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New Zealand
EMPLOYMENT RELATIONS AMENDMENT ACT (NO 2) 2004

  1. ANALYSIS
    1. 1 Title
    2. 2 Commencement
    3. 3 Purpose
    4. 4 Object of this Act
    5. 5 Parties to employment relationship to deal with each other in good faith
    6. 6 New section 4A inserted
    7. 7 Interpretation
    8. 8 Prohibition on preference
    9. 9 Access to workplaces
    10. 10 Object of this Part
    11. 11 Good faith in bargaining for collective agreement
    12. 12 New section 33 substituted
    13. 13 When bargaining may be initiated
    14. 14 New heading and sections 50A to 50J inserted
    15. 15 Form and content of collective agreement
    16. 16 Application of collective agreement
    17. 17 New section 56A inserted
    18. 18 New heading and sections 59A to 59C inserted
    19. 19 Object of this Part
    20. 20 New section 60A inserted
    21. 21 Employer's obligations in respect of new employee who is not member of union
    22. 22 Terms and conditions of employment of new employee who is not member of union
    23. 23 New section 63A inserted
    24. 24 Section 64 repealed
    25. 25 Terms and conditions of employment where no collective agreement applies
    26. 26 New section 65A inserted
    27. 27 Fixed term employment
    28. 28 Probationary arrangements
    29. 29 Unfair bargaining for individual employment agreements
    30. 30 New Part 6A and Part 6B inserted
    31. 31 Interpretation
    32. 32 Minister to approve employment relations education
    33. 33 Calculation of maximum number of days of employment relations education leave
    34. 34 Eligible employee proposing to take employment relations education leave
    35. 35 Unlawful strikes or lockouts
    36. 36 New Part 8A inserted
    37. 37 Object of this Part
    38. 38 New section 103A inserted
    39. 39 Exceptions in relation to discrimination
    40. 40 Definition of involvement in activities of union for purposes of section 104
    41. 41 Choice of procedures
    42. 42 Remedies
    43. 43 Arrears
    44. 44 Recovery of penalties
    45. 45 Power of Authority to order compliance
    46. 46 Further provisions relating to compliance order by Authority
    47. 47 Object of this Part
    48. 48 New section 144A inserted
    49. 49 Provision of mediation services
    50. 50 Procedure in relation to mediation services
    51. 51 Settlements
    52. 52 Decision by authority of parties
    53. 53 New section 150A inserted
    54. 54 Powers of Authority
    55. 55 Jurisdiction
    56. 56 Procedure
    57. 57 Referral of question of law
    58. 58 Removal to Court
    59. 59 Challenges to determinations of Authority
    60. 60 New section 179A inserted
    61. 61 Decision
    62. 62 Restriction on review
    63. 63 Role in relation to jurisdiction
    64. 64 Application for review
    65. 65 New section 194A inserted
    66. 66 Powers of Labour Inspectors
    67. 67 Compilation of wages and time record
    68. 68 New section 237A inserted
    69. 69 New Schedules 1A and 1B inserted
    70. 70 Schedule 2 amended
    71. 71 Schedule 3 amended
    72. 72 Consequential amendments
    73. 73 Transitional provisions
  2. Schedule(s)
    1. 1 FIRST: New Schedules 1A and 1B inserted in principal Act
    2. 2 SECOND: Enactments amended
Employment Relations Amendment Act (No 2) 2004 ANALYSIS


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 productive employment relationships.



4 Object of this Act

(1) Section 3(a) of the principal Act is amended by omitting the words "mutual trust and confidence", and substituting the words "good faith".

(2) Section 3(a) of the principal Act is amended by repealing subparagraph (i), and substituting the following subparagraph:

"(i) by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence, but also on a legislative requirement for good faith behaviour; and".

(3) Section 3(a)(ii) of the principal Act is amended by omitting the word "bargaining".



