90 day rules and existing workers

Interesting story today in The Press:

Christchurch rebuild manager unfairly sacked
A piling manager recruited from England and sacked in his first 90 days has won nearly $40,000 from his Christchurch employer.
source

Basically the employee started work in January 2014 but didn’t sign his employment contract until February 2014.

Hickey ruled the 90-day clause was invalid because the Employment Contracts Act said such provisions could not be imposed on existing employees. Hall and Smith Crane had not signed the individual employment contract before Hall began his job. By the time he signed the contract, he was an existing employee.

90 day clauses cannot be applied to existing employees – including those who have completed a free trial – and this sets an interesting precedent of what is an ‘existing employee’.

Of course this situation should never have occurred:

1. It is illegal for an employer to start you in the job without a signed contract.
2. To get a work visa to work for a specific employer (like an essential skills work visa) the migrant has to prove Immigration New Zealand (INZ) with a signed employment contract, it’s a mandatory requirement and the INZ have to be satisfied that the employer meets all New Zealand employment and immigration laws. .

Mind you, I had a migrant come in to see me the other day for advice who already had a work visa but hadn’t signed his contract yet – the immigration case officer processing his visa application hadn’t noticed. Government plans to automate the granting of work visas soon through online applications, I wonder if that will improve quality control.

There are a couple of things to take out of this article:

1. The Employment Relations Authority – www.era.govt.nz
   This organisation is there for you (even if you are on a work visa) to protect your employment rights.
2. Employment law
   Migrants coming in to NZ to work for a specific employer need to understand the employment laws here, for example:
   – the 90-day trial period and what is means;
   – Unpaid trial periods are illegal and risk your visa application;
   – You must have an employment agreement from day one;
   – This must have clauses which protect you (such as holidays);
   – You must have a minimum of 30 paid hours pw guaranteed.

The immigration and employment laws around this area are in place protect you and are there for a reason ;o).

Mike Bell
Migrant advocate | Licensed Immigration Adviser