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55-813: The New Zealand Employment Relations Act 2000 (sometimes known by its acronym, ERA ) is a statute of the Parliament of New Zealand . It was substantially amended by the Employment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001 and by the ERAA (No 2) 2004. The original statute governing employment relations in New Zealand was the Industrial Conciliation and Arbitration Act 1894 (ICAA). It remained in force for 80 years from 1894 to 1973. In 1973,

110-557: A $ 450 gold tie-pin on a flight. 18 months later, the Employment Relations Authority ordered Air NZ to pay for the tie-pin. Employers are also vicariously liable for damages caused by employees in the course of their employment. Section 65 of the ERA states that individual employment agreements must be in writing. An employment agreement must contain: If an employer does not provide a written employment agreement,

165-488: A clause that states an employee must work overtime when requested. If this is the case then a refusal to work overtime is a breach of the employment agreement. If there is no clause regarding overtime, then the 40 hours per week is the maximum set by the Minimum Wage Act. Employment Agreements of salaried employees often contain a clause like this: The salary/wages for this position cover all time worked in meeting

220-419: A person who buys material from a provider to make shirts at home and then sells the shirts back to the provider, and persons intending to work, that is, those who have accepted a job offer but not yet started working. It specifically excludes volunteers. The ERA does not cover the relationship between principal and contractor or between contractor and sub-contractor. When the nature of the employment relationship

275-471: A sales rep was given a company car but wasn't achieving sales targets or satisfactorily accounting for his time so the employer covertly installed a GPS tracking device in his car to monitor his movements, and discovered that most of his days were spent at golf courses around Auckland. The employee was dismissed and he challenged his sacking by appealing to the Privacy Commissioner, claiming

330-625: A worker as either an employee or an independent contractor. The case concerned whether or not the Employment Court had erred in law by determining that Bryson was an employee of Three Foot Six Ltd. The decision has been made redundant in the film industry by the passage in 2010 of the Employment Relations (Film Production) Amendment Act during the production of The Hobbit . Bryson, a hobby model-maker for twenty years had worked for Weta Workshops in 1996 and 1997 before working for them again in 1998 and in 2000 to make models for The Lord of

385-532: Is a presumption that the job will be kept open for the employee taking leave. Three pieces of legislation cover discrimination in the workplace. The Equal Pay Act 1972 made different pay rates for men and women doing the same job illegal. The Human Rights Act 1993 made discrimination on 13 grounds illegal. They are : sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origin, disability, age, political opinion, employment status, family status, or sexual orientation. Section 103 of

440-749: Is also used to refer to an International treaty that establishes an institution , such as the Statute of the European Central Bank , a protocol to the international courts as well, such as the Statute of the International Court of Justice and the Rome Statute of the International Criminal Court . Statute is also another word for law. The term was adapted from England in about the 18th century. In

495-416: Is how to organize published statutes. Such publications have a habit of starting small but growing rapidly over time, as new statutes are enacted in response to the exigencies of the moment. Eventually, persons trying to find the law are forced to sort through an enormous number of statutes enacted at various points in time to determine which portions are still in effect. The solution adopted in many countries

550-406: Is in doubt the Employment Court "must consider all relevant matters" pertaining to the nature of the relationship. (section 6(3) a). Independent contractors are not covered by the ERA. Whether a worker is an independent contractor or an employee can be difficult to determine. In Bryson v Three Foot Six Ltd (2003) & (2005), the Employment Relations Authority decided Bryson was a contractor but

605-473: Is to organize existing statutory law in topical arrangements (or "codified" ) within publications called codes , then ensure that new statutes are consistently drafted so that they add, amend, repeal or move various code sections. In turn, in theory, the code will thenceforth reflect the current cumulative state of the statutory law in that jurisdiction. In many nations statutory law is distinguished from and subordinate to constitutional law . The term statute

