Employment Contract Terms and Collective Bargaining

The assignment discusses the necessity of employment contract terms in resolving employment relationship problems, including trial periods, probation periods, and availability provisions. It also delves into the nature of employment and the requirements for an employment agreement. The analysis includes a reference to a specific court case (NZ Public Service Association Inc v Auckland City Council [2003] 1 ERNZ 57) and relevant legislation. The assignment provides a comprehensive overview of the topic, making it a valuable resource for students studying employment law in New Zealand.

Assignment 2 (30%)
(Total 60 marks) DUE week 6
Learning outcomes (30%)
NZDB
LO 3 - Legal provisions to analyze the employment agreement for nature of the
relationship
LO 4 - Legal provisions for the creation of employment agreement
Bachelor of Applied Management
LO 3 - Interpret and apply the main legislative provisions and common law principles
involved in the development of employment agreements and in offers of employment and
variation to agreements
Task 1. [20
marks]

Find the following case:
Three Foot Six Ltd v Bryson (2005) 7 NZELC 97,653, [2004] 2 ERNZ 526 (CA)
a. Briefly summarize the facts and then analyse how the five tests were applied by the
court in determining the status of Mr Bryson
Bryson was employed by Weta to make films after three-year contract.Bryson was
seconded to three foot six ltd as an onset technician. Three foot six company referred
to Bryson as an independent contractor through a written agreement. Bryson
launched a complaint of being dismissed unfairly to the employment relations
authority. The organization denied that Bryson was not an employee. The court
decided that Bryson was an employee and the law was considered to be in existence
under the employment contract acts 1991. The court had taken into account the facts
that Bryson was supplying his skills and labour.his skills were taught by the Three
foot six. The equipment to be used was provided by the organization. Bryson did his
work on day to day basis without delegating it to anyone.
Test applied
Integration test was used to test if Bryson was considered independent employee or
was part of the business organization.
Organization test, the relationship between Bryson and the organization, was Bryson
part of the organization or was he working on his account.
The intention of the parties. Whether the parties involved the relationship to be
between the employer and employee relationship.

Multiple test.whether in all situation the relationship between the employer and the
employee was indicated.
Control test. The test looks into nature, and the degree of the control over the person
alleged to be an employer.
(10 marks)
b. Apply those tests and determine the status of the Sally in the following situation:
Sally has been employed to work on her terms, and as independent employee. She is
not regarded as part and parcel of the organizations, instead she is working on her
account. The circumstance and the relationship between Sally and the organization
are indicated. Therefore the employee relation authority act found out that all was a
contractor but not an employee.
Sally has been employed by Agrotech Limited for five years as a sales representative. She
drives a company car, manages 4 other salespersons, and is paid a salary of $85,000. Sally
has been very successful, but she is unhappy with her pay rate. She feels that her value to the
company is much more than she is paid and wants a share of the profit.
Sally meets with the directors, Bert and Ernie. After some negotiation they agree the
following contract for 12 months which can be renewed by agreement for a further 48

months.
 Sally will be paid a retainer of $25,000 per annum and for this she will be available to
the company at any time and, during the contract, will not to work for any competitor.
 Sally will be paid a gross amount of 15% of the sales she generates.
 Sally will have control of her time and work, but must achieve sales of $750,000 per
annum.
 Sally will employ an assistant to fulfill all administrative work.
 Sally will continue to work areas of New Zealand decided by the company.
 All equipment including cars are to be provided by Sally.
Sally is happy with this. She expects to generate $1,000,000 of sales. She agrees and signs.
This arrangement continues for 7 months. After this time the company advise Sally that they
will pay her retainer for the remainder of the 12 month contract but will not renew. They also
are changing their product range and the new product range will not include the products
Sally has been selling so once she has sold the current stock there will be nothing more to
sell.
Sally is very unhappy now. She believes she has been made redundant and that the company
should have consulted her on these changes in advance. Her employment agreement before
this arrangement included redundancy.
Discuss whether Sally is an employee and therefore if she has the rights relating to be advised
of changes which adversely affect her and to receive redundancy.

