information for employees

Introduction

This section of the site has been developed to answer the basic questions employees ask us. 

We recognise that the employment relationship is not a simple one, and that many employees will deal rarely with specific issues. That is why we hope you will frequently access this as a resource to refer to as you maintain your present employment relationship or establish a one with a new employer. 

We would hope the Department of Labour website (http://www.ers.dol.govt.nz) becomes an early port of call. Our aim is to be available with assistance before questions become problems. The service we can provide ranges from brief telephone advice to written and online information, and formal investigative and mediation procedures. We want to play our part in helping you to make your employment relationship be as smooth and productive as possible, and hope you find the information on this, and other pages in our site, useful.

The goal of the Act is to build productive employment relations between employers, employees and unions.

We have grouped questions and answers around the main areas of employment law, and have sought to both provide brief information and give guidance on where to obtain more in-depth advice. This section is designed to answer some common questions employees may have about how to work with employment relations law.

Also, if you are an employee, or need information aimed specifically at employees, you can read this section to get an overview of the employment relations system from an employee perspective. There are appropriate links throughout to give you access to the more detailed information on the site.

Additionally, there is a lot of information on this web site about employees' employment rights, employment agreements, how to resolve workplace problems, collective bargaining, forming and ending employment relationships.  There is a site map setting out the contents of the complete site.

We welcome the opportunity to help you further. If you can’t find an answer to your question, or you want further clarification, more detailed information or guidance on any matter covered here, try a more detailed search or ask us a question.

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What is "good faith"?

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What pay and conditions am I entitled to?

Who is an employee, and who is not?

I'm starting a new job – how do I find out what I am entitled to?

Does my employment agreement have to be in writing?

How do I negotiate an individual agreement with my employer?

Can an employer offer me a fixed-term agreement?

Can an employer offer me a trial or probationary period?

Can I be engaged as a "contractor"?

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What if a union shows up at my workplace?

Do I have to join a union?

What happens to my conditions of employment if I do join a union?

What if I resign from the union?

How do I join a union?

What if I want to form a union?

Can I take time off for union activities?

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What are the rights and responsibilities of unions, union members and employers in relation to employment relations education and paid leave associated with that?

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What about strikes and lockouts?

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What about the minimum requirements for holidays and leave?

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What is parental leave?

Am I eligible for leave?

How much time off do I get?

What is the payment entitlement?

Must my employer agree to the leave?

How do I apply for leave or the payment?

What about adopting a child?

What if I am entitled to additional benefits?

What happens when I return to work?

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What are the statutory minimum wage rates and when do they apply?

What are the requirements for paying wages?

What wage records does my employer have to maintain?

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If I have a problem at work, how do I deal with it?

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What is "good faith"?

The establishment and maintenance of good faith relationships underpin the employment relations regime in New Zealand, for both collective and individual arrangements.

Working in good faith is using practical common sense and treating others in the employment relationship in a manner you yourself would wish to be treated. There is no single set of requirements, because all workplace situations differ. 

A Code of Good Faith has been developed to provide guidance on the concept of "good faith" in collective bargaining where a union is involved on behalf of your employees.

You may also find it useful to develop protocols in your workplace to ensure everyone understands what to expect of each other.

Get more information

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What pay and conditions am I entitled to?

You are entitled to pay and other conditions set down in two ways:

1. in laws that provide for minimum wages, annual holiday and public holiday rights, sick leave, bereavement leave, parental leave, and how your wages should be paid. These minimum rights (sometimes referred to as the minimum code) apply to all employees even if they have not actually been included in an employment agreement.
2. in your employment agreement, either
• negotiated by your union (called a collective employment agreement), together with any additional individual terms agreed between you and your employer; or
• between only you and your employer (called an individual employment agreement). You have the right to seek advice or support in negotiating your agreement.

