Rights And Analysis Of An Employee's Employment Agreement In New Zealand

Employee Rights in New Zealand

1. Briefly summarize the facts and then analyse how the five tests were applied by the court in determining the status of Mr Bryson (10 marks) 

1. Apply those tests and determine the status of the Sally in the following situation: 

Sally has been employed by Agrotech Limited for five years as a sales representative. She drives a company car, manages 4 other salespersons, and is paid a salary of $85,000. Sally has been very successful, but she is unhappy with her pay rate. She feels that her value to the company is much more than she is paid and wants a share of the profit. 

Sally meets with the directors, Bert and Ernie.  After some negotiation they agree the following contract for 12 months which can be renewed by agreement for a further 48 months. 

• Sally will be paid a retainer of $25,000 per annum and for this she will be available to the company at any time and, during the contract, will not to work for any competitor.
• Sally will be paid a gross amount of 15% of the sales she generates.
• Sally will have control of her time and work, but must achieve sales of $750,000 per annum.
• Sally will employ an assistant to fulfill all administrative work.
• Sally will continue to work areas of New Zealand decided by the company.
• All equipment including cars are to be provided by Sally. 

Sally is happy with this. She expects to generate $1,000,000 of sales. She agrees and signs.

This arrangement continues for 7 months. After this time the company advise Sally that they will pay her retainer for the remainder of the 12 month contract but will not renew. They also are changing their product range and the new product range will not include the products Sally has been selling so once she has sold the current stock there will be nothing more to sell.Sally is very unhappy now. She believes she has been made redundant and that the company should have consulted her on these changes in advance. Her employment agreement before this arrangement included redundancy.

Discuss whether Sally is an employee and therefore if she has the rights relating to be advised of changes which adversely affect her and to receive redundancy. (10 marks) 

Task 2:                                                                                                                                                    [15 marks]

1. Critique the process for the creation of a collective agreement, including the mediation and facilitation process. Refer to the relevant sections of the legislation. Your critique should discuss whether the process achieves the outcomes intended by the act, (including what happens if the process fails to reach an agreement). Refer to the relevant sections of the legislation(7 marks) 

1. Provide a brief explanation of how the existence of a collective agreement affects the process of employing the new employee. Provide your opinion on whether this is an effective mechanism to fully inform and protect the new employee. Refer to the relevant sections of the legislation  (3 marks) 

1. Analyze the process by which collective and individual employment agreements are varied. Include the rights of the employee when changes are made. In your answer also consider IF an employer can make minor and major changes. You do not need to consider variation clauses in the agreement. Set out the main principles only. Your analysis is more than a description. It should show how the law affects the rights and needs of the two parties. Refer to the relevant sections of the legislation (5 marks) 

Task 3:                                                                                                                                                                  [25 marks]

In this task you must create and analyze an employment agreement. You can use the employment builder on the employment NZ website for the agreement. You will need to make assumptions. You will also find one case where the court has considered issues in an employment agreement. Choose any area relating to any of the terms you include in your agreement.

The agreement is to be an individual employment agreement between. 

• The employer – a manufacturer of ice cream cones.
  • The business operates 24 hours per day, 7 days per week and there are shifts. The shifts are 12 hour shifts of 4 days on and 4 days off.
  • The position is an ice cream quality tester. This person takes samples of ice cream and, using a testing machine, tests the quality and records the outcomes.
  • Safety glasses and boots are to be worn at all times. Hair must be under a net and employees must wear overalls at all times.
  • The position will have a 90 day trial.
  • A probationary period will apply for 12 months while training.
  • The position is permanent full time.
  • Wages are the minimum wage to be reviewed at 6 months.
• Employee
  • Aged 23 

Your submission for this task is to be set out with answers in the following order.

