Ace Payroll: Employment Relations Act 2000 Part 9 Personal Grievances Disputes And Enforcement


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Employment Relations Act 2000
Part 9 Personal Grievances Disputes And Enforcement

Table Of Contents	Part 6 Individual Employees	Schedule 1 Essential Services
Part 1 Key Provisions	Part 7 Education Leave	Schedule 2 Employment Authority
Part 2 Preliminary Provisions	Part 8 Strikes And Lockouts	Schedule 3 Employment Court
Part 3 Freedom Of Association	Part 9 Disputes And Enforcement	Schedule 4 Changes to Police Act
Part 4 Operation Of Unions	Part 10 Institutions	Schedule 5 Enactments Amended
Part 5 Collective Bargaining	Part 11 General Provisions	Schedule 6 Enactments Repealed

Part 9 Personal Grievances Disputes And Enforcement

Object

Section 101 - Object of this Part
Personal grievances

Section 102 - Employee may pursue personal grievance under this Act

Section 103 - Personal grievance

Section 104 - Discrimination

Section 105 - Prohibited grounds of discrimination for purposes of section 104

Section 106 - Exceptions in relation to discrimination

Section 107 - Definition of involvement in activities of union for purposes of section 104

Section 108 - Sexual harassment

Section 109 - Racial harassment

Section 110 - Duress

Section 111 - Definitions relating to personal grievances

Section 112 - Choice of procedures

Section 113 - Personal grievance provisions only way to challenge dismissal

Section 114 - Raising personal grievance

Section 115 - Further provision regarding exceptional circumstances under section 114

Section 116 - Special provision where sexual harassment alleged

Section 117 - Sexual or racial harassment by person other than employer

Section 118 - Sexual or racial harassment after steps not taken to prevent repetition

Section 119 - Presumption in discrimination cases

Section 120 - Statement of reasons for dismissal

Section 121 - Statements privileged

Section 122 - Nature of personal grievance may be found to be of different type from that alleged
Remedies in relation to personal grievances

Section 123 - Remedies

Section 124 - Remedy reduced if contributing behaviour by employee

Section 125 - Reinstatement to be primary remedy

Section 126 - Provisions applying if reinstatement ordered

Section 127 - Authority may order interim reinstatement

Section 128 - Reimbursement
Disputes

Section 129 - Person bound by or party to employment agreement may pursue dispute under this Act
Recovery of wages

Section 130 - Wages and time record

Section 131 - Arrears

Section 132 - Failure to keep or produce records
Penalties

Section 133 - Jurisdiction concerning penalties

Section 134 - Penalties for breach of employment agreement

Section 135 - Recovery of penalties

Section 136 - Application of penalties recovered
Compliance orders

Section 137 - Power of Authority to order compliance

Section 138 - Further provisions relating to compliance order by Authority

Section 139 - Power of Court to order compliance

Section 140 - Further provisions relating to compliance order by Court
Enforcement of order

Section 141 - Enforcement of order
Limitation period for actions other than personal grievances

Section 142 - Limitation period for actions other than personal grievances

Object

Section 101
Object Of This Part

The object of this Part is

(a) to recognise that, in resolving employment relationship problems, access to both information and mediation services is more important than adherence to rigid formal procedures; and

(b) to continue to give special attention to personal grievances, and to facilitate the raising of personal grievances with employers; and

(c) to recognise the importance of reinstatement as a remedy; and

(d) to ensure that the role of the Authority and the Court in resolving employment relationship problems is to determine the rights and obligations of the parties rather than to fix terms and conditions of employment.

Personal grievances

Section 102
Employee May Pursue Personal Grievance Under This Act

An employee who believes that he or she has a personal grievance may pursue that grievance under this Act.

Section 103
Personal Grievance

(1) For the purposes of this Act, personal grievance means any grievance that an employee may have against the employee's employer or former employer because of a claim

(a) that the employee has been unjustifiably dismissed; or

(b) that the employee's employment, or 1 or more conditions of the employee's employment (including any condition that survives termination of the employment), is or are or was (during employment that has since been terminated) affected to the employee's disadvantage by some unjustifiable action by the employer; or

(c) that the employee has been discriminated against in the employee's employment; or

(d) that the employee has been sexually harassed in the employee's employment; or

(e) that the employee has been racially harassed in the employee's employment; or

(f) that the employee has been subject to duress in the employee's employment in relation to membership or non-membership of a union or employees organisation.

