Employment Relations (Restoration of Kiwisaver Fairness) Amendment Bill

Project discussion: Repeal the 90 day bill


Employment Relations (Restoration of Kiwisaver Fairness) Amendment Bill

Member's Bill

Explanatory Note

In 2008 Parliament passed the Employment Relations Amendment Bill, which allowed employers to discriminate against workers enrolled in a Kiwisaver scheme. This bill repeals that change, and restores the relevant parts of the Employment Relations Act to the 2008 status quo.

Employment Relations (Restoration of Kiwisaver Fairness) Amendment Bill

The Parliament of New Zealand enacts as follows:

1. Title
This Act is the Employment Relations (Restoration of Kiwisaver Fairness) Amendment Act 2009.

2. Commencement
This Act comes into force on the day after the date on which it received the Royal Assent.

3. Purpose
The purpose of this Act is to repeal the changes made by the Employment Relations Amendment Act 2008.

4. Principal Act Amended
This Act amends the Employment Relations Act 2000..

5. Application
(1) The amendments made by sections 6 and 7, to the extent that they relate to terms and conditions in employment agreements,—

(a) apply to employment agreements entered into on or after 2 September 2009; and
(b) do not apply to employment agreements entered into before 2 September 2009; and
(c) apply to variations of employment agreements entered into before 2 September 2009, if the variations were made on or after 2 September 2009.

(2) The amendments made by sections 6 and 7, to the extent that they relate to other matters, apply—

(a) only to matters occurring on or after 2 September 2009; and
(b) whether or not an employee's employment agreement was entered into before 2 September 2009.

6. Personal grievance
Section 103(1) is amended by adding the following paragraph:

"(h) that the employee's employment has been adversely affected because the employee is a member of a KiwiSaver scheme within the meaning of section 4 of the KiwiSaver Act 2006 or a complying superannuation fund within the meaning of section YA 1 of the Income Tax Act 2007."

7. New Section 110A inserted
The Act is amended by inserting the following new section after section 110:

"110A Membership of KiwiSaver scheme or complying superannuation fund
"(1) For the purposes of section 103(1)(h), an employee's employment is adversely affected if—
"(a) the employee is a member of a KiwiSaver scheme within the meaning of section 4 of the KiwiSaver Act 2006 or a complying superannuation fund within the meaning of section YA 1 of the Income Tax Act 2007; and
"(b) the employee's employer 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 (comparable employees) employed in the same or substantially similar circumstances; and
"(c) the reason (wholly or in part) for the employer doing any of those things is that the employee is a member of a KiwiSaver scheme or a complying superannuation fund.
"(2) Without limiting subsection (1), an employee's employment is adversely affected if—
"(a) the employee's salary or wages are less than the salary or wages of other comparable employees employed by the employee's employer; and
"(b) the reason (wholly or in part) for the situation described in paragraph (a) is that the employer has taken into account the compulsory contributions (within the meaning of section 101B(6) of the KiwiSaver Act 2006) the employer is required to make in relation to the employee.
"(3) To avoid doubt, for the purposes of subsection (2)(a), an employee's salary or wages—
"(a) do not include any amount that recognises (wholly or in part) compulsory contributions (within the meaning of section 101B(6) of the KiwiSaver Act 2006) made by the employer in relation to the employee; but
"(b) do include deductions made by an employer on behalf of the employee, being the employee's contributions to a KiwiSaver scheme or a complying superannuation fund."

8. Consequential amendment to KiwiSaver Act 2006
Section 101B(5) of the KiwiSaver Act 2006 is amended by adding the following after paragraph (a):

(b) sections 103(1)(h) and 110A of the Employment Relations Act 2000 apply in relation to the contractual terms and conditions of the parties to an employment relationship, subject to section 5 of Employment Relations (Restoration of Kiwisaver Fairness) Amendment Act 2009.


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