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Employment agreements often include your pay rate (your hourly, weekly or monthly rate or your annual salary), other types of payments or allowances, when your pay day is and how you are paid, your meal and other breaks, your hours of work, any shift work or overtime or penalty payments, pay reviews, training, health and safety issues, processes for employers to consult you on things that affect you, the period of notice you must give if resigning, what conduct is required of you, what conduct is unacceptable, what happens in redundancy situations, and so on.

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Am I classed as an employee?

An employee is:

Anyone who has agreed to be employed, under a contract of service, to work for some form of payment. This can include wages, salary, commission and piece rates.

This includes:

• homeworkers
• people who have been offered and accepted a job
• fixed-term and seasonal employees
• casual and part-time employees
• probationary and trial employees. 

An employee is not:

• a self-employed or independent contractor
• a sharemilker or a real estate agent whose agreement says they are an independent contractor
• a volunteer who does not receive a reward for working. 

If in your industry you regularly call people by a different title, e.g. temporary rather than fixed-term, it still does not change their status as an employee.

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I'm starting a new job – how do I find out what I am entitled to?

You are entitled to get at least the minimum rights in law.

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For new employees, the rules are complex for the way your conditions of employment are established. It depends on your circumstances.

Your new employer and you need to ask yourselves this question:

Is there a collective agreement, negotiated by a union, which covers my job?

The simplest case is when there is no collective agreement covering your job: you and your new employer can bargain for an individual employment agreement.

When there is a collective agreement covering your job, and you are a member of the union that negotiated it, your conditions are those set out in that collective agreement. You and your employer may also negotiate extra conditions, but you cannot agree to anything less than what is in the collective agreement.

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When there is a collective agreement covering your job, and you are NOT a union member, then for the first 30 days on the job you have an individual employment agreement consisting of the conditions in the collective agreement. You and the employer may also negotiate extra conditions.

The employer must not discourage you from being covered by a collective agreement.

When offering you the job, your prospective employer must:

• inform you:
• that there is a collective agreement covering your job
• of your right to join the union and how to contact that union
• that, if you join the union, the collective agreement will apply to you
• that, if you do not join the union, your terms and conditions are those in the collective agreement for the first 30 days, along with any agreed additional or better terms
• give you a copy of the collective agreement
• if you agree, promptly inform the union that you have commenced work.

If you join a union that signed the collective agreement, your conditions must be those in the collective agreement, plus any extra conditions agreed.

If you do not join the union, after 30 days you and the employer can agree to changes. Neither of you, however, has to agree to changes if you don't want to.

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Does my employment agreement have to be in writing?

Yes. Both individual and collective employment agreements have to be in writing.

For an individual employment agreement, after you and your employer have agreed, your employer must give you a written individual employment agreement that contains:

• the employer's name and your name
• a description of the work you are to do
• an indication of where you will work and arrangements relating to your working hours
• your wage rates or salary
• a clause providing for at least time and a half for work on a public holiday
• in most cases, a provision setting out what steps the employer will take to protect employees if the employer sells or transfers their business or contracts out work
• a plain language explanation of the services available to help sort out any employment relationship problems.

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For a collective employment agreement, it must be in writing and be signed by each union and employer who are parties to it. It must contain:

• a coverage clause
• in most cases, a provision setting out what steps the employer will take to protect employees if the employer sells or transfers their business or contracts out work
• a plain language explanation of services available to help sort out employment relationship problems
• a clause stating how the agreement can be varied
• the expiry date (or the event that will trigger expiry), which must be no later than three years after the agreement takes effect.

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How do I negotiate an individual agreement with my employer?

Your employer can make you a written offer and give you a reasonable opportunity to get some advice about it. Equally, you can propose changes and your employer must consider them and respond to your proposals.

You must both bargain in a fair way.