(2) For the purposes of this Part, a representative, in relation to an employer and in relation to an alleged personal grievance, means a person

(a) who is employed by that employer; and

(b) who either

(i) has authority over the employee alleging the grievance; or

(ii) is in a position of authority over other employees in the workplace of the employee alleging the grievance.

(3) In subsection (1)(b), unjustifiable action by the employer does not include an action deriving solely from the interpretation, application, or operation, or disputed interpretation, application, or operation, of any provision of any employment agreement.

Section 104
Discrimination

(1) For the purposes of section 103(1)(c), an employee is discriminated against in that employee's employment if the employee's employer or a representative of that employer, by reason directly or indirectly of any of the prohibited grounds of discrimination specified in section 105, or by reason directly or indirectly of that employee's involvement in the activities of a union in terms of section 107,

(a) refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(b) dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or

(c) retires that employee, or requires or causes that employee to retire or resign.

(2) For the purposes of this section, detriment includes anything that has a detrimental effect on the employee's employment, job performance, or job satisfaction.

(3) This section is subject to the exceptions set out in section 106.

Section 105
Prohibited Grounds Of Discrimination For The Purposes Of Section 104

(1) The prohibited grounds of discrimination referred to in section 104 are the prohibited grounds of discrimination set out in section 21(1) of the Human Rights Act 1993, namely

(a) sex:

(b) marital status:

(c) religious belief:

(d) ethical belief:

(e) colour:

(f) race:

(g) ethnic or national origins:

(h) disability:

(i) age:

(j) political opinion:

(k) employment status:

(l) family status:

(m) sexual orientation.

(2) The items listed in subsection (1) have the meanings (if any) given to them by section 21(1) of the Human Rights Act 1993.

Section 106
Exceptions In Relation To Discrimination

(1) Section 104 must be read subject to the following provisions of the Human Rights Act 1993 dealing with exceptions in relation to employment matters:

(a) section 24 (which provides for an exception in relation to crews of ships and aircraft):

(b) section 25 (which provides for an exception in relation to work involving national security):

(c) section 26 (which provides for an exception in relation to work performed outside New Zealand):

(d) section 27 (which provides for exceptions in relation to authenticity and privacy):

(e) section 28 (which provides for exceptions for purposes of religion):

(f) section 29 (which provides for exceptions in relation to disability):

(g) section 30 (which provides for exceptions in relation to age):

(h) section 31 (which provides for an exception in relation to employment of a political nature):

(i) section 32 (which provides for an exception in relation to family status):

(j) section 33 (which relates to the Armed Forces):

(k) section 34 (which relates to regular forces and Police):

(l) section 35 (which provides a general qualification on exceptions).

(2) For the purposes of subsection (1), sections 24 to 35 of the Human Rights Act 1993 must be read as if they referred to section 104 of this Act, rather than to section 22 of that Act. In particular,

(a) references in sections 24 to 29, 31, 32, and 33 of that Act to section 22 of that Act must be read as if they were references to section 104(1) of this Act; and

(b) references in section 30 or 34 of that Act

(i) to section 22(1)(a) or 22(1)(b) of that Act must be read as if they were references to section 104(1)(a) of this Act; and

(ii) to section 22(1)(c) of that Act must be read as if they were references to section 104(1)(b) of this Act; and

(iii) to section 22(1)(d) of that Act must be read as if they were references to section 104(1)(c) of this Act.

(3) Nothing in section 104 includes as discrimination

(a) anything done or omitted for any of the reasons set out in paragraph (a) or paragraph (b) of section 73(1) of the Human Rights Act 1993 (which relate to measures to ensure equality); or

(b) preferential treatment granted by reason of any of the reasons set out in paragraph (a) or paragraph (b) of section 74 of the Human Rights Act 1993 (which relate to pregnancy, childbirth, or family responsibilities); or

(c) retiring an employee or requiring or causing an employee to retire at a particular age that has effect by virtue of section 149(2) of the Human Rights Act 1993 (which is a savings provision in relation to retirement ages specified in certain employment contracts).

