Employment Flashcards
(13 cards)
Legal status of Employee
Employee = person who supplies their labour to an employer, under a contract of employment, at a spesific time
Statutory rights attach to the status of an employee.
–Minimum wage and holidays legislation
–Employment Relations Act (ERA)
*which includes the duty of good faith
* ability to bargain collectively as part of a union and the right to strike
*personal grievance rights
*By contrast self employed workers/independent contractors receive few statutory protections
– apart from Health and Safety at Work & paid parental leave
identify if someone is an employee or not
Case law has established relevant matters which include:
–The intention of the parties
–The common law tests
–Control test
–Integration test
–Economic reality or fundamental test
–Industry practice
–Taxation arrangements
NB which factors are relevant and the weight to be given to them varies from case to case
minimum wage act 1983
- Employment agreements must fix the maximum number of hours that can be worked in a week at not more than 40 unless a higher number is agreed.
- Minimum rates of pay are set by minimum wage orders.
- The Minimum Wage Order as of 1 April 2025 = $23.50 per hour (before tax)
holidays act 2003
*The Holidays Act 2003 provides minimum legal entitlements to:
- annual holiday
- public holiday
- sick leave
- bereavement leave
Should be reformed, too much work - worker, employer, govt agree
casual employment
Special category of agreement - no ongoing employment relationship
- Irregular hours “as and when required”
- Mutual obligations only exist during periods of work
- Employer has no ongoing obligation to offer work
- Employee has no obligation to accept work when offered.
- Although NB casual employees are entitled to statutory minimum wage and holiday pay on a pro rata basis
bad when employer doesnt let casual worker say no to working
zero hour contracts
employer selfishly hogging employee
*require employees to be available for work at set/all times but place no expectations on employers to provide work
Eg un U.K. people lose their benefit because you have work contract, but cant get any hours
*Zero hour contracts have been banned in New Zealand
* Employers must guarantee a minimum number of hours of work each week to workers required to be available, and workers can refuse extra hours without repercussions.
employment relations act - good faith obligation
“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”
……What makes employment contracts different from other types of contracts….. Duty to be active, constructive and communicate
employment relations act - good faith - terms
- Right of employee to seek independent advice before agreeing to employment
- Employment agreements must be “in writing” (verbal contract = contract exists - requirement on employers, penalty if they dont give it to you in writing)
- Statutory rights to bargain collectively including striking
- Personal grievance procedures
- Procedures relating to wage recovery (eg. if the employer doesnt give final pay.. Look in employment relations act on how to recover it)
personal grievances
Any grievance that an employee may have against their employer (or former) employer because of a claim that the employee
–Has been unjustifiably disadvantage
–Has been unjustifiably dismissed;
*Employer must prove dismissal was substantively justifiable and procedurally fair
–i.e. they must show that they acted as a fair and reasonable employer could have done.
(Test: employer has to show they acted as a fair and reasonable employer could have done. And to both had good reason (competence, negligence, theft) and follow fair process = justified dismissal
…. Unjustified = employee can get remedies
U.S has dismissal at will, employer doesn’t need reason to fire someone)
When can employee raise personal grievence
Anytime, for unjustified disadvantage if their employer does something that:
–affects their employment or conditions of work in a way that disadvantages them and/or makes it harder for them to do their job, and
– the employer’s action isn’t justified (isn’t fair and reasonable or is not in good faith).
*Examples could include:
–not dealing with an issue that has been raised by the employee eg bullying, harassment, health and safety issues, inappropriate behaviour
–withdrawing work or not giving work to the employee… benefit someone else
–demotion of the employee into a lower job
–illegally suspending the employee without pay
–transferring the employee to another location without consultation
–giving an unjustified warning.
health and safety
*The Health and Safety at Work Act 2015 is the primary source of regulation on workplace safety.
–The Act’s key emphasis - everyone in the workplace is responsible for everyone’s health and safety
–Business are required to do what is “reasonably practicable” to manage critical risks to “health” including mental health.
*While Accident Compensation generally precludes compensation from the employer for physical injury, penalties and prosecution are potential consequences for physical injuries.
possible future developments in employment law
*Workplace Relations Minister Brooke Van Velden has announced the government will be looking at changes to:
–The legal definition of employee
–The Holidays Act
–Health and Safety legislation
