If you’re in the process of recruiting new team members for next season, as well as making sure you’re going through a good recruitment process (are you selling your role well? are you attracting the right people to your role? how do you decide which of the CVs you’ve had in are worth looking at? how are you assessing what’s been presented to you, and how can you trust that it’s all true? are you reference checking? background checking? Aarrrggh, the list goes on!); you also need to make sure that your ducks are lined up in terms of your contractual and legal obligations as you do go through this process.
Employment law is increasingly complex and concerning for small business owners, many of whom ‘don’t know what they don’t know’, and have heard horror stories about how easily things can go wrong. But with the right advice and tools, you can protect your business and your team members alike.
We’ve reviewed the questions that we get asked most often at this time of the season around ‘signing up’ new team members, and we’ve summarised them below:
Do I have to have separate employment agreements for everyone who works for my business?
In a word, (and we cannot stress this enough) Yes!
You must give everyone who works for you a written employment agreement. Many of you who understand your obligations will be surprised to hear that we get asked this question a lot, but the reality is, we see a lot in the industry either not caring about or not understanding their obligations. Typical things we hear are:
But we’ve never had anything in writing, a handshake’s always been good enough around here
It’s the neighbour’s kid, he only milks every Sunday morning for us
He’s the farm manager and his wife helps him out on the farm most days, yes we pay her an hourly rate for the work she does, but she’s just under his agreement, isn’t she?
I’m only employing them for a season, so I should use a fixed term agreement, right?
It depends on if you have a genuine reason for only employing them for a season, or if you’re using it on a ‘if I like you I’ll roll your job over to next season’ kind of basis. There still tends to be a misconception in the dairy industry that we can choose to terminate people at the end of a season, just because we want. In reality, NZ employment legislation does not line up with the dairy season!
Genuine reasons might be covering someone off on parental leave, or if you are in your final year of a lease agreement, and you won’t be farming yourself beyond the end of the season, so you genuinely already know the job won’t exist for them beyond that date. Without this kind of genuine reason (which must be outlined in a Fixed Term Employment Agreement), they’re a permanent employee, and they should be on a Permanent Employment Agreement.
So what kind of agreement should I have my calf rearers on?
This is a great, pertinent question. Dairy farming businesses employee calf rearers for example for the period of July – September for the specific purpose of coming in daily (or on a roster) for a few hours to feed calves, and perhaps help with the calving run. In many cases, employers consider these calf rearers to be ‘casual’ and therefore offer them a casual employment agreement. This is not correct and can lead to problems over time.
Casual employees work when it suits them and have most of the same rights and responsibilities as permanent employees. They are not defined in employment legislation separately, but the term is usually used to refer to a situation where an employee:
works when required
can turn down work and
has no expectation of ongoing employment.
A simple acid test - if there is a clear work pattern (roster), then your calf rearer is not casual; rather they should be on a fixed term agreement.
Can I use a 90-day trial period in my business?
You can use a trial period to assess that a new team member can do a job. This applies for any industry and any job. To do so, you need to check that you meet and adhere to the following criteria:
The agreement to use a 90-day trial period must be included in the written employment agreement between you and the team member, and at a minimum it must state that:
from the very start of their employment, the team member will be on a trial for a set period which is not more than 90 days long (but can be shorter). The exact time period must be stated, for example, it could be 30 days, 90 days, or another stated time period, and
during the trial, the employer can dismiss the team member, and
the team member cannot bring a personal grievance or other legal proceedings about their dismissal.
You need to give the team member reasonable opportunity to get advice on the employment agreement prior to signing
Both parties need to have signed the agreement prior to starting
The team member has not previously worked for you
The team member is not working for you on an Accredited Employer Work Visa (AEWV) as Immigration New Zealand does not allow trial periods for those employed on this visa
If you need support in recruiting new team members for next season, or drawing up clear and comprehensive employment agreements that are fit for purpose, give Philippa a call on 021 477 121.