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Appendix 9 - Foreign Charter Vessels - Crew Employment Agreements (17/12/2012)

Introduction

To provide all parties with accountability, consistency, transparency and certainty in negotiated employment agreements, the following standard principles must apply to all employment agreements for crew working on foreign charter vessels in New Zealand fisheries waters, where the employer is not a New Zealand company.

Standard Principles

All employment agreements must contain the following provisions, conditions and requirements (hereafter referred to as "standard principles"). Where an employer believes a standard principle is not applicable, the reason for this must be stated in the supporting documentation provided with their Approval in Principle application to Immigration New Zealand.

  1. The identity and address of the employer.
  2. The name and date of birth of the employee.
  3. The home address of the employee and/or the employee’s agent (if applicable).
  4. The identity, address and contact details of the New Zealand Charter Partner (NZCP).
  5. If the employment agreement is for a fixed term, the term of employment and reason for it being fixed term.
  6. The employment position, rank or other designation in which the employee will be employed as well as the name of the vessel on which the employee will be employed.
  7. The duties of the employee for the position in which the employee is employed (at least in general terms).
  8. The expected minimum number of hours of work, being at least 42 hours per week on average in relation to the whole of each period of employment in New Zealand fisheries water.
  9. A clause which states that the employer will keep accurate records of hours worked by the employee.
  10. The remuneration terms and rates (which must as a minimum meet the standard at WJ5.45.10 of the Operational Manual).
  11. If deductions are to be made by the employer, they will be listed and it will be acknowledged in the employment agreement that the employee accepts those deductions, including the amount. The employment agreement must also specify how/when these deductions are to be made and what supporting documentation will be retained for audit purposes.
  12. The currencies of all dollar amounts in the employment agreement.
  13. The timing, manner and method of payment of remuneration under the employment agreement – whether payments are made into a New Zealand bank account or directly to the Foreign Crew.
  14. The fact that a Deed of Guarantee has been entered by the New Zealand Charter Party and that the New Zealand Charter Party is available and required to ensure that Foreign Crew are paid to the minimum level of remuneration under WJ5.45.10 of the Operational Manual in the event of failure by the employer to do so.

    A failure may occur if the employer will not submit to the claim process outlined in the employment agreement (detailed at paragraph 18 below) or where they will not pay any monies awarded following that claims process. The process for recovering minimum levels of remuneration from the New Zealand Charter Party should also be specified as per paragraph 18 below.

  15. Causes for dismissal of the employee by the employer.
  16. A plain language explanation of employment and immigration rights and responsibilities. At a minimum, the leaflet Important Information for Foreign Crews working in New Zealand Fisheries Waters (INZ1214), (available in 11 languages on the Immigration New Zealand website) must be attached as a schedule to the employment agreement.
  17. That the relevant New Zealand employment institutions under the Employment Relations Act 2000 shall have jurisdiction in relation to problems or disputes arising under the employment agreement.
  18. A process for resolving employment problems or disputes in accordance with the following;
    1. First Step: Resolution with the Captain: Employees should first take the claim or problem to the Captain. By doing this, it is hoped that the claim or problem will be dealt with in a manner that is appropriate to both parties, with the emphasis on allowing the employee to continue on in employment with the employer having resolved his/her claim or problem or to end employment with the correct employment related conditions being met, including payment of wages at the level required by the employment agreement.
    2. Second Step: Resolution With Employer: If resolution with the Captain is not achieved, then the employee should take the claim to the employer and notify the NZCP. By doing this, it is hoped that the claim will be dealt with in a manner that is appropriate to both parties, with the emphasis on allowing the employee to continue on in employment with the employer having resolved his/her claim or to end employment with the correct employment related conditions being met, including payment of wages at level required by the employment agreement. If the employer does not resolve this issue with the employee, then the following steps can be taken:
      1. Labour Inspectorate: the employee may utilise the services of a Labour Inspector as provided for under the Employment Relations Act 2000.
      2. Mediation Service of the Ministry of Business, Innovation and Employment (the Ministry): The employee or the employer may refer this claim or problem to the Mediation Service of the Ministry. This is an informal institution that provides confidential mediation services to employees and employers and those in work related relationships alike.
      3. Employment Relations Authority/Employment Court: If the employee’s claim is not resolved to his/her satisfaction at mediation, or if the employer is unwilling or refuses to attend mediation, then the employee or the employer may refer this claim or problem to the Employment Relations Authority. This is a formal institution that provides an investigation process, resulting in a binding decision, to employees and employers. Either party may file a challenge within 28 days from an unsuccessful Employment Relations Authority determination to the Employment Court. Matters that relate to the minimum or contractual entitlements owed to employees may be brought by the employees themselves to this institution.
    3. Third Step: Resolution With New Zealand Guarantor (the NZCP) in Respect of Minimum Remuneration: If in respect of a claim to remuneration, resolution is not achieved with the employer, by way of the above two steps, then the employee should take the claim to the New Zealand Guarantor under the Deed of Guarantee in so far as the claim concerns remuneration at the minimum specified levels. The process to follow where the New Zealand Guarantor does not resolve the employees claim to his/her satisfaction, is as follows:
      1. Labour Inspectorate: The employee may utilise the services of a Labour Inspector as provided for under the Employment Relations Act 2000. (This role would be restricted to providing some analysis of the situation and some information to both the employee and the New Zealand Company to clarify the obligations under the Deed of Guarantee and the consequences of not meeting them)
      2. Mediation Service of the Ministry: The employee or the New Zealand Guarantor may refer this to the Mediation Service of the Ministry.
      3. Independent Arbitration: If mediation is not successful, then the employee or the New Zealand Guarantor may seek arbitration of the complaint. A panel of arbitrators has been established by NZFIG, SEAFIC and the Ministry that the employee and the New Zealand Guarantor may select an appropriate arbitrator.
      4. District Court: The employee or New Zealand Guarantor may only seek an appeal to the District Court from the binding arbitration on procedural matters.
    4. General:
      1. The employee may use the services of a representative, including a union, the NZFIG, Community Law Centre or Citizens Advice Bureau, to assist in the above process.
      2. The employer, the NZCP of the employer, and the employee (and their representative) must act in good faith in the raising of, and pursuing a claim.
      3. The employer, the NZCP of the employer and the employee must comply with the procedures developed under the Employment Relations Act 2000 and Deed of Guarantee Relating to Payment of Crew Wages in Circumstances of Default by Foreign Charter Partner, for the process of pursuing a claim.
  19. Specification of the country law which is to be applied to the employment agreement (subject to clauses 17 and 18).
  20. A record that before signing the employment agreement, the employee has had the opportunity to obtain independent advice on its terms and conditions and that they clearly understand the terms and conditions of the employment agreement.
  21. Signatures of both parties and the date of signing.

Effective 17/12/2012

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