Remember that this year Boxing Day, 26 December 2020 and 2 January 2021 are public holidays that fall on a Saturday.

These public holidays are Mondayised, which means they are moved to the following Monday.

What does this mean for you?

If an employee does not work on a Saturday then their public holiday is transferred to:

For those employees who do not have a clear pattern of work, work on varied or rotating rosters and have varied work times, it may be difficult to decide if Saturday would be a day they would have normally worked. The easiest test is to ask yourself; “BUT FOR the day being a public holiday would this employee have worked?”. 

The employer and employee must take into account:

If you are finding the Holiday season and public holidays difficult to navigate or need any HR / ER assistance, get in touch! Email us at in**@***************co.nz or call 09 273 8590 to talk to a member of our team.

There are really three options about the naming of parties in employment litigation, vis that there is a total prohibition on naming parties, that there is a default setting where parties are generally not named but an application can be made by a party for names to be published, and finally the publication of names more or less automatically except where a party can persuade the court or tribunal that withholding names is appropriate.

In effect, the second and third options are opposites and they are the options under consideration, the latter being the current position and the former being the position advocated by the symposium. This is an area where my own thinking has developed over time and I am now an advocate for change. I have always thought that the employment relationship is typically the second most important relationship that most of us have, and as a consequence, it has stronger analogies with the Family Court process and procedure than it does with the criminal law and the public policy considerations which effect civil litigation between large corporate players.

The Family Court’s position on naming of parties to anonymise names although the parties themselves are provided with any judgement or order of the Court in their own names.

The same position could apply in both the Employment Relations Authority and the Employment Court or in the alternative, there could be a difference between the position in the Authority on the one hand and the Court on the other, which is the position I favour.

What this would mean is that in the Authority, the general rule would be that parties would not be named, but there would be a right for any party in a matter to make an application to the Authority for that party to be named or indeed for both parties to be named, and the Authority would need to decide whether naming should be made or not and that decision would be informed by legal principle.

Such an arrangement would be the exact inverse of what we are now, in that the current arrangement allows a party to seek name suppression and the Authority is required to consider such an application in accordance with legal principle.

I think here is a good argument for having anonymisation in the Authority and public naming in the Court. This is because the Court will generally be dealing with more high profile matters and it is, I think, a useful aspect for parties to consider when they contemplate challenging a determination of the Authority which on my proposal would be anonymised, and then consideration whether that anonymised Authority determination ought to be re-opened in the public forum of the Employment Court.

Aside entirely from maintaining that the employment relationship is more analogous to familial relationships than it is to commercial relationships, it is also the case that with modern technology, prospective employers and recruiters can easily access the names of employee parties who have successfully sued former employers and/or even access the names of employees who have given evidence for such folk. The effect of using search engines on the internet is to identify the names of employee parties who have been engaged in litigation against their employer and then using that information to inform decisions about subsequent employment. This is particularly a problem for employees who have unusual surnames.

It cannot be right and just for employees in this situation to be precluded from ever working again in this country simply because they have successfully sued a previous (and, by definition, poor) employer.

In the United Kingdom, the law is that such checking of the internet either by prospective employers or by recruiters is illegal, but it seems to me that that is a very difficult provision to police and it would be far easier to protect working people by simply having the default position that their name would be anonymised unless there was good reason for it not to be. Of course, there would always be provision for application to be made to have public disclosure where that was seen by the Authority as necessary and in relation to the Authority’s work in presiding over regulatory matters (particularly claims brought by the Labour Inspector against unsatisfactory employers), it is suggested there should be a default setting that the names of those parties would automatically be published, save where there was an application for non-publication.

Words by James Crichton, Barrister and Ex-Chief of the Employment Relations Authority

The resurgence of COVID-19 in New Zealand’s community has raised some new (and old) questions for businesses as they try to navigate levels 3 and 2 again. We’ve put together some answers for some of the issues businesses most frequently tell us they’re grappling with:</p

If an employee lives outside of the Auckland “border” and is unable to get to the workplace in Auckland or work from home, what options are available to the employer?

It is important that employers act in good faith and have a conversation with the employee to discuss the situation and options available before making any changes.

The employer should try to determine whether the affected employee can actually perform some work at home or if they are absolutely unable to work from home. If it is the latter, the employer should explore alternative options with the employee such as whether the employee is able to obtain a travel exemption from the Ministry of Health, whether the business can access the leave support scheme to support qualifying employees of if the employee can take annual leave.

If none of these options are viable, then the employer is not required to pay the employee and should inform their employee of this. However, to re-emphasise, the employer should act in good faith and try to reach agreement with the employee in the first instance. Where agreement cant be reached, it is important to consult the employee and consider their feedback prior to making a change.

Do employers need to pay employees if they require a COVID-19 test?

If the employer requests the employee to take a test for work, then the time spent taking the test should be considered “work time”. It is important to remember that employees may refuse to take a test, in which case, where the employer has reason to believe that having the employee in the workplace is likely to negatively affect the health and safety of others in the workplace, they can be put on sick leave until they are able to provide medical clearance to return.

If the employee is being tested for COVID-19 test because they have symptoms and/or have been directed to get a test by the Ministry of Health, then there is no obligation for the employer to pay the employee. However, it should be noted that the employee may be able to take sick leave if they are actually sick, or it is agreed sick leave is appropriate and the employer may be able to access the leave support scheme to pass on to those employees who meet the Ministry of Health requirements.

To read more about the leave support scheme, click here.