5 Parties to employment relationship to deal with each other in good faith

(1) Section 4 of the principal Act is amended by inserting, after subsection (1), the following subsections:

"(1A) The duty of good faith in subsection (1)---

"(a) is wider in scope than the implied mutual obligations of trust and confidence; and

"(b) requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative; and

"(c) without limiting paragraph (b), requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of 1 or more of his or her employees to provide to the employees affected---

"(i) access to information, relevant to the continuation of the employees'' employment, about the decision; and

"(ii) an opportunity to comment on the information to their employer before the decision is made.

"(1B) Subsection (1A)(c) does not require an employer to provide access to confidential information if there is good reason to maintain the confidentiality of the information.

"(1C) For the purpose of subsection (1B), good reason includes---

"(a) complying with statutory requirements to maintain confidentiality:

"(b) protecting the privacy of natural persons:

"(c) protecting the commercial position of an employer from being unreasonably prejudiced."

(2) Section 4(4) of the principal Act is amended by inserting, after paragraph (b), the following paragraphs:

"(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:".

(3) Section 4 of the principal Act is amended by adding the following subsection:

"(6) It is a breach of subsection (1) for an employer to advise, or to do anything with the intention of inducing, an employee---

"(a) not to be involved in bargaining for a collective agreement; or

"(b) not to be covered by a collective agreement."



6 New section 4A inserted

The principal Act is amended by inserting, after section 4, the following section:

"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 undermine---

"(i) bargaining for an individual employment agreement or a collective agreement; or

"(ii) an individual employment agreement or a collective agreement; or

"(iii) an employment relationship; or

"(c) the failure was a breach of section 59B or section 59C."



7 Interpretation

(1) Section 5 of the principal Act is amended by repealing paragraph (a) of the definition of coverage clause, and substituting the following paragraph:

"(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:".

(2) Section 5 of the principal Act is amended by repealing the definition of dwellinghouse, and substituting the following definition:

"dwellinghouse---

"(a) means any building or any part of a building to the extent that it is occupied as a residence; and

"(b) in relation to a homeworker who works in a building that is not wholly occupied as a residence, excludes any part of the building not occupied as a residence".

(3) Section 5 of the principal Act is amended by omitting from the definition of homeworker the words "and, for the purposes of this definition, the definition of dwellinghouse does not apply".

(4) So much of Schedule 1 of the Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 as relates to the definition of homeworker in the principal Act is consequentially repealed.



8 Prohibition on preference

Section 9 of the principal Act is amended by adding the following subsection:

"(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."



9 Access to workplaces

Section 20 of the principal Act is amended by adding the following subsections:

"(4) A discussion in a workplace between an employee and a representative of a union, who is entitled under this section and section 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)."



10 Object of this Part

Section 31 of the principal Act is amended by inserting, after paragraph (a), the following paragraph:

"(aa) to provide that the duty of good faith in section 4 requires parties bargaining for a collective agreement to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to; and".



11 Good faith in bargaining for collective agreement

Section 32(1) of the principal Act is amended by inserting, after paragraph (c), the following paragraph:

"(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".



12 New section 33 substituted

The principal Act is amended by repealing section 33, and substituting the following section:

"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 bargaining 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 bargaining for, or being a party to, a collective agreement; or

"(b) disagreement about including in a collective agreement a bargaining fee clause under Part 6B."



13 When bargaining may be initiated

Section 41(4) of the principal Act is amended by omitting the words "more than 1 union or more than 1 employer", and substituting the words "1 or more unions or 1 or more employers".



14 New heading and sections 50A to 50J inserted

The principal Act is amended by inserting, after section 50, the following heading and sections:

"Facilitating bargaining

"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 concluding a collective agreement to seek the assistance of the Authority in resolving 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.

"50B Reference to Authority

"(1) One or more matters relating to bargaining for a collective agreement may be referred to the Authority for facilitation to assist in resolving difficulties in concluding the collective agreement.

"(2) A reference for facilitation---

"(a) may be made by any party to the bargaining or 2 or more parties jointly; and

"(b) must be made on 1 or more of the grounds specified in section 50C(1).

