Minimum employment rights and obligations
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Minimum employment
rights and obligations
This booklet provides an overview of the minimum rights and
obligations that apply by law to employers and employees.
Employees can’t be asked to agree to less than the minimum rights.
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.
MB 11672B Dec 13
Ministry of Business, Innovation and
Employment (MBIE)
Hikina Whakatutuki − Lifting to make successful
MBIE develops and delivers policy, services, advice and regulation to support
economic growth and the prosperity and wellbeing of New Zealanders.
MBIE combines the former Ministries of Economic Development, Science +
Innovation, and the Departments of Labour, and Building and Housing.
Disclaimer
This document is a guide only. It should not be used as a substitute
for legislation or legal advice. The Ministry of Business, Innovation and
Employment is not responsible for the results of any actions taken on the
basis of information in this document, or for any errors or omissions.
ISBN 978-0-478-41313-7 (online)
ISBN 978-0-478-41314-4 (print)
Published January 2014
© Crown Copyright 2013
The Ministry of Business, Innovation & Employment takes no responsibility for the results of
any actions taken on the basis of this information, or for any errors or omissions.
www.mbie.govt.nz 0800 20 90 20
Employment agreements Every employee must have a written employment agreement. It can be either an individual agreement or a collective agreement (one involving a union). There are things that must be included in employment agreements by law. More information is available on the Ministry of Business, Innovation and Employment’s website, which also has a free online employment agreement builder (www.dol.govt.nz/ agreementbuilder). Minimum employment rights must be met regardless of whether or not they are included in an employment agreement or if the agreement states something less than a minimum entitlement. MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT MINIMUM EMPLOYMENT RIGHTS AND OBLIGATIONS 2
ƨƨ Right to work in New Zealand
Employers must ensure that the person they are employing has the
legal right to work in New Zealand.
The Ministry’s VisaView tool allows employers to confirm information about employees’
work entitlement. See www.immigration.govt.nz/visaview
ƨƨ Minimum pay Employers and employees may agree
to any wage rate as long as it is not less
Employees aged 16 years and than the applicable minimum wage rate.
over must be paid at least the ›› Starting-out workers are:
adult minimum wage rate, unless • 16- and 17-year-old employees who
they are starting-out workers or have not yet completed six months
trainees. of continuous employment with their
current employer.
All employees who are involved in training • 18- and 19-year-old employees who
or supervising other employees must be have been paid a specified social
paid at least the adult minimum wage rate. security benefit for six months or
Starting-out workers must be paid at least more, and who have not yet completed
the minimum starting-out wage rate, and six months continuous employment
trainees over 20 years of age must be paid with any employer since they started
at least the training minimum wage rate. being paid a benefit. Once they have
3 MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT MINIMUM EMPLOYMENT RIGHTS AND OBLIGATIONS
completed six months continuous There is no minimum wage for employees
employment with a single employer, aged under 16 but all other employment
they will no longer be a starting-out rights and entitlements still apply. When
worker and must be paid at least the looking at whether an employee who is
adult minimum wage. 16 years or older is a starting-out worker,
• 16- to 19-year-old employees who any time spent employed by an employer
are required by their employment before the employee turned 16 must
agreement to undertake industry be included when calculating the time
training for at least 40 credits a year that employee has been continuously
in order to become qualified for the employed.
occupation to which their employment Minimum pay rates are reviewed each year
agreement relates. and the current amounts are available on
›› Trainees are employees aged 20 years the Ministry’s website.
and over who are required by their
employment agreement to undertake ƨƨ Paying wages
at least 60 credits a year in an industry Legally wages must be paid in cash.
training programme in order to become To pay wages another way (e.g. direct
qualified for the occupation to which credit, cheque) employers must get their
their employment agreement relates. employees written agreement.
Minimum wage rates apply to Employees must give written
all employees whether full-time, consent before deductions can
part-time fixed-term, casual be made from their wages.
employees, working from home
Some deductions, like PAYE tax, student
and people paid totally or partly
loan and child support, are required by law
by commission or piece rates. and do not need written consent.