Any agreements resulting from unfair bargaining may be cancelled or varied by the Employment Relations Authority. It may order compensation or cancel or vary an individual employment agreement in any of the following situations:

• one of the parties was unable to understand what they were agreeing to by reason of diminished capacity due (for example) to age, sickness, mental or educational disability, a disability relating to communication, or emotional distress
• one of the parties relied on the other's knowledge or skill
• one party unfairly pressured the other
• the employer did not allow the employee the opportunity to seek independent advice.

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Can an employer offer me a fixed-term agreement?

Yes, as long as the nature of the work is genuinely fixed-term. The employer must explain this to the employee at the outset and set out in the employment agreement how the employment will end and why.

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Can an employer offer me a trial or probationary period?

Yes, as long as the employer make this clear to you and it must be in writing. Also, at the end of the trial or probationary period, the employer cannot just say that things have not worked out and that you won't be kept on. Your employer would have to have a good reason for dismissing you.

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Can I be engaged as a "contractor"?

"Employees" and "contractors" are different because they have different rights in law.

The term "employee" does not include self-employed people who work for others under contracts to do particular jobs or services. These people are often referred to as "contractors" or independent contractors.

The law is different for self-employed contractors and this website does not have any information about the rights and obligations of self-employed contractors or the people who contract with them.

Sometimes, though it is not clear whether a person is an employee or a self-employed contractor. The Employment Relations Authority or Employment Court can decide if there is a dispute.

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What if a union shows up at my workplace?

Under the Employment Relations Act, unions have a legal right to enter workplaces. This can be either for purposes related to the employment conditions of its existing members or for legitimate union business. This includes recruiting new union members and discussing union business with existing members.

The law also requires employers to accept union representatives entering workplaces. Union representatives have to act in good faith when doing so. For example, union representatives must have regard to normal business operations and they have to give a reason for wanting to enter the workplace. Workplace discussions must be for a reasonable duration. You can choose to talk to them or you can choose not to. You can choose whether you wish to join a union or not. Your employer cannot deduct money from your pay for time spent in discussion with a union representative.

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Do I have to join a union?

No. As an employee, you have an absolute right:

• to choose to join a union or to choose to not join a union
• to join a particular union in preference to joining some other union
• to resign from a union.

It is illegal for anyone to use "undue influence" to try to make another person join or not join a union or to resign from a union. Also, your employer cannot advise or try to discourage you from being involved in collective bargaining.

No one can discriminate against you on the basis or your membership, or non-membership, of a union. 

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What happens to my conditions of employment if I do join a union?

If you are on an existing individual employment agreement and join a union that already has a collective agreement in your workplace, you are immediately covered by the collective agreement. You would also retain any existing specific employment conditions that are not inconsistent with the collective; for example you would retain an extra weeks leave that was in your individual agreement.

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What if I resign from the union?

If you are bound by a collective agreement and leave the union, but remain in your job, you are deemed to be employed under an individual employment agreement with the same terms and conditions as the collective. You and your employer may then negotiate changes to the terms and conditions, if you wish. 

However, you can't 'union-hop'. You can't join another union and be part of its collective agreement until 60 days before the expiry of the first union's collective agreement.

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How do I join a union?

The relevant union can advise you what you need to do to join. If a union or unions are present at your workplace, you will be able to find out contact details from union members or your union delegate. 

If not, the NZ Council of Trade Unions (CTU) has a Union Directory [external site] on their website listing the contact details of CTU-affiliated and non-affiliated unions, and a facility called Find Your Union [external site] which lists CTU-affiliated unions for specific industries or occupations.

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What if I want to form a union?

You can even choose to group together with other employees and form your own union, if you wish to. This choice is yours to make – it cannot be made by your employer (or anyone else) on your behalf and you cannot be forced by undue influence to join or not to join a union.

To register as a union and obtain the right to bargain for collective agreements a union must be independent of, and operate at arm's length from the employer. It must also have rules and structures that are democratic and allow for membership participation. Once employees have joined a union your employer must, if requested, enter into bargaining for a collective agreement with your union.

