Employment Relations and Disputes

We have a large and experienced team of lawyers involved in all aspects of employment disputes, acting for both employers and employees.

It is important that both employers and employees are aware of what their rights are.

The Employment Relations Act 2000 states that it:

• recognises that employment relationships must be built on good faith behaviour;
• acknowledges and addresses the inherent inequality of bargaining power in employment relationships;
• promotes collective bargaining;
• protects the integrity of individual choice; promotes mediation as the primary problem solving mechanism; and
• reduces the need for judicial intervention.

The fundamental belief with employment is that it is a special relationship of trust and confidence between the employer and the employee.

It is important to preserve and maintain that relationship and we are able to assist with providing sound and practical legal advice.

The Employment Relations Act 2000 promotes unions and that any negotiation must be carried out in good faith. We are able to be part of any negotiations.

Employment Agreements
The Employment Relations Act 2000 sets out the minimum requirements for individual employment agreements. It is important that while you meet your business requirements you also comply with the legislation.
The minimum requirements are:

Individual agreements must be in writing and include:
• the names of the employee and employer;
• a description of the work to be performed by the employee;
• an indication of where the employee is to perform the work;
• an indication of the arrangements relating to the times of work;
• the wages/salary payable to the employee; and
• an explanation of problem resolution mechanisms.
The employee must have the opportunity to seek independent legal advice.
Probationary/trial periods must be in writing; and
Parties must work in good faith in respect of the employment relationship.
Neither party must do anything to mislead the other.

This applies to full-time, part-time, casual, fixed-term and temporary employment. It is also important to note that the Employment Relations Act 2000 will cover independent contractors in specified circumstances.

Other relevant legislation
The Employment Relations Act 2000 is not the only Act setting minimum standards for employment agreements and employment relationships. The following legislation also needs to be considered:

Holidays Act 2003
The Holidays Act came into force on 1 April 2004.
Employees are entitled to a minimum of 4 weeks annual leave from 1 April 2007
Employers must pay annual holidays at the higher of an employee’s average weekly earnings or their ordinary weekly pay at the time an employee takes leave.
Pay-as-you-go holiday pay can be paid to genuine casuals and employees on genuine fixed-term agreements.
The holiday pay rate for public holidays must be separate and indentifiable.
The pay rate for public holidays must be the employee’s “relevant daily rate”. This is the amount the employee would have received had she/he worked.
Employees who are required to work for the whole or on any part of a pubic holiday must be paid the greater of: their relevant daily pay or portion of their relevant daily pay for the hours worked less any penal rates plus half the amount again; or relevant daily pay or portion of relevant daily pay for the hours worked including any penal rates.
Employees who work on a public holiday that would otherwise be a working day for them must also be given an alternative day off (paid day in lieu). Public holidays must be celebrated on the day they fall, except the public holidays over Christmas and New Year.
Employees are entitled to 5 days’ sick leave per year. Sick days may be accumulated up to 20 days. Employees are entitled to 3 days’ bereavement leave per death of an “immediate” family member and 1 days’ leave for certain other bereavements.

Health and Safety in Employment Act 1992
This Act promotes the health and safety of everyone at work and of other people in or around places of work. It requires people who are responsible for work places and those who do the work to take steps to ensure their own health and safety and that of others. The Act also recognises that employees have a valuable contribution in making work places safe. The people responsible for work places are required to take all reasonably practicable steps to make work safe.

Parental Leave and Employment Protection Act 1987
There are different entitlements for leave depending on how long an employee has been employed by an employer and on how many hours the employee works per week.
Types of leave:
• Maternity leave of up to 13 or 14 weeks
• Partner’s/paternity leave of up to 1 or 2 weeks
• Special leave of up to 10 days for reasons connected with the employee’s pregnancy
• Extended leave of up to 52 weeks
All parental leave is unpaid.
Employers must almost always keep the employee’s job open for the employee who is on parental leave, unless the job can not be kept open for the employee because it is a key position in a business. Employees who are eligible for parental leave may also be entitled to a taxpayer funded payment for up to 14 weeks of the parental leave they take. An employee should apply to the employer for parental leave in writing at least 3 months before the baby is due.

