Employment Relations Amendment Bill

1. Title

This Act is the Employment Relations Amendment Act 2018.

2. Purpose

The purpose of this Bill is to restore some key minimum standards and protections for employees, and introduce greater fairness in the workplace.

3. Commencement

This Act comes into force on the day after the date of Royal assent.

4. Principal Act

This Act amends the Employment Relations Act 2000 (the principal Act).

Amendments to Part 4 (recognition and operation of unions)

5. New section 30A inserted

After section 30, insert:

30A. Union may provide employer with information about role and functions of union to pass on to prospective employees

• (1) A union that is a party to a collective agreement may, at any time, request an employer that is a party to the agreement to provide certain specified information about the role and functions of the union to prospective employees under section 63B(3)(b).
• (2) The union must-
  • (a) specify the information that the union requests the employer to provide to prospective employees; and
  • (b) specify the form in which the union requests the employer to provide the information to prospective employees; and
  • (c) provide the information to the employer in the specified form.
• (3) The employer or a representative of the employer may refuse to comply with the request only if-
  • (a) the information is confidential; or
  • (b) the information-
  • (i) is about the employer; and
  • (ii) would, or is likely to, mislead or deceive the prospective employee; and
  • (iii) would significantly undermine bargaining between the employer and the prospective employee.
• (4) An employer who agrees to comply with the request must provide the information to prospective employees under section 63B(3)(b) 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.
• (6) If the union requests under subsection (2)(b) that the employer provide hard copies of the information to prospective employees,-
  • (a) the union must supply to the employer any hard copies of the information that the employer is requested to provide to prospective employees; and
  • (b) the employer must notify the union in writing when the employer requires further hard copies of the information to comply with the request.

Amendments to Part 6 (Individual employees’ terms and conditions of employment)

6. Section 62 replaced (Employer’s obligations in respect of new employee who is not member of union)

Replace section 62 with:

62. Terms and conditions for first 30 days of employment of new employee who is not member of union

• (1) This section-
  • (a) applies to a new employee who-
  • (i) is not a member of a union that is a party to a collective agreement that covers the work to be done by the employee; and
  • (ii) enters into an individual employment agreement with an employer that is a party to a collective agreement that covers the work to be done by the employee; but
  • (b) does not apply to an employee who-
  • (i) resigns as a member of a union and enters into an individual employment agreement with the same employer; or
  • (ii) enters into a new individual employment agreement with the same employer.
• (2) For the purposes of subsection (1)(a), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
• (3) For the first 30 days after the new employee commences employment with the employer, the employee’s terms and conditions of employment comprise-
  • (a) the terms and conditions in the collective agreement that would bind the employee if the employee were a member of the union; 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.
• (4) If the work to be done by the new employee is covered by more than 1 collective agreement, subsection (3)(a) applies to the collective agreement that binds the greatest number of the employer’s employees in relation to the work the employee will be performing.
• (5) No term or condition of employment may be expressed to alter automatically after the 30-day period in a way that makes 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. ### 62A. Employer must share new employee information with union unless employee objects
• (1) This section applies to an employer who enters into an individual employment agreement with a new employee under section 62.
• (2) The employer must, within 10 days after the employee commences employment with the employer, provide the employee with a form approved by the chief executive under section 237AA 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 section, the employer will provide the following information to each union that is a party to a collective agreement that covers the work to be done by the employee:
  • (i) the name of the employee:
  • (ii) whether the employee has, during the period,-
    • (A) notified the employer that the employer intends to join the union; or
    • (B) notified the employer that the employer does not intend to join the union; or
    • (C) not completed and returned the form.
• (4) The employee may complete and return the form during the period that-
  • (a) starts when the employee receives the form; and
  • (b) ends 30 days after the employee commences employment with the employer.
• (5) The employer must, within 20 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. ### 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 collective 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.

7. Section 63A amended (Bargaining for individual employment agreement or individual terms and conditions in employment agreement)

• (1) After section 63A(1)(b) insert:

• (c) under section 62(3), in relation to additional terms and conditions for the first 30 days of an employee’s employment:
• (d) under section 63(2), in relation to variations to terms and conditions of an individual employment agreement after the 30-day period:

• (2) Replace section 63A(1)(e) with:

• (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:

• (3) After section 63A(5) insert:

• (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).