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Can I take time off for union activities?

Yes. All employers are required to allow union members to attend two union meetings per calendar year, of no longer than two hours each.

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What are the rights and responsibilities of unions, union members and employers in relation to employment relations education and paid leave associated with that?

Union members can take paid education leave to attend employment relations courses. These courses have to be approved by the Minister of Labour and help improve relationships between employers, employees and unions by improving their understanding of employment relations issues and best practice processes. 

The union allocates the education leave to its members depending on the number of its members in the workplace. If an employee is allocated leave employees should give at least 14 days notice of their intention to take leave. Good faith provisions also apply to these requests. Employers cannot unreasonably decline leave but leave can't be taken at a time that would unreasonably disrupt their business.

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What about strikes and lockouts?

Employees have the right to strike when negotiations around a collective agreement have broken down and the previous collective agreement has expired (and employers cannot discriminate against employees for taking lawful strike action). Employers have a similar right to lockout. There is a minimum negotiating period of 40 days before a strike or lockout can occur. The purpose of this period is to encourage parties to seek a negotiated settlement, rather than focusing on the use of industrial action too early in the negotiations. Strikes and lockouts are also permitted in pursuit of multi-employer or multi-union agreements. There are also rules for hiring replacement workers during a strike.

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What about the minimum requirements for holidays and leave?

There are a number of provisions that are established by legislation. These apply by law to all agreements, even if they have not been included in the employment agreement. An employee cannot agree to waive them, but you can negotiate better ones.

Annual leave

At the end of each year in your employment you become entitled to 4 weeks paid annual leave. The pay, which should be paid before the holiday starts, should be calculated at the greater of:

• your average weekly earnings
• your ordinary weekly pay. 

In many cases this calculation is simple, for example if you are a salaried worker, and earn the same amount each pay period. In cases where a calculation is required it is important that your employer keeps accurate wage & time records and holiday & leave records to ensure they can calculate the figure correctly. 

Leave should be taken at a mutually agreeable time, although your employer is allowed to specify a period where you are required to take leave (such as during a scheduled closedown of production, or where agreement cannot be reached), provided sufficient notice is given. 

Where you leave your employment before the full year is up, you are entitled to 8% of your before-tax earnings.

In some limited circumstances (for example, fixed term employment of less than 12 months), holiday pay can be paid on a 'pay as you go' basis. However, your agreement to this should be clearly recorded in writing, in order to show that you understand this arrangement, and it must be paid at 8% of your pay.  

Your pay-slips should also clearly and separately identify the 8% that you are receiving as 'pay as you go' holiday pay. 

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All employees (including casual employees, part-timers and employees on fixed-term agreements) are entitled to 11 paid public holidays if they fall on days you would normally work. Your employment agreement can provide for alternative days, but not for less than 11 paid public holidays, where these are days you would otherwise work.

Where you work on a public holiday, you must be paid at least time and a half for the time you work. If it is a day when you would normally have worked, you must also receive a paid alternative holiday.

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Sick Leave

After six months' employment you are entitled to five days' paid sick leave per year. Sick leave can be taken if you, your spouse or dependent child or parent is sick. If the leave is not used, it can accumulate up to a maximum of 20 days. Your employer can ask for proof of sickness in some circumstances.

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Bereavement leave

After six months' employment you are entitled to three days' paid bereavement leave on the death of certain immediate family members. You are also entitled to a day of bereavement leave on the death of any other person, where the employer accepts that a bereavement has occurred.

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What is parental leave?

Parental leave is time off work available by law to new parents. The leave is to provide you with the opportunity to care for your newborn baby or an adopted child under six years. Where parents are taking leave to care for a baby born or adopted, there is also a tax-funded payment available to you.

It is important to be aware that it is a breach of the Parental Leave and Employment Protection Act, and the Human Rights Act, for your employer to discriminate against a woman on the grounds of pregnancy.

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Am I eligible for leave?

