Employment Law Flashcards
(32 cards)
Key area
parties do not have equal bargaining power.
Parliament has regulated this area quite a bit.
There are specialist tribunals and Courts that operate in this area.
Legislation
Employment law Holiday Acts 2003 Minimum Wage Act 1983 Wages Protection Act 1983 Other Acts.
General starting points
- Parties are free to negotiate their own employment agreements
- Subject to prescriptive provisions (Parliament) and certain specialist employment bodies (Employment Relations Authority and Employment Court)
Employment Relations Act 2000
- is a person an employee?
- law only protects contract for services and contract of service.
- to determine employee - real nature of relationship and consider all matters
employee
any person of any age employed by an employer to do any work for hire or reward under a contract of service
contract of service
employee
- employer decides everything
- employer provides everything
- payments are auto generated
- employer pays for absences usually
- employer deducts PAYE
- employee carries out work personally and can’t delegate
contract for services
contractor
- everything decided by contractor
- everything provided by contractor
- payment generated on presentation of account
- no payment for absence
- contractor responsible for tax, insurance, etc
- can subcontract
judicial tests
- control test - degree of control over person concerned
- intention - what did both parties intend
- organisation test/ integration test - extension of control test
- economic reality test - whether person has risk own financial capital
application of tests
- what does agreement say
- what was intention
- degree of control
- industry practice
- level of independence
- integration into organisation
- etc
purpose of ERA
build productive employment relationships through promotion of mutual trust & confidence in all aspects of environment of relationship.
- recognise good faith underpins relationships
- acknowledge and address inherent inequality of bargaining power
- promote collective bargaining
- promote integrity of individual choice
- promoting mediation as primary PS
- reduce need for judicial intervention
Good faith
both parties must to do anything to deceive or mislead each other or anything likely to mislead or deceive. Wider in scope.
Both parties have to be active and constructive in establishing and maintaining a productive employment relationship.
practical application of good faith
working – using common sense and treat how you want to be treated.
Collective bargaining - code of good faith (by union is involved on behalf of employees)
freedom of association
all employees have the freedom to chose to be members of a union.
no pressure or discrimination to be applied.
if union is covering the workplace the employer must inform the employee of this when the employee begins work
collective bargaining
two types of agreements in ERA.
- collective agreement - negotiated by union on behalf of employees. Agreements are binding on
one or more unions, etc. Have to be in writing and have an expiry date of no more than 3 years. - individual agreement - must be in writing and are between employer and employee. If collective agreement in existence than an individual agreement cannot contain conditions which are less than the collective agreement. Can have more favourable conditions. Can be indefinite or for a fixed term
Important things to note about employment
Can’t be unilaterally terminated but can give notice.
Can’t be terminated because of termination.
Personal grievances
ERA
- unjustified dismissal (no reason or incorrect procedures) - unless employer can show reason to fire worker (test of justification) under section 103A.
- actions by employer which disadvantages employee and is not justified
- discrimination
- sexual harassment
- racial harassment
- improper pressure to force the employee either to leave trade union or to join union
test of justification
whether the actions and how the employer action were what a fair and reasonable employer could have done in all circumstances at the time.
termination of employment
- unjustified dismissal (constructive dismissal)
- expiry of a fixed-term agreement
- justified dismissal
- frustration of contract
- voluntary termination
- redundancy
voluntary termination
where an employe resigns (reasonable notice or via employment agreement).
where an employment ends is a question of fact and law. There is a RoT agreements. 90 day provision can lead to personal grievance.
redundancy
- must be genuine (position not employee)
- employers’ decision - reluctant to question business judgement of employer (hands off approach)
- Grace Team Accounting v Brake - look at redundancy fits with test of justification under s103 like all other termination
- usually LIFO
due process for dismissal
if employee not performing to standard (can’t dismiss instantly)
- give a warning in writing that work is not adequate and be specific
- give a specific goal for improvement - tell them what needs to be done to improve and provide training if necessary for this to happen
- give a time frame for improvement - fair deadline
- give a warning of consequence of failing to achieve required improvement (know dismissal is a possibility)
(can’t make up mind already)
time limits
a personal grievance must be commenced within 90 day period beginning with date action is alleged to be a PG occurred. Period can be extended by authority.
Upper limit is 3 years
lockout
act of employer in closing its place of business or suspending or discontinuing business/ breaking employment agreements with view to compelling employees to accept terms of employment or comply with other demands made by the employer.
Lawful striks /lockouts relate only to collective bargaining processes or on grounds of health and safety
Holidays Act 2003
Covers many provisions
- minimum holiday rights and how to enforce them
- annual holidays
Entitled to 4 weeks annual leave.
If haven’t worked full year, then pay employee 8% of employee’s gross earnings less any amount paid for annual holidays.
