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Employment Contract - (Recruitment Staff) Template NZ Revised 280609
Employment Contract - (Recruitment Staff) Template NZ Revised 280609
Contract
Employment (Recruitment Staff)
This template has been designed by Business Solutions Contact (BSC) with the assistance
of Andrew Wood, who has revised an earlier template prepared for RCSA. Andrew is an
Australian Barrister who specialises in employment law within the recruitment and on-hire
sectors.
This template is prepared with reference to New Zealand only and has been developed as a
guide in drafting an employment contract for the employment of employees who are to be
employed in-house within a recruitment firm to perform operational functions such as that
of recruitment consultant, branch manager and administrator.
This template is not to be used for on-hired employees or temporary employees. The BSC
has other templates for this form of engagement.
It is very important that you understand that this document is a template only and it is the
responsibility of the user to ensure that the contract ultimately used meets specific legal
and organisational needs. You should never simply use a template without making sure
that you understand what is in it and why. It is often unwise to delete something unless
you know how it relates to other provisions and legal obligations. If there is something that
you do not understand you should ask someone who has professional knowledge to explain
it.
This contract is not an RCSA or BSC standard. It simply provides guidance for drafting your
own contract of employment. You may wish to add additional information or remove some
clauses however, we recommend you obtain professional assistance when making any
amendments because drafting contracts is a complex task that requires consideration not
only of general legal principles, but also of specific circumstances surrounding the
agreement reached with employees. Professional advice should therefore be sought when
drafting your contract regardless of whether you use this template as a guide or not. Such
assistance can be obtained through the BSC at bsc@rcsa.com.au
If using provisions from this template you should insert specific information
where prompted in red font prior to use. Where you are asked to insert company
name in the Parties section of this agreement please use the name of the
employing entity.
This template should be reviewed regularly to ensure it remains compliant with legislation
and case law. The content of this template is regularly revised and updated by the author,
Stratecom Pty Ltd. To ensure that templates are developed from the current version of this
template, you will be notified via MarketR when contracts updates are uploaded.
This document is a template only and does not purport to cover all the obligations of a company in
relation to employment law. Persons using this template should delete, amend and add relevant
information to meet the company specific obligations, requirements and practices with care. This
template is provided as a guide only, without Remaginet or RCSA assuming responsibility at law or a
duty of care. Companies are encouraged to obtain advice from an appropriate source upon
completion of a final draft of the contract.
Copyright RCSA
Companies paying the required fee or entitled to use this document as an RCSA Membership
entitlement are free to amend and/or reproduce all or part of this document in the context of
developing work-based documentation specific to the purchasing, or entitled RCSA Member,
Between
And
1.2 The terms and conditions of this Agreement will come into force on the
Commencement Date set out at item 3.1 of the Schedule and will continue in
force until the Expiry Date set out at item 3.2 of the Schedule, unless sooner
terminated in accordance with this Agreement.
1.2 The Employer agrees to employ the Employee and the Employee agrees to
be employed on the basis and for the term set out at item 3 of the Schedule and
in accordance with this Agreement (the employment).
1.3 The Parties may agree to change the basis and term of the employment at
any time in writing by substituting a new Schedule signed by each of them.
(2) Informing the Employer that the Employee accepts the offer of
employment constituted by that engagement; or
(2) The Employer may stipulate a reasonable time within which the
offer is to be accepted or rejected;
(3) If the Employee does not accept the offer (or the Employer any
counter offer) within the time stipulated by the Employer this
Agreement will terminate.
1.6 If the Employee is engaged and paid on a casual basis and, the
Employees employment on a casual basis is subsequently deemed or found to
be other than on a casual basis:
1
NOTE: This will have a substantial impact upon the employment protection provisions of clauses 25 and 26 given
that a casual employee would ordinarily have no expectation of continuing employment.
[insert company name] NZ Employment Contract (Recruitment Staff) 2
a) the Employer shall be taken to have designated at the time of payment,
and the Employee to have agreed, that the remuneration paid in excess of
the amount which would have been payable had the Employee been paid
at the minimum hourly rate required by law to be paid in respect of such
non-casual employment be allocated:
2 PROBATION
2.2 During the probationary period both parties will promptly raise and discuss
any difficulties experienced in the employment, and the Employer will warn the
Employee if it is contemplating termination;
2.3 Any termination during the probation must comply with the termination
provisions of this Agreement.
