Employee Relations - Legislation & Assessment Answer

Answer:

1. An employee agreement consists of all the essential terms and conditions between the employer and the employee. It includes the entire responsibilities which both the parties to the contract have toward each other. The main purpose of an agreement is mutual benefit. The New Zealand government has made it statutory to prepare an agreement in between the employer and the employee. It is mandatory for all the organization to prepare the agreement as per the applicable act. There are various acts whose motive is to safeguard the interest of the employees from exploitation. A contractual relation helps in securing the rights at the time of breach of duty by any party. As per the case study for the employees who are working on the roster basis in the café, the owner is recommended to draw a contract as directed by the law (Employment rights.2016). The employee agreement is a statutory necessity which is the duty of every employer not to overrule any legal rights which are guaranteed by the law to the citizen (International Business Publications, USA.2013). An employee agreement includes all the clauses related to:

  • Minimum Wage Act 1983
  • Wages Protection Act 1983
  • Holidays Act 2003
  • Privacy Act 1993
  • Parental Leave and Employment Act 1987
  • Health and Safety in Employment Act 1993
  • Equal Pay Act 1972
  • Human Rights Act 1993

It is the duty of the employer to include all the essential clauses of the abovementioned law before preparing an employment agreement (Paying employees.2016).

Employment agreement

Application

The parties

The parties to this employment agreement are:

Coffee Corner Limited, the "Employer".

Ms. Joanne Jones, the "Employee".


Position

The employee is being employed as Cashier.

Duties

The general duties and responsibilities of the employees are mentioned in the agreement and the employee has to adhere to all the lawful instructions given by the employer.

The company and worker may alter the job description with a mutual consent. In case of major changes the employer must propose it through restructuring process.

Terms

Place of work

The place of work for the employee will be Riverstone Place, Auckland CBD.

Hours of work

The employee has to work on roster schemes which are for 40 hours each week. The work hour will be 7 am - 4 pm with a single weekly off. The timing will be based on the roster basis.

The employee must be available to work more than the agreed number of guaranteed hours. The employee will receive reasonable compensation for providing services in case of urgency.

The employer has to inform the employee 3 days in advance before making any change in the roster system. In case if the roster falls on Monday that turns out to be a public holiday, the staff is entitled to receive a pay of 1.5 times.

Rules, policies & procedures

There are certain rules and procedures which are mandatory for the employee to follow

The employer will dictate all the guidelines pertaining to the employment to the employee. The employee must follow the guidelines regularly.

The employer has rights to introduce relevant changes in the employment with a prior notice.

If an employee fails to follow any of the guidelines, the employer has right to take a discrepancy action.

Uniform & professional presentation

The company requires employees to meet up personal presentation necessities.

The employer will provide a uniform to the employee which they must wear during the working hours. They have the responsibility to clean it and carry it and return it in case of end of job.

The employee agrees to present themselves properly as per the requirements of the nature of the job.

Remuneration and Benefits

Payment of wages

The employer will pay the employee $ 17 per hour.

The salary would be paid fortnightly into the nominated NZ bank account.

Kiwi Saver

The employer has to make a contribution into the kiwisaver scheme as per the law the current rate of employer contribution is 3% of the salary/wage. The employee has to take decision regarding the contribution. In case of non- confirmation the default rate would be applicable.

The amount of superannuation will be taxed as per the current law. The employee has the right to opt out with a prior notice (Retirement saving made easy.2016).

Commission

The employee will be paid a commission of 10% in case of achieving the target which are subject to change.

The commission will be reimbursed into the NZ account on every month.

Overtime

If an employee works for more than the usual work hours in a week, the employer will pay $ 18 per hour.

Pay review

The employer may revise the pay of the employee on the basis of the employee performance in every six months.

Any hike in the employee’s wage depends on the employer decision.

Leave

Public holidays

The employee has no obligation to work on the public holiday until and unless being asked. The employee will be pay 1.5 times of the average hourly pay.

