2): added, on 1 April 2011, by section 39(2) of the Employment Relations Amendment Act 2010 (2010 No 125). 19 Power to award costs (1) The court in any proceedings may order any party to pay to any other party such costs and expenses (including expenses of witnesses) as the court thinks reasonable. (2) The court may apportion any such costs and expenses between the parties or any of them as it thinks fit, and may at any time vary or alter any such order in such manner as it thinks reasonable. Compare: 1991 No 22 s 108 20 Proceedings to continue on change in court Where any change takes place in the Judge constituting the court, any proceed‐ ings or inquiry then in progress do not abate and are not affected, but are to continue and are to be dealt with by the court as if no change had taken place; but the court may require evidence to be retaken where necessary. Compare: 1991 No 22 s 128 21 Urgency Where any party to any proceedings applies to the court to accord urgency to the hearing of the proceedings, the court must consider that application and may, if satisfied that it is necessary and just to do so, order that the proceedings be heard by the court as soon as practicable. Compare: 1991 No 22 s 118 22 Proceedings not to abate by reason of death (1) Proceedings before the court do not abate by reason of the seat of any Judge being vacant for any cause whatever, or of the death of any party to the pro‐ ceedings. (2) In the latter case, the legal personal representative of the deceased party is to be substituted in the deceased party’s stead. Compare: 1991 No 22 s 129 326 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 4

Schedule 4 New Schedule 3 of Police Act 1958 s 239

Schedule 3 Procedure for conciliation and arbitration s 67(6) Amendment(s) incorporated in the Act(s). 327 Reprinted as at Schedule 5 Employment Relations Act 2000 1 July 2021 Schedule 5 Enactments amended s 240 Accident Insurance Act 1998 (1998 No 114) Amendment(s) incorporated in the Act(s). Anzac Day Act 1966 (RS Vol 33, p 13) Amendment(s) incorporated in the Act(s). Arts Council of New Zealand Toi Aotearoa Act 1994 (1994 No 19) Amendment(s) incorporated in the Act(s). Civil Aviation Act 1990 (RS Vol 32, p 1) Amendment(s) incorporated in the Act(s). Clerk of the House of Representatives Act 1988 (1988 No 126) Amendment(s) incorporated in the Act(s). Commerce Act 1986 (RS Vol 31, p 71) Amendment(s) incorporated in the Act(s). Companies Act 1993 (1993 No 105) Amendment(s) incorporated in the Act(s). Crown Research Institutes Act 1992 (1992 No 47) Amendment(s) incorporated in the Act(s). Defence Act 1990 (1990 No 28) Amendment(s) incorporated in the Act(s). Disabled Persons Community Welfare Act 1975 (RS Vol 26, p 143) Amendment(s) incorporated in the Act(s). Education Act 1989 (RS Vol 34, p 17) Amendment(s) incorporated in the Act(s). Environment Act 1986 (RS Vol 36, p 223) Amendment(s) incorporated in the Act(s). Equal Pay Act 1972 (RS Vol 35, p 279) Amendment(s) incorporated in the Act(s). 328 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 5 Films, Videos, and Publications Classification Act 1993 (1993 No 94) Amendment(s) incorporated in the Act(s). Fisheries Act 1996 (1996 No 88) Amendment(s) incorporated in the Act(s). Government Superannuation Fund Act 1956 (RS Vol 21, p 209) Amendment(s) incorporated in the Act(s). Hazardous Substances and New Organisms Act 1996 (1996 No 30) Amendment(s) incorporated in the Act(s). Health and Disability Commissioner Act 1994 (1994 No 88) Amendment(s) incorporated in the Act(s). Health and Disability Services Act 1993 (1993 No 22) Amendment(s) incorporated in the Act(s). Health Reforms (Transitional Provisions) Act 1993 (1993 No 23) Amendment(s) incorporated in the Act(s). Higher Salaries Commission Act 1977 (RS Vol 35, p 307) Amendment(s) incorporated in the Act(s). Historic Places Act 1993 (1993 No 38) Amendment(s) incorporated in the Act(s). Holidays Act 1981 (RS Vol 27, p 611) Amendment(s) incorporated in the Act(s). Housing Restructuring Act 1992 (1992 No 76) Amendment(s) incorporated in the Act(s). Human Rights Act 1993 (1993 No 82) Amendment(s) incorporated in the Act(s). Immigration Act 1987 (RS Vol 33, p 163) Amendment(s) incorporated in the Act(s). Industry Training Act 1992 (1992 No 55) Amendment(s) incorporated in the Act(s). Judicature Amendment Act 1972 (RS Vol 22, p 489) Amendment(s) incorporated in the Act(s). 329 Reprinted as at