Your employer is required to provide you (unpaid) time off work when, at the expected date of birth or adoption, you will have worked for them for:

• The immediately preceding 6 or 12 months, and you have not taken parental leave in the 12 months before the parental leave period, and 
• An average of 10 hours per week, on the basis of at least one hour every week or 40 hours every month in the 6 or 12 month period. 
• If you work an irregular employment pattern, the normal pattern of hours over the period is used to establish your average hours.

How much time off do I get?

Four types of unpaid leave are available to you. These are:

1. Up to 10 days special leave, which can be used before maternity leave begins to enable a pregnant woman to attend medical appointments, antenatal classes, etc. This unpaid leave is separate from, and additional to, the domestic/special leave provided for in the Holidays Act.
2. Up to 14 weeks maternity leave is available where the mother/primary caregiver has met the minimum hours test for the 12 months immediately preceding the expected date of delivery or adoption of a child
   
   You can start maternity leave up to 6 weeks before the birth. You can start earlier if your doctor or lead carer directs you to.

Your employer can also ask you to commence your leave at an earlier time for health and safety reasons, if you have a genuine inability to perform your normal duties. Alternatively, they can transfer you to another comparable position that would be safer for you. You and your employer can also agree to an earlier start date that is convenient to both of you.

3. Up to one week is available where the partner or father meets the minimum hours test for the six months immediately preceding the expected date of delivery or adoption of a child. This leave may be extended in some situations.
   
   Up to two weeks is available where the partner or the father meets the minimum hours test for the 12 months immediately preceding the expected date of delivery or adoption of a child.
4. Up to 52 weeks extended leave, from which any period of maternity leave will be deducted (e.g. if 6 weeks is described as maternity leave you both retain 46 weeks extended leave that you may share between you). This leave can be shared in any manner you choose, but must be taken in continuous periods. You can take leave simultaneously if you wish. This leave is only available to a mother and/or her partner if the hours of work test is met for their previous 12 months of employment.

What is the payment entitlement?

The law provides for a Government payment of up to $391.28 before tax for up to 14 weeks. The leave and payment can be shared with an eligible partner. The payment is to help replace your wages and you will receive this entitlement only when you take leave.
Inland Revenue credits the payment to your bank account on a fortnightly basis. It is subject to your normal tax rate, including student loan repayments.

When you wish to apply for the payment, you are required to complete an application form and send it to Inland Revenue. This form also requires your employer to confirm that you are entitled to payment (have met the eligibility criteria above) and your earnings.  

If you require assistance in making this calculation go to our paid parental leave calculator, or call Department of Labour free on 0800 20 90 20 for advice.

Must my employer agree to the leave?

Yes, the Act provides a right to leave to all eligible employees.

However, it does allow them to say that they are unable to keep your job open for them where it is a 'key position' and where you are seeking more than 4 weeks leave. The test of a key position is not whether it would be convenient to replace you with another permanent or contract employee for the period of leave, but whether it is necessary to do so. Necessity will depend on the circumstances of a particular position, including the size of their business and the requirements of your job. 

How do I apply for leave or the payment?

The Act states that at least 3 months before the expected date of birth, you should provide them with a written request for leave and a certificate confirming the date of birth. They are required to respond to the request within 3 weeks. 

Sample letters requesting leave, and for your employer's response to your request and, if necessary, advising you on your rights to paid parental leave, are available on this site. Many workplaces handle requests for leave on a more informal basis and this is fine, as long as you and your employer agree.

Your employer will be required to complete a portion of your application form for payment. There are two application forms, one for the mother or primary carer and a second for employees who have had the right to payment transferred to them from their partner. Both contain a section which requires the employer to confirm the details of the employee's period of service, hours of work, earnings, leave intentions and the fact that they have been satisfied that the expected date of delivery is correct.

They should complete these details as soon as possible. When they have, they should return it to you; it is your responsibility to forward the application form to Inland Revenue.

