Negotiating and accepting as an employee

Your employer must give you a written employment agreement. You can negotiate additional terms and conditions in the agreement with your employer. Even if they are not written in the agreement – you are still entitled to the minimum employment rights set in the law.

What are employment agreements?

When you are offered a job, the employer must give you an employment agreement.

Negotiating the employment agreement

When an employer gives you an intended employment agreement, you can:

• ask your employer to explain anything you do not understand
• take it away to read it carefully and have a think about it
• ask for advice from someone you trust, like a union representative, lawyer, careers advisor at school or a parent.

Once you understand the agreement, you can:

• turn down the offer
• accept it as it is
• request changes to some terms or request extra terms you'd like to add.

When entering into an employment agreement, an employer must also inform you about your entitlements under the Holidays Act 2003, and that you can obtain further information about the entitlements from a union or by contacting us.

Some of the things that you should discuss with your employer and/or negotiate where relevant are:

• annual holidays – that you will get at least 4 weeks and what a week looks like for you

• whether you agree to get annual holidays as pay-as-you-go if you meet the criteria

• hours of work, including number of guaranteed hours, days of the week work is to be performed, start and finish times, and any flexibility within these (if applicable)

• availability and shift cancellation provisions (if applicable)

• trial period (if applicable)

• if fixed-term employment is being offered, the reason for and the duration of the fixed term

• hourly pay rate, overtime, allowances, contractual bonuses, incentives and commissions, penal rates

• whether the employee will be required to work on public holidays

• customary closedown period - if there is one, and how it works

• notice period in case of dismissal, redundancy or resignation

If there are terms you do not agree with, discuss them with your employer. You should only start work once you have agreed to your terms and conditions and signed an updated agreement. Employers and employees must negotiate in good faith.

Unfair bargaining

When you negotiate a new individual employment agreement or make a change to an existing one, you and your employer must negotiate in good faith. Your employer must make sure that unfair bargaining does not take place.

Unfair bargaining happens when:

• you as an employee are at a significant disadvantage
• the employer knew, or ought to have known, about the circumstances leading to the disadvantage.

The best way to avoid unfair bargaining is to make sure you receive independent advice before signing an employment agreement.

You can be 'significantly disadvantaged' when you cannot understand the agreement or its implications properly because of reduced ability due to:

• age
• sickness
• mental or educational disability
• a language barrier or disability related to communication
• emotional distress.

These disadvantages may be cancelled out if you receive independent advice, from a lawyer for example. You can also be 'significantly disadvantaged' if you:

• reasonably relied on the incorrect advice of your employer – for example, if the employer told you wrong information about the legal effect of the terms of the agreement (this will not apply if you were experienced with contracts and had an opportunity to access legal advice)
• were convinced to enter into the agreement by unfair means – for example, through an improper threat or by being pressured to an extent that your free will and judgement were affected
• did not have the information or opportunity to ask for further advice about the agreement.

Making a claim for unfair bargaining

Keep good records of:

• your offer of employment
• your acceptance of the terms of the agreement
• any draft agreements
• any correspondence surrounding the negotiations.

This will help if you bring an unfair bargaining claim.

You should try first to resolve the problem through mediation.

If this does not resolve the problem, you can go to the Employment Relations Authority (the Authority). If the Authority finds that unfair bargaining has occurred, it can:

• award financial compensation or another penalty
• cancel the employment agreement
• vary the terms of the employment agreement.

Employees, employers and unions are obliged to always deal with each other in good faith ensuring everyone involved is treated fairly. All actions taken by an employer and an employee must be done in good faith, which is more than just following the letter of the law.

In some industries, your employment agreement may include a restraint of trade clause. These clauses are designed to protect a business’ commercially sensitive information by restricting the employee‘s business activities when they finish working for that employer. They are usually limited to a specific place and only last for a specific period of time after you finish work at that business.

Restraint of trade clauses should be reasonable otherwise they may not be enforceable. If your previous employer is trying to enforce a restraint of trade and you do not think it is reasonable, you should get independent legal advice.

Even if your employment agreement did not contain a specific restraint of trade clause, your employer may be able to prevent you from using certain highly confidential information in such a way that it may affect the employer’s business.

Generally, there will be nothing wrong with using details that are unconsciously memorised, but you should not write down and deliberately memorise business information for use in other jobs. General skills may also not be confidential skills, but if you have learnt a particular skill or technique specific to the employer, that may be confidential.

If you breach a restraint of trade clause or misuse confidential information, your previous employer may be able to apply to the Employment Relations Authority or the Employment Court for an injunction restraining you from continuing such activities. They may also be able to ask for damages (money to cover any loss they experience from your actions) and penalties for the breach of contract or a breach of the duty of good faith.