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 piece rates or other benefits.
Employees can’t be asked to agree to less than the minimum rights.
Every employee must have a written employment agreement. It can be either:
a collective agreement, this is binding on employees, employer/s and union/s
an individual agreement, this is binding between the employee and the employer.
Employers must make sure that everyone they employ has a legal right to work in New Zealand.
The minimum wage applies to all employees, whether they are:
working from home
paid fully or partly by commission or piece rates
Employees aged 16 years and over must be paid at least the adult minimum wage, unless they are ‘starting-out workers’ or ‘trainees’. Employees under 16 years old don’t have to get the minimum wage.
Employers and employees may agree to any wage as long as it is at least the minimum wage.
Employers must pay their employees in cash, except for the Crown and local authorities.
To pay wages another way – for example, direct credit or cheque – employers must get their employees’ written consent.
Employees must also agree in writing before employers can take money from their wages.
Although, employers must make some deductions by law, which don’t need the employee’s written consent; examples include PAYE tax, ACC, student loan repayments and child support.
Employers must keep a truthful record of an employee’s time worked, payments, holidays and leave taken, and other rights for seven years (even if the employment relationship has ended).
They must keep a signed copy of the employment agreement or current signed terms and conditions. If the employee asks for it, the employer must give them a copy.
Breaks are for rest, refreshment and personal matters.
Employees have the right to get set rest and meal breaks. How many and how long these breaks are depends on the hours they work, for example:
an eight-hour work day must have at least two 10-minute paid rest breaks and one 30-minute unpaid meal break.
Rest breaks are good for workplaces because they help employees work safely and productively.
Employers and employees should agree in good faith when and how long the employee takes their breaks.
If they cannot agree, the law sets out that the breaks must be in the middle of the work period, as long as it’s reasonable and practical.
An employee has the right to 4 weeks of paid annual holidays – also called annual leave – at the end of each year of continuous employment with any one employer.
Employees have the right to 11 public holidays. This means they get time off work on pay, if they are days when the employee would normally work.
Employers must pay employees their Relevant Daily Pay or Average Daily Pay for the public holiday.
If an employee works on a public holiday, they must be paid at least time-and-a-half for the time worked. ‘Time and a half’ means they are paid their usual hourly rate plus half of their usual hourly rate.
If the public holiday falls on a day they would normally work, the employee also has the right to an alternative paid holiday.
Employers and employees can agree to transfer the public holiday to another working day, to meet the needs of the business or individual employees.
Even so, the employee has the right to the same number of public holidays.
All employees have the right to 10 days of paid sick leave after they have 6 months of continuous employment or meet the ‘hours worked test’.
Employees have the right to 10 days of sick leave for every 12 months after that. They can carry over unused sick leave each year. The most sick leave they can carry over is 20 days.
Sick leave can be taken if:
the employee is sick or injured
the employee’s spouse or partner is sick or injured
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 for sick leave.
Employers can ask for proof of the illness, such as a medical certificate. If the employer asks for proof within the first 3 days of the sickness or injury, the employer must pay for the doctor’s appointment.
Employers can’t insist that employees visit a certain doctor.
All employees have the right to paid bereavement leave after they have 6 months.
An employee can take bereavement leave of:
three days per death of a spouse or partner, parent, child, brother, sister, grandparent, grandchild, or spouse or partner’s parent, and
one day per death if their employer accepts they’ve suffered a bereavement of someone not listed above.
Domestic violence is also called family violence. It can be physical abuse, sexual abuse or psychological abuse.
The Domestic Violence – Victims’ Protection Act adds legal protections in the workplace for people affected by domestic violence.
The Act gives employees affected by domestic violence the right to:
take at least 10 days of paid domestic violence leave. This is separate from annual leave, sick leave and bereavement leave.
ask for short-term flexible working arrangements. This can be for up to 2 months.
not be treated adversely in the workplace because they might have experienced domestic violence. This is discrimination.
Employees who have been affected by domestic violence can take paid domestic violence leave if:
they have six months’ current continuous employment with the same employer, or
they have worked for the employer for six months for:
an average of 10 hours per week, and
At least one hour in every week or 40 hours in every month.
