Getting started: where to get information and assistance

Information about your rights and about options for sorting out problems

If a problem has arisen in your employment relationship, you should start by discussing it with your employer to see if you can sort it out together, in good faith.

If that’s not possible, you should find out about your rights and obligations, if you haven’t already done so, and find out what help is available for sorting out the problem. You can contact –

• your union, if you belong to one
• the Employment Relations Service (part of the Department of Labour – see below)
• a community law centre
• a lawyer.

You should also read your employment agreement: every agreement must include a plain-language explanation of the services available to employers and employees to help them resolve problems. This should include information about the Employment Relations Service, the services it provides, and how to contact it.

The Employment Relations Service: How it can help

The Employment Relations Service (ERS) provides information to employees and employers about their rights and obligations. It also provides free mediation services. The ERS is part of the Department of Labour.

The Employment Relations Service provides a large amount of information on its website at www.ers.dol.govt.nz. It also provides a free phone information service, the Employment Relations Infoline on 0800 20 90 20. 

Options for resolving the problem

If you’ve been unable to resolve the dispute by discussing it with your employer, you can take one of the following options –

Mediation

Asking a Labour Inspector to enforce your minimum conditions

Going to the Employment Relations Authority

 

 

Site updated 1 August 2010

Mediation

What is mediation?

The purpose of mediation is to help employees and employers resolve their problems themselves, rather than having a Court or some other authority impose decisions on them. A neutral mediator helps the two sides discuss the problem, identify common ground and the issues in dispute, and try to come up with a solution that works.

Mediation is a fast, flexible and relatively inexpensive alternative to going to Court. There is no set process – it could involve a face-to-face meeting between you and your employer and your representatives, or it could take place by telephone or email.

Mediation is usually confidential, so that nothing said as part of the Mediation process can be brought up later if the case goes to the Employment Relations Authority or a Court.

The two sides can, if they choose, ask the mediator to make a decision. You and your employer might decide to do this if you’re unable to reach an agreement with the mediator’s help, but you don’t want to take the dispute to the Employment Relations Authority.

How can I get access to mediation services?

Free mediation services are available through the Employment Relations Service (ERS) of the Department of Labour. Either you or your employer can ask for assistance from the ERS’s Mediation Service by phoning the Employment Relations Infoline on 0800 20 90 20, or by contacting the local office of the Mediation Service (contact details are available on the ERS website).

If you take your dispute to the Employment Relations Authority, the Authority will usually require you to try mediation if you haven’t already done so.

Employees and employers can choose to use a private mediator, but any agreement reached won’t be binding under the Employment Relations Act: see below.

If we reach an agreement, is it legally binding?

If you used a mediator from the Mediation Service, you can ask the mediator to sign the agreement and this will make it final and binding. The agreement is then enforceable in the Employment Relations Authority, and the Authority can impose a penalty if either side breaches it. If the mediator made a decision about the dispute and signed it, this decision is enforceable in the same way.

Agreements reached with the help of private mediators, and decisions made by them, aren’t enforceable in the Employment Relations Authority, unless you ask a Mediation Service mediator to sign them. They are, however, enforceable in the ordinary Courts, the same as any other legal agreement.

What happens if we can’t reach an agreement?

If you and your employer can’t reach a mediated agreement, you can either –

• ask the mediator to make a final and binding decision, or
• take the dispute to the Employment Relations Authority.

 

 

Site updated 1 August 2010

Labour Inspectors: enforcing minimum conditions

How can a Labour Inspector help?

The Department of Labour’s Labour Inspectors investigate breaches of employees’ minimum rights under laws such as the Holidays Act and the Minimum Wage Act. They can also take action to enforce these minimum rights.

An employee can ask a Labour Inspector to investigate a breach of their minimum rights, or a Labour Inspector can investigate on their own initiative.

During an investigation Labour Inspectors also assist the employer to make sure that their agreements, policies, records and systems all comply with the relevant employment laws.