Annual leave

If an employee has worked for more than 12 months, he/she are entitled to get four week off. The employee has to apply for the leave and should take prior confirmation.

Mutual consent in between the employer and the employee is essential. A 14 days prior notice is mandatory in such a case.

Sick leave

The employees can take up to 5 days off due to sickness or injury. They have to inform the employer on phone or through e-mail.

They must inform it to the employer in case of availing sick leave.

If the employee has taken sick leave, he/she has the right to take leave in advance/

Parental leave

The employee can avail parental leave to take care of his/her parents as per Employment Protection Act 1987.

Leave for other reasons

An employee requires leaves for any community services. He/she has to send a prior notice to the employer regarding the leaves. The employee has a right to take leave under any such circumstance which he feels is essential.

However, he will not be paid in such a situation.

General Provisions

Indemnity

The employer has a duty to legally protect the interest of the employee against any damage to his life. The employment has a duty to protect the employee by training the employee regarding the job safety measures. The employer will cover up the loss caused during the employment in case of employer’s negligence.

Loses doesn’t include the expenses and the liabilities which are:

  • Their own negligence
  • Breach of duty
  • Any unlawful act
  • Or any fault committed by the employee

Disputes

Resolving employment relationship problems

An issue between the employer and the employee should be resolved mutually. The employee must try to resolve the dispute regarding the employment with the employee first. It is recommended to discuss an issue mutually without any third party interference. In case if the problem is not resolved the employee can reach to the government authority to submit the plea

  • Ministry of Business, Innovation & Employment, helps in resolving the disputes in between the employer and the employee/
  • A union or an advocate
  • A lawyer.

The employee can appeal to the employment relation authority to resolve the matter, if it is a personal grievance; the employee has a period of 90 days from the time of the actual occurrence of the problem.

Some of the part of the process is chargeable for to the employee’

The employee can seek advisory to resolve the dispute in employment.

Termination

Employee protection provision

Employees are given special protection in case of restructuring of the business as per the employment relations act.

All other employees

This clause is applied when the employer wants to restructure the organization due to any of the condition.

The employer for that purpose must inform the employee through a prior notice about the reason for such change. The employee will give a prior notice 14 days before introducing any such change. The employer will:

  • introduce the employees to the new employer
  • will inform the employees about the coming task and challenges
  • tell them about the things to be discussed
  • Moreover a senior representative will be hired to inform the employees about the new changes
  • All the statutory information need to be shared with the employees. In any such situation the employers will initiate such terms and conditions
  • boost the new employer about the essential information related to the employee whom is to be initiated as per the act
  • should inform the employees regarding the outcome of the meeting.

Whether the employer has to terminate the old offer or to introduce a new offer as per the new employer

The employee has to transfer all the entitlement to the new employer which is necessary as per the act:

  • should inform the opportunities related to the existence in the employment
  • Any new change regarding the entitlement is necessary to be informed while making consideration

The employee in this case will confirm any such contingency and should inform employee.

Voluntary Resignation

The employee has to inform the employer in case if he/she voluntarily leaves the organization. One month prior notice is mandatory before leaving the organization. In case if the employee doesn’t inform the employer. The employer has rights to forfeit his wages and can take legal action against him.

Suspension

In case of ample of sufficient reason against the employee, the employer has a right to expel the employee. The serious allegations found during the work hours which includes serious misconduct or any harmful activity against the organization. The employer secures all the rights to suspend the employee.

The employee will not be paid for any misconduct. The time period will be measured after the investigation. The employer has right to file a complaint against any unlawful act committed by the employee.