8. New section 63B inserted

After section 63A, insert:

63B Additional employer obligations when bargaining for terms and conditions of employment under section 62

• (1) This section applies to an employer who is bargaining with a prospective employee for terms and conditions of employment for the first 30 days of an individual employment agreement under section 62(3).
• (2) The employer must, in addition to doing the things described in section 63A(2), inform the prospective employee-
  • (a) that a collective agreement exists and covers work to be done by the prospective employee; and
  • (b) that the prospective employee may join a union that is a party to the collective agreement; and
  • (c) how to contact the union; and
  • (d) that, if the prospective employee joins the union, the prospective employee will be bound by the collective agreement; and
  • (e) that, if the prospective employee enters into an individual employment agreement with the employer, the prospective employee’s terms and conditions of employment will, during the first 30 days of the prospective employee’s employment, comprise-
  • (i) the terms and conditions in the collective agreement that would bind the prospective employee if the prospective employee were a member of the union; and
  • (ii) any additional terms and conditions mutually agreed to by the prospective employee and employer that are no less favourable to the employee than the terms and conditions in the collective agreement.
• (3) The employer must also provide to the prospective employee-
  • (a) a copy of the collective agreement; and
  • (b) any information about the role and functions of the union that the employer is required to provide to prospective employees in accordance with a request by a union under section 30A.
• (4) An employer who fails to comply with this section is liable to a penalty imposed by the Authority.

Amendments to Part 8 (strikes and lockouts)

9. Section 80 amended (Object of this Part)

Repeal section 80(bb).

10. Section 86A amended (Notice of strike)

After section 86A(3), insert:

• (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.

11. Sections 95A to 95H repealed

Repeal sections 95A to 95H.

12. Section 100 amended (Jurisdiction of court in relation to injunctions)

• (1) Repeal section 100(1)(\c) and (2)(c).
• (2) Repeal section 100(4) and (5).

Amendments to Part 9 (personal grievances, disputes, and enforcement)

13. Section 104 amended (Discrimination)

In section 104(1), replace "or involvement in the activities of a union" with "or the employee's union membership status or involvement in union activities".

14. Section 106 amended (Exceptions in relation to discrimination)

After section 106(3), insert:

• (4) Despite section 104, an employee is not discriminated against in that employee’s employment simply because the employee’s employment agreement or terms and conditions of employment are different from those of another 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).

15. Section 107 amended (Definition of involvement in activities of union for purposes of section 104)

• (1) In the heading for section 107, replace "involvement in activities of union" with "union membership status or involvement in union activities".
• (2) In section 107(1) replace "involvement in the activities of a union means that, within 12 months" with "involvement in union activities means that, within the 18 months".
• (3) After section 107(1), insert:

• (2) For the purposes of section 104, union membership state 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.

16. Section 119 amended (Presumption in discrimination cases)

In section 119(1)(b), replace "involvement in activities of union" with "union membership status or involvement in union activities".

17. Section 21 amended of Human Rights Act 1993 (Prohibited grounds of discrimination)

• (1) This section amends the Human Rights Act 1993.
• (2) In section 21(1), insert in its appropriate alphabetical order:

• (ka) union membership status or involvement in union activities

Amendments to Part 6 (individual employees’ terms and conditions of employment)

18. Sections 67A and 67B repealed

Repeal sections 67A and 67B.

Amendments to Part 6A (continuity of employment if employees’ work affected by restructuring)

19. Section 69A amended (Object of this subpart)

Repeal section 69A(4).

20. Section 69B amended (Intepretation)

In section 69B, repeal the definitions of associated person and exempt employer.

21. Sections 69CA to 69CE repealed

Repeal sections 69CA to 69CE.

22. Section 69DA repealed (Associated person)

Repeal section 69DA.

23. Section 69E amended (Examples of contracting in, contracting out, and subsequent contracting)

Replace section 69E(2) with the following:

• (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.

24. Section 69G replaced (Notice of right to make election)

Section 69G is replaced with the following:

