The employer’s ability to change the hours of work without the employees’ consent.

The employer’s power to require staff to work on statutory holidays.

The employer’s right to deduct money from the wages of its employee for loss or damage to property.

The requirement that employees give consent in advance permitting the employer to require him or her to submit to medical examinations or treatment.

The employer’s power to refuse to accept the validity of a medical certificate for sick leave and require the employee to see a company approved doctor.

The requirement that employees give consent in advance permitting the employer to require him or her to submit to compulsory drug or alcohol testing.

Section 57 applies to both prospective employees and those already in an employment relationship.

Parties to employment contract negotiations are not required to "deliberate together as contracting equals", nor must each be an equal contributor to the form, content, and other qualities of the proposed contract. Rather, either party to the negotiation may proceed on a take it or leave it basis.

There is a two step process to determining whether a contract or a term of a contract "was harsh and oppressive when the contract was entered into". First, the Court must determine the meaning of the contract or term: what its scope is and what rights or powers it confers. In construing a particular term the Court will necessarily have regard to the contract as a whole including terms implied by law. The Court should have regard to the parties’ mutual obligations of trust, confidence and fair dealing, remembering that these obligations tend to go to procedure rather than the substance of a contractually conferred right or power. Second, the Court must address whether the contract or term, as construed, is harsh and oppressive.

The words "harsh and oppressive" connote considerably more than imbalance; rather, the sense of unreasonably or unjustifiably onerous to the degree of being severe, cruel, burdensome, merciless. The words also point to provisions in contracts that are properly characterised as unreasonably and unjustifiably onerous.

Where a term confers a power on a party to a contract, the Court is not required to speculate on the likelihood of its exercise. Rather, the Court must consider whether the power as worded is such that it must be considered as harsh and oppressive.

The nature and extent of the provision in question, any statement of applicable criteria, discretionary elements, processes to be followed and the impact of the provision on the overall balance of the rights and obligations and interests of the employer and employee will be relevant to the inquiry.

Current contractual practice is relevant in determining whether a particular provision is harsh and oppressive (eg: Surveys carried out by Harbridge, Crawford and Keily (published by the Graduate School of Business and Government Management at the Victoria University of Wellington)).

The Employment Court had erred in finding that Tuckers had procured the contract by harsh and oppressive behaviour, and in its approach to the exercise of the power conferred by s.57(1)(b) Employment Contracts Act. It had also erred in respect of the remedies that it had awarded to the employees.

The Court of Appeal did not determine whether or not any of the specific provisions mentioned above (including requiring employees to provide medical certificates in support of sick leave) were harsh and oppressive. Instead, the Court of Appeal referred the case back to the Employment Court for the specific provisions to be reassessed in light of its pronouncement about how section 57 of the Employment Contracts Act should be applied.