Employment Relations (Protection for Kiwisaver Members) Amendment Bill

Employment Relations (Protection for Kiwisaver Members) Amendment Bill The Parliament of New Zealand enacts as follows: 1 Title This Act is the Employment Relations (Protection for Kiwisaver KiwiSaver and Other Superannuation Fund Members) Amendment Act 2021 . 2 Commencement This Act comes into force on the day after the date on which this Act receives the Royal assent. 3 Principal Act This Part amends the Employment Relations Act 2000. 4 Section 103 amended (Personal grievance) After section 103(1)(i), insert: ia that the employee's employment has been adversely affected because the employee is a member of a KiwiSaver scheme or a complying superannuation fund (as those terms are defined in section 4 of the KiwiSaver Act 2006); or After section 103(1)(k), insert: l that the employee’s employment has been adversely affected because the employee is a member of a KiwiSaver scheme or a complying superannuation fund. 5 New section 110AA 110C inserted (Adverse affect effect test for membership of KiwiSaver scheme or complying superannuation fund) After section 110 110B , insert: 110AA 110C Adverse affect effect test for membership of KiwiSaver scheme or complying superannuation fund 1 For the purposes of section 103(1)(ia) section 103(1)(l) , an employee's employment is adversely affected adversely affected because the employee is a member of a KiwiSaver scheme or a complying superannuation fund if— a the employee is a member of a KiwiSaver scheme or a complying superannuation fund; 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 as described in that subsection 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 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 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. 4 In this section,— complying superannuation fund has the meaning given in section 6(1) of the Financial Markets Conduct Act 2013 compulsory contributions has the meaning given in section 101B(6) of the KiwiSaver Act 2006 complying superannuation fund has the meaning given in section 4 of the KiwiSaver Act 2006 KiwiSaver scheme has the meaning given in section 4 of the KiwiSaver Act 2006 section 6(1) of the Financial Markets Conduct Act 2013 . 6 Schedule 1AA amended In Schedule 1AA,— a insert the Part set out in the Schedule of this Act as the last Part; and b make all necessary consequential amendments. 7 Principal Act This Part amends the KiwiSaver Act 2006. 8 Section 101B amended (Compulsory contributions must be paid on top of gross salary or wages except to extent that parties otherwise agree after 13 December 2007) In section 101B(5)(a), replace matters. with matters; and . After section 101B(5)(a), insert: b sections 103(1)(ia) and 110AA of the Employment Relations Act 2000 apply in relation to the contractual terms and conditions of the parties to an employment relationship, subject to Part 4 of Schedule 1AA of that Act. b subsection (4) does not entitle parties to an employment relationship to agree contractual terms and conditions under which, due (wholly or in part) to an employer taking into account the compulsory contributions that the employer is required to make in relation to an employee, the employee’s salary or wages are less than the salary or wages of comparable employees, as described in section 110C of the Employment Relations Act 2000. New Part 4 Part 7 inserted into Schedule 1AA of Employment Relations Act 2000 4 Provisions relating to Employment Relations (Protection for Kiwisaver Members) Amendment Act 2021 17 Interpretation In this Part,— 2021 Act means the Employment Relations (Protection for Kiwisaver Members) Amendment Act 2021 effective date means the date that is 3 months after the date on which the 2021 Act commences. 18 Application of provisions arising from 2021 Act 1 The amendments made by sections 4 and 5 of the 2021 Act, to the extent that they relate to terms and conditions in employment agreements,— a apply to employment agreements entered into on or after the effective date; and b do not apply to employment agreements entered into before the effective date; and c apply to variations of employment agreements entered into before the effective date, if the variations were made on or after the effective date. 2 The amendments made by sections 4 and 5 of the 2021 Act, to the extent that they relate to other matters, apply— a only to matters occurring on or after the effective date; and b whether or not an employee’s employment agreement was entered into before the critical date. 7 Provisions relating to Employment Relations (Protection for KiwiSaver and Other Superannuation Fund Members) Amendment Act 2021 23 Interpretation In this Part,— 2021 amendment Act means the Employment Relations (Protection for KiwiSaver and Other Superannuation Fund Members) Amendment Act 2021 aggrieved employee means an employee whose employment may have been adversely affected because the employee is a member of a KiwiSaver scheme or a complying superannuation fund, as described in section 110C comparable employee has the meaning given in section 110C effective date means the date that is 3 months after the date on which the 2021 amendment Act comes into force. 24 Application of sections 103(1)(l) and 110C 1 The amendments made by sections 4 and 5 of the 2021 amendment Act apply to a refusal or omission relating to the terms and conditions of an aggrieved employee’s employment agreement (the agreement ) only if— a the agreement, or a comparable employee’s employment agreement, was entered into on or after the effective date; or b the aggrieved employee’s claim of adverse effect arises (wholly or in part) from, or otherwise relates directly or indirectly to, a variation of the agreement, or of a comparable employee’s employment agreement, made on or after the effective date. 2 The amendments made by sections 4 and 5 of the 2021 amendment Act apply to any other refusal or omission only if the refusal or omission occurred on or after the effective date.