Sally is an employee who has been hired on a contractual basis. She has been employed to
carry out sales task only with a certain percentage of her pay rate. She is not considered as a
permanent employee.
During employment contracts, there comes a time when there are some changes to be done
regarding the employee contract. However, the agreement has to be done with the consent of
both parties. Sally had to be informed of the changes being made to her employment
contract.
The changes done to an employment contract can take the following forms, The agreement between the employer and the employee. A collective agreement that is a negotiation between the trade union and the
employer.
Depending on the form that the agreement occurred, if it was a collective agreement the
change will apply even if the contract employee is not a member of the trade union
("Changing terms and conditions of employment - Crossland Employment Solicitors", 2016).
Sally had the right to be informed of the changes to her employment contract.
(10 marks)
Task 2: [15
marks]
a. Critique the process for the creation of a collective agreement, including the
mediation and facilitation process. Refer to the relevant sections of the legislation.

Your critique should discuss whether the process achieves the outcomes intended by
the act, (including what happens if the process fails to reach an agreement). Refer to
the relevant sections of the legislation
Collective bargaining has been defined as the methodology through which problem of
wages and employment conditions are resolved peacefully between the management
and labor.
In New Zealand, the employment law has attracted significant interest from the
business community, academics, and politicians ("Collective agreements »
Employment New Zealand", 2016). The 1990employement relation was governed by
the employment contract act, which was a minimalist regime that brought to an end
the compulsory unionism and employment relations deregulation in a significant way.
The first move implemented by the labor government was the introduction of the
employment relation bill which was purposed to build employment relationships that
are productive, through mutual trust promotion and confidence promotion in all the
employment environment aspects. The proposal was received with various reactions
from the business community, who expressed fear at the perceived shift of unionism
favoring in a massively way, while the national party predicted the comeback of the
industrial strife. On the other hand, the government viewed the bill as the inequality
redressing power between the employees in the employers.
However, the bill failed to attain the various parties’ prediction, and the amendment
was done on the law. The Employment Relation Act was amended .some of the
recommendation for the change was, the prevention of the employer from advising
the employee not to be included in the collective bargaining agreement. The cabinet
suggested that all parties in the multi-union or the multi-employer are obligated to
attend to one bargaining meeting after the initiation of the bargaining ("New Zealand

- The Employment Law Review - Edition 8 - The Law Reviews", 2015).
(7 marks)
b. Provide a brief explanation of how the existence of a collective agreement affects the
process of employing the new employee. Provide your opinion on whether this is an
effective mechanism to fully inform and protect the new employee. Refer to the
relevant sections of the legislation
The 30day rule focused on employees who are not union members to be employed
based on the collective agreement terms and conditions for their first 30 days on the
job. Upon the completion of the thirty days, the employee and the employer could
agree on the individual change if they saw a fit. In my perspective, this method was
not useful, because it gave no chance to employees who are not in the union to
negotiate for the individual agreement from the start of the employment if they saw a
fit. This did not protect the new employees. Amendment to the Employment Relation
act 2000.
(3 marks)
c. Analyze the process by which collective and individual employment agreements are
varied. Include the rights of the employee when changes are made. In your answer
also consider IF an employer can make minor and major changes. You do not need to
consider variation clauses in the agreement. Set out the main principles only. Your
analysis is more than a description. It should show how the law affects the rights and
needs of the two parties. Refer to the relevant sections of the legislation
Under the Employment Relation Act 2000, comprises of two employment agreement, the
individual, and collective agreement.

The individual employment agreement is majorly based on the negotiation between the
employer and an individual and bind only the two parties. The agreement must contain the
employee names and employee, work description to be performed, work hours, pay rates and
workplace and the clause setting out the employer process that will follow in limited
circumstances.
A collective agreement is based on the negotiation between the employers. It is only binding
to the employees who are the members of the union and in whose position covered by the
collective agreement coverage clause (Jenna, 2014). Must contain the union and employers
names. Contain the employment relationship clause for problem resolution.
(5 marks)
Task 3: [25
marks]
In this task you must create and analyze an employment agreement. You can use the
employment builder on the employment NZ website for the agreement. You will need to
make assumptions. You will also find one case where the court has considered issues in an
employment agreement. Choose any area relating to any of the terms you include in your
agreement.
The agreement is to be an individual employment agreement between.
- The employer – a manufacturer of ice cream cones.

