Employer responsibilities and rights in the Fair Pay Agreement process

Please note that this information is for general information purposes and doesn’t cover every aspect of the Fair Pay Agreements Act. For more detailed information on working through the Fair Pay Agreement system, refer to:

Information for bargaining parties

The Fair Pay Agreements System: A Guide for Participants [PDF 2.1MB]

The Fair Pay Agreements system – an overview

The Fair Pay Agreements system brings together unions and employer associations to bargain for employment terms for all covered employees in an industry or occupation. This means that these organisations will meet to discuss and agree on a set of employment terms for the work being done within an industry or occupation.

Representation

Bargaining is between an employee side and an employer side

Fair Pay Agreement bargaining is between an employee bargaining side and an employer bargaining side. Eligible unions that are approved to be an employee bargaining party bargain on the employee bargaining side. This includes employees that are not members of the union. If an employee is covered by the proposed Fair Pay Agreement, the employee bargaining side must bargain on their behalf.

Eligible employer associations that are approved to be an employer bargaining party may bargain on the employer bargaining side. These organisations must also bargain on behalf of employers that are not their members. In some situations, the employer bargaining side may also include specified employer bargaining parties representing state sector agencies.

The employer bargaining side must represent covered employers

The employer bargaining side must represent the collective interests of all covered employers. At a minimum they must:

provide regular updates about the bargaining to all covered employers
give all covered employers the opportunity to provide feedback on the bargaining
consider all feedback received from covered employers during bargaining
advise all covered employers of any ratification vote and
consider whether all interest groups of covered employers are recognised and given the opportunity to provide feedback.

The employer bargaining side must not do anything either directly or indirectly that is likely to mislead or deceive a covered employer.

The employee bargaining side has similar obligations towards all covered employees.

Representation of Māori

Both bargaining sides must use their best efforts to make sure Māori employees and employers are represented in the process. This includes by:

getting and considering feedback from representatives of Māori employees/employers and
considering whether each bargaining side should include a person that represents the interests of Māori employees and employers.

Terms the Fair Pay Agreement must cover

A Fair Pay Agreement must include what work is covered by the Fair Pay Agreement, standard hours when the minimum base wage rate must be paid, minimum pay rates (including overtime rates and penalty rates), training and development, how much leave an employee can have and how long the Fair Pay Agreement applies for. It must also cover governance arrangements that apply when the agreement is in force and a process for varying the agreement.

The process to get a Fair Pay Agreement

The general process to get a Fair Pay Agreement involves several steps, which are described below. However, in different situations the process will be different.

The general process is also shown in diagram form:

Fair Pay Agreement system diagram [PDF 249KB]

1. Initiation – The start of the process. A party collects evidence to show it meets one of the initiation tests needed and applies to the Ministry of Business, Innovation and Employment (MBIE) for approval to begin bargaining. For a new Fair Pay Agreement, the initiating party will be an eligible union.

2. Bargaining sides form – The employee side and the employer side form. If a bargaining side doesn’t form on one side, the default bargaining party can step in. If they choose not to, the Employment Relations Authority (the Authority) can determine the terms of the Fair Pay Agreement without any bargaining having occurred between the employee and employer sides.

3. Bargaining process – The sides will work to come to an agreement on a set of employment terms that are acceptable to each side.

Once the sides have agreed, together they will send the proposed agreement to the Authority so that the Authority can assess whether the agreement complies with the law, and whether there is any overlap of the work it applies to with any other existing Fair Pay Agreement.

If the bargaining sides can’t come to an agreement either side can apply to the Authority to fix the terms of the agreement.

4. Ratification vote – Once the Authority confirms the proposed Fair Pay Agreement is compliant with the law, covered employees and employers in that sector will be able to vote on whether they agree with the terms or not.

If a majority agrees from both bargaining sides, the voting process and result will be confirmed by MBIE and the Fair Pay Agreement will be finalised and set as law.

If two votes fail to get a majority, the proposed agreement may be fixed by the Authority.

5. Fair Pay Agreement is in place – Once a Fair Pay Agreement is passed into law, the employment terms of the Fair Pay Agreement apply to any covered employee where 25% or more of their work is covered by the agreement.