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660-1012: The Third Labour Government brought in the Industrial Relations Act 1973 (IRA). In 1987, the Fourth Labour Government brought in the Labour Relations Act 1987 (LRA). In 1991, the Fourth National Government brought in the Employment Contracts Act 1991 (ECA). It was in force from 15 May 1991 to 2 October 2000 when it was repealed by the Fifth Labour Government and replaced with the ERA 2000 . The ICAA and IRA gave

715-464: The autonomous communities of Spain , an autonomy statute is a legal document similar to the constitution of a federated state , save that it is enacted by the national legislature, rather than the autonomous community it governs. The autonomy statutes in Spain have the rank of ley orgánica (organic law), a category of special legislation reserved only for the main institutions and issues and mentioned in

770-513: The Court or the Authority— (a) must consider all relevant matters, including any matters that indicate the intention of the persons; and (b) is not to treat as a determining matter any statement by the persons that describes the nature of their relationship. The majority of the Court of Appeal had overturned the Employment Court judgment on the basis that it contained an error of law. Judge Shaw,

825-588: The ERA adds 3 more prohibited grounds to the 13 in the Human Rights Act. They are sexual harassment, racial harassment and discrimination due to union activities. Unless employees are knowingly acting unlawfully or deliberately disobeying instructions employers have a common law duty to honour contracts or promises that employees make on their behalf. Employers also have a duty to indemnify employees for losses and reimburse them for reasonable expenses. In October 2005, an Air New Zealand flight attendant lost

880-465: The ERA was introduced in 2000 the Government's policy statement stated that it is ... based on the understanding that employment is a human relationship involving issues of mutual trust, confidence and fair dealing, and is not simply a contractual, economic exchange. This basis requires specific recognition of the relationship – something not satisfactorily achieved by general contract law. Most of

935-434: The ERA. Section 4 states that the parties must deal with each other in good faith. In Telecom South Ltd v Post Office Union (Inc) (1991) the contract of employment was described as "a special relationship under which workers and employers have mutual obligations of confidence, trust and fair dealing." A contract of employment is not the same as a commercial contract as it resembles a fiduciary relationship in some ways. When

990-470: The Employment Court and the Supreme Court decided he was an employee. The Employment Court may consider the following factors when deciding when a person is an employer or a contractor. The Employment Court also recognises that relationships can change over time. In Excel Corp Ltd v Carmichael (2003), the worker started as a contractor but over time became an employee, whereupon he was covered by

1045-573: The Employment Court decision contained no error of law, the Court of Appeal had not been empowered by the Employment Relations Act to allow it to be challenged, let alone overturned. On 29 October 2010 the New Zealand Parliament passed the Employment Relations (Film Production) Amendment Act under urgency after pressure from the makers of The Hobbit . The law changed the definition of employee in section 6 of

1100-513: The Employment Court in 2003 Judge Shaw decided Bryson was an employee. On appeal by Three Foot Six, a majority of the Court of Appeal overturned the Employment Court decision and restored the decision of the ERA. Bryson took the matter to the Supreme Court on appeal. Justice Blanchard delivered the Supreme Court's unanimous decision allowing Bryson's appeal and restoring the decision of

1155-421: The Employment Court judgment. Firstly, Judge Shaw was said to have "erred in saying that s 6 changed the tests for determining what constitutes a contract of service". Justice Blanchard retorted that, "We are unable to find in her judgment anything concerning s 6 which does not appear faithfully to reflect the words of the section." The Supreme Court ruled that "all relevant matters" referred to in section 6 of

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1210-408: The Employment Court said that employees engaged in "safety-sensitive" areas, such as flying planes, could be drug tested. In MUNZ and Ors v TLNZ and Anor the Employment Court said the drug testing policy must be "reasonable in all the circumstances". A serious breach of any one of the duties by the employee allows the employer to fire the employee. A breach of these duties by the employer that causes