Schedule 5 Employment Relations Act 2000 1 July 2021 Land Transport Act 1998 (1998 No 110) Amendment(s) incorporated in the Act(s). Legal Services Act 1991 (1991 No 71) Amendment(s) incorporated in the Act(s). Maori Language Act 1987 (1987 No 176) Amendment(s) incorporated in the Act(s). Maritime Transport Act 1994 (1994 No 104) Amendment(s) incorporated in the Act(s). Minimum Wage Act 1983 (RS Vol 27, p 701) Amendment(s) incorporated in the Act(s). Museum of New Zealand Te Papa Tongarewa Act 1992 (1992 No 19) Amendment(s) incorporated in the Act(s). New Zealand Antarctic Institute Act 1996 (1996 No 38) Amendment(s) incorporated in the Act(s). Oaths and Declarations Act 1957 (RS Vol 28, p 821) Amendment(s) incorporated in the Act(s). Parental Leave and Employment Protection Act 1987 (RS Vol 27, p 753) Amendment(s) incorporated in the Act(s). Police Act 1958 (RS Vol 26, p 669) Amendment(s) incorporated in the Act(s). Privacy Act 1993 (1993 No 28) Amendment(s) incorporated in the Act(s). Protected Disclosures Act 2000 (2000 No 7) Amendment(s) incorporated in the Act(s). Retirement Income Act 1993 (1993 No 148) Amendment(s) incorporated in the Act(s). Royal New Zealand Foundation for the Blind Act 1963 (RS Vol 37, p 811) Amendment(s) incorporated in the Act(s). Social Security Act 1964 (RS Vol 32, p 625) Amendment(s) incorporated in the Act(s). 330 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 5 Social Welfare (Transitional Provisions) Act 1990 (RS Vol 32, p 883) Amendment(s) incorporated in the Act(s). Southland Electricity Act 1993 (1993 No 147) Amendment(s) incorporated in the Act(s). State Sector Act 1988 (RS Vol 33, p 715) Amendment(s) incorporated in the Act(s). State-Owned Enterprises Act 1986 (RS Vol 33, p 813) Amendment(s) incorporated in the Act(s). Transit New Zealand Act 1989 (1989 No 75) Amendment(s) incorporated in the Act(s). Transport Accident Investigation Commission Act 1990 (1990 No 99) Amendment(s) incorporated in the Act(s). Volunteers Employment Protection Act 1973 (RS Vol 21, p 897) Amendment(s) incorporated in the Act(s). Wages Protection Act 1983 (RS Vol 27, p 905) Amendment(s) incorporated in the Act(s). Waitangi Day Act 1976 (RS Vol 27, p 913) Amendment(s) incorporated in the Act(s). 331 Reprinted as at Schedule 6 Employment Relations Act 2000 1 July 2021

Schedule 6 Enactments repealed s 241 Defence Amendment Act 1997 (1997 No 41) Amendment(s) incorporated in the Act(s). Education Act 1964 (RS Vol 34, p 355) Amendment(s) incorporated in the Act(s). Electricity Industry Reform Act 1998 (1998 No 88) Amendment(s) incorporated in the Act(s). Employment Contracts Act 1991 (1991 No 22) Employment Contracts Amendment Act 1991 (1991 No 98) Equal Pay Amendment Act 1990 (RS Vol 35, p 304) Amendment(s) incorporated in the Act(s). Equal Pay Amendment Act 1991 (RS Vol 35, p 304) Amendment(s) incorporated in the Act(s). Government Superannuation Fund Amendment Act (No 2) 1992 (1992 No 61) Amendment(s) incorporated in the Act(s). Holidays Amendment Act 1991 (RS Vol 27, p 635) Amendment(s) incorporated in the Act(s). Human Rights Act 1993 (1993 No 82) Amendment(s) incorporated in the Act(s). Immigration Amendment Act 1991 (RS Vol 33, p 340) Amendment(s) incorporated in the Act(s). Minimum Wage Amendment Act 1987 (RS Vol 27, p 707) Amendment(s) incorporated in the Act(s). Minimum Wage Amendment Act 1991 (RS Vol 27, p 708) Amendment(s) incorporated in the Act(s). Parental Leave and Employment Protection Amendment Act 1991 (RS Vol 27, p 792) Amendment(s) incorporated in the Act(s). 332 Reprinted as at 1 July 2021 Employment Relations Act 2000 Schedule 6 Police Amendment Act 1991 (1991 No 29) Amendment(s) incorporated in the Act(s). Police Amendment Act (No 2) 1992 (1992 No 68) Amendment(s) incorporated in the Act(s). State Sector Amendment Act 1991 (RS Vol 33, p 715) Amendment(s) incorporated in the Act(s). State Sector Amendment Act 1997 (1997 No 8) Amendment(s) incorporated in the Act(s). Volunteers Employment Protection Amendment Act 1990 (1990 No 114) Amendment(s) incorporated in the Act(s). Wages Protection Amendment Act 1991 (RS Vol 27, p 912) Amendment(s) incorporated in the Act(s). 