Force majeure

The employee knows that his/her services will be terminated due to occurrence of any Natural disaster like earthquake, tsunami, etc. In such a situation the job of the employee will be terminated. The employee has no right to claim remuneration during the period of disaster. But the organization will pay the wages for the time period for which the duty are delivered

Acknowledgement

Employee acknowledgement

Mr. Andy provides an employment Agreement to Ms. Joanne Jones

Signed by:.............................................................. Date:.......................... (Employment agreement builder.2016)

In signing this agreement, I Ms. Joanne Jones accepts the terms and conditions of my employment as Mentioned in the above agreement:

  • I have read the provisions which are mentioned in the agreement and have received a copy of the agreement.
  • I have given right to get an independent advice related to the terms and conditions and I have received ample of time to take decision
  • I have mentioned the terms and conditions above and the employer has responded well while dealing with the issue.
  • I have informed my employer regarding any health issue or any medical condition I am going through and has submitted all the documents related to it
  • I assure that there are no legal issues which stops me to work with your organization
  • The information furnished by me is true and if the employer come across any immoral information, he secures right to suspend me
  • I will inform the organization any additional information which is necessary to be incorporated as per the Company’s policy

 I have all the rights to work in New Zealand and there is no legal matter against me.

Signed by:.............................................................. Date:..........................

2. Issue

The case is related to the privacy concerns at the workplace which the employees of the organization are facing. Buy Me Limited has recently witnesses’ theft of valuable items from its warehouse. The manager conducted an investigation and found that some of the employees are responsible for the theft.

Due to a rise in the theft at the warehouse the manager installed surveillance camera to keep a check on the activity of the employees in his absence. The cameras were installed without prior information to the employees. However the cameras were motion sensitive and works only in the presence of someone. The employees get to know about the installation when two employees were caught with the stolen property.

The case is related to the Privacy Act 1993 which is related to the concern of the employees at the workplace related to the interference made by the employer.

Is installation of camera and microphones are violation of privacy rights under the Privacy Act 1993

 Law

The governing law is the Privacy Act 1993 which safeguards the interest of the employees to protect them against any privacy issue. Other applicable law is the Employment Relations Act 2000 (The privacy law1993.2016)

Applicability

Video surveillance is increasing day by day at the workplaces especially at the retail store. It helps in safeguarding the interest of the property and people by capturing the evidences. Moreover the employees perform well when they are surveillance. The act doesn’t restrict implantation of the cameras but restrict covert surveillance. The privacy is a most important issue growing with the rapid growth in the technology (Taylor.2015). The employers are using the technology to keep surveillance on the employee. Recent era has seen change in the employment pattern where the employees are keeping a check over the activities of the employees. The technology is assisting them to stalk on the activity during the working hours. The various technologies which are been used by the employers are:

  • Checking on their internet and e-mail activities
  • GPS tracking devises on their phones and vehicles
  • Video cameras and micro phones at the workplace
  • By measuring time which is spend on phones (Rudman.2013).

Covert Surveillance

It is a general phenomenon these days that the employer is putting surveillance cameras at the workplace to keep a check over the activities of the employees. If the employer discusses the purpose for such installation it might defeat the purpose. However as per the Privacy Act 1993 intruding in employee’s activity is unlawful. It is recommended by the law to inform the employees about it in advance (Privacy at work.2008).

In certain cases covert surveillance is accepted when the purpose for such installation is to catch any particular employee who is involved in any suspicious activity. The purpose of installation is to secure property of the organization. It should not include any detrimental functions which may harm the other employees (Goh.2001).

In an another case law Lawless v Comvita NZ Ltd (2005) and Witehera v Penguin Wholesalers Ltd (2008) the company has installed number of hidden cameras at the workplace to keep a check on the activity of an employee who was involved in mischievous activities. The court stated that employer intention was to safeguard the interest of the organization (Around the traps - July 06.2016).

The Privacy Commissioner in 2003 has stated that the use of cameras at the locker room is not interfering in the privacy and doesn’t hamper the right of the employees.

The case is related to installation of the cameras and microphones without any prior information which is against the Privacy Act 1993. The law covers all the aspects related to the privacy concern of the individual. As per the given situation there is a breach of the employee’s rights (Bell.2014).

In Wellington City Transport Limited v Paualaisa & Ors, the employment authority upheld that hidden camera surveillance at the work place is misconduct. It was further stated by the authority that the employees must be informed before inviting any such change (Case Note 38463 [2002] NZPrivCmr 11 - Union objects to employer searching cars and bags on worksite.2013).

