4Parties to employment relationship to deal with each other in good faith

1. The parties to an employment relationship specified in subsection (2)—

2. must deal with each other in good faith; and
3. without limiting paragraph (a), must not, whether directly or indirectly, do anything—
   1. to mislead or deceive each other; or
   2. that is likely to mislead or deceive each other.

4. The duty of good faith in subsection (1)—

5. is wider in scope than the implied mutual obligations of trust and confidence; and
6. requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative; and
7. without limiting paragraph (b), requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of 1 or more of his or her employees to provide to the employees affected—
   1. access to information, relevant to the continuation of the employees' employment, about the decision; and
   2. an opportunity to comment on the information to their employer before the decision is made.

8. However, subsection (1A)(c) does not require an employer to provide access to confidential information—

9. that is about an identifiable individual other than the affected employee if providing access to that information would involve the unwarranted disclosure of the affairs of that other individual:
10. that is subject to a statutory requirement to maintain confidentiality:
11. where it is necessary, for any other good reason, to maintain the confidentiality of the information (for example, to avoid unreasonable prejudice to the employer's commercial position).

12. To avoid doubt,—

13. subsection (1B) does not affect an employer's obligations under—
    1. the Official Information Act 1982 (despite section 52(3) of that Act); or
    2. the Privacy Act 2020 (despite section 24(1) of that Act):
14. an employer must not refuse to provide access to information under subsection (1A)(c) merely because the information is contained in a document that includes confidential information.

15. For the purposes of subsections (1B) and (1C), confidential information means information that is provided in circumstances where there is a mutual understanding (whether express or implied) of secrecy.

16. The employment relationships are those between—

17. an employer and an employee employed by the employer:
18. a union and an employer:
19. a union and a member of the union:
20. a union and another union that are parties bargaining for the same collective agreement:
21. a union and another union that are parties to the same collective agreement:
22. a union and a member of another union where both unions are bargaining for the same collective agreement:
23. a union and a member of another union where both unions are parties to the same collective agreement:
24. an employer and another employer where both employers are bargaining for the same collective agreement.

25. Subsection (1) does not prevent a party to an employment relationship communicating to another person a statement of fact or of opinion reasonably held about an employer's business or a union's affairs.

26. The duty of good faith in subsection (1) applies to the following matters:

27. bargaining for a collective agreement or for a variation of a collective agreement, including matters relating to the initiation of the bargaining:
28. any matter arising under or in relation to a collective agreement while the agreement is in force:
29. bargaining for an individual employment agreement or for a variation of an individual employment agreement:
30. any matter arising under or in relation to an individual employment agreement while the agreement is in force:
31. consultation (whether or not under a collective agreement) between an employer and its employees, including any union representing the employees, about the employees' collective employment interests, including the effect on employees of changes to the employer's business:
32. a proposal by an employer that might impact on the employer's employees, including a proposal to contract out work otherwise done by the employees or to sell or transfer all or part of the employer's business:
33. making employees redundant:
34. making pay equity claims, responding to pay equity claims, and participating in the pay equity claim resolution process under Part 4 of the Equal Pay Act 1972:
35. access to a workplace by a representative of a union:
36. communications or contacts between a union and an employer relating to any secret ballots held for the purposes of bargaining for a collective agreement.

37. The matters specified in subsection (4) are examples and do not limit subsection (1).

38. It is a breach of subsection (1) for an employer to advise, or to do anything with the intention of inducing, an employee—

39. not to be involved in bargaining for a collective agreement; or
40. not to be covered by a collective agreement.

Notes

• Section 4(1A): inserted, on 1 December 2004, by section 5(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
• Section 4(1B): replaced, on 6 March 2015, by section 4 of the Employment Relations Amendment Act 2014 (2014 No 61).
• Section 4(1C): replaced, on 6 March 2015, by section 4 of the Employment Relations Amendment Act 2014 (2014 No 61).
• Section 4(1C)(a)(ii): replaced, on 1 December 2020, by section 217 of the Privacy Act 2020 (2020 No 31).
• Section 4(1D): inserted, on 6 March 2015, by section 4 of the Employment Relations Amendment Act 2014 (2014 No 61).
• Section 4(4)(ba): inserted, on 1 December 2004, by section 5(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
• Section 4(4)(bb): inserted, on 1 December 2004, by section 5(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
• Section 4(4)(ea): inserted, on 6 November 2020, by section 33 of the Equal Pay Amendment Act 2020 (2020 No 45).
• Section 4(6): added, on 1 December 2004, by section 5(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).