"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 lockout; and

"(ii) the strike or lockout, if it were to occur, would be likely to affect the public interest substantially.

"(2) For the purposes of subsection (1)(d)(ii), a strike or lockout is likely to affect the public interest substantially if---

"(a) the strike or lockout is likely to endanger the life, safety, or health of persons; or

"(b) the strike or lockout is likely to disrupt social, environmental, or economic interests and the effects of the disruption are likely to be widespread, long-term, or irreversible.

"(3) The Authority must not accept a reference in relation to bargaining for which the Authority has already acted as a facilitator unless---

"(a) circumstances relating to the bargaining have changed; or

"(b) the bargaining since the previous facilitation has been protracted.

"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.

"50E Process of facilitation

"(1) The process to be followed during facilitation---

"(a) must be conducted in private; and

"(b) is the process determined by the Authority.

"(2) During facilitation, the collective bargaining that the facilitation relates to continues subject to the process determined by the Authority.

"(3) During facilitation, the Authority---

"(a) is not acting as an investigative body; and

"(b) may not exercise the powers it has for investigating matters.

"(4) The provision of facilitation by the Authority may not be challenged or called in question in any proceedings on the ground---

"(a) that the nature and content of the facilitation was inappropriate; or

"(b) that the manner in which the facilitation was provided was inappropriate.

"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.

"(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.

"50G Proposals made or positions reached during facilitation

"(1) A proposal made by a party or a position reached by parties to collective bargaining during facilitation is not binding on a party after facilitation has come to an end.

"(2) This section---

"(a) applies to avoid doubt; and

"(b) is subject to any agreement of the parties.

"50H Recommendation by Authority

"(1) While assisting parties to bargaining for a collective agreement, the Authority may make 1 or more recommendations about---

"(a) the process the parties should follow to reach agreement; or

"(b) the provisions of the collective agreement the parties should conclude; or

"(c) both.

"(2) The Authority may give public notice of a recommendation in such manner as the Authority determines.

"(3) A recommendation made by the Authority is not binding on a party, but a party must consider a recommendation before deciding whether to accept the recommendation.

"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.

"Determining collective agreement if breach of duty of good faith

"50J Remedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining

"(1) A party to bargaining for a collective agreement may apply, on the grounds specified in subsection (3), to the Authority for a determination fixing the provisions of the collective agreement being bargained for.

"(2) The Authority may fix the provisions of the collective agreement being bargained for if it is satisfied that---

"(a) the grounds in subsection (3) have been made out; and

"(b) it is appropriate, in all the circumstances, to do so.

"(3) The grounds are that---

"(a) a breach of the duty of good faith in section 4---

"(i) has occurred in relation to the bargaining; and

"(ii) was sufficiently serious and sustained as to significantly undermine the bargaining; and

"(b) all other reasonable alternatives for reaching agreement have been exhausted; and

"(c) fixing the provisions of the collective agreement is the only effective remedy for the party or parties affected by the breach of the duty of good faith.

"(4) The Authority may make a determination under this section whether or not any penalty for a breach of good faith has been awarded under section 4A in relation 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 collective 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."



15 Form and content of collective agreement

Section 54(3)(a)(ii) of the principal Act is repealed.



16 Application of collective agreement

Section 56 of the principal Act is amended by inserting, after subsection (1), the following subsection:

"(1A) However, an employee who is bound by a collective agreement and who holds an under-rate worker''s 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."



17 New section 56A inserted

The principal Act is amended by inserting, after section 56, the following section:

"56A Application of collective agreement to subsequent parties

"(1) An employer who is not a party to a collective agreement may become a party to the collective agreement if---

"(a) the agreement provides for an employer to become a party to the agreement after it has been signed by the original parties to the agreement; and

"(b) the work of some or all of the employer''s employees comes within the coverage clause in the agreement; and

"(c) the employees referred to in paragraph (b) are not bound by another collective agreement in respect of their work for the employer; and

"(d) the employer notifies all the parties to the agreement in accordance with subsection (5) that the employer proposes to become a party to the agreement.