Although the intention of the manager of the Buy Me Limited is to safeguard the interest of the goods which were stolen from the Company’s warehouse but the law doesn’t permit installation without a prior notice to the employees (Lin.2016).

Conclusion

The company has rights to install cameras but with the prior information to the employees. In the above mentioned case it has curbed the privacy without prior intimation. But under certain circumstance when any particular employee is curbing the individual rights than the employer has a right to install camera

Otherwise the Privacy act 1993 makes it mandatory for the employees to intimate them in advance before incorporating any such changes.

3. As per the given case study the company has received a Notice to Commence Collective Bargaining from the union. To proceed further the company needs to prepare itself against the bargaining procedure. It is necessary to take a decision regarding the team which will participate in bargaining procedure. Only the employer and the union can participate in the bargaining procedure. Parties are recommended to resolve their workplace issue by themselves but collective bargaining provides a special privilege. Firstly the company needs to choose a person who has competency in bargaining. The Employment Relations Act 2000 set the rules to initiate the collective bargaining. Engineering and Fabrication Co Ltd has to adhere to section 31(c) Part 5 to recognize the rights of the parties to the collective bargaining.

The act ensures that the union and the employers must deal with each other in good faith. The aim of the act is to create good relations in between the employers and the union. Good faith relates to dealing with utmost honesty without misinterpreting or misleading the other party. The party to the negotiation should establish and maintain good relations. They should ensure that the employer and the union share healthy relationship. If the bargaining procedure is in good faith it provides an opportunity to make a successful implementation of the agreement. It not only safeguards the interest of the employees but help in stopping the actions like strikes and lay off. The provision related to good faith helps the party to persuade further to achieve the motive.

Good faith ensures that the parties to the collective bargaining disclose material information to the other party. Good faith is a concept which helps in the mutual benefit of the company and the union.

The Employment Relations Act 2000 promotes the concept of good faith where section32 specially mentions that the union and the organization should not mislead each other. Collective bargaining is a systematic procedure which provides guidance to both the parties should meet each other to meet the purpose. The party to the negotiation has a right to communicate to each other the necessary information.

In the given case study EFCo has a duty to follow the provisions which are mentioned in the act. Both the parties while negotiating should promote the mutual interest. Clarity in communication is essential while initiating collective bargaining as per the act.

It is the duty of the employer to frame the rules and guideline with the mutual consent. EFCo should discuss all the terms and conditions before passing the agreement. The employer has to bargain in good faith if the employees are not in agreement with any of the provision. The parties to the negotiating agreement should provide clear information. None of the party should provide misleading information to the other party. In such a situation there is a need to keep independent reviewers who act as a mediator in between the negotiating parties. An independent reviewer is a person who is appointed by the mutual consent.

Section 34(3) of the Employment Relations Act 2000 provides the rule pertaining to the role of an independent reviewer while collective negotiation. The section 34(5) of the Employment Relations Act 2000 describes the role of the Independent reviewer in case of a conflict. His duty is to keep the discussion confidential during the collective bargaining (Preparing for bargaining.2016).

The recent amendment in the Employment Relations amendment act 2014 and the employment relations amendment act 2010 has come into existence from 6 March 2015. Section 38 of the act is been revoked for the similar purpose (Employment Relations Act 2000).

According to section 39 of the act, it is the authority of the employment court and the authority to approve good faith in between union and employer. It is the duty of the party to the negotiation to prove whether they have worked in good faith or not. If the party has enough resources to prove that it has worked in good faith than the court may consider it. The new amendment has made a provision where the union and the employer are not requiring entering into a collective agreement. The employer may deny on the basis of the Section 3.1 which states that they can disagree on any of the matter which is included in the collective bargain (Law changes to collective bargaining.2015).

However it is the duty as per the act to inform the union about such a change. As per the new amendment it is not necessary t conclude the collective bargaining, however the union and the employer can deal in good faith.