For information about minimum conditions, see Info sheet Employment – Minimum Conditions.

What powers do Labour Inspectors have?

A Labour Inspector can give your employer a “demand notice”, which legally requires the employer to put right the breach of your minimum rights. The demand notice is enforceable in the Employment Relations Authority. The employer can also go to the Authority to challenge the demand notice.

Instead of issuing a demand notice, Labour Inspectors can take action on your behalf in the Employment Relations Authority to enforce your minimum rights under the Minimum Wage Act or Holidays Act.

How to contact a Labour Inspector

You can contact a Labour Inspector through the Employment Relations Infoline on 0800 20 90 20. Contact details are also available on the Employment Relations Service website at www.ers.dol.govt.nz.

 

 

Site updated 1 August 2010

Going to the Employment Relations Authority

The role of the Employment Relations Authority

The Employment Relations Authority is a specialist decision-making body, like a Court, for resolving employment relationship problems. The Authority is an investigative body, which means it establishes the relevant facts and makes a decision based on the substantial merits of the case. This is different from the ordinary Courts, which usually only respond to the evidence and are bound by legal technicalities.

The Authority can hear applications from either employees or employers. Each case is heard by a single member of the Authority.

If either side is unhappy with a decision of the Employment Relations Authority, they can appeal it to the Employment Court.

An emphasis on mediation

The Employment Relations Authority emphasises mediation as a means of resolving employment problems. The Authority will usually refer the two sides to mediation if they haven’t already tried it, and may even order them back if they already have.

What kinds of problems can the Employment Relations Authority deal with?

Personal grievances – a personal grievance is a claim that you’ve been treated unfairly in one of the ways recognised by the Employment Relations Act, such as unjustified dismissal or sexual harassment.

Disputes about employment agreements – a dispute means specifically a dispute about how the terms of your employment agreement should be interpreted or applied.

Recovering unpaid wages – you can take a claim to the Authority if you believe your employer owes you wages.

Penalty actions – if your employer has breached your employment agreement or the Employment Relations Act, you can ask the Authority to impose a penalty (a fine) on them.

Compliance orders – if your employer has breached your employment agreement or the Employment Relations Act, you can ask the Authority to issue a compliance order to make them comply.

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The procedure in the Employment Relations Authority

An informal and flexible process

The Employment Relations Authority is intended to provide speedy, informal and practical justice. It therefore has some flexibility in how it investigates the issues and comes to a decision.

However, the Authority’s processes must follow the rules of natural justice. Natural justice generally means that each side has the right to know the case against them, the right to have the chance to explain their own case, the right to be treated in an unbiased way, and the right to have only relevant factors taken into account when the decision is made.

How do I apply to the Employment Relations Authority?

You fill out a simple form called a Statement of Problem, stating what the problem is, the facts, what you want the Authority to do about it, and whether you and your employer have tried mediation or some other process to resolve the problem.

Attach any documents, such as letters that you and your employer have exchanged and statements from any witnesses you have.

Send the completed form to one of the Authority’s offices, together with the required fee.

The Employment Relations Authority is based in Auckland, Wellington and Christchurch but its members travel to most of the provincial centres to hear cases.

What happens after I’ve filed my application?

The Authority will send a copy of your Statement of Problem to your employer. (You’re called “the applicant” and your employer is called “the respondent”.)

Your employer will be asked to provide the Authority with a Statement in Reply within 14 days.

The Authority can contact either side to clarify any points made in the statements. It may also hold a pre-investigation conference, by telephone or some other way, to resolve some issues or discuss procedures for investigating the problem.

The case can then proceed to an investigation meeting.

Before it considers your case, the Authority will usually order you and your employer to go to mediation if you haven’t already done so. The Authority can direct you back to mediation even if you’ve already tried it. If mediation doesn’t resolve the problem, the Authority will investigate and make a decision.

What happens at an investigation meeting?

