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Employment Relations Act 2004

New section 145D

205.New section 145D contains provisions as to how complaints under new sections 145A and 145B are to be considered by an employment tribunal.

206.Subsections (1) and (2) provide that on a complaint under new section 145A or 145B it shall be for the employer to show what his sole or main purpose in making the offer was.

207.Subsection (3) states that in determining whether the employer made an offer or the purpose for which he did so, the tribunal shall take no account of any pressure applied to the employer by the organisation of any industrial action or the threat of such action, and that the question shall be determined as if no such pressure had been applied. The wording of subsection (3) is based on section 148(2), which is the corresponding provision relating to detriment claims under section 146.

208.Subsection (4) relates only to an offer that is alleged to have contravened new section 145B. The subsection requires that in determining whether the employer’s sole or main purpose in making offers was to achieve the prohibited result, the matters to be taken into account by the tribunal must include any evidence showing (1) that when the offers were made the employer had recently changed or sought to change, or did not wish to use, arrangements agreed with the union for collective bargaining, (2) that when the offers were made the employer did not wish to enter into arrangements proposed by the union for collective bargaining, or (3) that offers were made only to particular workers and were made with the sole or main purpose of rewarding those particular workers for their high level of performance or of retaining them because of their special value to the employer.

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