[insert company name] NZ Employment Contract (Recruitment Staff) 3
2.4 Probation does not limit the legal rights and obligations of the Employer or
the Employee, and both parties must deal with each other in good faith.
3 TRIAL PERIOD
3.1 If:
a) At the beginning of the day on which this Agreement is entered into, the
Employer employs fewer than 20 employees; AND
b) The Employee has not previously been employed by the Employer
a trial period for the number of calendar days set out at item 5 of the Schedule
will apply from the commencement of the employment.
3.3 The Employer may dismiss the Employee by [insert period e.g. one weeks]
notice given at any time before the end of the trial period; and, if the Employer
does so:
4.1 The Employee will serve initially in the position set out at item 6 of the
Schedule.
4.2 The Employee will perform the duties set out at item 7 of the Schedule and
any amended statement of duties given to the Employee from time to time.
4.2 The Employee will report to the manager named at item 8 of the Schedule
or to any other representative of the Employer by the Employer, from time to
time.
5 LOCATION
5.1 The employment is to be performed initially at the location set out at item 9
of the Schedule.
2
NOTE: For example: unjustified disadvantage; discrimination; sexual harassment; racial harassment; duress with
respect to union membership; and the employer not complying with Part 6A of the Employment Relations Act 2000).
3
NOTE: Section 67B(5) exempts the requirement for access to information and good faith consultations under
section 4(1A)(c) and the requirement to provide reasons on request under section 120.
[insert company name] NZ Employment Contract (Recruitment Staff) 4
5.2 The Employer may change the location of the employment to any other
location, by giving the Employee reasonable written notice.
6 SECONDMENT
5.1 The Employee will comply with all reasonable directions of the Employer to
work on secondment to a client or customer or project, or on a client, customer
or project site.
e) Deal with the Employer in good faith in all aspects of the employment;
h) Take all practicable steps to perform the job in a way that is safe and
healthy for the Employee and fellow employees.
8.2 The Employer may, in consultation with the Employee, set employment
objectives, benchmarks, targets or key performance indicators for the Employee
on an annual basis or for such other period as the Employer may determine.
The Employees performance against the objectives, benchmarks, targets or key
performance indicators will be taken into account by the Employer when
assessing the Employee's performance.
7.1 Whilst ever the Employer remains a member of Recruitment and Consulting
Services Association Ltd (RCSA) and is bound by RCSAs Code for
Professional Conduct (the Code):
9.2 The Employees usual work days and hours, as at the commencement of
the employment, are set out at item 10 of the Schedule.
10.1 The Employee is entitled to the rest and meal breaks set out in the following
table:
11.2 The Employer will pay the Salary and any Commission component of the
Remuneration to the Employee in respect of all work performed in the relevant
[insert company name] NZ Employment Contract (Recruitment Staff) 6
preceding pay period into the Employees nominated bank or similar account at
the frequency set out at item 12 of the Schedule.
11.4 The Employer will provide the Employee with any other Entitlements that are
set out at item 14 of the Schedule.
12 PERFORMANCE REVIEWS
41.1 The Employer will review the Employees performance and Remuneration at
least annually in consultation with the Employee.
41.2 As a result of any such review the Employer, at its total discretion, may offer
to increase, decrease or vary the basis for calculation of the Remuneration.
13 EXPENSES
14 KIWISAVER4
14.1 This clause only applies if under the KiwiSaver Act 2006:
a) The Employer is not an exempt employer; and
b) The Employee:
14.3 If, under the KiwiSaver Act 2006, the Employee is:
c) A new employee, he/she may opt out of the KiwiSaver scheme up to
eight weeks (on or after day 14 and on or before day 56) from the
commencement of the employment which triggered the enrollment, subject
to any lawful extension of the opt out period.
d) An existing employee and is eligible for KiwiSaver, the Employee has
the option of joining a KiwiSaver scheme; but having joined will not be able
to opt out.
15.2 If requested by the Employee to do so, the Employer may deduct from any
sum due to the Employee as salary or wages the agreed amount for matters
such as superannuation, a staff social club or union fees and pay the amount to
the organisation as requested by the employee.