For more information about the process, refer to:

Overview of the Fair Pay Agreements process

Your rights as an employer

If you are a covered employer, you have rights in the Fair Pay Agreement process including being kept informed about what’s happening and being represented.

Strikes and lockouts while bargaining for a Fair Pay Agreement is taking place

Strikes by employees and lockouts by employers related to bargaining for a proposed Fair Pay agreement or a variation of a Fair Pay Agreement aren’t allowed during the process. But strikes and lockouts related to health, safety or collective bargaining under the Employment Relations Act can still take place.

No employer representation

If, after three months from approval to initiate bargaining, no bargaining party for the employer side has stepped forward, then the law provides one month for BusinessNZ, the default bargaining party on the employer side, to decide if they want to become an employer bargaining party.

If BusinessNZ doesn’t want to, an employee bargaining party can apply to the Authority to make a decision on the Fair Pay Agreement terms. Decisions by the Authority are called a determination. If no employee bargaining party applies to the Authority within three months, development of the Fair Pay Agreement stops.

If this happens, the Authority will set the terms of the Fair Pay Agreement without any bargaining or vote. This can also occur if all the employer bargaining parties (aside from any specified employer bargaining parties) cease to be a bargaining party during bargaining or the bargaining sides are unable to reach an agreement.

Delayed commencement of terms

Bargaining sides can agree a process to allow employers to apply for a delayed commencement of certain terms of the proposed Fair Pay Agreement. If they agree, after bargaining is complete but before the proposed agreement is submitted to the Authority, employers may use the process agreed by the bargaining sides to apply to delay the timing of when one or more terms of the agreement will apply to them.

An employer may apply for one or more of the following terms to have a delayed commencement:

minimum base wage rates, and when the rates apply
how minimum base wage rates, overtime rates, or penalty rates change over time
an overtime rate, and when it applies
a penalty rate, and when it applies
how much leave an employee has.

The delay can only be 12 months or less in length and it’s not automatic that it will be approved. Bargaining sides may only approve an application in limited circumstances. This includes that they are satisfied that saying no to the delay would result in a less favourable overall outcome for the employer’s employees.

The ratification vote

As an employer of covered employees, you will have the option of voting on the proposed terms and conditions in the ratification vote. At least 10 working days before the vote you will be sent information from the employer bargaining side about:

how you can work out if you are able to vote on the terms of the proposed Fair Pay Agreement
the first date that you can vote
the final date that you can vote
how you can vote
what the consequences of the vote of the agreement are.

At least five working days before the vote you will be given:

a copy of the proposed Fair Pay Agreement and
a plain language summary of the agreement.

Employers allowed to vote and vote weighting

An employer is allowed to vote if they think they have at least one employee who will be covered by the Fair Pay Agreement, if the agreement were validated.

An employee is covered by a Fair Pay Agreement when 25% or more of their work will be within the coverage of the Fair Pay Agreement. However, if more than one Fair Pay Agreement covers 25% or more of the work the employee does, the Fair Pay Agreement that covers the greatest proportion of the employee’s work will apply. Each eligible employee gets one vote.

Employers get one vote for each employee that would be covered by the proposed Fair Pay Agreement. If they have less than 21 employees their vote is weighted. Employers with less employees are given more weight to their votes at ratification than employers with a large number of employees.

Your responsibilities as an employer during bargaining

Throughout the Fair Pay Agreement process you have responsibilities under the law. These are explained below.

Working with your employees in good faith

Timing: Throughout the bargaining process and when the Fair Pay Agreement is in force.

Responsibility: Like all interactions with your employees, you need to communicate and work with them in good faith. This means that you can’t mislead them or act in a deceptive way. You also can’t influence them about joining or leaving a union or how they may choose to vote on the terms of a proposed Fair Pay Agreement.

Provide information to unions your employees are members of

Timing: Within 15 working days of the initiating union telling you they have been given approval to start bargaining for a new Fair Pay Agreement.

Responsibility: If any of your employees covered by the proposed Fair Pay Agreement are members of a union, you must do your best to identify and inform those unions about the approval to initiate bargaining. You must also let them know where the notice from MBIE giving information about that approval can be found – see the Fair Pay Agreements dashboard on MBIE's website(external link)

Provide information about the Fair Pay Agreement to your employees

Timing: You must give information to your covered employees as soon as possible, and no later than 30 working days after you received notice from the initiating union, or you were made aware of the approval to start bargaining in another way (for example, seeing it in the newspaper).

