Employment contract advice and rights.

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Paul1977

5007 posts

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#262197 9-Jan-2020 18:39

My partner has been working for a company for several years. As part of some sort of restructuring, the owners have shifted the business from one registered company to another. It's still owned by the same people though. But as a result they now want employees to sign new contracts.

However, the new contract being presented is very different from the old contract and has a bunch of new clauses that my partner doesn't really want to agree to.

She likes the job and doesn't want to leave it, but doesn't want to sign the new contract in it's current form either.

If they are unable to come to an agreement on a new contract, what are her rights?

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#2389208 9-Jan-2020 18:48

Firstly she should not sign immediately anything she's not comfortable with. She is also entitled to have a support person with her for any discussions around her employment conditions.

She's going though technical redundancy - where her role is redundant but is being offered a role by another related enitity. If she is being offered "substantially" the same terms and conditions she basically takes what she can negotiates or she leaves without compensation. If she is being offered terms and conditions that are substantially different then she would be entitled to redundancy if she doesn't take it.

This is a really grey / complex area and getting some advice from an employment lawyer would be a very good idea.

https://www.employment.govt.nz/workplace-policies/workplace-change/overview-of-workplace-change/

Paul1977

5007 posts

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#2389255 9-Jan-2020 19:23

Thanks for that. If she has a support person with her, is the support person allowed to talk?

BlinkyBill

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#2389259 9-Jan-2020 19:31

There is no such thing as a ‘technical redundancy’. If it is an actual redundancy, with restructuring, disestablishment, consultation and all that, that is one matter. And there is a specific process that needs to be followed.

this doesn’t sound like that. An employer is entitled to change the employment contract at any time, adding or removing or altering t’s and c’s. An employee is entitled to accept, reject, or negotiate these; or add their own.

This can’t be resolved properly in an online forum; your partner should get specialist employment lawyer advice.

Handle9

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#2389261 9-Jan-2020 19:38

BlinkyBill:
There is no such thing as a ‘technical redundancy’. If it is an actual redundancy, with restructuring, disestablishment, consultation and all that, that is one matter. And there is a specific process that needs to be followed.

this doesn’t sound like that. An employer is entitled to change the employment contract at any time, adding or removing or altering t’s and c’s. An employee is entitled to accept, reject, or negotiate these; or add their own.

This can’t be resolved properly in an online forum; your partner should get specialist employment lawyer advice.

Of course it is redundancy - employment by one entity is ending and employment is being offered by a new entity.

clinty

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#2389263 9-Jan-2020 19:48

https://www.employment.govt.nz/workplace-policies/workplace-change/restructuring-when-business-sold-or-transferred/

Has some basics

Clint

Paul1977

5007 posts

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#2389264 9-Jan-2020 19:51

BlinkyBill:

This can’t be resolved properly in an online forum; your partner should get specialist employment lawyer advice.

We will look into this if they are unable to negotiate a contract that they are both happy with. I was hoping there might be a clear cut answer, but sounds like it's not that straight forward.

Thanks

BlinkyBill

1443 posts

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#2389303 9-Jan-2020 20:20

Handle9:

Of course it is redundancy - employment by one entity is ending and employment is being offered by a new entity.

on the information given, it is not redundancy. It is the same business owner, using the same employees to do the same work. it sounds like a ‘business restructure’ designed for purposes other than to transform the nature of the business. It actually doesn’t sound like an organisational restructure, it sounds like a business affairs restructure.

No doubt there is more to it, which is why it is important to get correct advice from an employment lawyer.

If it is a restructure for the purposes of downsizing, changing roles and the nature of work; then there is a redundancy process that must be adhered to; and the OP has not mentioned any of that.

It is a common practice for parts of businesses to be sold to other businesses with the intention of maintaining business-as-usual. It is common for employment contracts to be changed when this happens. This is not a redundancy situation. There is a legal definition of redundancy, and this doesn’t sound like it.

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dejadeadnz

2394 posts

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#2389305 9-Jan-2020 20:21

Get an employment lawyer or talk to a volunteer lawyer at a community law centre. A couple of posters have linked to good sources of information and/or given good general advice but no one can do more for you on here in this case. Beware also that most Geekzone users’ assertions on the law aren’t even worth the weight of soiled toilet paper.

ANglEAUT

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#2389307 9-Jan-2020 20:33

Handle9: Firstly she should not sign immediately anything she's not comfortable with. ...

Paul1977: ... She likes the job and doesn't want to leave it, but doesn't want to sign the new contract in it's current form either.
If they are unable to come to an agreement on a new contract, what are her rights?

Yip, know the feeling. The labour hire company I was employed with exited the market & somebody else took over the management of the staff. I was told I either sign the new contract or I walk out of the door. If they didn't say those exact words, it certainly felt like it.

Paul1977: ... I was hoping there might be a clear cut answer, but sounds like it's not that straight forward.