1265-552: The Employment Court. The key issue in this case concerned sections 6(2) and 6(3) of the Employment Relations Act which stated, (2) In deciding for the purposes of subsection (1)(a) whether a person is employed by another person under a contract of service, the Court or the Authority (as the case may be) must determine the real nature of the relationship between them. (3) For the purposes of subsection (2),

1320-441: The Employment Relations Act includes, Secondly, it was alleged Judge Shaw had "fell into error in saying that the real nature of the relationship could be ascertained by analysing the tests that have been historically applied such as control, integration, and the “fundamental” test." Justice Blanchard disagreed, "She correctly used them, in conjunction with the other relevant matters to which she referred, in an endeavour to determine

1375-419: The Employment Relations Authority decided that a female worker who had viewed 2 pornographic images at work in three days, and complained about them to her supervisor, had not been provided with a safe and secure workplace "free of avoidable harm", due to the employer's failure to deal with the second pornographic image. The employee was eventually dismissed after being absent from work on long-term sick leave. She

1430-578: The Employment Relations Authority decided that some Ukrainian sailors, who entered into their employment agreements in Russia and were working on a Russian registered ship in NZ waters for a NZ-based charter were entitled to get the NZ minimum wage while in NZ waters. However, the armed forces, judges, the NZ SIS , and to some extent the police are not covered. The ERA specifically includes homeworkers, for example,

1485-589: The Employment Relations Authority is an investigative body that examines the facts of the case, as opposed to legal technicalities, in seeking to resolve problems with the parties' employment relationship. Section 144 established the Mediation Service, which was hosted by the Department of Labour until 2012, when the department ceased to exist and the role was transferred to the Labour Group of

1540-620: The Health and Safety in Employment Act 1992, employees are also required to ensure a safe working environment. They must also take care not to damage the employer's property and equipment. An employee who damages their employer through deliberate misconduct or negligence may be sued by the employer for compensation. There are many ways in which courts have held that employees have breached this duty. Employees can not : Employers may also try to prevent employees competing with them after

1595-1043: The Industrial Court and the Industrial Commission which was replaced in 1977 by Arbitration Court. The LRA had the Labour Court and the Arbitration Commission. The ECA had the Employment Court and the Employment Tribunal. The ERA established the Employment Court , the Employment Relations Authority , and the Mediation Service . The judges of the Employment Court are appointed by the Governor-General on

1650-573: The Rings . In April 2000, Bryson was seconded to a temporary position at Three Foot Six, although after two weeks work he was offered a permanent position as an on set model technician. Bryson was not given any form of written employment agreement when he began work at Three Foot Six. In October 2000 Three Foot Six gave all crew a written contract which referred throughout to "Contractor" and "Independent Contractor" and Bryson continued to work for Three Foot Six through 2001 before being made redundant at

1705-626: The Wages Protection Act 1983 most employers must pay wages in cash unless they have written consent to do otherwise. Employers may only make deductions required or permitted by statute or with the written consent of the employee. Under the Health and Safety in Employment Act 1992 the employer has a duty to ensure that the workplace is safe for employees, contractors and visitors. In Williams v Dunedin City Ford (Unreported, Employment Relations Authority, Christchurch, 19 September 2007)

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1760-607: The advice of the Attorney-General (section 200). Section 187 of the ERA gives the Employment Court jurisdiction over all matters relating to employment disputes. The Employment Court is a court of record and has equal standing to the High Court of New Zealand. The members of the Employment Relations Authority are appointed by the Governor-General on the advice of the Minister (section 167). Section 157 states that

1815-466: The boss, which included obscenities and personal abuse, did not amount to serious misconduct, at least when the boss contributes to the dispute. On the other hand, in December 2007, the Employment Relations Authority found that a sports journalist who told his editor to leave "his f...ing copy alone" was fairly dismissed. The rugby league journalist had received warnings about his behaviour before. Under

