How to offer employment when there is no relevant collective agreement

Negotiating for an individual employment agreement

When there is no relevant collective agreement, the employer and the employee will negotiate an individual employment agreement which sets out the terms and conditions of employment. This agreement must not have anything in it that is less than what is required by legislation relating to minimum wages, holiday pay, special leave etc.

Agreement in writing

An employer must, when offering a person a job:

give the person a copy of the intended individual employment agreement
advise the person that he or she is entitled to seek independent advice about the intended agreement
give the person a reasonable opportunity to get that advice.

Fair bargaining

The employer and employee must bargain in a fair way. The Employment Relations Authority may order compensation or cancel or vary an individual employment agreement in any of the following situations:

one of the parties was unable to understand what they were agreeing to by reason of diminished capacity due (for example) to age, sickness, mental or educational disability, a disability relating to communication, or emotional distress
one of the parties relied on the other's knowledge or skill
one party unfairly pressured the other
the employer did not allow the employee the opportunity to seek independent advice.

What an offer of employment might look like

Example of a letter and draft individual employment agreement from an employer to a new employee when there is no relevant collective agreement

(Note that employers and employees can agree to anything they like provided they meet the minimum requirements in legislation. The draft agreement contains some terms that are not required by legislation.)

5 October 2000

Jane Employee
131 Preston St
Napier

Dear Jane

I confirm that I am offering you a job starting 10 October at 8am. I propose that the terms of employment be those in the attached draft agreement.

You are entitled to discuss this proposal with your family, a union, a lawyer, or someone else you trust. If you want some information on your employment rights, you can contact the Employment Relations Service's free information and advice service, Employment Relations Infoline (phone 0800 800 863, web site www.ers.dol.govt.nz).

If you disagree with, do not understand or wish to clarify anything in the proposal, please ring me to discuss.

If you are happy with the proposal, please ring me to confirm. Can you please do this by 3pm on Friday 7 October 2000. Also, can you please bring the agreement with you on your first day. We will each need to sign two copies of the agreement so that each of us can keep a copy.

I look forward to working with you.

Yours sincerely

John Manager
Employer Hardware Ltd

Draft Agreement between Employer Hardware Ltd and Jane Employee

(Note that the following matters dealt with in the draft agreement are examples of agreed terms that are not required by legislation: additional payment for Saturdays, clothing allowance.)

The work: Serving customers in the shops, unloading supplies and stacking shelves, and other related tasks as directed.

Place of work: Normally Employer Hardware Ltd's shop at 16 Munster St, Napier; sometimes the other shop at 10 Simpson St, Napier; sometimes in delivery vehicles.

Times: Normally 8am to 5pm Tuesday to Saturday with an hour for lunch between noon and 2pm (usually noon to 1pm). During Christmas and other periods with late night closing, the eight hours will be worked between 8am and 9pm. Longer working hours may, from time to time, be arranged between the employer and the employee by agreement.

Wages: $[x] per hour before tax plus an additional payment of $[x] per hour before tax on Saturday. The employer will review these rates at the end of January 2001 and every 12 months after that. The employer will pay the previous week's wages in cash on Tuesdays.

Clothing: The employer will pay the employee a clothing allowance of $[x] per week.

Holidays and leave: These will be as set out in the Holidays Act 2003 . In summary, the Holidays Act entitles the employee to:

three weeks' annual leave after one year
11 paid statutory holidays when these fall on a day the employee would normally work. If the employee works on the statutory holiday, the employee will receive a replacement day off on a day agreed between the employer and the employee
Five days' special leave after six months to be used for sickness, to look after a sick relative, or for bereavement after the death of a close family member.

Other entitlements: The employee is entitled to benefits set out in any other relevant employment related legislation.

Conduct: The employee will arrive at work on time and will be smartly dressed. She will be polite to customers. She will advise the employer as soon as possible if she cannot attend work for any reason.

Resolving problems: The employer and the employee both want the employment relationship to run smoothly. Attached is an outline showing how any problems may be resolved and what services are available to help resolve them.

Signed by John Manager and Jane Employee on the 10th of October 2000.

Example of information on services available for the resolution of employment relationship problems

Employers may use part or all of the following information to meet the requirement to provide information to employees on the services available for the resolution of employment relationship problems under section 65 of the Act.

We can save time and help preserve our working relationship by solving our own problems as far as possible.

The following are suggestions for what you might do if you think there is a problem, and what help is available.

1 Clarify what the problem is from your point of view

Make sure there really is a problem. Check your facts and make sure you have not assumed or misunderstood something.

You might discuss the apparent problem with family or friends or advisers, and find out what the law is and/or what our employment agreement says. You can:

contact Employment Relations Infoline
- call free 0800 800 863
- visit the web site at www.ers.dol.govt.nz
get pamphlets/fact sheets from Employment Relations Service offices
talk to your union, a lawyer, community law office or industrial relations consultant.

2 Talk to each other

We should discuss the problem, either directly or through our representatives. You may bring a friend, relative or colleague to support you in the discussion. We should make sure that we discuss the facts so that we can clear up any assumptions or misunderstandings.

3 What are the next steps?

If we have not resolved the problem by talking to each other, one or both of us can do some or all of the following things:

We can contact Employment Relations Infoline, who may provide information and/or refer us to mediation.
We can participate in mediation provided by the Employment Relations Service (or we can agree to get our own mediator).
If we reach agreement, a mediator provided by the Employment Relations Service can sign the agreed settlement, and that will bind us.
We can choose to have the mediator provided by the Employment Relations Service decide the matter for us, and if so, that decision will be binding on us.
If mediation does not resolve the problem, either or both of us can take the problem to the Employment Relations Authority for investigation.
The Employment Relations Authority may direct us to mediation if it thinks that will still be useful.
The Authority can investigate and make a determination about the problem.
If one or both of us is/are dissatisfied with the determination of the Authority, we can take the problem to the Employment Court for a judicial hearing. (The Court may also tell us to go back and have more mediation.)

Final agreement must be in writing

When the employee accepts the employer's offer, the individual employment agreement must be in writing. A sample agreement is shown above.