NZ 90-Day Trial Period: 2023 Amendment for All Employers

The 90-day trial period under section 67A of the Employment Relations Act 2000 has been one of New Zealand’s most contested employment-law provisions. Until December 2023, it was available only to employers with fewer than 20 employees. The Employment Relations (Trial Periods) Amendment Act 2023, which received Royal Assent in late 2023, removed the size restriction — from 23 December 2023, all employers of any size may use the 90-day trial period, provided every other s.67A precondition is met. This guide unpacks what changed, what stayed the same, and how to draft a compliant trial period clause in 2026.

What Changed in December 2023

Before December 2023, the s.67A trial period was confined to “small employers” (fewer than 20 employees). The 2023 Amendment Act repealed that limitation. From 23 December 2023:

• All employers may use a 90-day trial period;
• The other s.67A preconditions remain unchanged;
• The s.67B effect of a valid trial period — blocking a personal grievance for unjustified dismissal — also remains unchanged.

What did not change:

• The 90-day maximum;
• The requirement that the IEA be signed before the employee starts;
• The requirement that the employee not have been previously employed by the employer;
• The s.63A obligation to give the employee a reasonable opportunity to seek independent advice;
• The fact that other grievance grounds (discrimination, sexual harassment, etc.) survive a valid trial-period dismissal.

The Five s.67A Preconditions

A trial period clause is valid only if all of the following apply (Employment Relations Act 2000, s.67A):

1. In writing in the IEA (s.67A(2)).
2. Agreement signed before the employee starts work (s.67A(2)(a)). Sign-on-day-one invalidates the clause, no matter how perfectly drafted.
3. Employee has not previously been employed by the employer (s.67A(3)). A returning casual or rehire cannot be put on a fresh 90-day trial.
4. Trial period of a specified period not exceeding 90 days (s.67A(2)(b)). The clause must state the duration; “until further notice” is not compliant.
5. Notice of termination given by the employer during the trial period (s.67B). The notice must be served before the 90-day clock expires.

In addition, the s.63A reasonable opportunity for advice must be observed before signing — failure to give the employee a reasonable opportunity to seek independent advice on the proposed agreement invalidates the trial-period clause and may also support a separate personal grievance.

Primary source: https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM1867204.html

What “Sign Before You Start” Means

The signing-before-commencement requirement is the most-litigated and most-failed precondition. The Employment Court has repeatedly held that “starts work” means the first moment of work performed for the employer. Common sequences that fail s.67A(2)(a):

• The employee turns up at 8:00, signs the IEA at 8:30. Invalid. The trial period clause is unenforceable.
• The employee performs an unpaid trial shift on Friday and signs the IEA on Monday. Invalid. The trial shift was work; signing came after.
• The employee signs the offer letter on Friday and the IEA on Monday morning. Probably invalid — the offer letter is not the IEA; the IEA must be signed before start.

Best practice: complete signing at least 1 day before the agreed start date, with a clear paper trail (date stamped, witnessed if available).

Section 63A — Reasonable Opportunity for Advice

Under Employment Relations Act 2000, s.63A, the employer must:

1. Provide a copy of the intended agreement in writing;
2. Inform the employee that they are entitled to seek independent advice;
3. Allow a reasonable opportunity to seek that advice;
4. Consider any issues the employee raises and respond before signing.

Industry standard: 3–5 working days for ordinary roles; longer for senior roles. Sending the IEA on Friday afternoon for a Monday start is not a reasonable opportunity.

If s.63A is not observed, a 90-day trial period clause is invalid even if every other s.67A precondition is met.

What a Valid Trial Period Does

Under Employment Relations Act 2000, s.67B, where the trial period is valid and the employer dismisses the employee during the trial period:

• The employee cannot bring a personal grievance for unjustified dismissal;
• The employer is not required to satisfy the s.103A “fair and reasonable employer” justification test;
• The employer must still serve the contractual notice period (or pay in lieu) — the trial period does not waive notice;
• All other personal grievance grounds remain available — discrimination (s.103(1)(c)), sexual harassment (s.103(1)(d)), racial harassment (s.103(1)(e)), unfair conduct (s.103(1)(g));
• The s.4 good faith obligation continues to apply throughout the trial period.