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT MINIMUM EMPLOYMENT RIGHTS AND OBLIGATIONS 4
Holidays & Leave
ƨKeeping
ƨ records ƨBreak
ƨ entitlements
Employers must keep an Employees are entitled to:
accurate record of an employee’s ›› one 10-minute paid rest break when
they work between two and four hours
time worked, payments, and
holiday and leave entitlements. ›› one 10-minute paid rest break and one
unpaid 30-minute meal break when
They must keep a signed copy of the they work more than four and up to
employment agreement or current signed six hours
terms and conditions, and must provide ›› two 10-minute paid rest breaks and
a copy on request to the employee. one unpaid 30-minute meal break
They should also keep copies of when they work more than six and up
agreements to transfer public holidays to eight hours.
or agreements to cash up annual holidays These requirements begin over again if
or copies of requests to transfer public an employee works more than eight hours.
holidays or request to cash up annual
Employers must provide appropriate
holidays that the employer did not agree
breaks and facilities for employees with
to.
babies who wish to breastfeed or express
For details on what information must be breast milk, where this is reasonable
recorded see the Ministry’s website. and practicable. These are unpaid breaks
unless the employer agrees otherwise.
5 MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT MINIMUM EMPLOYMENT RIGHTS AND OBLIGATIONS
ƨAnnual
ƨ holidays ƨPublic
ƨ holidays
At the end of each year of Employees are entitled to 11
employment with any one public holidays off work on pay, if
employer, an employee becomes they are days when the employee
entitled to four weeks’ paid would normally work.
annual holidays.
Employers must pay employees their
Employees can ask (in writing) to cash-up, relevant daily pay or average daily pay
up to one week of their annual holidays (if applicable) for the public holiday.
each year. Employers can’t pressure If an employee works on a public holiday
employees to cash up annual holidays and they must be paid at least time-and-a-
requests to cash up can’t be included in half for the time worked. If the public
employment agreements. holiday falls on a day they would normally
If an employee leaves before completing work, the employee is also entitled to an
a full year of employment, annual holiday alternative paid holiday.
pay would be 8% of their gross earnings, Employers and employees can agree
less any holiday pay already received. to transfer the observance of a public
Genuinely casual employees (those who holiday to another working day, to meet
work intermittently) and fixed term the needs of the business or individual
employees can agree to receive holiday employees. However, the number of public
pay on a “pay as you go basis” if certain holidays the employee is entitled to can’t
conditions are met. See the Ministry’s be reduced. The day the public holiday is
website for more information. transferred to is treated as a public holiday
for pay and leave purposes.
Employers can require employees to take
annual holidays during a closedown period The Ministry’s website has a list of public
(as can happen over Christmas/New Year), holidays and the Holidays & Leave Tool
providing they give at least 14 days’ notice. makes it easy to work out pay and
If an employer has a closedown period leave entitlements. (www.dol.govt.nz/
that includes public holidays, then the holidaytool).
employee is entitled to paid public holidays
if they would be otherwise working days
for them.
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT MINIMUM EMPLOYMENT RIGHTS AND OBLIGATIONS 6ƨSick
ƨ and bereavement leave
After six months an employee is
entitled to five days sick leave on
pay.
They are entitled to five days sick leave for
every 12 months after that. Sick leave can
be taken if the employee is sick or injured
or the employee’s spouse or partner is sick
or injured or if a person who depends on
the employee for care is sick or injured.
Employers must pay employees their
relevant daily pay or average daily pay (if
applicable) for sick leave.
Employers can request proof of the
illness, such as a medical certificate. If Employees may be entitled to parental
the employer asks for proof within the first leave if they have worked for the same
three days of the sick leave, the employer employer for an average of at least 10
is responsible for any costs the employee hours per week, and at least one hour in
might incur to gain this proof. Employers every week or 40 hours in every month,
can’t insist employees visit a particular for either the six or 12 months before the
medical practitioner. expected due date of their baby or the
After six months employees are entitled date they assume care of a child they
to paid bereavement leave of: intend adopting.
›› three days on the death of a spouse/ Employees who meet the six-month
partner, parent, child, sibling, employment eligibility criteria are entitled
grandparent, grandchild, or spouse/ to 14 weeks’ paid parental leave – some or
partner’s parent all of which can be transferred to a spouse/
partner if they also meet the six month
›› one day if their employer accepts
criteria.
they’ve suffered a bereavement
involving another person not included Employees who meet the 12-month
above. eligibility criteria, are also entitled to up to
52 weeks’ unpaid extended leave (less any
The Holidays & Leave Tool can help
parental leave taken). This can be shared
calculate sick leave and bereavement leave
with a spouse/partner if they also meet
entitlements.
the 12-month eligibility criteria.
ƨParental
ƨ leave A spouse/partner with six months’ service
Employees may be eligible for may be entitled to an additional one
weeks’ unpaid paternity/partner’s leave,
paid and unpaid parental leave and a spouse/partner with 12 months’
if they meet certain criteria. service may be entitled to two weeks’
The paid leave is funded by unpaid paternity/partner’s leave. To be
Government, not employers. eligible, the spouse/partner must meet the
minimum hours test above.