69G. Notice of right to make election

• (1) As soon as practicable, but no later than 20 working days before the date on which a restructuring takes effect, the employer of the employees who will be affected by the restructuring must provide the affected employees with-
  • (a) information about whether the employees have a right to make an election under section 69I; and
  • (b) if the employees have a right to make an election under section 69I, an opportunity to exercise that right; and
  • (c) information sufficient for the employees to make an informed decision about whether to exercise any right to make an election; and
  • (d) the date by which any right to make an election must be exercised, which is-
  • (i) the date that is 10 working days after the day on which the employees are provided with the information described in paragraphs (a) to (c); or
  • (ii) if the employees’ employer and the new employer agree to a later date, that agreed date.
• (2) Without limiting the information to be provided under subsection (1)(c), the information provided under that provision must include-
  • (a) the name of the new employer:
  • (b) the nature and scope of the restructuring:
  • (c) the date on which the restructuring is to take effect:
  • (d) a statement to the effect that an election-
  • (i) must be made in writing and signed by the employee; and
  • (ii) may be delivered, sent by post, or sent by electronic means (for example, by fax or email) to the employee’s employer:
  • (e) notice in writing-
  • (i) that employee transfer costs information and individualised employee information (as those terms are defined in section 69OB) relating to employees who elect to transfer will be provided 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 Privacy Act 1993.
• (3) The employees’ employer must send an election that complies with subsections (1)(d) and (2)(d) to the new employer as soon as practicable, but no later than 5 working days after the day on which that election is received by the employees’ employer.
• (4) If an employee sends an election that complies with subsection (2)(d) by post or electronic means before the date described in subsection (1)(d), the employee must be treated as having exercised the employee’s right to make an election by that date.
• (5) If the employee’s employer sends an election to the new employer by post or electronic means before the date that is 5 working days after the day on which the employee’s employer received that election, the employee’s employer must be treated as having met the deadline specified in subsection (3).
• (6) If the restructuring is a contracting in or a subsequent contracting, person A in the definition that applies must give the employer sufficient notice of, and information about, the restructuring to enable the employer to comply with subsection (1).
• (7) In subsection (6), sufficient notice means-
  • (a) as soon as practicable; but
  • (b) no later than 20 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.

25. Section 69I amended (Employee may elect to transfer to new employer in certain circumstances)

• (1) In the heading for section 69I, delete "in certain circumstances".
• (2) Repeal section 69I(1A).

Amendments to Part 6C (breastfeeding facilities and breaks)

26. Section 69Y amended (employer’s obligation)

In section 69Y(2), delete "only if the employee and employer agree that they are paid".

Amendments to Part 6D (rest breaks and meal breaks)

27. Sections 69ZC to 69ZEB replaced

Replace sections 69ZC to 69ZEB with:

69ZC. Interpretation

In this Part, unless the context otherwise requires, work period- * (a) means the period- * (i) beginning with the time at which, in accordance with an employee’s terms and conditions of employment, an employee starts work; and * (ii) ending with the time at which, in accordance with an employee’s terms and conditions of employment, an employee finishes work; and * (b) includes all authorised breaks (whether paid or not) provided to an employee or to which an employee is entitled during the period specified in paragraph (a).

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 at least 2 hours and no 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 at least more than 4 hours and no 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 at least more than 6 hours and no but not more than 8 hours, the employee is entitled to-
  • (a) two 10-minute paid rest breaks; and
  • (b) one 30-minute meal break.

Work period over 8 hours

• (5) If an employee’s work period is more than 8 hours, the employee is entitled to the rest breaks and meal breaks in accordance with subsections (6) and (7).
• (6) During the work period of 8 hours, the employee is entitled to-
  • (a) two 10-minute paid rest breaks; and
  • (b) one 30-minute meal break.
• (7) During the work period beyond 8 hours (the subsequent period), the employee is entitled to the following:
  • (a) if the subsequent period is at least 2 hours and no or more but not more than 4 hours, to one 10-minute paid rest break:
  • (b) if the subsequent period is at least more than 4 hours and no 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 at least more than 6 hours and no but not more than 8 hours, to-
  • (i) two 10-minute paid rest breaks; and (ii) one 30-minute meal break.

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 practicable, 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 practicable, 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.

Work period between 6 hours and 8 hours

• (5) If section 69ZD(4) applies, 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.

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 at least 2 hours and no or more but not more than 4 hours, the rest break in the middle of the subsequent period:
  • (b) if the subsequent period is at least more than 4 hours and no 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 at least more than 6 hours and no 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.

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-
  • (a) the employer is engaged in-
  • (i) the protection of New Zealand’s national security; or
  • (ii) an essential service; and
  • (b) the continuity-
  • (i) of service is critical to New Zealand’s national security; or
  • (ii) of service or production in the essential service is critical to the public interest, including (without limitation) services affecting public safety; and
  • (c) the employer would incur unreasonable cost in replacing an employee, employed in the protection of New Zealand’s national security or in the essential service, during rest breaks and meal breaks-
  • (i) with another person who has sufficient skills and experience; and
  • (ii) without compromising-
    • (A) New Zealand’s national security; or
    • (B) public safety.
• (2) If subsection (1) 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.