Someone is affected by domestic violence if:
they have experienced domestic violence themselves
a child who is a victim of domestic violence lives with them, even if it’s not all the time
Employees get the right to parental leave and / or parental leave payments if they meet certain conditions.
Parental leave and parental leave payments are two different things and the rules for getting them are different.
Parental leave is leave from employment to look after a child, and includes:
primary carer leave
An employee gets parental leave from their employer. Employees have the right to parental leave if they meet either the 6-month or 12-month rule. If employees meet the:
6-month rule, they get 26 weeks of parental leave
12-months rule, they get 52 weeks of parental leave.
Employees may share extended leave with a partner who meets either the 6-month or 12-month rule.
Pregnant mothers have the right to up to 10 days of unpaid special leave for pregnancy related reasons before parental leave begins.
Parental leave payments are also called paid parental leave. The government pays parental leave payments to employees and self-employed people who qualify.
To get parental leave payments, you must qualify for primary carer leave.
To have the rights to parental leave payments, the worker must either:
be on parental leave, or
have stopped work during the parental leave payment period.
People who qualify for parental leave payments must apply to Inland Revenue (IR) by a certain time.
Employees may have the right to other types of leave. For example, if they’ve been injured in a work accident or are training in the armed forces.
All employees have the right to ask for changes to their hours of work, days of work, or place of work.
Employers must think about a request carefully and can refuse it only for certain reasons.
Employers can’t discriminate – or treat someone unfairly – when they are hiring or firing, paying, training or promoting an employee because of their race, colour, national or ethnic origin, sex or sexual orientation, marital or family status, employment status, age, religious belief or political opinion, disability, participation in certain union activities or if they are affected by domestic violence.
This also includes people who are applying for jobs.
Employers can offer fixed-term employment only if:
there are real reasons – like seasonal work, project work, or where the employee is filling in for a permanent employee on leave.
the employer tells the employee why, how or when the employment will end, and the employee agrees to this in their employment contract.
Like other employment contracts, fixed-term agreements must be in writing.
Effective 6 May 2019, 90-day trial periods can only be used by businesses with 19 or fewer employees.
Trial periods are voluntary, and employers and employees must discuss them in good faith. Employers and employees must agree to trial periods in writing as part of the employment agreement.
The employee must sign the contract before they start working.
An employee who is fired before the end of a trial period can’t raise a personal grievance on the grounds of unjustified dismissal.
But they can raise a personal grievance on other grounds, such as discrimination, unfair treatment, harassment or unjustified action by the employer.
Employees on trial periods have all other minimum employment rights.
Union representatives and employers must follow the law when working together.
A union is an organisation that supports employees in the workplace by speaking for them with employers.
Employees have the right to decide whether to join a union and, if so, which union. An employer or anyone else must not pressure an employee to join or not join a union.
Employers must provide a safe workplace, with proper training, supervision and equipment, at the employer’s cost.
This includes identifying, evaluating and getting rid of – or at least minimising – risks and hazards, and investigating health and safety incidents.
Employers also must report serious injuries at work to WorkSafe New Zealand. Employees must:
take reasonable care for their own health and safety
follow policies and procedures
avoid causing harm to other people by the way they do their work.
Employees may refuse to work when they believe that there are serious risks to their own health and safety or that of other people. Employees have the right to take part in improving health and safety at work.
Employers must consult in good faith with employees about decisions they’re thinking about that are likely to affect whether an employee still has a job.
Employers that break employment law may have to pay a penalty.
If the employer is an individual, they might have to pay a personal penalty of up to $50,000.
If the employer is a company or other body corporate, they might have to pay a penalty of either:
up to $100,000
three times the financial gain they made from breaking the law.
The employer might have to pay higher penalties for serious breaches of the law.
An employer might also be fined or prosecuted for not following workplace health and safety laws.
Disclaimer – Above information provides an overview of some of the minimum rights and responsibilities that apply by law to employers and employees.
For the latest and more detailed information please visit www.employment.govt.nz