Employment Relations Amendment Act 2010

37 New sections 223A to 223G inserted

• The following sections are inserted after section 223:

  “223A Functions of Labour Inspector

  • The functions of a Labour Inspector include—

    • “(a) determining whether the provisions of the relevant Acts have been complied with; and

    • “(b) taking all reasonable steps to ensure that the relevant Acts are complied with; and

    • “(c) supporting employers, employees, and other persons in complying with the relevant Acts by providing information and education; and

    • “(d) preventing non-compliance with the relevant Acts by assisting employers to implement systems and practices that comply with the provisions of the relevant Acts; and

    • “(e) providing any other services that assist employers and employees to resolve, promptly and effectively, employment relationship problems arising under the relevant Acts.

  “Enforceable undertakings

  “223B Enforceable undertakings

  • “(1) A Labour Inspector and an employer may agree in writing that the employer will undertake by a specified date (an enforceable undertaking) to—

    • “(a) rectify the breach of any provision of the relevant Acts; or

    • “(b) pay money owed to an employee under a provision of the relevant Acts; or

    • “(c) take any other action that the Labour Inspector determines is appropriate having regard to the nature of the breach of the provision of the relevant Act.

    “(2) The employer may withdraw or vary an enforceable undertaking agreed under subsection (1) at any time, but only with the consent of the Labour Inspector.

  “223C Enforcement of undertakings

  • “(1) An enforceable undertaking may be enforced by the Authority making a compliance order under section 137.

    “(2) An employer who fails to comply with an enforceable undertaking that remains in force is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.

    “(3) If the enforceable undertaking relates to a monetary settlement, the enforceable undertaking may be enforced by using, as if the undertaking were an order enforceable under section 141, the procedure applicable under section 141.

  “Improvement notices

  “223D Labour Inspector may issue improvement notice

  • “(1) A Labour Inspector who believes on reasonable grounds that any employer is failing, or has failed, to comply with any provision of the relevant Acts may issue the employer with an improvement notice that requires the employer to comply with the provision.

    “(2) An improvement notice issued under subsection (1) must state—

    • “(a) the provision that the Labour Inspector reasonably believes that the employer is failing, or has failed, to comply with; and

    • “(b) the Labour Inspector's reasons for believing that the employer is failing, or has failed, to comply with the provision; and

    • “(c) the nature and extent of the employer's failure to comply with the provision; and

    • “(d) the steps that the employer could take to comply with the provision; and

    • “(e) the date before which the employer must comply with the provision.

    “(3) An improvement notice may state the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).

    “(4) An improvement notice may be issued—

    • “(a) by giving it to the employer concerned; or

    • “(b) if the employer does not accept the improvement notice, by leaving it in the employer’s presence and drawing the employer’s attention to it.

    “(5) An improvement notice may not be issued in the period commencing on 17 December and ending with the close of 8 January in the following year.

    “(6) An improvement notice may be enforced by the making by the Authority of a compliance order under section 137.

  “223E Objection to improvement notice

  • “(1) An employer may, within 28 days after the improvement notice is issued to the employer, lodge with the Authority an objection to the notice.

    “(2) The function of the Authority in respect of an objection is to determine—

    • “(a) whether the employer is failing, or has failed, to comply with the specified provision of the relevant Acts; and

    • “(b) the nature and extent of the employer's failure to comply with the provision; and

    • “(c) the nature and extent of any loss suffered by any employee as a result of the employer's failure to comply with the provision (if applicable).

    “(3) The Authority may confirm, vary, or rescind the improvement notice as the Authority thinks fit.

  “223F Penalty

  • “(1) An employer who fails to comply with an improvement notice issued under section 223D is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.

    “(2) If subsection (1) applies, a Labour Inspector may not also bring an action seeking a penalty in respect of the same matter under any of the relevant Acts.

  “223G Withdrawal of improvement notice

  • An improvement notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of an improvement notice does not prevent another improvement notice being served in relation to the same matter.”