An investigation meeting is run by one member of the Employment Relations Authority sitting alone. The two sides attend, along with their lawyers or other representatives and any witnesses.

The Authority member decides exactly what the procedure will be at the meeting. They will decide whether or not evidence will be given on oath (or by affirmation).

The Authority can summons any person to appear before it, and can require either side to produce relevant documents.

After the Authority member has heard all the facts, he or she will make a decision, which is enforceable the same way as a Court order. Sometimes the Authority member will give a decision at the end of the meeting, but usually they give the decision in writing later.

Do I need a lawyer to represent me?

The two sides can choose to represent themselves or to be represented by someone else, such as a union representative, a bargaining agent or a lawyer.

If you want a lawyer but can’t afford one, you may qualify for legal aid. This is where some or all of your lawyer’s bills are paid by the Government (you may have to pay some or all of this back). See Info sheet Legal Aid.

Can I challenge the Authority’s decision if I’m unhappy with it?

Yes. You or your employer can appeal the Employment Relations Authority’s decision to the Employment Court.

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Appeals to the Employment Court

A key role of the Employment Court is to hear appeals from decisions of the Employment Relations Authority. Either side can appeal to the Employment Court.

The Employment Court is more formal than the Employment Relations Authority. To go to the Court you will probably need a lawyer.

How do I appeal?

You will need to file a special form (a Statement of Claim) with the Employment Court. You must do this within 28 days after the Authority’s decision.

You can choose whether the Court will rehear the whole case (a “de novo” hearing), or whether it will consider only particular issues you specify in your Statement of Claim – for example, you might claim that the Authority got the law wrong on a particular point, or made a factual mistake.

Will I need a lawyer to represent me in the Employment Court?

You can represent yourself if you want to, but it’s advisable to use a lawyer, a union official or someone else who has experience being an advocate and with Court procedures.

If you can’t afford a lawyer, you may qualify for legal aid, which is where some or all of your lawyer’s bills are paid by the Government (you may have to pay some or all of this back). See Info sheet Legal Aid.

Other functions of the Employment Court

As well as hearing challenges of Employment Relations Authority decisions, the Employment Court has other functions, such as –

• reviewing whether an official or other person with powers under the Employment Relations Act has exercised those powers lawfully (“judicial review”)
• hearing applications for damages, injunctions or compliance orders in relation to unlawful strikes and lockouts
• deciding whether or not a particular person is an “employee” and therefore covered by the Employment Relations Act
• hearing allegations that a person has committed an offence under the Employment Relations Act.

How does the Employment Court make decisions?

The Court will look at whether the parties have been to mediation, and will usually require them to go to mediation unless this wouldn’t be useful.

The Employment Court can hear evidence and information that wouldn’t be admitted in other Courts.

In deciding a case, the Court can make whatever decision it thinks is fair, as long as the decision isn’t inconsistent with the law or the relevant employment agreement.

Can I challenge a decision of the Employment Court?

Either side can appeal to the Court of Appeal if they think the Employment Court got the law wrong (but not on any other ground) and if they get the Court of Appeal’s permission to appeal. You have 28 days to apply for permission to appeal.

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Site updated 1 August 2010

Personal grievances

A personal grievance is where you make a claim against your employer that you’ve been treated unfairly in some way, in order to get compensation or some other resolution of the problem.

You start by notifying your employer about your personal grievance. If you’re not satisfied with the employer’s response, you can take the grievance to the Employment Relations Authority.

To bring a successful personal grievance against your employer you must show that your claim comes within one of the established grounds – for example, unjustified dismissal, sexual harassment, or duress relating to union membership.

This Info sheet explains the process for raising a personal grievance, the grounds for taking one and the remedies available.

Raising a personal grievance: the process

How do I raise a personal grievance with my employer?

You must take reasonable steps to make your employer (or their representative) aware that you have a personal grievance you want them to address.

You don’t have to put your grievance in writing, but it’s advisable that you do so. You should state exactly what your grievance is, all the relevant facts, and what you want your employer to do to put it right.

