Employment Relations: Assessing a workplace

What is direct discrimination?

Direct discrimination is relevant to each area of public life described in the Act and includes: not being given an employment opportunity; not being given access to a place or service; being treated less favourably or being subjected to a detriment. Indirect discrimination occurs where any conduct or practice has the effect of discriminating against a person(s) even though it may appear to be neutral.

What does the Human Rights Act say about age in employment?

In employment (includes pre-employment and advertising):

• It is unlawful to discriminate against employees, job applicants, voluntary workers, people seeking work through an employment agency and contract workers because of someone's age. Discrimination by partnerships, professional or trade associations, qualifying bodies and vocational training bodies is also unlawful.
• Since 1 February 1999 it has been unlawful to discriminate on the ground of age in employment against people 16 years or over.

What does the Privacy Act say about the purpose personal information may be collected for?

Personal information shall not be collected by any agency unless—

• The information is collected for a lawful purpose connected with a function or activity of the agency; and
• The collection of the information is necessary for that purpose

What does the Information for Employers section of the Employment Relations Service web pages say is the goal of the ERA?

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

Who is 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. 

What does the Minimum Wage Act say about employees aged 16 years or more?

Employees aged 16 years or more must be paid the statutory minimum wage.

What can an employee who is being paid less than the minimum rate do?

Any employee who is being paid less than the minimum rate in the Minimum Wage Act can make a complaint to a Labour Inspector.

How does the Equal Pay Act define ‘unlawful discrimination’?

No employer shall refuse or omit to offer or afford any person the same terms of employment, conditions of work, fringe benefits, and opportunities for training, promotion, and transfer as are made available for persons of the same or substantially similar qualifications employed in the same or substantially similar circumstances on work of that description by reason of the sex of that person.

What does the Department of Labour say about employment agreements?

Every employee employed after 2 October 2000 must have a written employment agreement. It can be either an individual agreement or a collective agreement. There are some provisions that must be included in employment agreements by law, and there are also a number of minimum conditions that must be met regardless of whether they are included in agreements. Employment law also provides a framework for negotiating additional entitlements.

What does section 3.1 of the Department of Labour agreement builder say about the nature of casual employment agreements?

Casual Individual Employment Agreement (Intermittent)

This Employment Agreement is an individual employment agreement entered into under the Employment Relations Act 2000. The parties to this agreement agree that the nature of the relationship is a casual "as required" employment relationship. The Employer agrees to provide reasonable notice to the Employee regarding when they will be requested to perform duties and the Employee agrees to take reasonable steps to be available for work during [specify time]. The duration of this casual agreement is as follows:
(i)  This casual agreement shall continue in force until such time as it is terminated by either party pursuant to the termination clause in this agreement.

Casual Individual Employment Agreement (Fixed Period)

This Employment Agreement is an individual employment agreement entered into under the Employment Relations Act 2000. The parties to this agreement agree that the nature of the relationship is a casual "as required" employment relationship. The Employer agrees to provide reasonable notice to the Employee regarding when they will be requested to perform duties and the Employee agrees to take reasonable steps to be available for work during [specify time]. The duration of this casual agreement is as follows:
(i)  The Employer and the Employee are entering into the casual agreement for a fixed period. This period shall start on [insert start date or event] and shall end on [insert end date or event]. The reason for the fixed period is [insert reason for the fixed period].

What does section 6.1 on the Department of Labour agreement builder say about hours of work for casual workers?

Casual Employment with no minimum number of hours of work

The parties agree that because the Employee is being employed on an as required basis, the Employee has no fixed hours of work, nor any minimum number of hours of work. The hours of work and days to be worked will be as agreed between the Employer and Employee from time to time. The Employee shall take all reasonable steps to be available when required.

Casual Employment with a minimum number of hours of work guaranteed but no minimum hours for any one period of work

The parties agree that because the Employee is being employed on an as required basis, the Employee has no fixed hours of work. However, the Employer agrees to offer to the Employee at least [insert number] hours per week. The Employee shall take all reasonable steps to be available when required.

Casual Employment with a minimum number of hours of work guaranteed and a minimum period for any one session of work

The parties agree that because the Employee is being employed on an as required basis, the Employee has no fixed hours of work. However, the Employer agrees to offer to the Employee at least [insert number] hours per [insert week, fortnight or appropriate cycle]. The Employer also agrees that where the Employee is offered work, the period of any one session of work shall not be less than [insert number] hours. The Employee shall take all reasonable steps to be available when required.

What does the Department of Labour say about collective agreements?

Collective agreements are agreements that cover two or more employees who are union members. Only registered unions and employers can bargain for collective agreements. If you are involved in bargaining for a collective agreement, you will need to check that you follow the correct procedures.

The Employment Relations Act 2000 requires employers and unions to bargain in good faith over collective agreements. This includes requirements to meet, and to consider and respond to each other's proposals. It also means that employers and unions must conclude a collective agreement unless there is a genuine reason based on reasonable grounds not to conclude the agreement.

What does the Department of Labour say about what an employer must do when bargaining with individual employees?

Whenever you are forming or varying an individual employment agreement or negotiating additional terms to a collective agreement (in one or other of the situations set out below) you must bargain with the employee in good faith. This involves:

1. giving the employee a copy of the proposed agreement or proposed variation or additional terms
2. informing the employee of their right to seek advice and giving them a reasonable opportunity to do so
3. considering and responding to issues that the employee raises.

In following this process you should put yourself in a position to assure yourself that the employee understands the terms of the employment agreement. Particular care should be taken if the employee is young or in emotional distress. Care should also be taken if the employee has a mental, educational or communication disability. Should it later be found that an agreement was unfairly imposed, it can be cancelled or varied by the Employment Relations Authority.