333 Reprinted as at Employment Relations Act 2000 1 July 2021 Employment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001 Public Act 2001 No 91 Date of assent 13 November 2001 Commencement see section 2 1 Title (1) This Act is the Employment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001. (2) In this Act, the Employment Relations Act 2000 is called “the principal Act”. Part 1 Preliminary provisions 2 Commencement This Act comes into force on the day after the date on which it receives the Royal assent. 3 Purpose The purpose of this Act is— (a) to validate the registration of certain societies as unions under the princi‐ pal Act, and to provide for matters relating to the validation; and (b) to amend the principal Act to provide that the Employment Relations Authority, in complying with the rules of natural justice, is not required to allow cross-examination of parties or persons, but may, in its absolute discretion, permit such cross-examination. Part 2 Validation of union registration, and amendments relating to cross- examination Validation of union registration and related matters 4 Registration of unions validated (1) A society that the Registrar of Unions purported to register as a union before the commencement of the principal Act is deemed to be, and to have always been, registered as a union by the Registrar of Unions on 2 October 2000. (2) The registration of a society as a union on or after the commencement of the principal Act is not to be treated as unlawful or of no effect because the soci‐ 334 Reprinted as at 1 July 2021 Employment Relations Act 2000 ety’s application for registration as a union was made, or made and processed, before the commencement of the principal Act. 5 Certificates of registration (1) The certificate of registration of a society that section 4(1) applies to must be read, and has effect, as if the date of registration stated in the certificate were 2 October 2000. (2) If the certificate of registration of a society that section 4(1) or (2) applies to has been cancelled for the purpose of issuing a second certificate referred to in subsection (3), the certificate of registration must be treated as if it had not been cancelled. (3) A second certificate of registration has no effect if the certificate was obtained— (a) by a society that section 4(1) or (2) applies to; and (b) after the commencement of the principal Act but before the commence‐ ment of this Act. (4) The Registrar of Unions may— (a) issue a certificate of registration, showing a date of registration of 2 October 2000, to replace a certificate of registration referred to in sub‐ section (1): (b) issue a certificate of registration to replace a cancelled certificate of registration referred to in subsection (2) that has been destroyed: (c) cancel a second certificate of registration referred to in subsection (3). 6 Acts not invalid because of pre-commencement application, processing, or registration Nothing done by any person (including the Crown, the Registrar of Unions, a society, or an employer) is to be treated as unlawful or of no effect because the Registrar of Unions purported, before the commencement of the principal Act,— (a) to receive, or receive and process, an application by a society to be regis‐ tered as a union; or (b) to register a society as a union. 7 No liability No person (including the Crown, the Registrar of Unions, a society, or an employer) is under any liability, and no compensation is payable to any person, because the Registrar of Unions purported, before the commencement of the principal Act,— (a) to receive, or receive and process, an application by a society to be regis‐ tered as a union; or 335 Reprinted as at Employment Relations Act 2000 1 July 2021 (b) to register a society as a union. 8 Penalties Nothing in this Act makes anything done or omitted to be done by a person before the commencement of this Act a breach of an employment agreement or the principal Act. 9 Costs Nothing in this Act affects the power of the Court of Appeal to make an order for costs, or affects any liability to pay costs, in the case of New Zealand Employers Federation Incorporated v National Union of Public Employees (NUPE) and Others (CA 32/01, 24 September 2001). 