Offering and negotiating employment agreements

Deciding the type of employment

Before offering someone an employment agreement, the employer needs to decide what type of employee they will be, for example, if they’ll be employed on a permanent, fixed-term or intermittent basis.

There are extra rules that you need to know if you want to employ someone on a fixed-term agreement (for a set period of time or until a certain event occurs). If the employee will be fixed term, or will only work when work is available and they choose to accept work offered, this must be specified in their employment agreement.

If the employee will be covered by a collective employment agreement, it’s usually put in their offer letter or additional terms and conditions).

Types of employees fixed-term agreements  

Type of employment agreement

Under the Employment Relations Amendment Act 2018 employers that are part of a collective agreement must provide prospective employees information about the terms and conditions of both the collective and individual agreements before employees sign their chosen employment agreement.

An employer may refuse to pass on the union information in limited circumstances.

Providing union information

30-day rule for new employees

For the first 30 days, new employees must be employed under terms consistent with the collective agreement where there is a collective agreement in place. An employee and employer may agree on additional terms that are more favourable than the terms specified in the collective agreement.

After the 30-day period expires, the terms and conditions continue to apply unless the employee has become a member of the union or the employee and employer have chosen to negotiate and agree on different terms and conditions in the individual employment agreement.

Offering an individual employment agreement

All employees must be given a written copy of the intended employment agreement and the chance, and a reasonable amount of time, to get independent advice on:

• their individual employment agreement, and
• any variation to an individual employment agreement, and
• any additional terms and conditions (to a collective employment agreement)

before they agree to it and sign it. If employers don’t do this, they could receive a penalty.

Negotiating an individual employment agreement

Employers and employees can put as many terms as they like in the employment agreement, but there are some that an agreement must contain. An employment agreement can’t have terms which are not as good as the legal minimum even if the employer and employee have agreed on them (if these types of terms are put into an employment agreement, they cannot apply and will have no effect).

Just because an employer gives an employee an intended employment agreement, it does not mean that the employee has to accept it. An employee can choose to turn down the offer, or negotiate any terms they want to change and suggest any additional terms that they would like to be covered. Employers and employees must negotiate in good faith. When entering into an employment agreement, an employer must also inform the employee about the employee’s entitlements under the Holidays Act 2003, and that the employee can obtain further information about their entitlements from a union or by contacting us.

Some of the things which employers and employees should discuss and/or negotiate where relevant include:

• annual holidays – that the employee will get at least 4 weeks and what a week looks like for them
• whether the employee agrees to get annual holidays as Pay-as-you-go if they meet the criteria
• hours of work, including number of guaranteed hours, days of the week work is to be performed, start and finish times, and any flexibility within these
• availability and shift cancellation provisions (if applicable)
• trial period (if applicable)
• if fixed-term employment is being offered, the reason for and the duration of the fixed term
• pay- how much per hour, overtime, allowances, contractual bonuses, incentives and commissions, penal rates
• whether the employee will be required to work on public holidays
• customary closedown period - if there is one, and how it works
• notice period in case of dismissal, redundancy or resignation 

Providing union information

An employer must pass on information about the role and function of the union, which they have received from the union, to prospective employees. This information has to be passed on by the employer when they are bargaining for terms and conditions of employment.

An employer, or a nominated representative of the employer, may refuse to pass on the information in limited circumstances; this is where the information is:

• confidential; or
• is information about the employer that would, or is likely to, mislead or deceive the prospective employee and would significantly undermine bargaining between the employer and prospective employee.

An employer has 15 working days to refuse to provide the information, when received from the union, on the grounds listed above. If they do not refuse in this timeframe they will be obligated to provide the supplied information to prospective employees.

Employers must pass on the information in the form in which it is received i.e. by email or by hardcopy. If the information is provided in hardcopy, where the copies run out an employer has an obligation to notify the union in writing that further hard copies are required. The union is responsible for the production of this information.