Disputes
Sometimes there is strain on the employment relationship. This is often resolved by a meeting between the parties with their legal advisors or alternatively through mediation. When there are serious allegations made by one party against the other it is important that legal advice is obtained. It is necessary for any employer to act in a fair and reasonable way in conducting an investigation and were are able to assist with that. The legislation promotes fairness in particular as to procedure but also as to substance of any allegation involving unjustified dismissal. When things go wrong as they do then matters are dealt with by attending mediation in the first instance. If mediation does not resolve the matter, then the Employment Relations Authority will have the right to investigate and make findings it deems appropriate. It is critical that either the employer’s or employee’s case is presented in a competent manner during mediation and the Authority.

Recent changes to legislation affecting employment relationships (March 2005)

Holidays Amendment Act 2004
There is to be no windfall where collective employment agreements provide for penal rates for working on a public holiday.
Employees are not entitled to time and a half of the penal rates.
If employees are sick on a public holiday they are not entitled to time and a half of their relevant daily pay.
The employer is allowed to request a medical certificate for absence of less than 3 days if the employer suspects the sickness is not to be genuine.
Such suspicion has to be based on reasonable grounds.
Further, the employer has to inform the employee of its suspicion and pay for the medical certificate.
The transitional provision for employers who already pay employees for working on public holidays in the employee’s regular pay applies to individual employment agreements until 1 April 2007 (previously 1 April 2005) but has to meet the requirements of section 50 of the Holidays Act 2003.
The above date of 1 April 2007 applies to collective agreements unless the date on which a new collective agreement is agreed to, replacing the existing one, comes into force after 1 April 2007. In that case the later date applies.

Employment Relations Amendment Act 2004
Changes to promote collective bargaining.
Amendments addressing issue of employers undermining collective bargaining and collective agreements by passing on collective bargained terms and conditions to employees on individual employment agreements.
A bargaining fee arrangement has been introduced to allow non-union members to be employed on the same terms and conditions as those in a collective agreement.
The Employment Relations Authority may facilitate collective bargaining if the parties have differences.
The duty of good faith has been reinforced by stating that it applies equally to bargaining for an individual employment agreement as it does to a collective agreement.
Further, employers have to consult with employees if they propose changes that may have an adverse effect on the employee’s employment.
Where a breach of good faith has occurred in collective bargaining the Employment Relations Authority may be able to fix terms and conditions of collective agreements.
New protection for specified groups of employees affected by situations where their work is to be undertaken by a new employer.
The Amendment introduces a new test for deciding whether an employer’s action was justified where an employee raises a personal grievance.
The test is “what a fair and reasonable employer would have done in those circumstances”.
The Amendment states that, before going to mediation, parties to an employment relationship problem should try to resolve it themselves.
A mediator may be able to make a decision in certain matters where the parties agree.
The mediation service will be available to people who are in work relationships that are not employment relationships.

Criminal Records (Clean Slate) Act 2004
The purpose of the Act is to establish a clean slate scheme to limit the effect of individual’s convictions in most circumstances if the individual satisfies the relevant eligibility criteria.
The Act will affect employers in situations of recruitment and termination of employment.
Employers may commit an offence when they request or require a person to disregard the effect of the clean slate scheme.
A fine not exceeding $10,000 may be imposed.
There are various situations where it is not an offence to request or require information regarding a person’s criminal record.
An employee can not be dismissed for serious misconduct for not having disclosed a conviction.

Smoke-free Environments Act 1990
The Act provides for smoke-free work places.
Smoking in work places is prohibited.
An employer must take all reasonable steps to ensure that no person smokes at any time in a work place that is not designated smoking room in which smoking is permitted.
If an employer does not take all reasonable steps, then the employer commits an offence and may be liable to a fine.