Section 107
Definition Of Involvement In Activities Of Union For Purposes Of Section 104

For the purposes of section 104, involvement in the activities of a union means that, within 12 months before the action complained of, the employee

(a) was an officer of a union or part of a union, or was a member of the committee of management of a union or part of a union, or was otherwise an official or representative of a union or part of a union; or

(b) had acted as a negotiator or representative of employees in collective bargaining; or

(c) was involved in the formation or the proposed formation of a union; or

(d) had made or caused to be made a claim for some benefit of an employment agreement either for that employee or any other employee, or had supported any such claim, whether by giving evidence or otherwise; or

(e) had submitted another personal grievance to that employee's employer; or

(f) had been allocated, had applied to take, or had taken any employment relations education leave under this Act; or

(g) was a delegate of other employees in dealing with the employer on matters relating to the employment of those employees.

Section 108
Sexual Harassment

(1) For the purposes of sections 103(1)(d) and 123(d), an employee is sexually harassed in that employee's employment if that employee's employer or a representative of that employer

(a) directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains

(i) an implied or overt promise of preferential treatment in that employee's employment; or

(ii) an implied or overt threat of detrimental treatment in that employee's employment; or

(iii) an implied or overt threat about the present or future employment status of that employee; or

(b) by

(i) the use of language (whether written or spoken) of a sexual nature; or

(ii) the use of visual material of a sexual nature; or

(iii) physical behaviour of a sexual nature,

directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee's employment, job performance, or job satisfaction.

(2) For the purposes of sections 103(1)(d) and 123(d), an employee is also sexually harassed in that employee's employment (whether by a co-employee or by a client or customer of the employer), if the circumstances described in section 117 have occurred.

Section 109
Racial Harassment

For the purposes of sections 103(1)(e) and 123(d), an employee is racially harassed in the employee's employment if the employee's employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly

(a) expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and

(b) is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and

(c) has, either by its nature or through repetition, a detrimental effect on the employee's employment, job performance, or job satisfaction.

Section 110
Duress

(1) For the purposes of section 103(1)(f), an employee is subject to duress in that employee's employment in relation to membership or non-membership of a union or employees organisation if that employee's employer or a representative of that employer directly or indirectly

(a) makes membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or

(b) makes non-membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or

(c) exerts undue influence on that employee, or offers, or threatens to withhold or does withhold, any incentive or advantage to or from that employee, or threatens to or does impose any disadvantage on that employee, with intent to induce that employee

(i) to become or remain a member of a union or employees organisation or a particular union or employees organisation; or

(ii) to cease to be a member of a union or employees organisation or a particular union or employees organisation; or

(iii) not to become a member of a union or employees organisation or a particular union or employees organisation; or

(iv) in the case of an employee who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or

(v) on account of the fact that the employee is, or, as the case may be, is not, a member of a union or employees organisation or of a particular union or employees organisation, to resign from or leave any employment; or

(vi) to participate in the formation of a union or employees organisation; or

(vii) not to participate in the formation of a union or employees organisation.

(2) In this section and in section 103(1)(f), employees organisation means any group, society, association, or other collection of employees other than a union, however described and whether incorporated or not, that exists in whole or in part to further the employment interests of the employees belonging to it.

Section 111
Definitions Relating To Personal Grievances

Each of the terms personal grievance, discrimination, sexual harassment, racial harassment, and duress have in any employment agreement the meanings given to those terms by sections 103, 104, 105, 106, 107, 108, 109, and 110 unless the employment agreement gives an extended meaning to the term.

Section 112
Choice Of Procedures

(1) Where the circumstances giving rise to a personal grievance by an employee are also such that that employee would be entitled to make a complaint under the Human Rights Act 1993, the employee may take 1, but not both, of the following steps:

(a) the employee may, if the grievance is not otherwise resolved, apply to the Authority for the resolution of the grievance:

(b) the employee may make, in relation to those circumstances, a complaint under the Human Rights Act 1993.

(2) For the purposes of subsection (1)(b), an employee makes a complaint when the Complaints Division referred to in section 12(1) of the Human Rights Act 1993 accepts the complaint for investigation or conciliation.

