Posted on: Feb 12, 2015
With the recent amendments to the Employment Relations Act 2000 removing the “30-day rule” from 6 March 2015, there may be some confusion as to what employment agreement employers should be offering new employees.
The answers to the questions below should help determine whether a new employee should be covered by an individual agreement or a collective agreement.
Q1 Is the employer bound by one or more collective agreements?
YES – Do any of these agreements cover the new employee or the work to be done by the new employee?
- YES, then there is an applicable collective agreement. Go to Question 2.
- NO, the new employee will be engaged under an individual employment agreement.
NO – The new employee will be engaged under an individual employment agreement.
Q2 Is the new employee a member of a union?
YES – Is the employee’s union a party to a collective agreement which both binds the employer and covers the new employee or the work to be done by that person?
- YES, then there is an applicable collective agreement and the new employee will be engaged under the provisions of that agreement. However, the employer and the employee may agree on “additional” terms and conditions.
- Additional terms and conditions must be “not inconsistent with” the provisions of the collective agreement.
- The phrase “not inconsistent with” does not simply mean “not less favourable than”.
- If a matter is dealt with in a collective agreement, no inconsistent term may be negotiated and agreed with an individual employee who is covered by the collective agreement.
- It doesn’t matter whether the term is more or less favourable. “Additional” terms and conditions can only be negotiated if they are matters not already covered by the collective agreement.
- NO, ie the employee’s union is not a party to an applicable collective agreement, then the new employee will be engaged under an individual employment agreement.
NO – ie the employee is not a member of a union, then the new employee will be engaged under an individual employment agreement. However, the employer must still:
- Inform the new employee that there is a collective agreement which covers the work to be done by the new employee.
- Tell the new employee that he or she may join the union that is a party to the collective agreement, and how to contact the union.
- Tell the new employee that he or she will become bound by the collective agreement on joining the union.
- Give the new employee a copy of the collective agreement.
- If the employee agrees, inform the union as soon as practicable that the employee has entered into an individual employment agreement with the employer.
We hope the above Q&A helps you to determine which employment agreement you need to offer to your new employees, and what additional information you are required to provide (if any). Feel free to contact any of our team for further information.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.