Responsibility: When the initiating union (the union that applies to start bargaining for a new Fair Pay Agreement), or another union not involved in bargaining, lets you know that the initiating union has been approved to start bargaining, they need to give you certain information, including:

where to find the notice issued by the Chief Executive – see the Fair Pay Agreements dashboard on MBIE's website(external link)
a statement for you to provide to your covered employees
a document with information for employees about sharing their contact details or asking that their details are not shared

The statement you need to provide to your covered employees must be in plain language, and include:

the fact that the initiating union has been approved to initiate bargaining
the name of the initiating union and how to contact them
how the proposed Fair Pay Agreement could affect your employee
where to find more information about the proposed Fair Pay Agreement and bargaining process.

If any of your covered employees don’t want their contact details passed on, they need to let you know in writing. You should keep a record of who has opted out for the duration of the bargaining process. Covered employees that have opted out of the process will still be able to vote and are still covered by the Fair Pay Agreement if it is passed into law.

It is your responsibility to pass on the information above, including the statement, to your employees.

If the union doesn’t provide this information to you, it is your responsibility to prepare this and provide it to your employees in writing. You can find the information needed on the initiating union’s website, the Fair Pay Agreements dashboard and in the Fair Pay Agreements and Employee Contact Details Document.

Fair Pay Agreements dashboard – MBIE website(external link)

Fair Pay Agreements and Employee Contact Details Document [PDF, 255 KB]

You need to provide this information to each covered employee individually, for instance by emailing it to them, rather than posting it on a staff intranet.

If you have new employees that join your business during bargaining, and the work they do is covered by the proposed Fair Pay Agreement, you also need to provide this information to them.

Prepare and provide an electronic record of employee contact details

Timing: As soon as practicable and no later than 30 working days after giving the required information to employees but no earlier than 20 working days. For new employees that join your business during bargaining, the timeframe is extended to no later than 60 working days.

Responsibility: You must provide, in electronic form, to the initiating union the contact details of all your covered employees who have not opted out of having their details shared for the purposes of the Fair Pay Agreement process.

You must make sure that you do not provide the details of anyone who has opted out of the process.

Allow employees to attend two 2-hour Fair Pay Agreement meetings

Timing: Two meetings no longer than 2 hours each during the bargaining process (plus an additional 2-hour meeting if ratification fails).

Responsibility: During the bargaining process, employee bargaining party representatives may set up a Fair Pay Agreement meeting with your employees that are within the coverage of the proposed Fair Pay Agreement. You must allow your employees to attend these meetings and pay them for that time if the meeting occurs during their work time.

The employee bargaining party is required to give you at least 14 days’ notice of the date and time of the meeting and work with you to make sure your business can continue to operate during that time.

If the Fair Pay Agreement fails its first ratification vote, your employees are entitled to a further paid 2-hour meeting.

Allow a representative of an employee bargaining party access to your workplace

Timing: Throughout the Fair Pay Agreement process.

Responsibility: Unless you have a certificate of exemption, a representative of an employee bargaining party can access your workplace without your consent if the primary purpose for their visit is to do with the Fair Pay Agreement. The representative must comply with any health, safety, and security processes in place at your workplace.

You can’t deduct the time your employee talks to this representative from their wages.

Exemption on religious grounds

You can apply for a certificate of exemption, or you may already hold one under the Employment Relations Act, on the grounds that you are a practising member of a religious society or order, and your beliefs preclude membership of anyone outside that religious society or order.

If you hold this exemption, none of your employees are a member of a union and you have 20 or fewer employees, you can deny the bargaining party representative access to your workplace.

Application for exemption from union access [PDF, 130KB] (external link)– New Zealand Companies Office(external link)

Give your employees an opportunity to opt out of sharing their details for the ratification vote

Timing: Within 15 working days after being notified by the employer bargaining side that a ratification vote will be held soon.

Responsibility: You need to let each of your covered employees know that a ratification vote will be held soon for the proposed Fair Pay Agreement.