15.3 The Employer will be entitled to deduct from any sum due to the Employee
as Salary payable upon termination of employment the amount of any
overpayment made to the Employee for leave taken in advance.
15.4 The Employer may deduct any amounts required by law to be deducted
including tax, ACC, student loan repayments, and liable parent repayments.
15.5 If the Employer overpays Remuneration or holiday pay, it may deduct the
amount of the overpayment from subsequent Remuneration payments or
holiday pay after giving the Employee reasonable written notice that it will do so
and stating the amount of the overpayment together the date upon which such
deduction will be made.
16.1 The Employee will be entitled, subject to sub-clause 16.9, to paid annual
leave in accordance with the Holidays Act 2003 and with the following provisions
to the extent consistent therewith:
starts their period of employment each time they are engaged to work, and
ceases each time that engagement ends.
6
NOTE: The Employee is entitled to an employer contribution to their KiwiSaver account or their complying account,
if they are aged 18 years or over. For further information regarding employee and employer contributions to
KiwiSaver, visit http://www.kiwisaver.govt.nz
[insert company name] NZ Employment Contract (Recruitment Staff) 8
b) Annual leave may be taken in advance with the agreement of the
Employer;
c) The Employee may elect to take at least two weeks of his/her annual
leave in an uninterrupted break;
d) The time for taking annual leave may be agreed between the Employer
and Employee and the Employer must not unreasonably withhold consent
to the timing proposed by the Employee;
f) The Employer will consider any lawful request which the Employee
may make to cash in any portion of the Employees annual leave
entitlement.
i) Where the day in question would otherwise be a working day for the
Employee and the Employee has not worked on that day, the Employee
will be entitled to be paid for that holiday at a rate not less than the
employee's relevant daily pay for that day.
m) If the Employee has taken sick leave and has been absent from work
for at least three consecutive calendar days, the Employer will be entitled
to require the Employee to provide proof of entitlement to sick leave, at the
Employee's cost;
n) If the Employee takes sick leave, and the Employer has reasonable
cause to suspect that the leave is not genuine:
16.5 The Employee will be entitled to parental leave in accordance with the
Parental Leave and Employment Protection Act 1987. [Optional] The
Employee will also be entitled to additional parental leave entitlements in
accordance with the Employers parental leave and return to work policies
current at the time parental leave is applied for in accordance with the Parental
Leave and Employment Protection Act 1987.
16.6 If the Employee is called for jury duty, the Employer will continue the
Employee's full pay for the duration of the jury service for days that would
otherwise have been working days, and the Employee will pay to the Employer
any jurors fees received by the Employee.
16.7 The Employee will be entitled to leave for training or service in the
Territorial and Reserve Forces in accordance with the Volunteers Employment
Protection Act 1973.
16.8 The Employer will consider applications for other unpaid leave in situations
such as for compassionate reasons; to undertake a course of work-related
q) The Employer will pay the Employee annual holiday pay on a "pay as
you go" basis as prescribed by the Holidays Act 2003;
37.1 From time to time, the Employer may provide the Employee with equipment
to assist in carrying out the Employees duties upon such terms as the Employer
may reasonably determine. This equipment remains the property of the
Employer and must be returned to the Employer in good working order, subject
to fair wear and tear, upon request, or upon the termination of the employment.
17.2 If the Employee is permitted to make personal use of the equipment, the
Employee will meet the cost of and related to all personal use.
18.1 The Employer and the Employee acknowledge that they must each comply
with their obligations under the Health and Safety in Employment Act 1992
which apply of their own statutory force and not as terms of this Agreement.
(1) To comply with all directions and instructions from the Employer
regarding health and safety; and
19.1 If, following discussion with the Employee, the Employer has reasonable
grounds for suspecting:
the Employer may require the Employee to undergo a non-intrusive drug test (a
urine test) which will be conducted by a registered medical professional. The
testing process followed will be such as to ensure a safe and accurate test.
19.2 On receipt of a positive test the Employer will discuss the results with the
Employee and take into consideration any explanation received before any
outcome is decided upon.