Section 113
Personal Grievance Provisions Only Way To Challenge Dismissal

(1) If an employee who has been dismissed wishes to challenge that dismissal or any aspect of it, for any reason, in any court, that challenge may be brought only in the Authority under this Part as a personal grievance.

(2) Nothing in subsection (1) prevents an action under this Part to recover

(a) wages relating to a period of notice or alleged period of notice; or

(b) wages or other money relating to the employment prior to the dismissal; or

(c) other money payable on dismissal.

Section 114
Raising Personal Grievance

(1) Every employee who wishes to raise a personal grievance must, subject to subsections (3) and (4), raise the grievance with his or her employer within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period.

(2) For the purposes of subsection (1), a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.

(3) Where the employer does not consent to the personal grievance being raised after the expiration of the 90-day period, the employee may apply to the Authority for leave to raise the personal grievance after the expiration of that period.

(4) On an application under subsection (3), the Authority, after giving the employer an opportunity to be heard, may grant leave accordingly, subject to such conditions (if any) as it thinks fit, if the Authority

(a) is satisfied that the delay in raising the personal grievance was occasioned by exceptional circumstances (which may include any 1 or more of the circumstances set out in section 115 ); and

(b) considers it just to do so.

(5) In any case where the Authority grants leave under subsection (4), the Authority must direct the employer and employee to use mediation to seek to mutually resolve the grievance.

(6) No action may be commenced in the Authority or the Court in relation to a personal grievance more than 3 years after the date on which the personal grievance was raised in accordance with this section.

Section 115
Further Provision Regarding Exceptional Circumstances Under Section 114

For the purposes of section 114(4)(a), exceptional circumstances include

(a) where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period specified in section 114(1); or

(b) where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; or

(c) where the employee's employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 or section 65, as the case may be; or

(d) where the employer has failed to comply with the obligation under section 120(1) to provide a statement of reasons for dismissal.

Section 116
Special Provision Where Sexual Harassment Alleged

Where a personal grievance involves allegations of sexual harassment, no account may be taken of any evidence of the complainant's sexual experience or reputation.

Section 117
Sexual Or Racial Harassment By Person Other Than Employer

(1) This section applies where

(a) a request of the kind described in section 108(1)(a) is made to an employee by a person (not being a representative of the employer) who is in the employ of the employee's employer or who is a customer or client of the employer; or

(b) an employee is subjected to behaviour of the kind described in section 108(1)(b) by a person (not being a representative of the employer) who is in the employ of the employee's employer or who is a customer or client of the employer; or

(c) an employee is subjected to behaviour of the kind described in section 109 by a person (not being a representative of the employer) who is in the employ of the employee's employer or who is a customer or client of the employer.

(2) If this section applies, the employee may make a complaint about that request or behaviour to the employee's employer or to a representative of the employer.

(3) The employer or representative, on receiving a complaint under subsection (2), must inquire into the facts.

(4) If the employer or representative is satisfied that the request was made or that the behaviour took place, the employer or representative must take whatever steps are practicable to prevent any repetition of such a request or of such behaviour.

Section 118
Sexual Or Racial Harassment After Steps Not Taken To Prevent Repetition

(1) This section applies if

(a) a person in relation to whom an employee has made a complaint under section 117(2) either

(i) makes to that employee after the complaint a request of the kind described in section 108(1)(a); or

(ii) subjects that employee after the complaint to behaviour of the kind described in section 108(1)(b) or section 109; and

(b) the employer of that employee, or a representative of that employer, has not taken whatever steps are practicable to prevent the repetition of such a request or such behaviour.

(2) If this section applies, the employee is deemed for the purposes of this Act and for the purposes of any employment agreement to have a personal grievance by virtue of having been sexually harassed or racially harassed, as the case may be, in the course of the employee's employment as if the request or behaviour were that of the employee's employer.

Section 119
Presumption In Discrimination Cases

(1) Subsection (2) applies if, in any matter before the Authority or the Court,

(a) the employee establishes that the employer or the employer's representative took any action or omitted any action as described in any of paragraphs (a) to (c) of section 104(1) in relation to that employee; and

(b) if it is a case where the employee alleges that the discrimination was by reason directly or indirectly of the employee's involvement in the activities of a union, the employee establishes that he or she was a person described in section 107.

