From 1 July 2011, employers are required to retain a signed copy of the employment agreement or the current terms and conditions of employment. The employer must retain the “intended agreement” even if the employee has not signed it. Employees are entitled to a copy on request. Failure to do so can result in a Labour Inspector applying to the Employment Relations Authority to impose a penalty.
And Labour Inspectors have been given the power to apply to the Employment Relations Authority to impose a penalty against an employer who provides a defective employment.
The penalties were increased on 1st April to up to $20,000
SUMMARY OF THE KEY REQUIREMENTS:
- When you are offering an intended employment agreement (including a variation to an existing employment agreement) to an employee, or candidate for a position you must at least do the following things:
a. provide to the employee/candidate a copy of the intended agreement under discussion; and
b. advise the employee/candidate that he or she is entitled to seek independent advice about the intended agreement; and
c. give the employee/candidate a reasonable opportunity to seek that advice; and
d. consider any issues that the employee raises and respond to them.
If you do not comply, the employer is liable to a penalty imposed by the Authority.
- You must retain a copy of individual employment agreements or individual terms and conditions, and any intended employment agreement, even if unsigned/not agreed
- If requested by the employee, the employer must, as soon as is reasonably practicable, provide the employee with a copy
- If the employer fails to comply the Labour Inspector can apply for a penalty to be imposed by the Authority. Before bringing such action the Labour Inspector must give the employer written notice, and 7 days to remedy the breach
- An intended agreement must not be treated as the employee's employment agreement if the employee has not signed the intended agreement; or agreed to any of the terms
- The employment agreement MUST contain the following terms:
a. the names of the employee and employer; and
b. a description of the work to be performed by the employee; and
c. an indication of where the employee is to perform the work; and
d. an indication of the arrangements relating to the times the employee is to work; and
e. the wages or salary payable to the employee; and
f. a plain language explanation of the services available for the resolution of employment relationship problems, including a reference to the period of 90 days in which a personal grievance must be raised.
g. The agreement must also contain a statement that payment for work on a public holiday will be paid at not less than time and a half of relevant daily pay**
h. An employee protection provision dealing with what happens in the event of the sale or transfer of all or part of the business**
The Labour Inspector can apply to the Authority to impose a penalty if your employment agreement is defective.
** although the items in italics are not within the same provision.
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Ensure you are using the latest Employment Agreements from Employers Assistance. Get our Employment Contracts Creator Software (ECC) Upgrade Package now for $176 plus GST ($202.40) from the website www.employers.co.nz/upgrade or by emailing info@employers.co.nz. Please note that this upgrade is free for Employers Support Package subscribers.
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63A Bargaining for individual employment agreement or individual terms and conditions in employment agreement
· (1) This section applies when bargaining for terms and conditions of employment in the following situations:
o (a) under section 61(1), in relation to additional terms and conditions to the applicable collective agreement:
o (b) under section 61(2), in relation to—
§ (i) additional terms and conditions to the collective agreement on which the individual employment agreement is based; and
§ (ii) variations to the individual employment agreement in subparagraph (i):
o (c) under section 63(2), in relation to additional terms and conditions for the first 30 days of an individual employment agreement:
o (d) under section 63(5), in relation to variations to terms and conditions of an individual employment agreement after the 30-day period:
o (e) in relation to terms and conditions of an individual employment agreement for an employee if no collective agreement covers the work done, or to be done, by the employee:
o (f) where a fixed term of employment, or probationary or trial period of employment, is proposed:
o (g) under section 69M or section 69N in relation to employee protection provisions in individual employment agreements:
o (h) under section 69I in relation to redundancy entitlements with a new employer.
(2) The employer must do at least the following things:
o (a) provide to the employee a copy of the intended agreement under discussion; and
o (b) advise the employee that he or she is entitled to seek independent advice about the intended agreement; and
o (c) give the employee a reasonable opportunity to seek that advice; and
o (d) consider any issues that the employee raises and respond to them.
(3) Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.
(4) Failure to comply with this section does not affect the validity of the employment agreement between the employee and the employer.
(5) The requirements imposed by this section are in addition to any requirements that may be imposed under any provision in this Act.
(6) For the purpose of subsection (1)(e), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
(7) In this section, employee includes a prospective employee.
Section 64 Employer must retain copy of individual employment agreement or individual terms and conditions of employment
· (1) When section 63A applies, the employer must retain a signed copy of the employee's individual employment agreement or the current terms and conditions of employment that make up the employee's individual terms and conditions of employment (as the case may be).
(2) If an employer has provided an employee with an intended agreement under section 63A(2)(a), the employer must retain a copy of that intended agreement even if the employee has not—
o (a) signed the intended agreement; or
o (b) agreed to any of the terms and conditions specified in the intended agreement.
(3) If requested by the employee, the employer must, as soon as is reasonably practicable, provide the employee with a copy of the employee's—
o (a) individual employment agreement or current terms and conditions of employment retained under subsection (1); or
o (b) intended agreement retained under subsection (2).
(4) An employer who fails to comply with subsection (1), (2), or (3) is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.
(5) Before bringing an action under subsection (4), the Labour Inspector must—
o (a) give the employer written notice of the breach of this section; and
o (b) give the employer 7 working days to remedy the breach.
(6) To avoid doubt, an intended agreement must not be treated as the employee's employment agreement if the employee has not—
o (a) signed the intended agreement; or
o (b) agreed to any of the terms and conditions specified in the intended agreement.
Section 65 Terms and conditions of employment where no collective agreement applies
· (1) The individual employment agreement of an employee whose work is not covered by a collective agreement that binds his or her employer—
o (a) must be in writing; and
o (b) may contain such terms and conditions as the employee and employer think fit.
(2) However, the individual employment agreement—
o (a) must include—
§ (i) the names of the employee and employer concerned; and
§ (ii) a description of the work to be performed by the employee; and
§ (iii) an indication of where the employee is to perform the work; and
§ (iv) an indication of the arrangements relating to the times the employee is to work; and
§ (v) the wages or salary payable to the employee; and
§ (vi) a plain language explanation of the services available for the resolution of employment relationship problems, including a reference to the period of 90 days in Section 114 within which a personal grievance must be raised; and
o (b) must not contain anything—
§ (i) contrary to law; or
§ (ii) inconsistent with this Act.
(3) To determine for the purposes of subsection (1) whether the work of an employee is covered by a collective agreement that binds the employer, a collective agreement that includes a coverage clause referring to named employees, or the work or type of work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
(4) An employer who fails to comply with this section is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.
Ensure you are using the latest Employment Agreements from Employers Assistance. Get our Employment Contracts Creator Software (ECC) Upgrade Package now for $176 plus GST ($202.40) from the website www.employers.co.nz/upgrade or by emailing info@employers.co.nz. Please note that this upgrade is free for Employer Support Package subscribers.