336 Reprinted as at 1 July 2021 Employment Relations Act 2000 Employment Relations Amendment Act (No 2) 2004 Public Act 2004 No 86 Date of assent 28 October 2004 Commencement see section 2 1 Title (1) This Act is the Employment Relations Amendment Act (No 2) 2004. (2) In this Act, the Employment Relations Act 2000 is called “the principal Act”. 2 Commencement This Act comes into force on 1 December 2004. 3 Purpose (1) This Part— (a) amends the provisions of the principal Act, particularly in relation to— (i) the duty of good faith; and (ii) collective bargaining; and (iii) the processes for resolution of employment relationship problems; and (b) provides, in the principal Act, protection to employees in situations where business undertakings are sold, transferred, or contracted out. (2) The purpose of the amendments referred to in subsection (1) is to promote and encourage behaviour that meets the object of the principal Act of building pro‐ ductive employment relationships. 73 Transitional provisions (1) The amendments made by this Act do not apply to anything done or any matter arising before the commencement of this Act. (2) However, subsection (1) applies subject to subsections (3) to (20). (3) The definition of coverage clause in section 5 of the principal Act (as substitu‐ ted by section 7(1) of this Act) applies to a collective agreement whether it comes into force before or after the commencement of this Act. (4) Section 9(3) of the principal Act (as added by section 8 of this Act) applies to a collective agreement whether it comes into force before or after the commence‐ ment of this Act. (5) Section 20(5) of the principal Act (as added by section 9 of this Act) applies whether the discussion took place before or after the commencement of this Act. 337 Reprinted as at Employment Relations Act 2000 1 July 2021 (6) Section 32(1)(ca) (as inserted by section 11 of this Act) applies whether the bargaining started before or after the commencement of this Act. (7) Section 33 of the principal Act (as substituted by section 12 of this Act) applies whether the bargaining started before or after the commencement of this Act. (8) Sections 50A to 50J of the principal Act (as inserted by section 14 of this Act)— (a) apply whether the bargaining started before or after the commencement of this Act; but (b) do not apply in relation to grounds that exist before the commencement of this Act. (9) Section 56(1A) of the principal Act (as inserted by section 16 of this Act) applies whether an employee’s employment started before or after the com‐ mencement of this Act. (10) Section 56A of the principal Act (as inserted by section 17 of this Act) applies whether the collective agreement came into force before or after the com‐ mencement of this Act. (11) Section 59B(2) of the principal Act (as inserted by section 18 of this Act) applies whether the collective agreement came into force before or after the commencement of this Act. (12) Section 59B(4) of the principal Act (as inserted by section 18 of this Act) applies whether the bargaining started before or after the commencement of this Act. (13) Section 59C(2) of the principal Act (as inserted by section 18 of this Act) applies whether the collective agreement came into force before or after the commencement of this Act. (14) Section 59C(4) of the principal Act (as inserted by section 18 of this Act) applies whether the bargaining started before or after the commencement of this Act. (15) Section 65A of the principal Act (as inserted by section 26 of this Act) applies whether the individual employment agreement started before or after the com‐ mencement of this Act. (16) Section 78(3A) of the principal Act (as inserted by section 34 of this Act) applies whether the employer was told of the proposal to take employment leave before or after the commencement of this Act. (17) Section 149(3)(ab) of the principal Act (as inserted by section 51 of this Act) applies to the agreed terms of settlement whether the agreed terms