69ZEB Compensatory measures

• (1) If the employer and employee are unable to reach agreement under section 69ZEA(2), an employee is entitled to, and the employee’s employer must provide 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 accordance 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 accumulation of time off work that may be taken on 1 or more occasions); or
  • (ii) financial compensation; or
  • (iii) both time off work at an alternative time and financial compensation.
• (3) For the purposes of subsection (2),-
  • (a) if the compensatory measure provided is time off work at an alternative time,-
  • (i) the employee must be provided with at least an equivalent amount of time off work (that is, the same amount of time that the employee would otherwise have taken as a rest break or meal break); and
  • (ii) the time off work at an alternative time must be provided on the same basis as the rest break or meal break that the employee would otherwise have taken:
  • (b) if the compensatory measure provided is financial compensation, that financial compensation must,-
  • (i) in the case of an employee paid at variable rates during a work period, be at least an amount-
    • (A) that is equivalent to the amount that the employee would have earned during the time that the employee would otherwise have taken as a rest break or meal break; and
    • (B) that is calculated at the average of the rate of pay that the employee would have earned in that work period; or
  • (ii) in the case of any other employee, be at least an amount that is equivalent to the amount that the employee would have earned during the time that the employee would otherwise have taken as a rest break or meal break:
  • (c) if the compensatory measure includes both time off work at an alternative time and financial compensation, the total amount of alternative time plus time for which payment is made must be at least equivalent to the amount of time that the employee would otherwise have taken as a rest break or meal break.

28. Section 69ZH replaced (Relationship between Part and other enactments)

Replace section 69ZH with:

69ZH. Relationship between 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.

Amendments to Part 11 (general provisions)

29. New section 237A inserted (Amendments to Schedule 1A)

After section 237AA, insert:

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 business occurs frequently; and
  • (b) have terms and conditions of employment that tend to be undermined by the restructuring of an employer’s business; and
  • (c) have little bargaining power.
• (3) The Minister may recommend the making of an Order in Council to amend Schedule 1A 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
  • (b) receive a report from the department on whether the employees in the category of employees satisfy the criteria in subsection (2); and
  • (c) provide the report to, and consult, any employers, employees, representatives of employers or employees, or other persons or organisations as the Minister considers appropriate.
• (6) Nothing in subsection (5)(c) requires the making available of information that could properly be withheld in accordance with the provisions of the Official Information Act 1982 if the information were requested under that Act.
• (7) In this section, restructuring has the same meaning as in section 69B.

30. Schedule 1A amended (Employees to whom subpart 1 of Part 6A applies)

In Schedule 1A, insert after paragraph (f):

• (g) bus driving services:
• (h) train driving or conducting services.

Subpart 1 - Amendments to Holidays Act 2006

31. Principal Act

This subpart amends the Holidays Act 2006 (the principal Act).

32. Section 69 amended (Bereavement leave)

• (1) In section 69(2)(b), replace "result of the death." with "result of the death; or",
• (2) In section 69, after paragraph (b), insert:

• (c) on the unplanned end of an employee's confirmed pregnancy by way of miscarriage or stillbirth; or
• (d) on the unplanned end of an employee's spouse or partner's confirmed pregnancy by the way of miscarriage or stillbirth.

33. Section 70 amended (Duration of bereavement leave)

In section 70(1), replace paragraph (a) with:

• (a) 3 days’ bereavement leave for each type of bereavement described in section 69(2)(a), (c), and (d); and

Subpart 2 - Amendments to Crimes Act 1961

34. Principal Act

This subpart amends the Crimes Act 1961 (the principal Act).

35. New sections 177A to 177C inserted

After section 177, insert:

177A. Corporate manslaughter

• (1) An organisation to which this section applies is guilty of an offence if the way in which any of its activities are managed or organised by its senior managers-
  • (a) causes a person's death; and
  • (b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
• (2) The organisations to which this section applies are-
  • (a) a company, including a State-owned enterprise; and
  • (b) a firm, partnership, or body corporate carrying out functions intended to return a revenue to the body corporate or to its partners or members; and
  • (c) a public authority, including-
  • (i) a department of the Public Service listed in Schedule 1 of the State Sector Act 1988:
  • (ii) a Crown entity listed in Schedule 1 or 2 of the Crown Entities Act 2004:
  • (iii) the New Zealand Defence Force:
  • (iv) the New Zealand Police:
  • (v) the New Zealand Security Intelligence Service:
  • (vi) the Government Communications Security Bureau:
  • (vii) the Parliamentary Counsel Office:
  • (viii) the Office of the Clerk of the House of Representives:
  • (ix) the Parliamentary Service:
  • (x) the Reserve Bank of New Zealand:
  • (xi) any Office of Parliament:
  • (xii) any local authority, council organisation, or council-controlled organisation within the meaning of the Local Government Act 2002.
• (3) For the purposes of this section,-
  • (a) a person is a senior manager of an organisation if they are a director or a committee member of a body corporate or plays a significant role in-
  • (i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised; or
  • (ii) the actual managing or organising of the whole or a substantial part of those activities; and
  • (b) relevant duty of care means any duty of care which, but for the accident compensation system, may be said to exist as a matter of law, whether the law of negligence or any other law; and
  • (c) a breach of a duty of care by an organisation is a gross breach if the conduct alleged to ammount to a breach of that duty falls far below what can reasonably expected of the organisation in the circumstances
• (4) An organisation that is guilty of corporate manslaughter is li-able on conviction on indictment to a fine not exceeding $10 million.
• (5) Any senior manager whose acts or omissions contributed ma-terially to the elements of an offence leading to the conviction under this section of an organisation is liable to a sentence of imprisonment not exceeding 10 years.
• (6) Without limiting subsections (4) or (5), an order, to be known as a publicity order may be made on the conviction under this section of an organisation requiring the organisation to publicise in a specified manner-
  • (a) the fact that it has been convicted of the offence; and
  • (b) specified particulars of the offence, including the names and position descriptions of any senior managers convicted under subsection (5); and
  • (c) the amount of any fine imposed on the organisation and any term of imprisonment imposed on any individual; and
  • (d) any other matter that the court considers just in the circumstances.
• (7) A publicity order made under subsection (6)-
  • (a) must specify a period within which the order must be complied with; and
  • (b) may specify the manner and form of publication, including whether publication should be in the organisation’s statutory or other annual report.

177B. Public policy decisions, exclusively public functions, and statutory inspections

• (1) Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including, in particular, the allocation of public resources or the weighing of compet-ing public interests) is not a relevant duty of care.
• (2) Any duty of care owed in respect of things done in the exercise of an exclusively public function is not a relevant duty of care unless the duty of care arises through the public authority being an owner of premises or other property, or an occupier of premises.
• (3) In this section,-
  • exclusively public function means a function that falls within the prerogative of the Crown or is, by its nature, exercisable only with authority conferred-
    • (a) by the exercise of that prerogative; or
    • (b) by or under a statutory provision
  • statutory function means a function conferred by or under a statutory provision. ### 177C. Inclusions
• (1) For the avoidance of doubt, a person and a body corporate can both be guilty of appropriate applicable offences in respect of the same acts or ommissions and the guilt or innocence of one does not affect, and is irrelevant to, the guilt or innocence of the other.
• (2) A person cannot be guilty of aiding and abetting an offence under section 177A.

Subpart 3 - Amendments to Wages Protection Act 1983

36. Principal Act

This subpart amends the Wages Protection Act 1983 (the principal Act).

37. Section 6 amended (Employer may recover overpayments in certain circumstances)

• (1) In section 6(1), definition of recoverable period, delete "or (if the employer is entitled to make a specified pay deduction under section 95B of the Employment Relations Act 2000) any part of any wages".
• (2) Repeal section 6(3)(ba) and (5).

38. New section 14 inserted

After section 13, insert the following:

14. Wage theft

• (1) In this section, wage theft means employers denying or refusing to provide workers with their legally or contractually promised wages, including, but not limited to-
  • (a) non-payment of overtime:
  • (b) not giving a worker their last paycheck after the worker leaves the job:
  • (c) not paying for all the hours worked:
  • (d) not paying minimum wage:
  • (e) not paying a worker at all.
• (2) Every employer commits an offence who commits wage theft.
• (3) A person who commits an offence against subsection (2) is liable on conviction to a term of imprisonment not exceeding 1 year, a fine not exceeding $10,000, or both.
• (4) A person who commits an offence against subsection (2) must also be fined double the amount the worker is owed, to be given directly to the worker.
• (5) The Employment Relations Authority must publish, every six months, a list of employers who have committed wage theft, alongside the extent of each employer's contravention of this section.

B.109 - Employment Relations Amendment Bill was submitted by the Associate Minister of Business (Employment Relations) /u/imnofox (Greens) on behalf of the government.

Final reading debate will conclude at 1:00 pm, 17 December 2018.