(2) If this subsection applies, there is a rebuttable presumption that the employer or representative of the employer discriminated against the employee on the grounds, or for the reason, specified in section 104(1) and alleged by the employee.

Section 120
Statement Of Reasons For Dismissal

(1) Where an employee is dismissed, that employee may, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later, request the employer to provide a statement in writing of the reasons for the dismissal.

(2) Every employer to whom a request is made under subsection (1) must, within 14 days after the day on which the request is received, provide the statement to the person who made the request.

Section 121
Statements Privileged

Any statements made or information given in the course of raising a personal grievance or in the course of attempting to resolve the grievance or in the course of any matter relating to a personal grievance are absolutely privileged.

Section 122
Nature Of Personal Grievance May Be Found To Be Of Different Type From That Alleged

Nothing in this Part or in any employment agreement prevents a finding that a personal grievance is of a type other than that alleged.

Remedies in relation to personal grievances

Section 123
Remedies

Where the Authority or the Court determines that an employee has a personal grievance, it may, in settling the grievance, provide for any 1 or more of the following remedies:

(a) reinstatement of the employee in the employee's former position or the placement of the employee in a position no less advantageous to the employee:

(b) the reimbursement to the employee of a sum equal to the whole or any part of the wages or other money lost by the employee as a result of the grievance:

(c) the payment to the employee of compensation by the employee's employer, including compensation for

(i) humiliation, loss of dignity, and injury to the feelings of the employee; and

(ii) loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to obtain if the personal grievance had not arisen:

(d) if the Authority or the Court finds an employee to have been sexually or racially harassed in his or her employment, recommendations to the employer

(i) concerning the action the employer should take in respect of the person who made the request or was guilty of the harassing behaviour, which action may include the transfer of that person, the taking of disciplinary action against that person, or the taking of rehabilitative action in respect of that person:

(ii) about any other action that it is necessary for the employer to take to prevent further harassment of the employee concerned or any other employee.

Section 124
Remedy Reduced If Contributing Behaviour By Employee

Where the Authority or the Court determines that an employee has a personal grievance, the Authority or the Court must, in deciding both the nature and the extent of the remedies to be provided in respect of that personal grievance,

(a) consider the extent to which the actions of the employee contributed towards the situation that gave rise to the personal grievance; and

(b) if those actions so require, reduce the remedies that would otherwise have been awarded accordingly.

Section 125
Reinstatement To Be Primary Remedy

(1) This section applies where

(a) the remedies sought by or on behalf of an employee in respect of a personal grievance include reinstatement (as described in section 123(a) ); and

(b) it is determined that the employee did have a personal grievance.

(2) If this section applies the Authority must, whether or not it provides for any of the other remedies provided for in section 123, provide, wherever practicable, for reinstatement as described in section 123(a).

Section 126
Provisions Applying If Reinstatement Ordered

Where the remedy of reinstatement is provided by the Authority or the Court, the employee must be reinstated immediately or on such date as is specified by the Authority or the Court and, despite any challenge to or appeal against the determination of the Authority or the Court, the provisions for reinstatement remain in full force pending the outcome of those proceedings unless the Authority or the Court otherwise orders.

Section 127
Authority May Order Interim Reinstatement

(1) The Authority may if it thinks fit, on the application of an employee who has raised a personal grievance with his or her employer, make an order for the interim reinstatement of the employee pending the hearing of the personal grievance.

(2) The employee must, at the time of filing the application for an order under subsection (1), file a signed undertaking that the employee will abide by any order that the Authority may make in respect of damages

(a) that are sustained by the other party through the granting of the order for interim reinstatement; and

(b) that the Authority decides that the employee ought to pay.

(3) The undertaking must be referred to in the order for interim reinstatement and is part of it.

(4) When determining whether to make an order for interim reinstatement, the Authority must apply the law relating to interim injunctions having regard to the object of this Act.

(5) The order for interim reinstatement may be subject to any conditions that the Authority thinks fit.