1. A table analyzing the employment agreement. Do not print out the agreement from the web site. Use the website to assist your work, but use only this table for the agreement.  marks) 

1. Find and explain ONE case where the courts have considered the application of the terms of an employment contract. Set out the basic facts, a brief explanation of what the issue was and what the court decided. (5 marks)

Contract terms : Mandatory and those required for the facts ONLY.	Explanation of the terms effects. Why is it needed, how does it protect the employer and/or the employer. Refer to relevant sections of the appropriate act.
Case 1:   Name and citation in full	Analysis including the sections interpreted, basic facts, courts decision and how this affects the employment agreement.

1. Briefly summarize the facts and then analyse how the five tests were applied by the court in determining the status of Mr Bryson

Bryson was employed by Weta to make films after three-year contract.Bryson was seconded to three foot six ltd as an onset technician. Three foot six company referred to Bryson as an independent contractor through a written agreement. Bryson launched a complaint of being dismissed unfairly to the employment relations authority.

The organization denied that Bryson was not an employee. The court decided that Bryson was an employee and the law was considered to be in existence under the employment contract acts 1991. The court had taken into account the facts that Bryson was supplying his skills and labour.his skills were taught by the Three foot six. The equipment to be used was provided by the organization. Bryson did his work on day to day basis without delegating it to anyone.

Test applied

Integration test was used to test if Bryson was considered independent employee or was part of the business organization.Organization test, the relationship between Bryson and the organization, was Bryson part of the organization or was he working on his account.The intention of the parties. Whether the parties involved the relationship to be between the employer and employee relationship.

Multiple test.whether in all situation the relationship between the employer and the employee was indicated.Control test. The test looks into nature, and the degree of the control over the person alleged to be an employer.   (10 marks) 

1. Apply those tests and determine the status of the Sally in the following situation:

Sally has been employed to work on her terms, and as independent employee. She is not regarded as part and parcel of the organizations, instead she is working on her account. The circumstance and the relationship between Sally and the organization are indicated. Therefore the employee relation authority act found out that all was a contractor but not an employee. 

Sally has been employed by Agrotech Limited for five years as a sales representative. She drives a company car, manages 4 other salespersons, and is paid a salary of $85,000. Sally has been very successful, but she is unhappy with her pay rate. She feels that her value to the company is much more than she is paid and wants a share of the profit.

Sally meets with the directors, Bert and Ernie.  After some negotiation they agree the following contract for 12 months which can be renewed by agreement for a further 48 months.

• Sally will be paid a retainer of $25,000 per annum and for this she will be available to the company at any time and, during the contract, will not to work for any competitor.
• Sally will be paid a gross amount of 15% of the sales she generates.
• Sally will have control of her time and work, but must achieve sales of $750,000 per annum.
• Sally will employ an assistant to fulfill all administrative work.
• Sally will continue to work areas of New Zealand decided by the company.
• All equipment including cars are to be provided by Sally.

Sally is happy with this. She expects to generate $1,000,000 of sales. She agrees and signs.

Analysis of an Employment Agreement and Integration Test

This arrangement continues for 7 months. After this time the company advise Sally that they will pay her retainer for the remainder of the 12 month contract but will not renew. They also are changing their product range and the new product range will not include the products Sally has been selling so once she has sold the current stock there will be nothing more to sell. 

Sally is very unhappy now. She believes she has been made redundant and that the company should have consulted her on these changes in advance. Her employment agreement before this arrangement included redundancy.
Discuss whether Sally is an employee and therefore if she has the rights relating to be advised of changes which adversely affect her and to receive redundancy. 

Sally is an employee who has been hired on a contractual basis. She has been employed to carry out sales task only with a certain percentage of her pay rate. She is not considered as a permanent employee.

During employment contracts, there comes a time when there are some changes to be done regarding the employee contract. However, the agreement has to be done with the consent of both parties. Sally had to be informed of the changes being made to her employment contract.

The changes done to an employment contract can take the following forms,

• The agreement between the employer and the employee.
• A collective agreement that is a negotiation between the trade union and the employer.

Depending on the form that the agreement occurred, if it was a collective agreement the change will apply even if the contract employee is not a member of the trade union ("Changing terms and conditions of employment - Crossland Employment Solicitors", 2016).