Time limit for raising a personal grievance with your employer

You must raise the personal grievance with your employer within 90 days after the particular incident or problem happened, or within 90 days after you became aware of it, whichever is later.

Your employer may agree to you raising the personal grievance outside this time limit. If they don’t agree, you can raise your grievance outside the time limit only if the Employment Relations Authority allows it because of exceptional circumstances – for example, if you were traumatised for a period because of your grievance.

What happens after I’ve raised the personal grievance with my employer?

If your employer doesn’t correct the problem, you can take your personal grievance to the Employment Relations Authority. You must do this within three years after you raised the grievance with your employer.

The Employment Relations Authority website explains how to apply and the process the Authority will follow.

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Grounds for taking a personal grievance

The grounds on which you can take a personal grievance against your employer are set out in the Employment Relations Act. They are

Unjustified dismissal

Unjustifiable action resulting in disadvantage

Duress relating to union membership

Discrimination

Sexual harassment

Racial harassment

Breach of special protections relating to restructuring

Unjustified dismissal

When is a dismissal unjustified?

Whether a dismissal is justified or not is decided by considering what a fair and reasonable employer would have done in the circumstances.

This includes looking at

• whether there was a good reason for the dismissal (“substantive fairness”), and
• whether the dismissal was carried out in a fair manner (“procedural fairness”).

The reason: was the dismissal “substantively fair”?

There can be many reasons for dismissing an employee. Whether or not a reason is substantively fair and reasonable will depend on the particular case.

Reasons for dismissal can generally be grouped into two categories

• serious misconduct, which will justify summary (instant) dismissal without any warnings
• less serious misconduct, which will usually require the employer to give the employee warnings and an opportunity to improve their performance or change their behaviour.

Examples of serious misconduct

Examples of serious misconduct that would justify a summary (instant) dismissal are

• fighting, or assaulting someone
• openly and deliberately disobeying a lawful and reasonable instruction from a supervisor or other person in authority in the workplace
• dishonesty
• insubordination – for example, using offensive language or publicly criticising the employer
• breaching work rules – for example, being drunk or sleeping at work
• disclosing confidential information belonging to the employer (except where the employee discloses information about serious wrongdoing by the employer or work colleagues: see Info sheet Protection For Whistleblowers

Examples of less serious forms of misconduct

The following are examples of less serious misconduct that might justify dismissal after the employer has been given warnings and opportunities to improve

• unsatisfactory work performance
• absenteeism and unauthorised leave
• offensive emails
• misconduct outside of work hours
• abusive language.

Your right to reasons for your dismissal

If you’ve been dismissed you’re entitled to be given the reasons for it. You can ask for reasons within 60 days after being dismissed, and your employer must then provide them within 14 days.

The process: was the dismissal “procedurally fair”?

Exactly what is a fair process depends on the particular case. However, some general principles apply.

• Warnings – the employer should warn you about your misconduct or poor performance and let you know that you must improve (unless the problem is so serious that it justifies summary, or instant, dismissal). If it’s appropriate, the employer should offer you training or other assistance. You should also be told that your job may be at stake.
• Investigation – the employer must carry out a full and impartial investigation into the alleged misconduct. You should be told the results of the investigation.
• Reasons – before your employer takes any action, they must give you reasons for the action.
• Opportunity to be heard – before being dismissed, or before any other disciplinary action is taken, you must be given a genuine opportunity to put your case and have the employer consider it.

“Constructive dismissal”: being pressured to resign

If you resign in response to your employer’s behaviour, this is known as “constructive dismissal”. If your employer’s behaviour was unreasonable, you may have grounds for claiming unjustified dismissal.

Unreasonable behaviour might include things such as

• coercion and threats
• making major changes to your employment agreement without your consent
• giving you a choice of resigning or being dismissed
• deliberately acting with the intention of forcing you to resign
• failing to make your workplace safe
• falsely accusing you of misconduct.