The law is purposefully imprecise. It can't cover all outcomes. & the lawyers love that. 😡

Paul1977: ... If she has a support person with her, is the support person allowed to talk?

Yes.

Please keep this GZ community vibrant by contributing in a constructive & respectful manner.

dejadeadnz

2394 posts

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#2389308 9-Jan-2020 20:35

BlinkyBill:

on the information given, it is not redundancy. It is the same business owner, using the same employees to do the same work. it sounds like a ‘business restructure’ designed for purposes other than to transform the nature of the business. It actually doesn’t sound like an organisational restructure, it sounds like a business affairs restructure.

BlinkyBill, you might like to learn some Law 101 and also read the OP's post properly before dispensing "advice" or dismissing Handle9's far more useful contribution. The OP referenced that his wife's employment was with one entity and it is proposed by that entity that this employment relationship end and a new relationship to begin with "another [registered company when read in context of the OP's post]". That companies A and B may have the same shareholders and/or directors does not change the fact that under the Companies Act and common law as it has been for hundreds of years that these are separate legal personalities. The Companies Act however has primacy in this respect, albeit that it has preserved the common law position. Section 15 of the Companies Act is abundantly clear: each company is a separate legal personality in its own right and separate from its shareholders. So if company A is proposing to end the OP's wife's employment because the underlying business will be sold or transferred to company B, this means company A is essentially stating that the lady's position is no longer required. If that's not a redundancy, I don't know what is.

And there's a certain degree of irony (if not hypocrisy) in your post in light of you suggesting recently that users should have posted deleted for posting inaccurate information in response to the recent FUG update. Perhaps time for some reflection?

gzt

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#2389317 9-Jan-2020 20:53

Paul1977:
BlinkyBill: This can’t be resolved properly in an online forum; your partner should get specialist employment lawyer advice.

We will look into this if they are unable to negotiate a contract that they are both happy with. I was hoping there might be a clear cut answer, but sounds like it's not that straight forward.

Here's the thing. People will put silly things into contracts from time to time and say silly things.

Having a specialist employment lawyer look at the situation and contracts and at their discretion of whatever send one letter can clarify the situation for everyone and nothing gets out of control.

For around a couple of hundred give or take.

frankv

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#2389402 10-Jan-2020 06:37

If you have to rely on your employment contract for reasonable treatment by your employer, it's time to find another job.

chevrolux

4962 posts

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#2389428 10-Jan-2020 08:21

My two cents would be that at the end of the day, this is not an uncommon thing to happen. So you need to decide if, 1) are the terms you "arent happy with", potentially reasonable and the initial dislike is just a knee jerk as they won't have any real impact on the job 2) how much do you like the job? 3) if the answer is "lots" to 2, is it worth souring a relationship by getting lawyers involved?

BlinkyBill

1443 posts

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#2389438 10-Jan-2020 08:43

dejadeadnz:

BlinkyBill:

on the information given, it is not redundancy. It is the same business owner, using the same employees to do the same work. it sounds like a ‘business restructure’ designed for purposes other than to transform the nature of the business. It actually doesn’t sound like an organisational restructure, it sounds like a business affairs restructure.

BlinkyBill, you might like to learn some Law 101 and also read the OP's post properly before dispensing "advice" or dismissing Handle9's far more useful contribution. The OP referenced that his wife's employment was with one entity and it is proposed by that entity that this employment relationship end and a new relationship to begin with "another [registered company when read in context of the OP's post]". That companies A and B may have the same shareholders and/or directors does not change the fact that under the Companies Act and common law as it has been for hundreds of years that these are separate legal personalities. The Companies Act however has primacy in this respect, albeit that it has preserved the common law position. Section 15 of the Companies Act is abundantly clear: each company is a separate legal personality in its own right and separate from its shareholders. So if company A is proposing to end the OP's wife's employment because the underlying business will be sold or transferred to company B, this means company A is essentially stating that the lady's position is no longer required. If that's not a redundancy, I don't know what is.

And there's a certain degree of irony (if not hypocrisy) in your post in light of you suggesting recently that users should have posted deleted for posting inaccurate information in response to the recent FUG update. Perhaps time for some reflection?

Yes, you don’t know what redundancy is. I sold a part of my company affecting 5 employee’s to another unrelated company, about 5 years ago. I was advised by my specialist employment lawyer at the time that this was not a redundancy situation because the 5 people were not impacted by a change in role. Whether or not the employment contract terms changed due to signing new contracts I don’t know. All 5 signed, but that may have been because of the sweetener (retention payment) I and the new employer paid.

I was told at the time that the Employment Relations Act 2000 was the relevant legislation.

I think if you review the linked Employment NZ page, you will see that redundancy may follow a restructure depending on whether or not the employee accepts the equivalent position at the new company.

KillerHulk

348 posts

Ultimate Geek

#2389440 10-Jan-2020 08:45

Years ago, "NZ family owned" company was sold to a "corporate" one. all staff & jobs were kept as it is. New contract had new clauses - which in the end is "take it or leave".

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