Section 59B — Employment Relations Act 2000: Breach of duty of good faith to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement

59B Breach of duty of good faith to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement (1) It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee who is not bound by a collective agreement should be the same or substantially the same as a term or condition in a collective agreement that binds the employer. (2) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the employer does so with the intention of undermining the collective agreement; and (b) the effect of the employer doing so is to undermine the collective agreement. (3) It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee should be the same or substantially the same as a term or condition reached in bargaining for a collective agreement. (4) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the employer does so with the intention of undermining the collective bargaining; or (b) the effect of the employer doing so is to undermine the collective bargaining. (5) It is not a breach of the duty of good faith in section 4 if anything referred to in subsection (2) or subsection (4) is done with the agreement of the union concerned. (6) In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account: (a) whether the employer bargained with the employee before they agreed on the term or condition of employment: (b) whether the employer consulted the union in good faith before agreeing to the term or condition of employment: (c) the number of the employer's employees bound by the collective agreement or covered by the collective bargaining compared to the number of the employer's employees not bound by the collective agreement or not covered by the collective bargaining: (d) how long the collective agreement has been in force: (e) the application of section 63 . (7) Subsection (6) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b) . (8) Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act. Sections 59A to 59C were inserted, as from 1 December 2004, by section 18 Employment Relations Amendment Act (No 2) 2004 (2004 No 86). See section 73 of that Act for the transitional provisions.