It is often said that the biggest asset an organisation has is its employees. Hiring good employees can enhance the organisation and its business significantly. The converse is also true; hiring problem employees can cause ongoing difficulties between the employer and employee.
In this document we attempt to set out some hiring practices that can help you to avoid some common problems encountered when hiring employees.
Good faith in the hiring process
The Employment Relations Act requires employers and employees to act in good faith towards each other. The requirement to treat people in good faith is important at all times during an employment relationship and particularly during the hiring process. This means that job applicants and employers need to deal with each other honestly and openly and not mislead or deceive each other.
It is illegal to discriminate when hiring an employee on the grounds of:
- Ethnic or national origin
- Sex (including the gender of the person and including whether they are pregnant or not)
- Marital family status
- Religious or ethical belief
- Political opinion
- Employment status
- Sexual orientation
- Direct or indirect involvement in activities with a union
The effect of the Privacy Act
Any information an employer receives during the course of the hiring process must be dealt with in accordance with the Privacy Act. This means that the information should be held by an employer for no longer than is required to assess the applicant’s suitability for the job. Employers should not keep job applications or curriculum vitae on file for future use unless the applicant gives their permission.
Offering employment when a collective agreement applies
Where a new employee is a member of a union that is a party to a collective agreement, then the collective agreement will automatically cover the employee’s terms of employment.
The new employee may be offered additional or better terms so long as they are consistent with the collective agreement.
Where a new employee is not a member of a union that is a party to a collective agreement, then the job offer should state that for the first 30 days of that person’s employment, the new employee will be employed on an individual employment agreement on the same terms as those in the collective agreement. The new employee can be offered additional terms so long as those additional terms are consistent with the collective agreement.
If during those 30 days the new employee joins the union that is a party to the collective agreement, then the collective agreement will continue to apply to that employee as will any other agreed terms that are consistent with the collective agreement.
If the new employee chooses not to join the union during this 30 day period, the individual agreement will remain in place unless other terms are agreed to by the employer and the employee after the 30 day period ends. In that case the agreed terms may be inconsistent with the collective agreement.
Offer of employment
When offering employment to an employee, an employer must:
- Provide the employee with a written copy of the proposed employment agreement
- Advise the employee that they are entitled to seek independent advice about the agreement
- Give the employee a reasonable opportunity to seek that advice
- Consider any issues that the employee raises and respond to them
Terms of employment agreement
All individual employment agreements must be in writing. They are also required to contain the following core terms:
- The names of the parties
- A description of the work to be performed
- An indication of the place the employee is to work
- An indication of the hours the employee is to work
- The wages or salary payable
- A plain language explanation of the services available for resolving employment relationship problems
Fixed term employment agreements
A fixed term employment agreement can only be entered into if there are genuine operational reasons based on reasonable grounds for there being a fixed term. It is good practice to record in the employment agreement that it is a fixed term and the reasons for that.