20.1 The Employee will not at any time, whether during or after the employment
has ended, use or disclose any Confidential Information, or personal information
as defined by the Privacy Act 1993, held by the Employer without the Employers
written permission, unless:
a) It is necessary and lawful to do so in order to perform the Employees
duties in the employment; or
20.2 The Employee will take all steps reasonably necessary to preserve the
confidentiality of any Confidential Information, and the privacy of any personal
information as defined by the Privacy Act 1993, which the Employee receives or
to which the Employee has access during or in connection with the employment.
20.4 The Employee will advise the Employer if the Employee detects and breach
of confidentiality or thinks of any way in which the security of Confidential
Information can be increased.
20.5 For the purposes of this clause, Confidential Information means all
information belonging to the Employer, an associated business, client or
candidate of the Employer and includes information which:
21.2 The Employee will immediately and fully disclose to the Employer any such
invention, improvement, secret process, document or other intellectual property.
22 CONFLICTS OF INTEREST
22.1 During the employment, the Employee will not be directly or indirectly
interested, engaged, or concerned in any business or activity, which may
compete in any material respect with the business of the Employer or that of a
client of the Employer, or affect the Employees performance of his/her duties
under this Agreement, except with the written and fully informed consent of the
Employer and/or Client as the Employer may require.
22.2 If any potential conflict of interest situation arises, the Employee will notify
the Employer immediately.
22.3 The Employee will not, directly or indirectly, seek or accept, on his/her own
behalf, or for any person (except the Employer), any payment or other benefit in
money or in kind from any person (except the Employer) as an inducement or
reward for any act or forbearance or in connection with any matter relating to the
business of the Employer.
[insert company name] NZ Employment Contract (Recruitment Staff) 13
23 USE OF INTERNET & EMAIL
23.1 If the Employee has access to email or Internet account of the Employer in
the course of the employment:
a) The Employee will ensure that at all times his/her use of such facilities
meets the ethical and social standards of the workplace;
c) The Employee will comply with all email and Internet policies issued by
the Employer from time to time.
24.2 The Employee agrees that for the period/s set out at item 15 of the
Schedule (and if more than one as though each of them constituted a separate
provision of this sub-clause) following the termination of the employment for
whatever reason, the Employee will not, without first seeking and obtaining the
consent of the Employer, either personally, or as an employee, consultant or
agent for any other entity or employer:
d) Seek to solicit, entice or carry out any work of the same nature for any
client or customer of the Employer with which the Employee had any
contact or dealings whilst employed by the Employer and in respect of
whom the Employer has a reasonable expectation of doing continuing
business;
24.4 In responding to any request for consent made pursuant to sub-clause 24.2
of this Agreement, the Employer will act in good faith and in a manner calculated
not to unreasonably prejudice the Employee with respect to his/her future
employment or work prospects.
25.1 To the extent to which they are not inconsistent with the requirements of
Part 6A of the Employment Relations Act 2000,(the Act) the provisions of this
clause 25 will apply in the case of restructuring within the meaning of Part 6A of
the Act as relevant to the Employee, not being a vulnerable employee as
defined therein.
(2) The type of work performed by the Employee (or work that is
substantially similar) is, or is to be, performed by or on behalf of
another person.
e) The Employer will negotiate with the new employer to identify matters
relevant to any offer that may be made by the new employer to continue to
employ or otherwise engage the Employee including:
(1) Whether the Employee will transfer to the new employer on the
same terms and conditions;
(4) The intended time frame within which the new employer will or
will not make offers of employment or other engagement to the
Employee;
g) The Employer will advise the Employee of any matters so identified; but
except as required by law, will not be obliged to advise the Employee of
any such matter identified in confidence to the Employer or which would
unreasonably prejudice the commercial position of the Employer.
j) [Add any additional processes about the restructuring to the extent that
it relates to the Employee that are to be specified].
m) The Employer will in all other respects comply with the minimum
requirements of Part 6A of the Employment Relations Act 2000 as are
relevant to the employment.
26.1 Redundancy occurs where the Employees position is or will become surplus
to the requirements of the Employer's business whether consequent upon
restructuring or otherwise.
26.2 To the extent to which they are not inconsistent with the requirements the
Employment Relations Act 2000, the provisions of this clause 26 will apply in
case of redundancy.
