Starting work and negotiating an agreement
Negotiating an individual employment agreement
Negotiating an individual agreement: What you and your boss have to do
Employment Relations Act 2000, ss 4, 60, 63A
If you and your employer are negotiating a new individual agreement or negotiating any specific new terms, you must deal with each other in good faith. This duty of good faith includes not misleading or deceiving each other.
Employers also have some other specific obligations when negotiating individual agreements, and this applies both to existing employees negotiating new agreements (or changes to an agreement) and to prospective employees. In these situations the employer must:
- give you a copy of the proposed agreement, and
- tell you that you have the right to seek independent advice about the agreement, and give you a reasonable opportunity to get it, and
- consider any issues you raise, and respond to them.
What can I do if the negotiation process hasn’t been fair?
Employment Relations Act 2000, ss 68, 69
If you think your employer has taken unfair advantage of you in negotiating an individual agreement, you may be able to take action against them with the ERA.
You’ll need to show that what happened amounted to “unfair bargaining,” which means:
- that you couldn’t adequately understand the agreement or its implications because of your age or because of an illness, a mental or educational disability, a disability that affects communication, or emotional distress, or
- that you relied on your employer’s skill, care or advice, or
- that you were convinced to enter into the agreement by unfair means like improper threats or pressure, or
- that your employer didn’t give you the information they’re required to when negotiating individual agreements (for example, a copy of the agreement), or didn’t give you the opportunity to get legal advice as they’re required to.
You’ll also need to show that your employer was aware of the relevant situation, or should have been aware of it.
For more information about the ERA and the kinds of decisions it can make, see: “Resolving employment problems”.
Do I have to tell employers about my criminal convictions?
Criminal Records (Clean Slate) Act 2004, s 7
If you’re applying for a job and they ask if you have a criminal record, you don’t have to tell the employer about any convictions for minor offences that are seven or more years’ old. This is called the “clean slate” policy. There are some other conditions you must meet to qualify for the right to withhold your criminal record in these situations. For example, you must never have been sentenced to prison, you must never have been disqualified indefinitely from driving, and you must have paid any fines or reparation in full.
Some types of jobs require you to tell the employer about convictions, whenever you got them – for example, police officers, probation officers, and roles dealing with the care and protection of children. In those cases, the clean slate policy doesn’t apply.
If you’ve got criminal convictions that aren’t covered by the clean slate policy, you don’t have to tell your employer or potential employer about them unless they ask.
If they do ask you directly, you should answer the question honestly. If you give false information, they might have grounds to fire you. To be able to fire you, they would have had to state in your offer or employment agreement what the consequence of not telling them about your criminal convictions would be. They still have to follow a fair process and consider your explanation before they make that decision.
The employer can either make the job offer or employment agreement conditional on you getting a satisfactory criminal check, or they can wait for the check to be completed before deciding to make you a job offer.
For more information about the clean slate policy, see: “The clean slate scheme”.
What is the difference between a criminal record check and police vetting?
An employer can only do a criminal record check on you if you agree in writing. A Ministry of Justice “Criminal Conviction History” won’t show any convictions that are covered by the clean slate policy. A more detailed police vetting process covers all convictions and interactions with the police.
Be wary – some employers might ask you to consent to the police vetting process when the Ministry of Justice form is all that’s really necessary. You can come into a Community Law Centre for advice about whether your employer is allowed to ask for a full police vet.
Can my boss stop me working for other employers?
Employment Relations Act 2000, s 67H
Your employment agreement might have a restraint of trade clause (for example, that stops you from working for other similar companies or for your employers clients). Restraint of trade clauses are allowed, but they can only be enforceable if there are genuine reasons for why they are required.
These reasons must be set out in your employment agreement. Genuine reasons can involve protecting your boss’s business knowledge or commercial reputation, or preventing an unmanageable conflict of interest.
