Te Aho o Te Kura Pounamu Early Childhood Teachers' Collective Agreement

The variation agreed between the parties on 19 September 2019 is included in this document.

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Appendix Four: Sections 103, 103A, 106-110 of the Employment Relations Act 2000

Te Aho o Te Kura Pounamu Early Childhood Teachers’ Collective Agreement
Effective: 22 November 2018 to 21 November 2021

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  • 103 Personal Grievance
        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; or
            7. that the employee's employer has failed to comply with a requirement of Part 6A.
        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.
  • 103A Test of justification
    • 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 considering whether the employer's actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.

  • 106 Exceptions in relation to discrimination
      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); 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).
  • 107 Definition of Involvement in Activities of Union for Purposes of Section 104
        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. 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.
        1. An employee who is representing employees under the Health and Safety in Employment Act 1992, whether as a health and safety representative (as the term is defined in that Act) or otherwise, is to be treated as if he or she were a delegate of other employees for the purposes of subsection (1)(g).
  • 108 Sexual Harassment
        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,—
            3. 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.
  • 109 Racial Harassment
    • 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.
  • 110 Duress
        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.