(6) The Authority may at any time rescind or vary an order made under this section.

(7) Nothing in this section prevents the Court from granting an interim injunction reinstating an employee if the Court is seized of the proceedings dealing with the personal grievance.

Section 128
Reimbursement

(1) This section applies where the Authority or the Court determines, in respect of any employee,

(a) that the employee has a personal grievance; and

(b) that the employee has lost remuneration as a result of the personal grievance.

(2) If this section applies then, subject to subsection (3) and section 124, the Authority must, whether or not it provides for any of the other remedies provided for in section 123, order the employer to pay to the employee the lesser of a sum equal to that lost remuneration or to 3 months' ordinary time remuneration.

(3) Despite subsection (2), the Authority may, in its discretion, order an employer to pay to an employee by way of compensation for remuneration lost by that employee as a result of the personal grievance, a sum greater than that to which an order under that subsection may relate.

Disputes

Section 129
Person Bound By

(1) Where there is a dispute about the interpretation, application, or operation of an employment agreement, any person bound by the agreement or any party to the agreement may pursue that dispute in accordance with Part 10

(2) If the dispute relates to a collective agreement, the person or party pursuing the dispute must ensure that all union and employer parties to the agreement have notice of the existence of the dispute.

Recovery of wages

Section 130
Wages And Time Record

(1) Every employer must at all times keep a record (called the wages and time record) showing, in the case of each employee employed by that employer,

(a) the name of the employee:

(b) the employee's age, if under 20 years of age:

(c) the employee's postal address:

(d) the kind of work on which the employee is usually employed:

(e) whether the employee is employed under an individual employment agreement or a collective agreement:

(f) in the case of an employee employed under a collective agreement, the title and expiry date of the agreement, and the employee's classification under it:

(g) where necessary for the purpose of calculating the employee's pay, the hours between which the employee is employed on each day, and the days of the employee's employment during each pay period:

(h) the wages paid to the employee each pay period and the method of calculation:

(i) details of any employment relations education leave taken under Part 7:

(j) such other particulars as may be prescribed.

(2) Every employer must, upon request by an employee or by a person authorised under section 236 to represent an employee, provide that employee or person immediately with access to or a copy of or an extract from any part or all of the wages and time record relating to the employment of the employee by the employer at any time in the preceding 6 years at which the employer was obliged to keep such a record.

(3) Where an employer keeps a wages and time record in accordance with any other Act, that employer is not required to keep a wages and time record under this Act in respect of the same matters.

(4) Every employer who falls to comply with any requirement of this section is liable to a penalty imposed by the Authority.

Section 131
Arrears

(1) Where

(a) there has been default in payment to an employee of any wages or other money payable by an employer to an employee under an employment agreement or a contract of apprenticeship; or

(b) any payments of any such wages or other money has been made at a rate lower than that legally payable,

the whole or any part, as the case may require, of any such wages or other money may be recovered by the employee by action commenced in the prescribed manner in the Authority.

(2) Subsection (1) applies despite the acceptance by the employee of any payment at a lower rate or any express or implied agreement to the contrary.

(3) Subsection (1) does not affect any other remedies for the recovery of wages or other money payable by an employer to any employee under an employment agreement or a contract of apprenticeship.

Section 132
Failure To Keep Or Produce Records

(1) Where any claim is brought before the Authority under section 131 to recover wages or other money payable to an employee, the employee may call evidence to show that

(a) the defendant employer failed to keep or produce a wages and time record in respect of that employee as required by this Act; and

(b) that failure prejudiced the employee's ability to bring an accurate claim under section 131.

(2) Where evidence of the type referred to in subsection (1) is given, the Authority may, unless the defendant proves that those claims are incorrect, accept as proved all claims made by the employee in respect of

(a) the wages actually paid to the employee:

(b) the hours, days, and time worked by the employee.

(3) A defendant may not use as evidence any wages and time record that would be inadmissible under section 232(3).

Penalties

Section 133
Jurisdiction Concerning Penalties

(1) The Authority has full and exclusive jurisdiction to deal with all actions for the recovery of penalties under this Act

(a) for any breach of an employment agreement; or

(b) for a breach of any provision of this Act for which a penalty in the Authority is provided in the particular provision.