7 MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT MINIMUM EMPLOYMENT RIGHTS AND OBLIGATIONSUp to 10 days’ unpaid special leave for ƨEqual
ƨ pay and equal rights
pregnancy-related reasons is available for
a pregnant mother before parental leave Employers can’t discriminate in
begins. hiring or firing, paying, training
For help understanding entitlement to or promoting an employee
parental leave, or what to do with an because of race, colour,
application from an employee, see the national or ethnic origin, sex
Ministry’s website. The Parental Leave or sexual orientation, marital
Calculator www.dol.govt.nz/paidparental
or family status, employment
can calculate entitlements.
status, age, religious belief or
ƨOther
ƨ leave rights political opinion, disability, or
Employees may be entitled to other types participation in certain union
of leave, for example if they’ve been activities.
injured in a work accident or are training in
the armed forces.
ƨFlexible
ƨ working arrangements
Employees with caring responsibilities
have a statutory right to request a change
to their hours of work, days of work, or
place of work. Employers must consider a
request and can refuse it only on certain
grounds. See www.dol.govt.nz/worklife
for more information.
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT MINIMUM EMPLOYMENT RIGHTS AND OBLIGATIONS 8ƨUnions
ƨ
Employees have the right
to decide whether to join a
union and, if so, which union.
It is illegal for an employer (or
anyone else) to put unreasonable
pressure on an employee to join
or not join a union.
Once employees have joined a union,
employers must, if asked, enter into
ƨFixed-term
ƨ employees bargaining for a collective agreement with
that union.
Employers can offer fixed-term
employment if: Union members can attend two union
›› there are genuine reasons - like meetings (no longer than two hours
seasonal work, project work, or each) per calendar year on pay and during
where the employee is filling in for a normal working hours. They can require
permanent employee on leave employers to deduct union fees from their
wages and pay these to the union. Some
›› the employer tells the employee the
members may be entitled to paid leave to
reasons, how or when the employment
attend employment relations education
will end, and the employee agrees to
courses.
this in their employment agreement.
Unions must gain an employer’s consent
Like other employment agreements, fixed-
to visit a workplace. The employer can’t
term agreements must be in writing.
unreasonably withhold consent.
ƨTrial
ƨ periods See the Ministry’s website for more
information on unions and collective
Employers can make an offer of
bargaining, including strikes and lockouts.
employment that includes a trial
period of up to 90 days. ƨƨ Health and safety
Trial periods are voluntary, and must Employers must provide a safe
be agreed in writing and negotiated in workplace, with proper training,
good faith as part of the employment supervision and equipment.
agreement.
This duty includes identifying, assessing
An employee who is dismissed before
and managing hazards, and investigating
the end of a trial period can’t raise a
health and safety incidents. Employers are
personal grievance on the grounds of
also required to report serious injuries at
unjustified dismissal. They can raise a
work to the Ministry.
personal grievance on other grounds,
such as discrimination or harassment or Employees must take reasonable care
unjustified action by the employer. to keep themselves safe, and to avoid
causing harm to other people by the
Employees on trial periods are entitled to
way they do their work. Employees may
all other minimum employment rights.
9 MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT MINIMUM EMPLOYMENT RIGHTS AND OBLIGATIONSrefuse work likely to cause them serious ƨEmployment
ƨ relationship problems
harm and have the right to participate in
If an employment problem arises at work
improving health and safety.
employers and employees should firstly
ƨChange
ƨ and restructuring check the facts. They should talk to each
other to try to resolve the problem,
Employers must consult with possibly involving a support person or
employees about proposed union/association representative in the
decisions likely to have discussion. They can get information
about rights and obligations from the
an adverse effect on the
Ministry.
continuation of an employee’s
If the problem can’t be resolved by
employment.
talking, employees or employers can
They must provide information to affected contact the Ministry, on 0800 20 90
employees and give them an opportunity 20 where calls will be handled in a safe
to comment before making their decision. environment. This service is free.
Employers do not have to disclose Problems that remain unresolved can
confidential information if they have a be taken to the Employment Relations
good reason to withhold it. Authority or later to the Employment
Special rules apply to employees doing Court.
certain catering, cleaning, caretaking, ƨPenalties
ƨ
laundry and orderly work where their
employer’s business is sold or their There are financial penalties for not
work is contracted out or given to a new complying with employment laws, of up
contractor. to $10,000 for individuals and $20,000
for companies. An employer may be fined
or prosecuted for not complying with
workplace health and safety laws.
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT MINIMUM EMPLOYMENT RIGHTS AND OBLIGATIONS 10You can also read