1870-497: The company had been underhand in installing a GPS device in his car without his knowledge. The commissioner upheld the employer's right to use it since the company had reasonable grounds to suspect that the employee was behaving dishonestly. Most of the duties and obligations that fall on employees are not found in the ERA but in other statutes or in common law. Employees must be ready, willing and able to perform their job as specified in their employment agreements. Employees must have

1925-519: The constitution (the highest ranking legal instrument in Spain). Leyes orgánicas rank between the constitution and ordinary laws. The name was chosen, among others, to avoid confusion with the term constitution (i.e. the Spanish constitution of 1978). Bryson v Three Foot Six Ltd Bryson v Three Foot Six Ltd was a decision of the Supreme Court of New Zealand regarding the real status of

1980-456: The duties and obligations that fall on employers are not found in the ERA but in other statutes or in common law. Section 65(2) of the ERA requires the employer to set out in writing the rate payable to employees. The Minimum Wage Act 1983 sets the minimum wage. The Minimum Wage Act also applies to workers who are being trained, as an Auckland Subway sandwich branch recently discovered when it tried to pay new workers in training $ 5 an hour. Under

2035-556: The employee has left the company by including restraint of trade provisions in the employment agreement. However these provisions are only enforceable if a court decides they are reasonable in terms of the parties' interests and the public interest. In an unreported case in September 2007, the Employment Relations Authority decided that a clause that prevented a hair stylist from soliciting or dealing with any customers from his old workplace for 3 months after he had left his old workplace,

2090-457: The employee to resign allows the employee to sue for constructive dismissal . Employees can only be fired if the employer has a good reason and has followed a fair procedure. Good reasons for firing employees include : Statute The word "statute" is derived from the late Latin word "statutum", which means 'law', 'decree'. In virtually all countries, newly enacted statutes are published and distributed so that everyone can look up

2145-563: The employer is entitled to conclude that the employee has "abandoned the employment". However, the employer should make an effort to contact the absent employee. Employment agreements often contain an abandonment clause. Employees must obey instructions so long as the instructions are lawful, are not dangerous, and are within the scope of their employment agreement. Employees cannot refuse dangerous tasks that are an inherent part of their work. e.g. nurses providing treatment to someone with an infectious disease. An employment agreement may contain

2200-414: The end of September 2001. Bryson raised a personal grievance alleging unjustified dismissal, an action that can only be brought if Bryson is found to be an employee and not a contractor. The matter of whether Bryson was an employee was dealt with as preliminary question. At first instance the Employment Relations Authority (ERA) found Bryson to be a contractor but when the matter was heard de novo in

2255-450: The evidence of industry practice. Three Foot Six's fourth argument, that Judge Shaw was wrong to say there was no evidence of Bryson acting as a separate business entity when tax invoices existed, was swatted down by Justice Blanchard who reasoned that, "She plainly, and in our view correctly, felt that it did not provide any support for the respondent’s case". The last submission of counsel was, "that no reasonable Judge could have reached

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2310-740: The longest hours in the Western world – 1826 hours a year, compared with the OECD average of 1778. In response, the Flexible Working Arrangements Act was passed on 21 November 2007. It aims to allow employees who are also caregivers to request more flexible working hours. Employees can be sacked for serious misconduct. However, in November 2007, the Employment Authority decided that having a shouting match with

2365-434: The majority had held, was said to have ascertained the real nature of the arrangement by the three traditional tests which, the majority judgment said, left little scope for significant weight to be placed on contractual intention. The Judge had downplayed this. The majority was also critical of the way in which she had seen the industry context as having limited significance. Her approach in effect involved “a claim to require

2420-491: The maximum fine is $ 5,000 for an individual or $ 10,000 for a company. A good employment agreement should also have clauses covering the term of employment, protection of the employer's confidential information, leave (statutory and non-statutory), redundancy, termination of employment, serious misconduct, suspension, and where applicable, clauses covering probationary periods, targets and bonuses, and restraint of trade. Covert surveillance of employees by employers does not breach