Can a redundancy be challenged as an unjustified dismissal?

If you’ve been made redundant you cannot claim an unjustified dismissal if

• your employer had a genuine commercial reason for discontinuing your position, and
• your employer followed a fair process in making you redundant.

A fair procedure would include such things as

• consulting with you (if appropriate)
• considering redeployment or other options
• giving you adequate notice.

For more information about redundancies, see Info sheet Ending An Employment Relationship.

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Unjustifiable action resulting in disadvantage

You can bring a personal grievance if your employer does anything unjustifiable that negatively affects your employment or conditions of work.

To succeed in your personal grievance, generally the disadvantage must relate to something you’re entitled to, whether under your agreement or otherwise, and not to benefits that your employer has a discretion to grant or not grant.

Examples of unjustifiable action

Some ways in which your employer might disadvantage you include

• demoting you
• suspending you without pay
• withdrawing work from you
• transferring you
• giving you unjustified warnings
• removing a benefit, such as the use of a company car.

Duress relating to union membership

You can bring a personal grievance for duress if your employer or their representative

• says you must, or must not, belong to a union or an employee’s organisation if you want to keep your job, or
• uses undue influence, or offers you incentives, or threatens you with some disadvantage to make you leave or join a union or employee’s organisation, or to make you stop acting on behalf of other employees.

“Undue influence” means something similar to coercion or threats.

Discrimination

On what grounds are employers prevented from discriminating?

Your employer cannot discriminate against you on any of the grounds in the Human Rights Act, namely

• colour, race, or ethnic or national origins
• sex (including being pregnant or giving birth)
• marital or family status
• age
• disability
• religious or ethical belief
• political opinion
• employment status
• sexual orientation.

Your employer is also banned from discriminating against you because

• you’ve refused to do work that you believe would be likely to cause you serious harm, or
• you’re involved in union activities. As well as being a union official, representative or delegate, this can include things such as claiming a benefit under an employment agreement (for yourself or others), participating in a strike lawfully, taking employment relations education leave, or taking an earlier personal grievance.

What kinds of things count as “discrimination”?

You can take a personal grievance for discrimination if your employer has done any of the following things based on one of the illegal grounds of discrimination

• dismissing you or subjecting you to a disadvantage
• refusing or failing to offer you the same terms and conditions, fringe benefits, or opportunities for training, promotion, or transfer as other employees with similar qualifications and in similar circumstances
• requiring you to resign or retire.

Exemptions that allow discrimination

The right to freedom from discrimination in employment is not absolute. There are some situations where different treatment of employees on one of the illegal grounds is allowed. For information about these exemptions see Info sheet Discrimination And The Human Rights Act

Choice of personal grievance or action under Human Rights Act

If you’ve suffered discrimination in your workplace, this is a breach of both the Employment Relations Act 2000 and the Human Rights Act 1993. Both Acts provide processes for resolving disputes, so that you can approach either the Employment Relations Service or the Human Rights Commission for help in dealing with the problem, including getting free access to mediation with the employer.

If you’ve used one of those processes but you’re not satisfied with the outcome, you then have the option of taking a personal grievance against the employer to the Employment Relations Authority or of taking a case to the Human Rights Review Tribunal under the Human Rights Act. You must choose one or the other – you can’t do both.

Only an employee can take a personal grievance; job applicants and volunteers can complain under the Human Rights Act. For information about taking action under the Human Rights Act, see Info sheet Discrimination And The Human Rights Act

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Sexual harassment

Sexual harassment by employers and supervisors

You can bring a personal grievance if your employer, or someone else in authority such as a supervisor, subjects you to sexual harassment as described below

• requests for sexual contact – asking you for sex or any other form of sexual contact, along with a promise of better treatment or a threat of worse treatment if you refuse. The promise or threat can be explicit or implicit
• offensive or unwelcome sexual behaviour – subjecting you to sexual behaviour that you find unwelcome or offensive (whether or not you make this known to the other person), and that is significant enough to have a harmful effect on your employment, job performance or job satisfaction. The behaviour might be significant either because there was a single significant incident or because something relatively minor was repeated. The offensive or unwelcome behaviour might involve
• written or spoken language - such as sexual jokes
• visual material - such as sexually explicit posters
• physical behaviour - such as patting or pinching you.