o The business operates 24 hours per day, 7 days per week and there are shifts.
The shifts are 12 hour shifts of 4 days on and 4 days off.
o The position is an ice cream quality tester. This person takes samples of ice
cream and, using a testing machine, tests the quality and records the outcomes.
o Safety glasses and boots are to be worn at all times. Hair must be under a net
and employees must wear overalls at all times.
o The position will have a 90 day trial.
o A probationary period will apply for 12 months while training.
o The position is permanent full time.
o Wages are the minimum wage to be reviewed at 6 months.
- Employee
o Aged 23
Your submission for this task is to be set out with answers in the following order.
a. A table analyzing the employment agreement. Do not print out the agreement from
the web site. Use the website to assist your work, but use only this table for the
agreement.
JOB TITLE The employee is being employed as an ice
cream quality tester
Duties Take samples of ice cream and using a test
machine, test the quality and records the
outcomes
Permanent or part-time The employee will commence his work on
the 4th April 2018 and continue until the

termination of the relationship by either the
employer or the employee.
Trial period The first 90 days of the employment will be
employee trial period, commencing from the
first day of work.
Within the trial period, the employer has the
right to do the following, dismiss the
employee, give the employee notice.
Flextime The employee will be working for 24 hrs.
per days, seven days per week and there will
be shifts,12 hrs. per day, four days on and
four days of between 6 am and 6 pm.The
employees can select the time they want to
work.
Policy and Procedure The employee should be made aware of all
the systems and standards of the employer.
The employee has an obligation of ensuring
they follow the rules to the latter, failure to
which they will face disciplinary action
("Employment agreement builder »
Employment New Zealand", 2015).
Requirements Boots and safety glasses to be worn at all

times
Hair must be under a net
The employee must wear overalls at all
times
Agree to terms and conditions Full name
Signature by employee
(20 marks)
b. Find and explain ONE case where the courts have considered the application of the
terms of an employment contract. Set out the basic facts, a brief explanation of what
the issue was and what the court decided.
(5 marks)
Contract terms : Mandatory and those
required for the facts ONLY.
Explanation of the terms effects. Why is it
needed, how does it protect the employer
and/or the employer. Refer to relevant
sections of the appropriate act.
Employer and employee names Employment contract terms are required in
an employment contract to aid in solving
any issue that may arise during the contract

period. The contract term act as a guide to
solving the employment contract problem.
Description of the task to be performed.
Explanation on the method of solving
employment relationship problems.
Trial periods, probation periods and
availability provision.
Nature of the employment
Case 1: Name and citation in full
NZ Public Service Association Inc v
Auckland City Council
[2003] 1 ERNZ 57
("A Paper by Chief Judge Graeme Colgan
of the Employment Court to the LexisNexis
Employment Law", 2016)
Analysis including the sections
interpreted, basic facts, courts decision
and how this affects the employment
agreement.
The employer had commissioned a review of
the expenditure. The union was afraid that
the recommendation supposed adopted
could affect its member's employment. The
court decided that although some of the
employment court findings were reversed on
appeal, it concluded that there was a
potential restructuring that would affect
employees was not altered.
References
A Paper by Chief Judge Graeme Colgan of the Employment Court to the LexisNexis

Employment Law. (2016). Employmentcourt.govt.nz. Retrieved 24 March 2018, from
https://www.employmentcourt.govt.nz/assets/Documents/Publications/Good-Faith-
Obligations-in-Practice.pdf
Changing terms and conditions of employment - Crossland Employment Solicitors. (2016).
Crossland Solicitors. Retrieved 24 March 2018, from
https://www.crosslandsolicitors.com/site/media/knowledge/changing-tcs-of-
employment/
Collective agreements » Employment New Zealand. (2016). Employment.govt.nz. Retrieved
24 March 2018, from https://www.employment.govt.nz/starting-employment/unions-
and-bargaining/collective-agreements/
Employment agreement builder » Employment New Zealand. (2015). Employment.govt.nz.
Retrieved 24 March 2018, from https://www.employment.govt.nz/starting-
employment/employment-agreements/employment-agreement-builder/
Employment Agreement Builder. (2015). Eab.business.govt.nz. Retrieved 24 March 2018,
from https://eab.business.govt.nz/employmentagreementbuilder/startscreen/
Jenna, R. (2014). "Developments in Collective Bargaining Since 2004" [2008] CanterLawRw
6; (2008) 14 Canterbury Law Review 159. Nzlii.org. Retrieved 24 March 2018, from
http://www.nzlii.org/nz/journals/CanterLawRw/2008/6.html
Law changes to collective bargaining | Ministry of Business, Innovation and Employment.
(2016). Mbie.govt.nz. Retrieved 24 March 2018, from http://www.mbie.govt.nz/info-
services/employment-skills/legislation-reviews/amendments-to-the-employment-
relations-act-2000/law-changes-to-collective-bargaining
New Zealand - The Employment Law Review - Edition 8 - The Law Reviews. (2015).
Thelawreviews.co.uk. Retrieved 24 March 2018, from
https://thelawreviews.co.uk/chapter/1140677/new-zealand