(2) Subsection (1) is subject to

(a) sections 177 and 178 (which allow for the referral or removal of certain matters to the Employment Court); and

(b) any right to to elect to have the matter heard by the Court under section 179.

(3) Subject to any rights of appeal under this Act, the Court has full and exclusive jurisdiction to deal with all actions for the recovery of penalties under this Act for a breach of any other provision of this Act for which a penalty in the Court is provided in the particular provision.

Section 134
Penalties For Breach Of Employment Agreement

(1) Every party to an employment agreement who breaches that agreement is liable to a penalty under this Act.

(2) Every person who incites, instigates, aids, or abets any breach of an employment agreement is liable to a penalty imposed by the Authority.

Section 135
Recovery Of Penalties

(1) Any action for the recovery of a penalty may be brought,

(a) in the case of a breach of an employment agreement, at the suit of any party to the employment agreement who is affected by the breach; or

(b) in the case of a breach of this Act, at the suit of any person in relation to whom the breach is alleged to have taken place; or

(c) if permitted in the particular penalty provision, by a Labour Inspector.

(2) Every person who is liable to a penalty under this Act is liable,

(a) in the case of an individual, to a penalty not exceeding $5,000:

(b) in the case of a company or other corporation, to a penalty not exceeding $10,000.

(3) A claim for 2 or more penalties against the same person may be joined in the same action.

(4) In any claim for a penalty the Authority or the Court may give judgment for the total amount claimed, or any amount, not exceeding the maximum specified in subsection (2), or the Authority or the Court may dismiss the action.

(5) An action for the recovery of a penalty under this Act must be commenced within 12 months after the cause of action has arisen.

Section 136
Application Of Penalties Recovered

(1) Subject to any order made under subsection (2), every penalty recovered in any penalty action, whether before the Authority or the Court, must be paid into the Authority or the Court, as the case requires, and not to the plaintiff, and must then be paid by the Authority or the Court into the Crown Bank Account.

(2) The Authority or the Court may order that the whole or any part of any penalty recovered must be paid to any person.

Compliance orders

Section 137
Power Of Authority To Order Compliance

(1) This section applies where any person has not observed or complied with

(a) any provision of

(i) any employment agreement; or

(ii) Part 1, Parts 3 to 7, or Part 9 of this Act; or

(iii) any terms of settlement or decision that section 151 provides may be enforced by compliance order; or

(iv) a demand notice that section 225(4) provides may be enforced by compliance order; or

(v) sections 56, 58, 77A, and 77D of the State Sector Act 1988; or

(vi) Parts VI and VII of the State Sector Act 1988; or

(vii) section 11(3)(c) of the Health and Disability Services Act 1993; or

(viii) clauses 5 and 6 of the First Schedule to the Broadcasting Act 1989; or

(ix) sections 83, 83A, and 83B of the Fire Service Act 1975; or

(x) clauses 18, 19, and 21 of Schedule 6 of the Accident Insurance Act 1998; or

(b) any order, determination, direction, or requirement made or given under this Act by the Authority or a member or officer of the Authority.

(2) Where this section applies, the Authority may, in addition to any other power it may exercise, by order require, in or in conjunction with any matter before the Authority under this Act to which that person is a party or in respect of which that person is a witness, that person to do any specified thing or to cease any specified activity, for the purpose of preventing further non-observance of or non-compliance with that provision, order, determination, direction, or requirement.

(3) The Authority must specify a time within which the order is to be obeyed.

(4) Where any person (being an employee, employer, union, or employer organisation) alleges that that person has been affected by non-observance or non-compliance of the kind described in subsection (1), that person may take action against any other person in respect of the non-observance or non-compliance by applying to the Authority for an order of the kind described in subsection (2).

Section 138
Further Provisions Relating To Compliance Order By Authority

(1) The power given to the Authority by section 137(2) may be exercised by the Authority

(a) of its own motion; or

(b) on the application of any party to the matter.

(2) Before exercising its power under section 137(2) in relation to a person who is not a party to the matter, the Authority must give that person an opportunity to appear or be represented before the Authority.

(3) Any time specified by the Authority under section 137 may from time to time be extended by the Authority on the application of the person who is required to obey the order.