of settle‐ ment are signed before or after the commencement of this Act. (18) Section 149(4) of the principal Act (as inserted by section 51 of this Act) applies whether the agreed terms of settlement are signed before or after the commencement of this Act. 338 Reprinted as at 1 July 2021 Employment Relations Act 2000 (19) Section 150(4) of the principal Act (as inserted by section 52 of this Act) applies whether the decision was signed before or after the commencement of this Act. (20) Section 194A of the principal Act (as inserted by section 65 of this Act),— (a) applies whether the exercise, refusal to exercise, or proposed or purpor‐ ted exercise of the statutory power of decision was made before or after the commencement of this Act; but (b) does not apply if an application or proceedings of the type referred to in section 194(1) have been started. 339 Reprinted as at Employment Relations Act 2000 1 July 2021 Employment Relations Amendment Act 2006 Public Act 2006 No 41 Date of assent 13 September 2006 Commencement see section 2 1 Title This Act is the Employment Relations Amendment Act 2006. 2 Commencement (1) The following provisions come into force 3 months after the date on which this Act receives the Royal assent: (a) subpart 2 of Part 6A of the principal Act (as inserted by section 6 of this Act); and (b) sections 8 and 9 of this Act. (2) The rest of this Act comes into force on the day after the date on which it receives the Royal assent. 4 Purpose The purpose of this Act is to substitute a new Part 6A of the principal Act to extend and clarify its application, especially to specified categories of employees in relation to subsequent contracting (sometimes referred to as suc‐ cession contracts) and subcontracting. 11 Transitional provision (1) Subsection (2) applies to restructurings (within the meaning of Part 6A of the principal Act as in force before the commencement of this section), the agree‐ ments for which are concluded before the commencement of this section even if the restructurings they relate to are to take effect after the commencement of this section. (2) Part 6A of the principal Act, as in force immediately before the commence‐ ment of this section, continues to apply to the restructurings as if this Act had not been passed. (3) Subpart 2 of Part 6A of the principal Act (as inserted by section 6 of this Act) does not apply in relation to any negotiations begun, or any tenders called for, before the commencement of that subpart. (4) The amendments to section 103(1) of the principal Act made by section 7 of this Act— (a) apply in relation to restructurings whether the agreements for the restruc‐ turings are concluded before or after the commencement of this section; but 340 Reprinted as at 1 July 2021 Employment Relations Act 2000 (b) in relation to restructurings the agreements for which were concluded before the commencement of this section, apply to failures to comply with Part 6A of the principal Act that occurred only after the commence‐ ment of this section. 341 Reprinted as at Employment Relations Act 2000 1 July 2021 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 Public Act 2008 No 58 Date of assent 9 September 2008 Commencement see section 2 1 Title This Act is the Employment Relations (Breaks, Infant Feeding, and Other Mat‐ ters) Amendment Act 2008. 2 Commencement (1) This Act comes into force on the day after the date on which it receives the Royal assent. (2) However, sections 6 and 9 come into force on 1 April 2009. Part 1 Preliminary provisions 4 Purpose The purpose of this Act is— (a) to insert new Parts 6C and 6D into the principal Act to— (i) require facilities and breaks to be provided, so far as is reasonable and practicable in the circumstances, for employees who wish to breastfeed in the workplace or during work periods; and (ii) require employees to be provided with rest breaks and meal breaks; and (b) to make it a ground for a personal grievance for an employee’s employ‐ ment to be adversely affected because he or she is a member of a Kiwi‐ Saver scheme or a complying superannuation fund. 5 Application (1) The amendments made by sections 7 and 8, to the extent that they relate to terms and conditions in employment agreements,— (a) apply to employment agreements entered into on or after 2 September 2008; and (b) do not apply to employment agreements entered into before 2 September 2008; and (c) apply to variations of employment agreements entered into before 2 Sep‐ tember 2008, if the variations were made on or after 2 September 2008. 