Sexual harassment by co-workers, customers or clients

You may have a personal grievance for sexual harassment against your employer if a co-worker or one of your employer’s customers or clients sexually harasses you and your employer fails to prevent it happening again.

If you’re sexually harassed by a co-worker, customer or client in one of the ways described above, you can complain to your employer. The employer must investigate and, if your complaint is well-founded, take steps to stop the harassment happening again. If your employer doesn’t do this, and the harassment happens again, you can take a personal grievance against your employer.

Choice of personal grievance or action under Human Rights Act

If you’ve been sexually harassed at work, this is a breach of both the Employment Relations Act 2000 and the Human Rights Act 1993. Both Acts provide processes for resolving disputes, so that you can approach either the Employment Relations Service or the Human Rights Commission for help in dealing with the problem, including getting free access to mediation with the employer.

If you’ve used one of those processes but you’re not satisfied with the outcome, you then have the option of taking a personal grievance against the employer to the Employment Relations Authority or of taking a case to the Human Rights Review Tribunal under the Human Rights Act. You must choose one or the other – you can’t do both.

Only an employee can take a personal grievance; job applicants and volunteers can complain under the Human Rights Act. For information about taking action under the Human Rights Act, see Info sheet Discrimination And The Human Rights Act

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Racial harassment

Racial harassment by employers and supervisors

You can bring a personal grievance if your employer, or someone else in authority such as a supervisor, racially harasses you.

Racial harassment means language, visual material, or physical behaviour that

• expresses hostility against you, or brings you into contempt or ridicule, because of your colour, race, or ethnic or national origins, and
• is hurtful or offensive to you (whether or not you make this known to the employer or other person), and
• is significant enough to have a harmful effect on you in your employment, job performance, or job satisfaction. It might be significant either because there was a single significant incident or because something relatively minor was repeated.

Racial harassment by co-workers, customers or clients

You may have a personal grievance for racial harassment against your employer if a co-worker or one of your employer’s customers or clients racially harasses you and your employer fails to prevent it happening again.

If you’re racially harassed by a co-worker, customer or client in one of the ways described above, you can complain to your employer. The employer must investigate and, if your complaint is well-founded, take steps to stop the harassment happening again. If your employer doesn’t do this, and the harassment happens again, you can take a personal grievance against your employer.

Choice of personal grievance or action under Human Rights Act

If you’ve been racially harassed at work, this is a breach of both the Employment Relations Act 2000 and the Human Rights Act 1993. Both Acts provide processes for resolving disputes, so that you can approach either the Employment Relations Service or the Human Rights Commission for help in dealing with the problem, including getting free access to mediation with the employer.

If you’ve used one of those processes but you’re not satisfied with the outcome, you then have the option of taking a personal grievance against the employer to the Employment Relations Authority or of taking a case to the Human Rights Review Tribunal under the Human Rights Act. You must choose one or the other – you can’t do both.

Only an employee can take a personal grievance; job applicants and volunteers can complain under the Human Rights Act. For information about taking action under the Human Rights Act, see Info sheet Discrimination And The Human Rights Act

Breach of special protections relating to restructuring

The Employment Relations Act provides special protections for employees in certain industries where restructuring is frequent and workers have little bargaining power, such as cleaning and catering services.

The special protections provide that if your employer’s business is to be restructured so that your work is to be done by employees of a new employer or some other person, you have the option of transferring to the new employer on the same terms and conditions as your old job.

If you work outside those particular industries, the Act requires that your employment agreement must include a clause stating how your employer will protect you if their business is restructured.