(4) A compliance order of the kind described in section 137(2)

(a) may be made subject to such terms and conditions as the Authority thinks fit (including conditions as to the actions of the applicant); and

(b) may be expressed to continue in force until a specified time or the happening of a specified event.

(5) Where the Authority makes a compliance order of the kind described in section 137(2), it may then adjourn the matter, without imposing any penalty or making a final determination, to enable the compliance order to be complied with while the matter is adjourned.

(6) Where any person fails to comply with a compliance order made under section 137, the person affected by the failure may apply to the Court for the exercise of its powers under section 140(6).

Section 139
Power Of Court To Order Compliance

(1) This section applies where any person has not observed or complied with

(a) any provision of Part 8; or

(b) any order, determination, direction, or requirement made or given under this Act by the Court.

(2) Where this section applies, the Court may, in addition to any other power it may exercise, by order require, in or in conjunction with any proceedings under this Act to which that person is a party or in respect of which that person is a witness, that person to do any specified thing or to cease any specified activity, for the purpose of preventing further non-observance of or non-compliance with that provision, order, determination, direction, or requirement.

(3) The Court must specify a time within which the order is to be obeyed.

(4) Where any person (being an employee, employer, union, or employer organisation) alleges that that person has been affected by a non-observance or non-compliance of the kind described in subsection (1), that person may commence proceedings against any other person in respect of the non-observance or non-compliance by applying to the Court for an order of the kind described in subsection (2).

Section 140
Further Provisions Relating To Compliance Order By Court

(1) The power given to the Court by section 139(2) may be exercised by the Court

(a) on the application of any party to the proceedings; or

(b) except where the proceedings are commenced under section 139(4), of its own motion.

(2) Before exercising its power under section 139(2) in relation to a person who is not a party to the proceedings, the Court must give that person an opportunity to appear or be represented before the Court.

(3) Any time specified by the Court under section 139 may from time to time be extended by the Court on the application of the person who is required to obey the order.

(4) A compliance order of the kind described in section 139(2)

(a) may be made subject to such terms and conditions as the Court thinks fit (including conditions as to the actions of the applicant); and

(b) may be expressed to continue in force until a specified time or the happening of a specified event.

(5) Where the Court makes a compliance order of the kind described in section 139(2), it may then adjourn the proceedings, without imposing any penalty or fine or making a final determination, to enable the compliance order to be complied with while the proceedings are adjourned.

(6) Where any person fails to comply with a compliance order made under section 139, or where the Court, on an application under section 138(6), is satisfied that any person has failed to comply with a compliance order made under section 137, the Court may do 1 or more of the following things:

(a) if the person in default is a plaintiff, order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the plaintiff in the proceedings:

(b) if the person in default is a defendant, order that the defendant's defence be struck out and that judgment be sealed accordingly:

(c) order that the person in default be sentenced to imprisonment for a term not exceeding 3 months:

(d) order that the person in default be fined a sum not exceeding $40,000:

(e) order that the property of the person in default be sequestered.

Enforcement of order

Section 141
Enforcement Of Order

Any order made or judgment given under this Act by the Authority or the Court (including an order imposing a fine) may be filed in any District Court, and is then enforceable in the same manner as an order made or judgment given by the District Court.

Limitation period for actions other than personal grievances

Section 142
Limitation Period For Actions Other Than Personal Grievances

No action may be commenced in the Authority or the Court in relation to an employment relationship problem that is not a personal grievance more than 6 years after the date on which the cause of action arose.

End of Part 9

Table Of Contents	Part 6 Individual Employees	Schedule 1 Essential Services
Part 1 Key Provisions	Part 7 Education Leave	Schedule 2 Employment Authority
Part 2 Preliminary Provisions	Part 8 Strikes And Lockouts	Schedule 3 Employment Court
Part 3 Freedom Of Association	Part 9 Disputes And Enforcement	Schedule 4 Changes to Police Act
Part 4 Operation Of Unions	Part 10 Institutions	Schedule 5 Enactments Amended
Part 5 Collective Bargaining	Part 11 General Provisions	Schedule 6 Enactments Repealed

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Updated: 9th December 2008
Published: 27th August 2000

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