106Exceptions 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:

2. section 24 (which provides for an exception in relation to crews of ships and aircraft):
3. section 25 (which provides for an exception in relation to work involving national security):
4. section 26 (which provides for an exception in relation to work performed outside New Zealand):
5. section 27 (which provides for exceptions in relation to authenticity and privacy):
6. section 28 (which provides for exceptions for purposes of religion):
7. section 29 (which provides for exceptions in relation to disability):
8. section 30 (which provides for exceptions in relation to age):
9. section 31 (which provides for an exception in relation to employment of a political nature):
10. section 32 (which provides for an exception in relation to family status):
12. section 34 (which relates to regular forces and Police):
13. section 35 (which provides a general qualification on exceptions):
14. section 70 (which relates to superannuation schemes).

15. 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,—

16. 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
17. 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).

18. Nothing in section 104 includes as discrimination—

19. 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
20. 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
21. 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).

22. Despite section 104, an employee is not discriminated against in that employee’s employment simply because the employee’s employment agreement or terms and conditions of employment are different from those of another employee employed by the same employer by reason of the employee being a member of a union.

23. Section 104 must be read subject to section 9(3).

Notes

• Section 106(1)(j): repealed, on 5 May 2007, by section 6(2) of the Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16).
• Section 106(1)(m): added, on 1 December 2004, by section 39 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
• Section 106(2)(a): amended, on 5 May 2007, by section 6(3) of the Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16).
• Section 106(4): inserted, on 11 June 2019, by section 32 of the Employment Relations Amendment Act 2018 (2018 No 53).
• Section 106(5): inserted, on 11 June 2019, by section 32 of the Employment Relations Amendment Act 2018 (2018 No 53).