If your rights are breached in these situations, you can take a personal grievance against the employer.

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Remedies for a personal grievance

An employee taking a personal grievance to the Employment Relations Authority can claim one or more of the following remedies.

Reinstatement

The Employment Relations Authority can order your employer to put you back in your previous position or one that’s at least as advantageous to you as your previous position. If you ask to be reinstated when you apply to the Authority, the Authority must order this if it is practicable.

The Authority can also order your employer to reinstate you temporarily while the Authority is hearing your case.

Reimbursement for lost wages or money

If you’ve lost wages or other money because of the grievance, you can ask the Employment Relations Authority to order the employer to reimburse you.

If the Authority decides you have a grievance and you’ve lost pay or other remuneration because of it, it must order your employer to pay all lost money up to three months’ ordinary time wages. The Authority also has a discretion to award more. The amount awarded can be reduced if you are partly to blame.

Compensation

The Employment Relations Authority can order the employer to pay you compensation for

• the effect of the grievance on you personally, such as humiliation, loss of dignity, or injury to feelings
• the loss of any benefits you might have expected to get if the grievance hadn’t arisen.

Recommending that the employer do certain things

If any workplace conduct or practices are a significant factor in your grievance, the Employment Relations Authority can recommend to the employer what action they should take to prevent similar problems happening.

If you’ve suffered sexual or racial harassment, the Employment Relations Authority can recommend to your employer what it should do about the person who did the harassing. This can include transferring them, taking disciplinary action against them, or helping to change their behaviour. The Authority can also recommend other action the employer should take to prevent its employees being harassed, such as developing education programmes or formal harassment policies.

 

Site updated 1 August 2010

Disputes about employment agreements

Specific meaning of “dispute”

In employment law, a “dispute” means specifically a dispute about how an employment agreement should be interpreted or applied.

For the Employment Relations Authority to hear a dispute, the dispute must be about an actual situation, not something that might arise at some point.

If you’re pursuing a dispute about a collective agreement, you must notify all the employers and unions that are parties to the agreement.

How do I take action about a dispute?

The Employment Relations Authority website explains how to apply and about the process the Authority will follow.

What can the Employment Relations Authority do about a dispute?

You can ask the Authority to do one of the following things -

• require your employer to pay you money owed to you under your employment agreement
• make a compliance order requiring your employer to do something they’re obliged to do under the agreement or to comply with some statutory requirement
• require your employer to pay a penalty for breaching the agreement, up to a maximum of $5,000 for an individual and $10,000 for a company or other incorporated body. This is like a fine: the money is paid to the Government, not to you, unless ordered by the Authority
• require your employer to pay you damages (money) for breaching the agreement.

 

 

Site updated 1 August 2010

Recovering unpaid wages

You can apply to the Employment Relations Authority if your employer has not paid wages due to you under your employment agreement, or has paid you at a lower rate than you’re legally entitled to under the Minimum Wage Act or under your agreement.

You can do this even if you have agreed that your employer did not have to pay the wages or that they could pay you at the lower rate.

How do I take action to recover unpaid wages?

The Employment Relations Authority website explains how to apply and about the process the Authority will follow.

You must apply within six years after the date when the wages should have been paid to you.

Employer’s duty to keep records

Employers must keep wages and time records. You, or someone you’ve authorised to act as your agent, can ask to see those records for any period in the last six years. Your employer must provide a copy or allow you or your agent to see the relevant records.

 

 

Site updated 1 August 2010

Penalty actions

What is a penalty action?

A penalty action is where you ask the Employment Relations Authority to fine your employer for breaching –

• your employment agreement, or
• a provision of the Employment Relations Act, the Holidays Act, the Minimum Wage Act or the Wages Protection Act that carries a penalty.

How do I take a penalty action?

The Employment Relations Authority website explains how to apply and about the process the Authority will follow.