342 Reprinted as at 1 July 2021 Employment Relations Act 2000 (2) The amendments made by sections 7 and 8, to the extent that they relate to other matters, apply— (a) only to matters occurring on or after 2 September 2008; and (b) whether or not an employee’s employment agreement was entered into before 2 September 2008. 343 Reprinted as at Employment Relations Act 2000 1 July 2021 Employment Relations Amendment Act 2008 Public Act 2008 No 106 Date of assent 15 December 2008 Commencement see section 2 1 Title This Act is the Employment Relations Amendment Act 2008. 2 Commencement (1) This Act (except sections 6 and 7) comes into force on the day after the date on which it receives the Royal assent. (2) Sections 6 and 7 come into force on 1 March 2009. 4 Purpose The purpose of this Act is— (a) to provide when an employment agreement may specify a trial period of 90 days or less, during which an employee can be dismissed and cannot bring a personal grievance or other legal proceedings in respect of the dismissal, subject to certain exceptions; and (b) to repeal the amendments made by the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 relating to employees’ membership of a KiwiSaver scheme or complying super‐ annuation fund. 5 Application The amendments made by sections 6 and 7 apply to employment agreements entered into only after the commencement of those sections. 344 Reprinted as at 1 July 2021 Employment Relations Act 2000 Employment Relations (Film Production Work) Amendment Act 2010 Public Act 2010 No 120 Date of assent 29 October 2010 Commencement see section 2 1 Title This Act is the Employment Relations (Film Production Work) Amendment Act 2010. 2 Commencement This Act comes into force on the day after the date on which it receives the Royal assent. 4 Meaning of employee (1)–(3) Amendment(s) incorporated in the Act(s). (4) To avoid doubt, the amendments made by this section do not affect an employ‐ ment agreement entered into before the commencement of this section. 345 Reprinted as at Employment Relations Act 2000 1 July 2021 Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 Public Act 2012 No 37 Date of assent 14 May 2012 Commencement see section 2 1 Title This Act is the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012. 2 Commencement (1) Sections 5 and 9 come into force on the day after the date on which this Act receives the Royal assent. (2) The rest of this Act comes into force 1 year after the date on which it receives the Royal assent. 3 Principal Act amended This Act amends the Employment Relations Act 2000. 4 Purpose The purpose of this Act is to require unions to hold a secret ballot vote of their members to approve a strike before undertaking any strike action. 9 Transitional provision (1) This section applies to a society whose rules do not comply with section 14(1)(ca) of the principal Act (as inserted by section 5 of this Act). (2) The society must amend its rules so that the rules comply with section 14(1)(ca) of the principal Act. (3) The society must amend its rules for the purposes of subsection (2)— (a) as soon as is reasonably practicable after the commencement of section 5 of this Act; but (b) no later than 2 years after the commencement of section 5 of this Act. 346 Reprinted as at 1 July 2021 Employment Relations Act 2000 Notes Reprints notes 1 General This is a reprint of the Employment Relations Act 2000 that incorporates all the amendments to that Act as at the date of the last amendment to it. 2 Legal status Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official elec‐ tronic version also has official status. 3 Editorial and format changes Editorial and format changes to reprints are made using the powers under sec‐ tions 24 to 26 of the Legislation Act 2012. See also http://www.pco.parlia‐ ment.govt.nz/editorial-conventions/. 