#7960 - Types Of Employment And Employment Contracts - Labour Law

22nd March

Tuesday, 22 March 2011

12:00 p.m.

B. FORMATION, VARIATION, AND OPERATION OF THE CONTRACT OF SERVICE

1. Types of Employment and Employment Contracts

1. Permanent fulltime employment

• This is the default type of employment.

• Employment of indefinite duration.

• A variety of this is permanent part-time employment.

2. Casual employment

• As and when required basis.

• Each engagement/shift that the worker works constitutes a separate contractual relationship.

• The employer is never under any legal obligation to offer you more work; the employee is never obligated to show up for more work.

• Can be hard to determine whether you're dealing with casual work or permanent part-time work. This is particularly with 'regular casuals'. One can evolve into the other.

  • Butler

    • Farm hand. Found to be a true casual. No regularity or continuity in the work.

    • No expectation of continued work.

3. Fixed term employment

• Can be full or part time.

• S66 ERA

• There are different ways in which a term can be fixed.

  • Work which ends at a specified date.

  • Employment can end on the occurrence of a specified event. For example, replacement for maternity leave.

  • Completion of a specified project.

• There are rules about when you can have fixed term employment:

  • Have to have genuine reasons based on reasonable grounds. ("I'd like to try you out" does not count.)

  • Fixed term employment must be specified in writing.

  • Specification in writing of the way in which employment will end and the reasons for ending it in that way.

  • If this stuff isn't in writing, the default position is that the employee has permanent fulltime employment. See Clarke case.

• If you have fixed term employment and employment is supposed to end at a particular point ascertained in the contract, and the employee works beyond that point, the employee then enjoys permanent fulltime employment.

4. Probationary employment

• S67 ERA.

• Employer can require probationary period before employment becomes permanent.

• No legal requirement relating to how long the probationary period must be.

• Must be in writing.

• Employer has to help you to secure permanent employment - for instance giving you further training. Still have to get warnings, can't just be sacked.

• Easier to sack for non-performance, but still procedural requirements.

• Nelson Air Limited

  • Generally speaking, employment security is virtually identical between permanent and probationary employees.

  • But it is easier from a procedural point of view to sack probationary employees.

5. Trial employment

• New

• Employment on a trial basis.

• Employers can hire workers for trial period of up to 90 days, and sack worker at will during that time period.

• Can still sue for discrimination or breach of good faith.

• 2008 legislation applied to fewer than 20 employee workplaces. Amended to cover all work places of 20 workers and above.

6. Unpaid trial

• Extension of a job interview.

• No legal relationship.

2. Formal Requirements in the Employment Relations Act

• Collective agreements: agreements concluded between union and employer.

  • Not an employment agreement. But it does contain terms and conditions of employment which can be incorporated into a contract of service. The 30 day rule - if you are offered and take a job and there's a collective agreement in existence which contains a coverage clause that covers the work you've been hired to do, for 30 days you enjoy the same terms and conditions that union members get.

  • Must be in writing.

  • Must contain certain minimum provisions - s54(3) ERA.

    • Coverage clause

• Individual agreements

  • Must be in writing

  • Employers required to give employees written copies of intended agreement.

  • Must contain matters set out in s65(2)(a) ERA:

    • Names of employee and employer. Important to know employer's identity:

      • For suing purposes.

      • For searches on the Companies Register.

    • Description of work to be performed.

    • Where employee will perform work.

    • Working hours (indication).

    • Wages/salary.

    • Resolution of employment relations problems.

    • Fixed term, probationary and trial employment must be in writing. If not, default position of permanent full time employment exists.

  • However, existence/validity of employment relationship is not dependent on it being in writing. Warwick Henderson Gallery.

    • Oral employment agreement was enforceable.

    • Employee originally employed under written agreement for part time work.

    • Terms of contract verbally changed - now fulltime and different payment.

    • Employee sued for money owed under altered arrangement.

3. Formation of the Contract of Employment: Requirements of legally enforceable contract of service

• Must be agreement on basis of offer and acceptance.

• The effect of a counter of offer is to destroy the original offer.