At this time, you also need to let them know that unless they tell you in writing that they don’t want you to, that you will share their contact details to the employee bargaining side. You need to inform them that even if they previously opted out of sharing their contact details during the bargaining process, they need to tell you again in writing or their details will be shared.

You must also provide a document, which explains that if the employee chooses not to have their contact details shared with the employee bargaining side at this stage of the process that they won’t be able to take part in the ratification vote. You must also provide the details of the employee bargaining side.

You can find a copy of this document on the page below (to be added soon).

If any of your employees want to opt out of sharing their details at this stage, they need to notify you in writing within five working days.

You should keep any written requests to opt-out you receive as a record during the bargaining process.

Covered employees that have opted out of having their contract details passed on will still be covered by the Fair Pay Agreement if it is passed into law.

Prepare and provide an electronic record of employee contact details

Timing: No later than 10 working days after giving the required information set out above to employees but no earlier than 5 working days.

Responsibility: You must send an electronic copy of your covered employees contact details (who have not opted out of having their details shared) to the employee bargaining side using the email address they have provided.

You must make sure that you do not provide the details of anyone who has opted out of the process.

An employer who fails to comply with these obligations may be liable to a penalty imposed by the Employment Relation Authority.

What it means for you after a Fair Pay Agreement is in place

Finalised Fair Pay Agreement applies to all employees covered

When a Fair Pay Agreement is passed into law, each covered employee must receive the minimum employment terms set in the Fair Pay Agreement.

An employee is covered if 25% or more of the work they do is covered by the Fair Pay Agreement. If multiple Fair Pay Agreements cover 25% or more of the work an employee does, the Fair Pay Agreement that covers the greatest proportion of an employee’s work will apply.

This also applies to employees who are not union members, and employees who opted out of having their contact details shared during the Fair Pay Agreement process.

If a Fair Pay Agreement applies to an employee, it also applies to you as their employer. This means the employment terms that are provided to an employee must, at a minimum, comply with the terms of the Fair Pay Agreement. However, if an employee already has better terms than the Fair Pay Agreement, those terms will continue to apply.

You and any employee can still agree at any time to employment terms better than those set out in the Fair Pay Agreement.

You can’t avoid the terms of a Fair Pay Agreement by engaging a person as a contractor

You can’t engage a person as a contractor to avoid the terms of a Fair Pay Agreement if the real nature of the working relationship is that they are an employee.

You may be liable for a penalty from the Employment Relations Authority if you were to do this, which can cost your business for each breach.

How Fair Pay Agreements work with other employment agreements

If an employment term in an Individual Employment Agreement is better than the term in a Fair Pay Agreement, then that term will apply. If the Fair Pay Agreement term is better, the Fair Pay Agreement term will apply.

Terms may differ between groups of employees

The Fair Pay Agreement may include different pay rates or leave entitlements for different groups of employees, this difference can be based on:

the different jobs your employees have
the role of the employees within an occupation (for example differing by seniority)
the district the employees live in. For example, if employees live in a district where the cost of living is lower (a rural area where the rent is cheaper than the rent in a city, for example).

The minimum base wage rate may also differ to account for:

employees just starting out in employment (aged between 16-19 and have not been employed for more than 6 months by any employer) or
employees being trained.

Minimum wage exemption permits will also still be relevant. If there is a permit in place that specifies a base wage rate, then that will apply instead of the Fair Pay Agreement. If the permit states a percentage then that percentage will be of the base wage in the Fair Pay Agreement rather than the national minimum wage.

Disagreements with your employee about Fair Pay Agreements

If you have questions about a disagreement, you can call or email our Service Centre for help using the details below:

Email us a query
Phone 0800 20 90 20.

For disagreements that aren’t related to coverage you can also use the Early Resolution and Mediation services through MBIE.

Related information

Information about employers’ rights under the Fair Pay Agreements Act is also available as a quick guide information sheet:

Quick guides – Understanding Fair Pay Agreements

Further information

Up to date information about Fair Pay Agreements that have been applied for, approved or in force:

Fair Pay Agreements dashboard – MBIE (external link)

Information about the duties and rights of employees during the bargaining process:

Your rights as an employee in the Fair Pay Agreement system

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Page last revised: 20 December 2022