In a move towards workplace equity, the Employment Relations (Employee Remuneration Disclosure) Amendment Bill (“the Bill”) has now come into force.
The Bill seeks to protect employees who choose to (voluntarily) discuss or disclose their own remuneration. Its central goal is to ensure that workers can share information about their pay, if they wish, without fear of disciplinary action by their employer.
The origins of the Bill trace back to a parliamentary briefing and the Pacific Pay Gap Inquiry conducted by the New Zealand Human Rights Commission, which called for stronger pay transparency measures, especially within large organisations.
Public engagement with the Bill was substantial, with many citing international obligations, Te Tiriti o Waitangi, and real-world examples of unfair pay practices under secrecy clauses.
New personal grievance ground
The Bill amends the Employment Relations Act 2000 (“the Act”) by introducing a new ground for which an employee may bring a personal grievance: “Adverse conduct for a remuneration disclosure reason”. Employees who suffer adverse treatment from their employer for discussing or disclosing their own pay, or for receiving or responding to such discussions, can now raise a personal grievance under section 103 of the Act. This provision is designed to increase pay transparency, help uncover unjustified pay disparities, and contribute to reducing gender, ethnic, and disability-based pay gaps in New Zealand workplaces.
New two-limb test
The Bill creates a two-part test that must be met for a personal grievance to be established under the new ground. There must be “adverse conduct” by the employer and a “remuneration disclosure reason” for the employer engaging in such conduct.
‘Adverse conduct’ defined
The new section 110AB of the Act outlines what qualifies as ‘adverse conduct’, including dismissal; less favourable terms or conditions; denied opportunities compared to similarly qualified peers; forced resignation or retirement; and any ‘detriment’ (defined as anything negatively affecting an employee’s job satisfaction, performance, or employment status).
Pay secrecy clauses
Prior to the Bill coming into force, employers could include pay secrecy clauses in employment agreements. The Bill does not ban these clauses but makes clear they are unenforceable if used to penalise employees for discussing their own pay.
Transitional arrangements
The Bill applies retrospectively. However, if an employee discloses their remuneration before the date the Bill came into force, the relevant adverse conduct by the employer must have occurred on or after that date.
Employers should consider adapting workplace policies in response to the Bill. They should also be aware of the types of behaviour that might constitute ‘adverse conduct’ and avoid engaging in this behaviour to mitigate the risk of a personal grievance being raised.
Frequently Asked Questions about the Employment Relations Amendment Bill for Employers and Employees
Q. What employee data is considered confidential?
A. In New Zealand, confidential employee data includes personal information like contact details, bank details, and date of birth, as well as sensitive data such as health records, ethnicity, and political opinions. Employers must also keep employment records (e.g., performance reviews, salaries), and other personal details like medical information, in confidence, governed by the Privacy Act 2020.
If you are an employer or Human Resources professional seeking advice on how this new law may impact your workplace, our employment experts at Ford Sumner can assist you. Please do not hesitate to contact Jaesen Sumner for more information.