Legal Considerations

Legal Considerations

As people managers it is important to have a working knowledge of the legal framework (see below) governing employment in New Zealand including the various rights and obligations of employers and employees. You should know how to interpret employment agreements and understand the common law duties implied into all employment agreements as well as the differences between employee v contractor. The employment law summaries section gives you a ‘plain English‘ overview of the main provisions in each of 16 Acts of Parliament which cover employment matters from ACC and Holidays Act 2003 to the Human Rights Act. There are special legal considerations when you are involved in discipline, warnings and dismissal. You should also know how to handle any dispute over terms and conditions of employment. Finally the definitions (glossary) lists over 30 commonly used employment relations terms from ‘abandonment of employment’ to ’without prejudice’. As a general principle, as with all legal matters, if you don’t know for sure take good advice.

Legal Framework

At its most basic level the relationship between employer and employee is a “contract of employment” representing a commercial transaction in which the buyer (employer) enters into an agreement (contract) for the services of the seller (employee). In other words, underlying any formal agreement negotiated under the Employment Relations Act, there is a legally enforceable common law contract of employment. This contract is sometimes known as a “contract of service” because it involves an obligation on the employee’s part to serve the employer. The three sources of rights and obligations in every employment relationship are;

  • Express Terms i.e. Employment Agreements: The individual employment agreement (IA), or Collective agreement (CA) signed by the parties when the employment relationship begins. These are sometimes known as the express terms because they capture the expressed intent of the parties to the employment relationship. See employment agreement interpretation.
  • Incorporated Terms i.e. Statute Law: The Acts of Parliament (and accompanying regulations) which prescribe minimum terms with which parties in the employment relationship must comply. These are known as the ‘Incorporated Terms’ because they are automatically incorporated into the employment relationship by Parliament. See employment law summaries.
  • Implied Terms i.e. Common Law: Comprising legal principles and precedents arising through decisions made and principles established by the courts. These are known as the ‘Implied Terms’ because, although not documented in an employment agreement or statute, they will be implied by the courts as duties or obligations of the parties in any employment relationship. See common law duties

Employment Law Summaries

There are a number of important statutes (Acts of Parliament) which have an impact on you as manager. These create rights and obligations for both you and your team. It is important to remember that as a principle an employer and employee cannot contract out of statutory rights and obligations. In other words if there is a conflict between your employment agreement or some other agreement you’ve made with your employee and their statutory entitlements the statutory entitlement will prevail. We have provided plain English summaries of the 16 main the pieces of legislation that impact employment. Read more….

Legal Considerations – Discipline, Warnings, Dismissal

Employees can legally challenge their dismissal or disciplinary action taken against them. If they do so we need to be able to demonstrate both that we had good cause for the action taken and that our process was fair. Read more…..

Definitions (Glossary)

Employee relations is something of a technical area with its own vocabulary and a range of terms with a defined special meaning. For an explanation of these terms Read more….