Sally had the right to be informed of the changes to her employment contract.  (10 marks) 

Task 2:                                                                                                                                   [15 marks]

1. Critique the process for the creation of a collective agreement, including the mediation and facilitation process. Refer to the relevant sections of the legislation. Your critique should discuss whether the process achieves the outcomes intended by the act, (including what happens if the process fails to reach an agreement). Refer to the relevant sections of the legislation

Collective bargaining has been defined as the methodology through which problem of wages and employment conditions are resolved peacefully between the management and labor.

In New Zealand, the employment law has attracted significant interest from the business community, academics, and politicians ("Collective agreements » Employment New Zealand", 2016). The 1990employement relation was governed by the employment contract act, which was a minimalist regime that brought to an end the compulsory unionism and employment relations deregulation in a significant way.

The first move implemented by the labor government was the introduction of the employment relation bill which was purposed to build employment relationships that are productive, through mutual trust promotion and confidence promotion in all the employment environment aspects. The proposal was received with various reactions from the business community, who expressed fear at the perceived shift of unionism favoring in a massively way, while the national party predicted the comeback of the industrial strife. On the other hand, the government viewed the bill as the inequality redressing power between the employees in the employers.

Collective Bargaining in New Zealand

However, the bill failed to attain the various parties’ prediction, and the amendment was done on the law. The Employment Relation Act was amended .some of the recommendation for the change was, the prevention of the employer from advising the employee not to be included in the collective bargaining agreement. The cabinet suggested that all parties in the multi-union or the multi-employer are obligated to attend to one bargaining meeting after the initiation of the bargaining ("New Zealand - The Employment Law Review - Edition 8 - The Law Reviews", 2015).  (7 marks) 

1. Provide a brief explanation of how the existence of a collective agreement affects the process of employing the new employee. Provide your opinion on whether this is an effective mechanism to fully inform and protect the new employee. Refer to the relevant sections of the legislation

The 30day rule focused on employees who are not union members to be employed based on the collective agreement terms and conditions for their first 30 days on the job. Upon the completion of the thirty days, the employee and the employer could agree on the individual change if they saw a fit. In my perspective, this method was not useful, because it gave no chance to employees who are not in the union to negotiate for the individual agreement from the start of the employment if they saw a fit. This did not protect the new employees. Amendment to the Employment Relation act 2000.(3 marks)

1. Analyze the process by which collective and individual employment agreements are varied. Include the rights of the employee when changes are made. In your answer also consider IF an employer can make minor and major changes. You do not need to consider variation clauses in the agreement. Set out the main principles only. Your analysis is more than a description. It should show how the law affects the rights and needs of the two parties. Refer to the relevant sections of the legislation

Under the Employment Relation Act 2000, comprises of two employment agreement, the individual, and collective agreement.

The individual employment agreement is majorly based on the negotiation between the employer and an individual and bind only the two parties. The agreement must contain the employee names and employee, work description to be performed, work hours, pay rates and workplace and the clause setting out the employer process that will follow in limited circumstances.

A collective agreement is based on the negotiation between the employers. It is only binding to the employees who are the members of the union and in whose position covered by the collective agreement coverage clause (Jenna, 2014). Must contain the union and employers names. Contain the employment relationship clause for problem resolution.  (5 marks)  

Task 3:                                                                                                                                   [25 marks]

In this task you must create and analyze an employment agreement. You can use the employment builder on the employment NZ website for the agreement. You will need to make assumptions. You will also find one case where the court has considered issues in an employment agreement. Choose any area relating to any of the terms you include in your agreement. 

The agreement is to be an individual employment agreement between. 

• The employer – a manufacturer of ice cream cones.
  • The business operates 24 hours per day, 7 days per week and there are shifts. The shifts are 12 hour shifts of 4 days on and 4 days off.
  • The position is an ice cream quality tester. This person takes samples of ice cream and, using a testing machine, tests the quality and records the outcomes.
  • Safety glasses and boots are to be worn at all times. Hair must be under a net and employees must wear overalls at all times.
  • The position will have a 90 day trial.
  • A probationary period will apply for 12 months while training.
  • The position is permanent full time.
  • Wages are the minimum wage to be reviewed at 6 months.
• Employee
  • Aged 23 

Your submission for this task is to be set out with answers in the following order. 