There is no requirement for your employer to inform Inland Revenue of the commencement of leave, birth of the child, or return to work of the employee.

What about adopting a child?

In some circumstances it will be impossible for you to provide clear notice of your intention to take leave. In these circumstances, you should use your best endeavours to keep your employer informed.

What if I am entitled to additional benefits?

If your employment agreement provides additional entitlements to payment or leave, these continue to apply. A more generous eligibility entitlement under the employment agreement (e.g. making leave available after three months or without a minimum requirement for hours worked) does not affect your eligibility requirements for the tax-based payment.

What happens when I return to work?

You are required to give 3 weeks notice of your intention to return to work. (If you return to work while receiving a parental leave payment, the payment stops and it is your responsibility to advise Inland Revenue).

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What are the statutory minimum wage rates and when do they apply?

The Government reviews and sets minimum wages each year. These minimum wages apply to all types of employees, including part-time employees, casual employees, homeworkers, and employees who are paid by commission or on a piece-rate basis. 

There are currently different levels for the minimum wage, depending on the employee's age and training levels. 

The levels applying from 01 April 2007 are: 

• Employees aged 18 and above = $11.25 per hour 
• Employees aged 16 or 17 = $9 per hour 
• Employees doing certain recognised industry training (of any age) = minimum training wage - $9 per hour - the same rate as the minimum youth wage.

As these rates change regularly it is worth contacting the Employment Relations Infoline on 0800 20 90 20 to check on the current minimum wage.

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What are the requirements for equal pay and opportunities?

Your employer cannot differentiate in pay rates between employees if the only difference is their sex.

Also, in most cases, they cannot discriminate in hiring, firing, pay, training or promotion on the grounds of race, colour, national or ethnic origin, sex or sexual orientation, marital or family status, employment status, age, religious belief or political opinion, or on the grounds of disability.

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What are the requirements for paying wages?

Generally if your employer wishes to pay your wages other than in cash, or make deductions from your wages, they must ensure either that they have your written agreement or that the matter is covered in your employment agreement.

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What records does my employer have to maintain?

Your employer is required to maintain wage and time records that contain: 

1. your name
2. your age, if under 20 years
3. your postal address
4. the type of work you do
5. the type of employment agreement, individual or collective
6. the title, expiry date and employee classification in any applicable collective agreement
7. where necessary to calculate pay, the hours and days of your employment in each pay period
8. your wages paid each pay day
9. details of your employment relations leave taken

You or your representative is entitled to see your wage and time records on request. A Labour Inspector can also request these records.

Your employer is required to maintain holiday and leave records which contain:

• the date on which employment commenced
• the days on which you work, if the information is relevant to entitlement or payment under the Holidays Act
• the date you last became entitled to annual holidays
• your current entitlement to annual holidays
• your current entitlement to sick leave
• the dates any annual holiday, sick or bereavement leave was taken
• the amount of payment for any annual holidays, sick leave and bereavement leave taken
• the dates and payment for any public holidays worked
• the number of hours worked on any public holiday
• the date on which you became entitled to any alternative holidays for any public holiday worked
• the dates and payment of any public holiday or alternative holiday on which you did not work, but for which you had an entitlement to payment
• the cash value of any board and lodgings provided to you
• the cash value of any alternative holidays that you have surrendered for payment
• the date of termination
• the amount of pay for holidays on termination.

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If I have a problem at work, how do I deal with it?

Problems arise from time to time in all workplaces, and in most cases common sense is your best tool.

It is important to have a clear idea of the issues, check the facts, and ensure that both you and your employer have the time and opportunity to take advice and think through the issues. An example about the advice that all employees must have in their employment agreements for dealing with employment relationship problems is provided for you. You should be aware of it and reflect it in your approach to emerging problems.

The earlier you deal with an issue, and the more you follow a process, the less likely you are to require outside assistance.

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