26.3 If the Employees position is or will become redundant, without limiting the
legal rights and obligations of the parties, the Employer will:
d) If:
27.1 Notwithstanding any other provision in this Agreement, either party may
terminate the employment for any good cause, by providing to the other notice in
writing of the period set out at item 17 of the Schedule.
27.2 The Employer may, at its discretion, pay remuneration in lieu of some or all
of the notice period.
63.1 Notwithstanding any other provision in this Agreement, the Employer may
terminate the employment summarily and without notice for Serious Misconduct
29 SUSPENSION
b) The Employer will conduct the investigation in good faith and in a timely
manner with a view to minimising the adverse impact of the suspension
upon the Employee.
30.1 If due to illness or other disability the Employee, not being entitled to leave
in respect of that illness or disability, is absent from work for a period exceeding
that set out at item 18 of the Schedule, the Employer will determine whether the
[insert company name] NZ Employment Contract (Recruitment Staff) 18
employment is to be terminated for good cause or continued. In making that
determination, the Employer will abide by the following process
b) The Employer will ask for a prognosis regarding the illness or disability
so far as it is relevant and seek information about the likelihood and timing
of any return to work.
d) If, after viewing the medical reports and any other medical report
provided in a timely fashion by the Employee, the Employer reasonably
determines that:
31 ABANDONMENT OF EMPLOYMENT
31.1 If the Employee has been absent without leave from work for five
consecutive working days without any notification to the Employer, and the
Employer has made reasonable efforts to contact the Employee, the Employee
will be deemed to have terminated the employment and the Employer may elect
to terminate this Agreement.
31.2 Any such election made by the Employer will be of no effect if the Employee
subsequently and promptly proves that he/she was physically unable to give
notification (due to accident or similar circumstance).
[insert company name] NZ Employment Contract (Recruitment Staff) 19
32 OBLIGATIONS OF EMPLOYEE ON TERMINATION
32.1 Upon termination of the employment for whatever reason, or at any other
time if so requested by the Employer, the Employee will immediately return to
the Employer all information, material or property (including but not limited to
computer disks, printouts, manuals, reports, letters, memos, plans, diagrams,
security cards, keys, telephones and portable computing devices) either
belonging to or the responsibility of the Employer and all copies of that material,
which are in the Employee's possession or under the Employees control.
33.1 An employment relationship problem means any problem that may exist
between the Employee and the Employer arising out of the employment, and
includes:
d) the Employee must raise the matter with the Employees manager
identified at item 8 of the Schedule within 90 days from the date of the
event that has caused the personal grievance or from the Employees
becoming aware of it, whichever is the later;
k) If the problem is not resolved, the Employee may refer the employment
relationship problem to mediation using either the Mediation Service
provided by the Department of Labour under the Employment Relations
Act 2000 or any other reputable and suitably qualified mediation service.
34 VARIATION
86.2 Any matter set out in the Schedule may be varied by substitution of a new
Schedule containing all of the schedulized information required by this
Agreement and signed by both parties.
35 ENTIRE AGREEMENT
43.1 Each party acknowledges that this Agreement (including its Schedule)
contains the whole and entire agreement between the parties as to its subject
matter.
36 SEVERABILITY
44.1 The provisions of this Agreement are severable and if any provision is held
to be invalid or unenforceable by any court or tribunal of competent jurisdiction,
then such invalidity or unenforceability will not affect the remaining provisions of
this agreement.
37 EMPLOYEE ACKNOWLEDGMENT
c) He/she has read these this Agreement and understands its terms and
their implications; and
(1) Has informed the Employee that the employment would end;
and
(2) Has genuine reasons which the Employer has stated to the
Employee for the employment ending
on the earlier of:
h) Salary means the yearly salary paid to the Employee as set out in
item 11 of the Schedule;
(5) Dishonesty;
(9) Any act which results in the Employee being precluded by law
from substantially performing his or her duties as the Employers
employee;
Execution
Expiry Date
Example: that the employment is specific to and for the purpose of [state
purpose] and/or
6 Position title
8 Manager
9 Location
11 Remuneration
12 Payment frequency
13 Commission arrangements
14 Further entitlements
15 Restraint period/s
18 Disability period