"(2) On the day after the day on which all parties to the collective agreement have been notified in accordance with sub- section (5),---

"(a) the employer becomes a party to the collective agreement; and

"(b) the collective agreement also binds and is enforceable by---

"(i) the employer:

"(ii) employees---

"(A) who are employed by the employer; and

"(B) who are or become members of a union that is a party to the agreement; and

"(C) whose work comes within the coverage clause in the agreement.

"(3) A union that is not a party to a collective agreement may become a party to the collective agreement if---

"(a) the agreement provides for a union to become a party to the agreement after it has been signed by the original parties to the agreement; and

"(b) the union has members doing work that comes within the coverage clause of the collective agreement; and

"(c) as a result of a secret ballot of those members, a majority of them who are entitled to vote and do vote are in favour of the union becoming a party to the collective agreement; and

"(d) the union notifies all the parties to the collective agreement in accordance with subsection (5) that the union proposes to become a party to the agreement.

"(4) On the day after the day on which all parties to the collective agreement have been notified in accordance with sub- section (5),---

"(a) the union becomes a party to the collective agreement; and

"(b) the collective agreement also binds and is enforceable by---

"(i) the union:

"(ii) employees---

"(A) who are employed by an employer that is a party to the agreement; and

"(B) who are or become members of the union; and

"(C) whose work comes within the coverage clause in the agreement.

"(5) For the purposes of this section, a party to a collective agreement is notified---

"(a) when the notice is given to the party; or

"(b) if the notice is posted to the party, on the 7th 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."



18 New heading and sections 59A to 59C inserted

The principal Act is amended by inserting, after section 59, the following heading and sections:

"Undermining collective bargaining or collective agreement

"59A Interpretation In sections 59B and 59C, reached, in relation to a term or condition in bargaining 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.

"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 agreement.

"(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 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 collective bargaining; or

"(b) the effect of the employer doing so is to undermine the collective bargaining.

"(5) It is not a breach of the duty of good faith in section 4 if anything referred to in subsection (2) or subsection (4) is done with the agreement of the union concerned.

"(6) In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account:

"(a) whether the employer bargained with the employee before they agreed on the term or condition of employment:

"(b) whether the employer consulted the union in good faith before agreeing to the term or condition of employment:

"(c) the number of the employer''s employees bound by the collective agreement or covered by the collective bargaining compared to the number of the employer''s employees not bound by the collective agreement or not covered by the collective bargaining:

"(d) how long the collective agreement has been in force:

"(e) the application of section 63.

"(7) Subsection (6) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).

"(8) Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act.

"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 conclude 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 agreement; and

"(b) the effect of the employer doing so is to undermine the other collective agreement.

"(3) It is not a breach of the duty of good faith in section 4 for an employer to conclude 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 collective bargaining; or

"(b) the effect of the employer doing so is to undermine the other collective bargaining.

"(5) It is not a breach of the duty of good faith in section 4 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 provision:

"(b) whether the employer and union consulted, in good faith, the parties to the other collective agreement or collective bargaining:

"(c) the number of the employer''s employees bound by the collective agreement or covered by the collective bargaining compared to the number of the employer''s employees bound by the other collective agreement or covered by the other collective bargaining:

"(d) how long the other collective agreement has been in force.

"(7) Subsection (4) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).

"(8) Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act."



19 Object of this Part

(1) Section 60(c) of the principal Act is amended by inserting, after subparagraph (i), the following subparagraph:

"(ia) required when entering into and varying individual employment agreements; and".

(2) Section 60(c)(ii) of the principal Act is amended by inserting, after the words "consistent with", the words ", but not limited to,".



20 New section 60A inserted

The principal Act is amended by inserting, after section 60, the following section:

"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."



21 Employer''s obligations in respect of new employee who is not member of

union

(1) Section 62(1) of the principal Act is amended by repealing paragraph (a) and substituting the following paragraph:

"(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".

