Ace Payroll: Employment Relations Act 2000 Part 6 Individual Employees' Terms And Conditions Of Employment


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Employment Relations Act 2000
Part 6 Individual Employees' Terms And Conditions Of Employment

Table Of Contents	Part 6 Individual Employees	Schedule 1 Essential Services
Part 1 Key Provisions	Part 7 Education Leave	Schedule 2 Employment Authority
Part 2 Preliminary Provisions	Part 8 Strikes And Lockouts	Schedule 3 Employment Court
Part 3 Freedom Of Association	Part 9 Disputes And Enforcement	Schedule 4 Changes to Police Act
Part 4 Operation Of Unions	Part 10 Institutions	Schedule 5 Enactments Amended
Part 5 Collective Bargaining	Part 11 General Provisions	Schedule 6 Enactments Repealed

Part 6 Individual Employees' Terms And Conditions Of Employment

Section 60 - Object of this Part

Section 61 - Employee bound by applicable collective agreement may agree to additional terms and conditions of employment

Section 62 - Employer's obligations in respect of new employee who is not member of union

Section 63 - Terms and conditions of employment of new employee who is not member of union

Section 64 - Opportunity to seek advice for new employee where no collective agreement applies

Section 65 - Terms and conditions of employment where no collective agreement applies

Section 66 - Fixed term employment

Section 67 - Probationary arrangements

Section 68 - Unfair bargaining for individual employment agreements

Section 69 - Remedies for unfair bargaining

Section 60
Object Of This Part

The object of this Part is

(a) to specify the rules for determining the terms and conditions of an employee's employment; and

(b) to require new employees, whose terms and conditions of employment are not determined with reference to a collective agreement, to be given sufficient information and an adequate opportunity to seek advice before entering into an individual employment agreement; and

(c) to recognise that, in relation to individual employees and their employers, good faith behaviour is

(i) promoted by providing protection against unfair bargaining; and

(ii) consistent with the implied term of mutual trust and confidence in the relationship between employee and employer.

Section 61
Employee Bound By Applicable Collective Agreement May Agree To Additional Terms And Conditions Of Employment

(1) The terms and conditions of employment of an employee who is bound by an applicable collective agreement may include any additional terms and conditions that are

(a) mutually agreed to by the employee and the employer, whether before, on, or after the date on which the employee became bound by the collective agreement; and

(b) not inconsistent with the terms and conditions in the collective agreement.

(2) If the applicable collective agreement expires or the employee resigns from the union that is bound by the agreement,

(a) the employee is employed under an individual employment agreement based on the collective agreement and any additional terms and conditions agreed under subsection (1); and

(b) the employee and employer may, by mutual agreement, vary that individual employment agreement as they think fit.

Section 62
Employer's Obligations In Respect Of New Employee Who Is Not Member Of Union

(1) This section

(a) applies to an employee who is not a member of a union and who enters into an individual employment agreement with an employer that is a party to a collective agreement that covers the work to be done by the employee; but

(b) does not apply to an employee who

(i) resigns as a member of a union and enters into an individual employment agreement with the same employer; or

(ii) enters into a new individual employment agreement with the same employer.

(2) At the time when the employee enters into the individual employment agreement with an employer, the employer must

(a) inform the employee

(i) that the collective agreement exists and covers work to be done by the employee; and

(ii) that the employee may join the union that is a party to the collective agreement; and

(iii) about how to contact the union; and

(iv) that, if the employee joins the union, the employee will be bound by the collective agreement; and

(v) that, during the first 30 days of the employee's employment, the employee's terms and conditions of employment comprise

(A) the terms and conditions in the collective agreement that would bind the employee if the employee were a member of the union; and

(B) any additional terms and conditions mutually agreed to by the employee and employer that are not inconsistent with the terms and conditions in the collective agreement; and

(b) give the employee a copy of the collective agreement; and

(c) if the employee agrees, inform the union as soon as practicable that the employee has entered into the individual employment agreement with the employer.

(3) If the work to be done by the employee is covered by more than 1 collective agreement, the employer must

(a) comply with subsection (2) in relation to the collective agreement that binds more of the employer's employees than any of the other collective agreements; and

(b) inform the employee of the existence of the other agreement or agreements.

(4) Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.

Section 63
Terms And Conditions Of Employment Of New Employee Who Is Not Member Of Union

(1) The terms and conditions of employment of an employee to whom section 62 applies are determined in accordance with subsections (2) to (5).

(2) For the first 30 days after the employee enters into an individual employment agreement, the employee's terms and conditions of employment comprise

(a) the terms and conditions in the collective agreement that would bind the employee if the employee were a member of the union; and

(b) any additional terms and conditions mutually agreed to by the employee and employer that are not inconsistent with the terms and conditions in the collective agreement.

(3) If the work to be done by the employee is covered by more than 1 collective agreement, subsection (2)(a) applies to the collective agreement that binds more of the employer's employees than any of the other collective agreements.

(4) No term or condition of employment may be expressed to alter automatically after the 30-day period to be inconsistent with the collective agreement.

