Primary Teachers' Collective Agreement

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—
   1. that the employee has been unjustifiably dismissed; or
   2. 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
   3. that the employee has been discriminated against in the employee's employment; or
   4. that the employee has been sexually harassed in the employee's employment; or
   5. that the employee has been racially harassed in the employee's employment; or
   6. 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.
   7. that the employee’s employer has failed to comply with a requirement of Part 6A; or
   8. that the employee has been disadvantaged by the employee’s employment agreement not being in accordance with section 67C, 67D, 67G, or 67H; or
   9. that the employee’s employer has contravened section 67F or 67G(4).
   10. that the employee’s employer has, in relation to the employee,–
   1. engaged in adverse conduct for a prohibited health and safety reason; or
   2. contravened section 92 of the Health and Safety at Work Act 2015 (which prohibits coercion or inducement).
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--
   1. who is employed by that employer; and
   2. who either--
      1. has authority over the employee alleging the grievance; or
      2. 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.

1. For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2).
2. The test is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
3. In applying the test in subsection (2), the Authority or the court must consider—
   1. whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and
   2. whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and
   3. whether the employer gave the employee a reasonable opportunity to respond to the employer's concerns before dismissing or taking action against the employee; and
   4. whether the employer genuinely considered the employee's explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.
4. In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate.
5. The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were—
   1. minor; and
   2. did not result in the employee being treated unfairly.

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 involvement in the activities of a union in terms of section 107,—
   1. 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
   2. 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
   3. 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.

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—
   1. sex:
   2. marital status:
   3. religious belief:
   4. ethical belief:
   5. colour:
   6. race:
   7. ethnic or national origins:
   8. disability:
   9. age:
   10. political opinion:
   11. employment status:
   12. family status:
   13. 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.

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:
   1. section 24 (which provides for an exception in relation to crews of ships and aircraft):
   2. section 25 (which provides for an exception in relation to work involving national security):
   3. section 26 (which provides for an exception in relation to work performed outside New Zealand):
   4. section 27 (which provides for exceptions in relation to authenticity and privacy):
   5. section 28 (which provides for exceptions for purposes of religion):
   6. section 29 (which provides for exceptions in relation to disability):
   7. section 30 (which provides for exceptions in relation to age):
   8. section 31 (which provides for an exception in relation to employment of a political nature):
   9. section 32 (which provides for an exception in relation to family status):
   10. [Repealed]
   11. section 34 (which relates to regular forces and Police):
   12. section 35 (which provides a general qualification on exceptions):
   13. section 70 (which relates to superannuation schemes).
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,—
   1. references in sections 24 to 29, 31, and 32 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
   2. references in section 30 or section 34 of that Act—
      1. 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); and
      2. to section 22(1)(c) of that Act must be read as if they were references to section 104(1)(b); and
      3. to section 22(1)(d) of that Act must be read as if they were references to section 104(1)(c).
3. Nothing in section 104 includes as discrimination—
   1. 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
   2. 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
   3. 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).

1. 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—
1. 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
2. had acted as a negotiator or representative of employees in collective bargaining; or
ba. had participated in a strike lawfully; or
3. was involved in the formation or the proposed formation of a union; or
4. 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
5. had submitted another personal grievance to that employee's employer; or
6. had been allocated, had applied to take, or had taken any employment relations education leave under this Act; or
7. was a delegate of other employees in dealing with the employer on matters relating to the employment of those employees.
2. [Repealed]

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—
   1. directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains—
      1. an implied or overt promise of preferential treatment in that employee's employment; or
      2. an implied or overt threat of detrimental treatment in that employee's employment; or
      3. an implied or overt threat about the present or future employment status of that employee; or
   2. by-
      
      1. the use of language (whether written or spoken) of a sexual nature; or
      2. the use of visual material of a sexual nature, or
      3. 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.

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—

1. 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
2. is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and
3. has, either by its nature or through repetition, a detrimental effect on the employee's employment, job performance, or job satisfaction.

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—
   1. 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
   2. 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
   3. 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—
      1. to become or remain a member of a union or employees organisation or a particular union or employees organisation; or
      2. to cease to be a member of a union or employees organisation or a particular union or employees organisation; or
      3. not to become a member of a union or employees organisation or a particular union or employees organisation; or
      4. 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
      5. 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
      6. to participate in the formation of a union or employees organisation; or
      7. 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.