Probationary Periods in Employment Agreements - Should Employers Use Them?
Now that employers with 20 or more employees do not have the ability to dismiss those employees who are ‘not working out’ under the 90 day trial period clause, they need to decide whether they should implement the less powerful but more labour intensive probationary periods in their employment agreements.
An employer may require a newly hired employee to serve a period of probation to give the employer an opportunity to evaluate the employee’s performance before confirming the appointment.
Availability Provisions in Employment Agreements
The 2016 amendments to the Employment Relations Act 2000 introduced rules around when and how an availability provision can be included in an employment agreement. However there has been uncertainty as to how broadly the rules could be applied. The case of Fraser v McDonald’s Restaurants (NZ) Limited [2017] was the first landmark case to assess whether availability provision rules were engaged or infringed. Since then there has been debate over whether these rules apply to just ‘zero hours’ workers and or whether they apply to all employees.
Increasing Awareness and Protection for New Employees
Many recent and upcoming key changes to the Employment Relations Act 2000 (the ‘Act’) are aimed at strengthening union and collective bargaining rights. They also increase awareness and protection for new employees, particularly where their new role is covered by a collective agreement (CEA).
Collective Agreements
A recent landmark Employment Court decision confirmed the Employment Relations Authority (“ERA”) can exercise its discretion to fix the provisions of a collective agreement. The fixing of a collective agreement by the ERA is unprecedented and a first for New Zealand. The Court’s decision released this week was “one of the rare sort” which required a “game-breaker”. The effect of such a determination to fix a collective agreement means that ratification, and signing by the parties, is not required.
The Importance of Employment Agreements
In our everyday work it is still a common occurrence for us to see employees who do not have written employment agreements and employers who have not provided written employment agreements to their staff. We also from time to time see of employment agreements that are outdated or contain illegal provisions .