1. A table analyzing the employment agreement. Do not print out the agreement from the web site. Use the website to assist your work, but use only this table for the agreement.

JOB TITLE	The employee is being employed as an ice cream quality tester
Duties	Take samples of ice cream and using a test machine, test the quality and records the outcomes
Permanent or part-time	The employee will commence his work on the 4th April 2018 and continue until the termination of the relationship by either the employer or the employee.
Trial period	The first 90 days of the employment will be employee trial period, commencing from the first day of work. Within the trial period, the employer has the right to do the following, dismiss the employee, give the employee notice.
Flextime	The employee will be working for 24 hrs. per days, seven days per week and there will be shifts,12 hrs. per day, four days on and four days of between 6 am and 6 pm.The employees can select the time they want to work.
Policy and Procedure	The employee should be made aware of all the systems and standards of the employer. The employee has an obligation of ensuring they follow the rules to the latter, failure to which they will face disciplinary action ("Employment agreement builder » Employment New Zealand", 2015).
Requirements	Boots and safety glasses to be worn at all times Hair must be under a net The employee must wear overalls at all times
Agree to terms and conditions	Full name Signature by employee

1. 
   Find and explain ONE case where the courts have considered the application of the terms of an employment contract. Set out the basic facts, a brief explanation of what the issue was and what the court decided. (5 marks)

Contract terms : Mandatory and those required for the facts ONLY.	Explanation of the terms effects. Why is it needed, how does it protect the employer and/or the employer. Refer to relevant sections of the appropriate act.
Employer and employee names	Employment contract terms are required in an employment contract to aid in solving any issue that may arise during the contract period. The contract term act as a guide to solving the employment contract problem.
Description of the task to be performed.
Explanation on the method of solving employment relationship problems.
Trial periods, probation periods and availability provision.
Nature of the employment
Case 1:   Name and citation in full NZ Public Service Association Inc v Auckland City Council [2003] 1 ERNZ 57   ("A Paper by Chief Judge Graeme Colgan of the Employment Court to the LexisNexis Employment Law", 2016)	Analysis including the sections interpreted, basic facts, courts decision and how this affects the employment agreement. The employer had commissioned a review of the expenditure. The union was afraid that the recommendation supposed adopted could affect its member's employment. The court decided that although some of the employment court findings were reversed on appeal, it concluded that there was a potential restructuring that would affect employees was not altered.

References

A Paper by Chief Judge Graeme Colgan of the Employment Court to the LexisNexis Employment Law. (2016). Employmentcourt.govt.nz. Retrieved 24 March 2018, from 

Changing terms and conditions of employment - Crossland Employment Solicitors. (2016). Crossland Solicitors. Retrieved 24 March 2018, from 

Collective agreements » Employment New Zealand. (2016). Employment.govt.nz. Retrieved 24 March 2018, from 

Employment agreement builder » Employment New Zealand. (2015). Employment.govt.nz. Retrieved 24 March 2018, from 

Employment Agreement Builder. (2015). Eab.business.govt.nz. Retrieved 24 March 2018, from 

Jenna, R. (2014). "Developments in Collective Bargaining Since 2004" [2008] CanterLawRw 6; (2008) 14 Canterbury Law Review 159. Nzlii.org. Retrieved 24 March 2018, from

Law changes to collective bargaining | Ministry of Business, Innovation and Employment. (2016). Mbie.govt.nz. Retrieved 24 March 2018, from 

New Zealand - The Employment Law Review - Edition 8 - The Law Reviews. (2015). Thelawreviews.co.uk. Retrieved 24 March 2018, from 

Payment of wages. (2018). Eab.business.govt.nz. Retrieved 24 March 2018, from 

Things an agreement must contain » Employment New Zealand. (2016). Employment.govt.nz. Retrieved 24 March 2018, from