4 Amendments incorporated in this reprint Employment Relations (Extending Part 6A Protections to Security Officers) Order 2021 (LI 2021/58) Support Workers (Pay Equity) Settlements Amendment Act 2020 (2020 No 50): section 23 Equal Pay Amendment Act 2020 (2020 No 45): sections 27, 28, 33 Public Service Act 2020 (2020 No 40): section 135 Education and Training Act 2020 (2020 No 38): section 668 Privacy Act 2020 (2020 No 31): section 217 Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63): Part 1 subpart 1 Contempt of Court Act 2019 (2019 No 44): section 29 Employment Relations (Triangular Employment) Amendment Act 2019 (2019 No 36) Employment Relations Amendment Act 2018 (2018 No 53) Family Violence Act 2018 (2018 No 46): section 259(1) Domestic Violence—Victims’ Protection Act 2018 (2018 No 21): Part 1 Care and Support Workers (Pay Equity) Settlement Act 2017 (2017 No 24): section 20 Fire and Emergency New Zealand Act 2017 (2017 No 17): section 197 Regulatory Systems (Workplace Relations) Amendment Act 2017 (2017 No 13): Part 1 Intelligence and Security Act 2017 (2017 No 10): section 264 Contract and Commercial Law Act 2017 (2017 No 5): section 347 Statutes Amendment Act 2016 (2016 No 104): Part 11 Employment Relations Amendment Act (No 2) 2016 (2016 No 62) Interest on Money Claims Act 2016 (2016 No 51): section 29 Judicial Review Procedure Act 2016 (2016 No 50): section 24 District Court Act 2016 (2016 No 49): section 261 347 Reprinted as at Notes Employment Relations Act 2000 1 July 2021 Senior Courts Act 2016 (2016 No 48): section 183(b), (c) Employment Relations Amendment Act 2016 (2016 No 9) (as amended by the Senior Courts Act 2016 (2016 No 48) and the District Court Act 2016 (2016 No 49)) Parental Leave and Employment Protection Amendment Act 2016 (2016 No 8): section 83 Home and Community Support (Payment for Travel Between Clients) Settlement Act 2016 (2016 No 2): section 31 Employment Relations Amendment Act 2015 (2015 No 73) (as amended by the Employment Rela‐ tions Amendment Act 2016 (2016 No 9)) Employment Relations Amendment Act 2014 (2014 No 61) Patents Act 2013 (2013 No 68): section 249 Public Finance (Mixed Ownership Model) Amendment Act 2012 (2012 No 45): section 11 Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37) Criminal Procedure Act 2011 (2011 No 81): section 413 Holidays Amendment Act 2010 (2010 No 126): section 18 Employment Relations Amendment Act 2010 (2010 No 125) Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120) Accident Compensation Amendment Act 2010 (2010 No 1): section 5(1)(b) Employment Relations Amendment Act 2008 (2008 No 106) Policing Act 2008 (2008 No 72): sections 116(a)(ii), 120–122, 130(4) Real Estate Agents Act 2008 (2008 No 66): section 173 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58) Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105) Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16): section 6 Minimum Wage Amendment Act 2007 (2007 No 12): section 5(1) Employment Relations Amendment Act 2007 (2007 No 2) Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395) Insolvency Act 2006 (2006 No 55): section 445 Employment Relations Amendment Act 2006 (2006 No 41) Land Transport Amendment Act 2005 (2005 No 77): section 95(6) Employment Relations Amendment Act (No 2) 2004 (2004 No 86) Employment Relations Amendment Act 2004 (2004 No 43) Holidays Act 2003 (2003 No 129): section 91(2) Supreme Court Act 2003 (2003 No 53): section 48(1) Health and Safety in Employment Amendment Act 2002 (2002 No 86): section 33 Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54): section 4(1) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 (2002 No 7): section 6 Human Rights Amendment Act 2001 (2001 No 96): section 71(1) Health and Disability Services (Safety) Act 2001 (2001 No 93): section 58(1) Employment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001 (2001 No 91) Accident Compensation Act 2001 (2001 No 49): section 337(1) 348 Reprinted as at 1 July 2021 Employment Relations Act 2000 Notes New Zealand Public Health and Disability Act 2000 (2000 No 91): section 111(1) Public Finance Act 1989 (1989 No 44): section 65R(3) Wellington, New Zealand: Published under the authority of the New Zealand Government—2021 349