(5) After the 30-day period expires, the employee and the employer may, by mutual agreement, vary the individual employment agreement as they think fit.

Section 64
Opportunity To Seek Advice For New Employee Where No Collective Agreement Applies

(1) This section applies to an employee if no collective agreement binding his or her employer covers the work done by the employee.

(2) Before the employee enters into an individual employment agreement with the employer, the employer must

(a) provide to the employee a copy of the intended agreement that complies with section 65(2); and

(b) advise the employee that the employee is entitled to seek independent advice about the intended agreement; and

(c) give the employee a reasonable opportunity to seek that advice.

(3) Every employer who fails to comply with subsection (2) is liable to a penalty imposed by the Authority.

(4) Failure to comply with subsection (2) does not affect the validity of the individual employment agreement concerned.

(5) In this section, employee means a prospective employee.

More Information

What an offer of employment might look like

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

(a) must be in writing; and

(b) may contain such terms and conditions as the employee and employer think fit.

(2) However, the individual employment agreement

(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

(b) must not contain anything

(i) contrary to law; or

(ii) inconsistent with this Act.

More Information

Draft agreement drawn up by the Employment Relations Service
Example of information on services available for the resolution of employment relationship problems
Common problems with employment agreements

Section 66
Fixed Term Employment

(1) An employee and an employer may agree that the employment of the employee will end

(a) at the close of a specified date or period; or

(b) on the occurrence of a specified event; or

(c) at the conclusion of a specified project.

(2) Before an employee and employer agree that the employment of the employee will end in a way specified in subsection (1), the employer must

(a) have genuine reasons based on reasonable grounds for specifying that the employment of the employee is to end in that way; and

(b) advise the employee of when or how his or her employment will end and the reasons for his or her employment ending in that way.

(3) The following reasons are not genuine reasons for the purposes of subsection (2)(a):

(a) to exclude or limit the rights of the employee under this Act:

(b) to establish the suitability of the employee for permanent employment.

Section 67
Probationary Arrangements

Where the parties to an employment agreement agree as part of the agreement that an employee will serve a period of probation or trial after the commencement of the employment,

(a) the fact of the probation or trial period must be specified in writing in the employment agreement; and

(b) neither the fact that the probation or trial period is specified, nor what is specified in respect of it, affects the application of the law relating to unjustifiable dismissal to a situation where the employee is dismissed in reliance on that agreement during or at the end of the probation or trial period.

Section 68
Unfair Bargaining For Individual Employment Agreements

(1) Bargaining for an individual employment agreement is unfair if

(a) 1 or more of paragraphs (a) to (d) of subsection (2) apply to a party to the agreement (person A); and

(b) the other party to the agreement (person B) or another person who is acting on person B's behalf

(i) knows of the circumstances described in the paragraph or paragraphs that apply to person A; or

(ii) ought to know of the circumstances in the paragraph or paragraphs that apply to person A because person B or the other person is aware of facts or other circumstances from which it can be reasonably inferred that the paragraph or paragraphs apply to person A.

(2) The circumstances are that person A, at the time of bargaining for or entering into the agreement,

(a) is unable to understand adequately the provisions or implications of the agreement by reason of diminished capacity due (for example) to

(i) age; or

(ii) sickness; or

(iii) mental or educational disability; or

(iv) a disability relating to communication; or

(v) emotional distress; or

(b) reasonably relies on the skill, care, or advice of person B or a person acting on person B's behalf; or

(c) is induced to enter into the agreement by oppressive means, undue influence, or duress; or

(d) where section 64 applied, did not have the information or the opportunity to seek advice as required by that section.

(3) In this section, individual employment agreement includes a term or condition of an individual employment agreement.

(4) Except as provided in this section, a party to an individual employment agreement must not challenge or question the agreement on the ground that it is unfair or unconscionable.

Section 69
Remedies For Unfair Bargaining

(1) If a party to an individual employment agreement is found to have bargained unfairly under section 68, the Authority may do 1 or more of the following things:

(a) make an order that the party pay to the other party such sum, by way of compensation, as the Authority thinks fit:

(b) make an order cancelling or varying the agreement:

(c) make such other order as it thinks fit in the circumstances.

(2) The Authority must not make an order under subsection (1)(b) unless the requirements in section 164 have been met, and that section applies accordingly with all necessary modifications.

End of Part 6

Table Of Contents	Part 6 Individual Employees	Schedule 1 Essential Services
Part 1 Key Provisions	Part 7 Education Leave	Schedule 2 Employment Authority
Part 2 Preliminary Provisions	Part 8 Strikes And Lockouts	Schedule 3 Employment Court
Part 3 Freedom Of Association	Part 9 Disputes And Enforcement	Schedule 4 Changes to Police Act
Part 4 Operation Of Unions	Part 10 Institutions	Schedule 5 Enactments Amended
Part 5 Collective Bargaining	Part 11 General Provisions	Schedule 6 Enactments Repealed

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Updated: 9th December 2008
Published: 27th August 2000

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