2475-406: The most power to a government agency to force employers and employees to reach an agreement. The ECA gave the most freedom to employers and employees to reach agreement without government intervention. The LRA, the ERA 2000 and the ERAA 2004 lie in the middle of this spectrum. Each Act established a court or institution to settle industrial disputes. The ICAA had the Court of Arbitration. The IRA had

2530-434: The newly formed Ministry of Business, Innovation and Employment . Section 164 (b) says that the parties should have tried to solve their problems before going to the Employment Relations Authority. Almost all employees in NZ are covered by the ERA (section 6). The ERA covers persons who do any work for payment for an employer under a contract of service. Payment may include commissions, piece rates, salaries, or wages. In 2007

2585-448: The performance requirements and the employee is not entitled to additional payment for time worked outside the normal hours specified. However, where a significant number of additional hours are worked, the employer will, if possible allow the employee to take time off in compensation for the additional hours worked. As a result, 20% of New Zealanders work more than 50 hours a week. An OECD study shows that New Zealander's now work some of

2640-418: The principle of good faith if it is done in accordance with the law. Legislation allows employers to use cameras and other methods of surveillance without the knowledge of staff if there was reasonable suspicion that a crime was being committed, if the equipment was used for the specific purpose of investigating that crime and if the equipment is removed immediately after the crime has been solved. In one case

2695-556: The real nature of the relationship, as directed by s 6(2)." Thirdly, it was alleged Judge Shaw, "disregarded industry practice". Again Justice Blanchard failed to find that this was the case, The question for this Court is whether the Court of Appeal majority was correct in holding that what the Judge said in relation to industry practice amounted to legal error. We do not believe that it was. She did not overlook or ignore

2750-423: The required skill and necessary qualifications to perform the work. They must give personal service to their employer and not get another person to work in their place. Part 6 of the ERA allows workers to preserve their working conditions if they choose to transfer to a new employer through restructuring. If an employee doesn't show up for work for 3 or 4 consecutive days and fails to inform his or her employer, then

2805-450: The restructuring of the way in which the film industry operates.” During the hearing Justices of the Supreme Court had raised issue with counsel that the Court of Appeal may have been incorrect in concluding that Judge Shaw's decision, "contained any error of law which could appropriately have been the subject of appeal to that Court". Counsel for Three Foot Six responded to the Supreme Court by stating that there were five errors of law in

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2860-402: The same overall conclusion as Judge Shaw in finding that the relationship between the parties was of employment by Mr Bryson under a contract of service." Justice Blanchard, failed to find merit in this line of attack, as the evidence as a whole did leave it open to Judge Shaw to find that the real nature of the relationship between Bryson and Three Foot Six was one of employment. Therefore, as

2915-408: The statutory law. This can be done in the form of a government gazette which may include other kinds of legal notices released by the government, or in the form of a series of books whose content is limited to legislative acts. In either form, statutes are traditionally published in chronological order based on date of enactment. A universal problem encountered by lawmakers throughout human history

2970-490: Was awarded $ 10,000 for lost salary and $ 7500 as compensation for distress. The Holidays Act 2003 gives employees 11 public holidays, 4 weeks of annual leave, 5 sick days, and 3 days bereavement leave. The Parental Leave and Employment Protection Act 1987 gives employees 14 weeks (though increasing to 16 weeks as of 1 April 2015) of government funded parental (maternity) leave (maximum $ 504 per week). Employees may also take an additional 38 weeks extended leave for child care. There

3025-438: Was reasonable. The stylist's new workplace was 50 metres from the old one. Employers can unilaterally introduce drug testing in the workplace if it is "reasonable" and the employer should consult with employees before introducing the policy. Two useful cases on drug testing in the NZ workplace are NZ Amalgamated Engineering and Manufacturing Union v Air New Zealand Ltd and MUNZ and Ors v TLNZ and Anor . In NZAE&MU v AirNZ

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