As per the recent amendment the employer cannot refuse to deny the terms and conditions which are mentioned in the contract because they have an objection against the bargaining principles. The act still have provisions related to the section 4 and section 32 which states that party into the contract must act in good faith( Code of good faith in collective bargaining.2016).

References

Around the traps - July 06.2016. Online. Retrieved from: https://www.conflictsolutions.co.nz/index.php?option=com_content&view=article&id=62:around-the-traps-july-06&catid=45:around-the-traps-chris-rowes-newsletter&Itemid=73 Accessed on: 12 October 2016

Bell, P.2014. USING CAMERAS IN THE WORKPLACE – WHEN IS IT APPROPRIATE AND WHEN IS IT NOT! Online. Retrieved from: https://www.intepeople.co.nz/using-cameras-in-the-workplace-when-is-it-appropriate-and-when-is-it-not/ Accessed on: 12 October 2016

Case Note 38463 [2002] NZPrivCmr 11 - Union objects to employer searching cars and bags on worksite.2013. Online. Retrieved from: https://privacy.org.nz/news-and-publications/case-notes-and-court-decisions/case-note-38463-2002-nzprivcmr-11-union-objects-to-employer-searching-cars-and-bags-on-worksite/ Accessed on: 12 October 2016

Code of good faith in collective bargaining.2016. Online. Retrieved from: https://www.employment.govt.nz/starting-employment/unions-and-bargaining/collective-agreements/collective-bargaining/good-faith/code-of-good-faith-in-collective-bargaining/  Accessed on: 12 October 2016

Employment agreement builder.2016. . Online. Retrieved from: https://www.employment.govt.nz/starting-employment/employment-agreements/employment-agreement-builder/?url=/er/starting/relationships/agreements/builder.asp Accessed on: 12 October 2016

Employment Relations Act 2000.2015. Online. Retrieved from: https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM58672.html?search=sw_096be8ed813a7c64_collective+bargaining_25_se&p=1 Accessed on: 12 October 2016

Employment rights.2016. Online. Retrieved from: https://www.newzealandnow.govt.nz/work-in-nz/employment-rights Accessed on: 12 October 2016

Goh,J.2001. The Single Aviation Market of Australia and New Zealand. Psychology Press

International Business Publications, USA.2013. New Zealand Business Law Handbook: Strategic Information and Laws. Int'l Business Publications

Law changes to collective bargaining.2015.Online. Retrieved from: https://www.mbie.govt.nz/info-services/employment-skills/legislation-reviews/amendments-to-the-employment-relations-act-2000/law-changes-to-collective-bargaining. Accessed on: 12 October 2016

Lin,T.2016. Surveillance of workers risks breaching privacy laws. Online. Retrieved from: https://www.stuff.co.nz/business/industries/75839806/Surveillance-of-workers-risks-breaching-privacy-laws Accessed on: 12 October 2016

Paying employees.2016. Online. Retrieved from: https://www.business.govt.nz/staff-and-hr/managing-employees/paying-employees Accessed on: 12 October 2016

Preparing for bargaining.2016. Online. Retrieved from: https://employment.govt.nz/starting-employment/unions-and-bargaining/collective-agreements/collective-bargaining/preparing-for-bargaining/ Accessed on: 12 October 2016

Privacy at work.2008. Online. Retrieved from: https://privacy.org.nz/assets/Files/Brochures-and-pamphlets-and-pubs/Privacy-at-Work-2008.pdf Accessed on: 12 October 2016

Retirement saving made easy.2016. . Online. Retrieved from: https://www.kiwisaver.govt.nz/ Accessed on: 12 October 2016

Rudman,R.2013. New Zealand Employment Law Guide (2013 edition). CCH New Zealand Limited

Taylor,C.2015. Employee surveillance: what’s legal? Online. Retrieved from: https://www.hrmonline.co.nz/news/employee-surveillance-whats-legal-203142.aspx Accessed on: 12 October 2016

The privacy law1993.2016. Online. Retrieved from: https://www.legislation.govt.nz/act/public/1993/0028/latest/DLM296639.html Accessed on: 12 October 2016

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