If your employer has breached the Holidays Act, the Minimum Wage Act or the Wages Protection Act, you can ask a Labour Inspector from the Department of Labour to take a penalty action on your behalf, rather than applying to the Employment Relations Authority directly yourself.

How much can my employer be required to pay as a penalty?

The maximum penalty the Employment Relations Authority can impose is $5,000 for individuals and $10,000 for companies and other incorporated bodies.

As with other types of fines, the money is usually paid to the Government. However, in some cases the Authority can order some or all of it to be paid to you.

 

 

Site updated 1 August 2010

Compliance orders

What is a compliance order?

A compliance order is an order made by the Employment Relations Authority directing a person to do, or not do, something in order to comply with an employment agreement, a statutory requirement or a previous order by the Authority.

In what situations can I apply for a compliance order?

You can apply to the Employment Relations Authority for a compliance order if your employer has breached, for example –

• your employment agreement
• a requirement in the Employment Relations Act – for example, if your employer hasn’t given you a written agreement or if they’ve failed to keep proper wage and time records
• the Minimum Wage Act – for example, if they’ve paid you less than the minimum wage
• the Holidays Act – for example, if they haven’t paid you holiday pay
• a previous order that the Employment Relations Authority has made.

How do I apply for a compliance order?

The Employment Relations Authority website explains how to apply and about the process the Authority will follow.

 

 

Site updated 1 August 2010

Strikes and lock-outs

What is a strike?

A strike is where employees either stop work completely, or refuse to do their normal work in the usual way (a “go slow”, for example).

What is a lock-out?

A lock-out is where employers refuse to let their employees work in order to force them to accept the terms of employment being offered.

The term “partial lock-out” is sometimes used to describe a breach by an employer of an employment agreement – for example, not paying you overtime that you’re entitled to. Partial lockouts are illegal.

When are strikes and lock-outs legal?

A strike or lock-out is legal only if –

• it happens as part of bargaining for a new collective employment agreement, provided the old one has expired and the parties have already been bargaining for 40 days or more, or
• the Employment Court has suspended an illegal part of a collective agreement and has allowed strikes or lock-outs as part of negotiations around the issues covered in the suspended part, or
• the employees or the employer believe on reasonable grounds that it’s justified on health and safety grounds.

A strike or lock-out is therefore illegal if it’s used for some purpose other than collective bargaining for a new agreement (with the exception of health and safety grounds). For example, a strike or lock-out is illegal if it is part of a dispute about how to interpret and apply an existing collective agreement.

Special notice requirements for “essential services”

There are special notice requirements for strikes and lock-outs affecting “essential services”, such as hospitals, firefighting services, water supplies, power production and supply, and sewage disposal. In these cases, the union or the employer must give 28 days notice to the other side and to the Government.

What happens if a strike or lock-out is illegal?

If a strike or lockout is illegal, the other side can ask the Employment Court to grant an injunction to stop it, or they can apply for damages (money as compensation) or other remedies.

Do I have a right to get paid while I’m on strike?

Your employer is entitled to suspend you during the strike, and therefore doesn’t have to pay you. The employer can also suspend workers who aren’t on strike if there’s no work for them because of the strike. If your employer doesn’t suspend you, you’re entitled to continue to be paid.

However, if you’re suspended while on strike, this won’t affect your entitlement to benefits based on continuous service, such as additional annual leave after you’ve been employed by that employer a certain number of years.

Can employers get others to do the work of striking employees?

The employer can ask other employees to do the work of employees who are striking lawfully, and the other employees can agree to do the work, but the employer can’t require them to do it.

The employer also can’t hire new staff to do the work of employees on a lawful strike (unless the work must be done for health and safety reasons).

If a strike is illegal, these restrictions do not apply.

Can an employer discriminate against striking employees?

If you’re striking lawfully, the employer can’t discriminate against you by, for example, firing you or denying you a benefit granted to others in similar situations. If this happens, you may be able to take a personal grievance on the ground of discrimination.

 

 

 

Site updated 1 August 2010