Hiring seasonal workers - navigating through the rocks and reefs

The Orchardist December 2002
John Button
Industrial Consultant

We know that changes in employment law tend to make people nervous.No one wants to do anything that will get them into trouble, cost them money or get in the way of hiring staff.

The Employment Relations Act 2000 did make some significant changes that have a direct impact on hiring seasonal workers.However, the first thing to be clear about is that it is still legally acceptable to employ people for a fixed term, so long as you follow two rules.

These rules are:

Rule One
If you employ someone, the law says you must have a written agreement setting out the terms of the engagement. This sounds like a lot of bother, but it can be easily managed with a standard agreement that allows you to use the same template for everyone, and simply fill in the blanks for the name, hob title, pay rate and signature. Keep it simple. For seasonal workers, you have the same obligations to put the terms of the engagement in writing, but again, this does not have to look like an encyclopaedia. It is also important that potential employees have the opportunity to seek advice beforeaccepting the employment agreement and should sign to this effect when they accept the agreement. Most don't require time but that’s a different matter.

Rule Two Any employment that is not permanent is "fixed term". So, seasonal workers are fixed term employees. We commonly talk of casual employment, but this is really the same as "fixed term" as well. If you have the same person coming into work from time to time, this is still "fixed term", but more accurately it is "fixed term for an intermittent period".

We strongly recommend a standard agreement for permanent employment, an agreement for fixed term employment, and slightly different one for intermittent fixed term. You can get copies of the standard agreements from the New Zealand Orchards and Vineyards Association of Employers (see below for how to become a member)

Lets now take a look at two other areas that commonly cause bother.

Holiday Pay

The first is holiday entitlement, as required by the Holidays Act.For seasonal workers it is usually easier to build a 6% loading into the pay rate to take account of holidays, rather than adding it on at the end of the engagement. Your only requirement is to ensure the standard agreement spells this out clearly, to avoid any confusion when the engagement ends.

Dismissal Procedure

The second thing that bothers employers is what to do about an individual who does not come up to scratch. You have to treat people fairly, and that means you can’t dismiss unless you have followed a fair process. First of all it is up to you to make it clear what you want them to do when they start work. Second, that you give the individual feedback about their performance if you are not satisfied. This means telling them what it is you want them to do and giving them a chance to do it correctly. Third, if after a reasonable period you are still not satisfied, meet with them after giving them the opportunity to get a representative, state your concerns, give them the opportunity to respond and if still not satisfied, warn them that unless they achieve your standard by a set date their employment is in jeopardy.Fourth, If the necessary standards are not met by the set date then meet with them again after giving them the opportunity to have a representative present, hear any explanation they may wish to offer and then make a decision to dismiss or otherwise.

Fair process is about bringing employee’s shortfalls to their attention and giving them a chance to make the grade. Discipline should never come as a surprise to the individual.It is your responsibility to give the message to people as soon as possible – don’t wait and hope. You can also give a positive message to staff to let them know they are doing well.

On rare occasions it is possible to dismiss someone without notice, but this is possible only for the most serious misdeeds, such as theft assault or causing wilful damage. You have to make sure you have thoroughly investigated the incident and have given the employee an opportunity to give his or her side of the story, before you make up your mind whether to dismiss or not.

Seasonal workers have the same rights as permanent staff to call on mediation to help them if they consider they have been wrongly dismissed or unfairly treated. So you have to be sure you talk to people, don’t rush into a hasty decision and, if in doubt take a breather until the emotions have gone out of the situation before you make your decision.

In summary, when you hire someone, put it in writing, and do it before they actually start work. Make sure they sign that they accept the terms on offer.If you run into a problem in a disciplinary sense, take time to think whether you have made yourself clear what you want before rushing into drastic action.

If in doubt at any time, remember that advice is available from the New Zealand Orchards and Vineyards Association of Employers. You can become a member of this organisation by paying an annual subscription of $30 plus GST for a company membership. Just contact the secretary David Paetz on telephone (04) 494 9974 or fax (04) 472 6409 for an application form. Membership entitles you to 15 minutes free advice per annum from John Button on labour related issues together with access to copies of recommended employment contract forms.