Part 1 Principles of association
209 Freedom of association
(1) A person is entitled to be a member of an industrial organisation, but can be prevented from becoming or remaining a member by the organisation acting under its rules and in accordance with section 260.
(2) A person cannot be compelled to become, or remain, a member of an industrial organisation.
210 Freedom from victimisation
(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person:
(a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or
(b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or
(c) refuses to engage in industrial action, or
(d) exercises functions conferred under this Act, or
(e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or
(f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or
(g) participates, or proposes to participate, in proceedings relating to an industrial matter, or
(h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee’s duties), or
(i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or
(ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002, or
(ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or
(j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000, or
(k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995.
(2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.
211 No preference to members of employee organisations over non-members
(1) An industrial instrument cannot confer a right of preference of employment in favour of a member of an industrial organisation of employees over a person who is not a member of such an organisation.
(2) This section applies to industrial instruments in force on the commencement of this section.
(3) For the purposes of this section, a member of an industrial organisation includes a person who has applied to become a member of the organisation.
212 Conscientious objection to membership of organisation
(1) The Industrial Registrar may issue a certificate of conscientious objection to a person who satisfies the Industrial Registrar that he or she holds a genuine conscientious objection to becoming a member of an industrial organisation of employees.
(2) The Industrial Registrar may refuse to issue or may cancel such a certificate if the person does not pay the Industrial Registrar fees (including periodic fees) of such amount as the Industrial Registrar determines would be payable for membership of a relevant industrial organisation of employees.
(3) A certificate of conscientious objection may, without limiting this section, be issued to a person (whether or not an employee) who satisfies the Industrial Registrar that he or she is a practising member of a religious society or order (such as the Brethren) whose tenets or beliefs preclude membership of any organisation or body other than that society or order. In the case of a certificate issued to a person who is not an employee, a reference in this section to a relevant organisation of employees is taken to be a reference to a relevant organisation of employers.
(1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part.
(2) The Commission may, in particular, for that purpose do any one or more of the following:
(a) order the reinstatement or re-employment of an employee,
(b) order the employer to promote or otherwise advance an employee in his or her employment,
(c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone,
(d) order the employer to employ a prospective employee,
(e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat,
(f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity,
(g) make consequential orders (including orders concerning continuity of service).
(3) An application for an order under this section must be made within 21 days after the contravention concerned.
(4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to:
(a) the reason for, and the length of, the delay in making the application, and
(b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and
(c) the conduct in relation to which the order is sought.
214 Application of Part
This Part applies despite anything to the contrary in an industrial instrument.