(2) Section 62 of the principal Act is amended by inserting, after subsection (1), the following subsection:

"(1A) For the purposes of subsection (1), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees)."

(3) Section 62(3)(a) of the principal Act is amended by inserting, after the words "that binds more of the employer''s employees", the words "in relation to the work the new employee will be performing".



22 Terms and conditions of employment of new employee who is not member of

union

(1) Section 63 of the principal Act is amended by inserting, after subsection (2), the following subsection:

"(2A) However, the employee''s terms and conditions of employment do not include any bargaining fee payable under Part 6B."

(2) Section 63(3) of the principal Act is amended by inserting, after the words "employer''s employees", the words "in relation to the work the employee will be performing".

(3) Section 63 of the principal Act is amended by adding the following subsection:

"(6) For an employee who holds an under-rate worker''s permit under section 8 of the Minimum Wage Act 1983, the terms and conditions under subsection (2) are subject to the terms of the permit relating to the wages to be paid."



23 New section 63A inserted

The principal Act is amended by inserting, after section 63, the following section:

"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 subparagraph (i):

"(c) under section 63(2), in relation to additional terms and conditions for the first 30 days of an individual employment agreement:

"(d) under section 63(5), in relation to variations to terms and conditions of an individual employment agreement after the 30-day period:

"(e) in relation to terms and conditions of an individual employment 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 69M or section 69N in relation to employee protection provisions in individual employment agreements:

"(h) under section 69I 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, or the part of the intended agreement, under discussion; and

"(b) advise the employee that he or she is entitled to seek independent advice about the intended agreement or any part of 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.

"(3) Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.

"(4) Failure to comply with this section does not affect the validity of the employment agreement between the employee and the employer.

"(5) The requirements imposed by this section are in addition to any requirements that may be imposed under any provision in this Act.

"(6) For the purpose of subsection (1)(e), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).

"(7) In this section, employee includes a prospective employee."



24 Section 64 repealed

Section 64 of the principal Act is repealed.



25 Terms and conditions of employment where no collective agreement applies

Section 65 of the principal Act is amended by adding the following subsection:

"(3) To determine for the purposes of subsection (1) whether the work of an employee is covered by a collective agreement that binds the employer, a collective agreement that includes a coverage clause referring to named employees, or the work or type of work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees)."



26 New section 65A inserted

The principal Act is amended by inserting, after section 65, the following section:

"65A Deduction of union fees

"(1) An individual employment agreement of an employee who is a member of a union is to be treated as if it contains a provision that requires the employee''s employer to deduct, with the consent of the employee, the employee''s union fee from the employee''s salary or wages on a regular basis during the year.

"(2) An individual employment agreement may exclude or vary the effect of subsection (1).

"(3) Union fees deducted from an employee''s salary or wages under subsection (1) must be paid to the union concerned in accordance with any arrangement agreed with the union."

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Relevant link
AN ACT TO AMEND TITLE 18 AND TITLE 29 OF THE DELAWARE CODE RELATING TO STATE EMPLOYEE BENEFITS. [1999-07-20]
COUNCIL REGULATION (EC, EURATOM) NO 351/2006 OF 27 FEBRUARY 2006 LAYING DOWN THE WEIGHTINGS APPLICABLE FROM 1 JULY 2005 TO THE REMUNERATION OF OFFICIALS, TEMPORARY STAFF AND CONTRACT STAFF OF THE EUROPEAN COMMUNITIES SERVING IN THIRD COUNTRIES AND OF CERTAIN OFFICIALS REMAINING IN POST IN THE TEN NEW MEMBER STATES FOR A MAXIMUM PERIOD OF FIFTEEN MONTHS AFTER ACCESSION [2006-02-27]
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DECISION Promulgating the fee levels for the grant of work permits to foreigners working in Vietnam [2005-08-04]
Law on Guarantees for Posted Workers [2005-05-12]