A valid trial-period dismissal is therefore not a “no-protections” zone — it is a safe harbour against the unjustified-dismissal ground only.

What a Trial Period Is Not

Not a probationary period

Under Employment Relations Act 2000, s.67, a probationary period signals heightened scrutiny of fit. It does not block personal grievances. An employer dismissing during probation must still satisfy the s.103A “fair and reasonable employer” test.

In short:

• Trial period (s.67A): blocks unjustified-dismissal grievance; specific preconditions.
• Probation (s.67): full grievance rights remain; no specific preconditions.

Not exempt from notice

The trial period clause does not displace notice. The contract must specify a notice period — typical is 1–4 weeks during the trial. Notice must be given before the 90-day clock expires (s.67B).

Not exempt from minimum wage

Trial-period employees are entitled to the adult minimum wage (NZ$23.95/hour from 1 April 2026 under the Minimum Wage Order 2026) or the starting-out / training rate where applicable.

Drafting a Compliant Trial Period Clause

A compliant clause has five elements:

1. Express identification as a trial period under Employment Relations Act 2000, s.67A.
2. Specified period not exceeding 90 days (e.g. “90 days from the start date” or “calendar days from [date]”).
3. Statement that the employee has not previously been employed by the employer (or the clause is invalid under s.67A(3)).
4. Notice of termination mechanism — typically 1 week’s notice during the trial period.
5. Acknowledgement that during the trial period the employee has no personal grievance for unjustified dismissal (s.67B), but retains other grievance rights.

Example (not legal advice — Scrib🐮 generates compliant clauses for NZ employment cells):

The first ninety (90) calendar days of employment are a trial period under section 67A of the Employment Relations Act 2000. The Employee acknowledges that the Employee has not previously been employed by the Employer. During the trial period, either party may terminate the employment by giving one (1) week’s written notice. The Employer is not required to provide reasons for termination during the trial period and the Employee may not bring a personal grievance for unjustified dismissal under section 103(1)(a). All other personal grievance grounds remain available.

Common Drafting Errors

Trial Period vs Casual Employment

A trial period and casual employment are different concepts:

• Trial period: a 90-day window in a permanent (or fixed-term) employment relationship during which the employee cannot bring an unjustified-dismissal grievance.
• Casual employment: an ongoing-engagement-by-engagement work relationship where each shift is its own engagement.

A casual employee can also be on a 90-day trial in respect of a defined casual employment relationship — but the more common pattern is to use casual classification rather than a trial.

Records and Evidence

The employer should retain:

• The dated IEA showing signature before commencement;
• Email evidence of providing the draft IEA with reasonable advice opportunity;
• The signed offer letter or employment agreement;
• Records of the dismissal date and the notice served;
• Reasons for the dismissal (even though not required under s.67B, document them — they may be relevant to a discrimination or harassment claim).

Records must be kept for 7 years under Employment Relations Act 2000, s.130, and Holidays Act 2003, s.81.

Conclusion

The 23 December 2023 amendment to section 67A removes the small-employer restriction and brings the 90-day trial period into reach for every NZ employer. The five preconditions — written, signed before start, employee not previously employed, ≤90 days, notice during trial — combined with s.63A reasonable opportunity for advice, are the gate. Get any one of them wrong and the clause is invalid — leaving the employer exposed to the s.103A justifiable-dismissal test. The Employment New Zealand portal at https://www.employment.govt.nz/ and the legislation at https://www.legislation.govt.nz/act/public/2000/24/en/latest/ are the primary references. For most NZ employers in 2026, a properly drafted s.67A clause is now the default starting point of a compliant Individual Employment Agreement.

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Disclaimer

Legal information, not legal advice. MmowW Scrib🐮 is operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not solicitors, barristers, or lawyers.

Sources

• Employment Relations Act 2000: https://www.legislation.govt.nz/act/public/2000/24/en/latest/
• ERA s.67A (90-day trial period): https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM1867204.html
• Employment New Zealand: https://www.employment.govt.nz/
• Employment Relations Authority: https://www.era.govt.nz/
• MBIE — Employment legislation: https://www.mbie.govt.nz/business-and-employment/employment-and-skills/employment-legislation-reviews/holidays-act-reform