What should businesses do regarding their employees if it needs to be closed during Level 3 lockdown?

The employer should consult employees to determine whether the employees can work from home or work from the workplace but while complying with the health and safety restrictions. If work can still continue under these circumstances but the employer predicts that there will be reduced revenue as a result of these restrictions, it may be appropriate for the employer to see if the business is eligible for a wage subsidy and/or seek agreement from employees for reduced wages and time.

If work cannot continue as usual, then the employer must still act in good faith and engage in discussions with employees to find other alternatives than not paying the employee. If not suitable alternative can be found, then the employer may need to restructure which may result in redundancies. If the employees are not ready, willing and able to work then wages are not due and payable. However, the Employment Relations Authority has found employees in the first lockdown remained ready, willing and able even though they were unable to work. This interpretation of “able” is controversial and has not been tested in the courts. A safer route is to restructure where agreement can’t be reached.

If an employee was due to take leave but can now no-longer do so because of the COVID-19 restrictions, can the employee cancel their annual leave and return to work or can the employer require them to still take it?

Once annual leave has been granted, it can only be changed by agreement. The employer does not have to agree to cancel the annual leave after it has been approved. However, the employer can choose to agree with the employee’s request.

Although it may seem a hard-hearted decision, there are a number of circumstances where an employer may have made arrangements in response to the leave. For example, if an employer has re-organised the workload to cover for an employee taking leave, there may be a significant financial impact for the employer to now have to alter these arrangements.

For employers who may face this situation, it is strongly encouraged that they discuss with their employee what they are considering and why before making their decision, to maintain a good faith and working relationship.

For more information about government schemes and to get the latest updates on COVID-19, go to: https://www.workandincome.govt.nz/covid-19/index.html or https://covid19.govt.nz/

This post was last updated on 21 August 2020.

With the Employment Relations (Triangular Employment) Amendment Act 2019 officially coming into force on 27 June 2020, it is timely for employers and employees to be mindful of their current employment relationship structures and be aware of the new obligations the law creates in relation to personal grievances.

Despite labour hire/temping agencies being a commonplace in today’s modern labour market, this law was introduced to, in the current Government’s view, provide greater protections for those who may work in triangular employment relationships when it came to personal grievances. Previously employees in triangular employment relationships had a limited ability to bring a personal grievance claim against a 3rd party organisation. Some may say this was a solution looking for a problem!

This amendment allows individuals in triangular employment relationships to pursue a personal grievance against their ‘host organisation’, (or the 3rd party), by joining that organisation to their personal grievance claim, despite there being no employment relationship. The amendment increases the rights of those individuals who find themselves in triangular employment relationships and creates obligations and corresponding potential liabilities for 3rd party organisations using workers.

This raises several questions for businesses:

  1. What is a triangular employment relationship?
  2. What are my potential obligations if our business is the 3rd party?

What is a triangular employment relationship?

To fully understand how this new law applies, it is important to be able to identify a triangular employment relationship. The image below provides an example of a triangular employment relationship, where Company A is “the 3rd party” and Company B is the “Employer”.

What are my potential obligations or risks if our business is the 3rd party?

As mentioned above, where a “Worker” is not your employee, but you are the 3rd party, you may be joined to a personal grievance by either the Worker or their Employer. This can place a number obligations on you as a 3rd party:

  1. The requirement to participate in any process to resolve the personal grievance i.e. Employment Relations Authority investigations, mediation, Employment Court hearings or other processes required by law.
  2. If a personal grievance is found to be valid you may be found liable for any fines, compensation or penalties that may be awarded.

If it is determined that the controlling 3rd party’s conduct has caused or contributed to the employee’s personal grievance, the ERA may order the controlling 3rd party to reimburse the employee for lost wages and/ore compensate the employee. The remedies awarded against the controlling 3rd party and/or employer must also reflect the extent to which these parties have caused and contributed to the employee’s personal grievance.

How does this happen? What is the process?

To raise a personal grievance in the context of a triangular employment relationship, an employee must first raise the personal grievance with their employer within 90 days in relation to the conduct by the “controlling 3rd party” that is alleged to have occurred whilst working under the control of the 3rd party.

Within 90 days of that claim being made, either the employee or employer needs to let the controlling 3rd party know that, in their view, the controlling 3rd party’s conduct has caused or contributed to the employee’s personal grievance.

It is then only once proceedings have commenced in the Employment Relations Authority (ERA), not before, that the employee or their employer must apply to the ERA to join the controlling 3rd party to the grievance. To join a 3rd party to the grievance, the ERA will consider:

  1. Whether the host organisation was/is a controlling 3rd party; and
  2. If the controlling 3rd party was adequately notified of the personal grievance it is arguable that the controlling 3rd party’s conduct has caused or contributed to the personal grievance.

It is important to note that the ERA (or the Employment Court) may, at any stage of the proceedings, of its own motion join a controlling 3rd party to the proceedings.

Impact of this new law

Ultimately, this new law means that 3rd parties are now exposed to the risk of claims of unjustified dismissal or unjustified actions towards their contractors/temps/labour-hire workers.

This may bring its own new set of challenges – for example, if the ERA decides to join a controlling 3rd party to the proceedings, it may result in all three parties attending mediation. Realistically, it may be that these three-party mediations will be difficult and complex since all parties will have competing interests. This will possibly make it harder to reach a settlement.

It is also predicted that this new law may strain the commercial relationships between controlling 3 parties and businesses, as the parties may attempt to shift the blame onto the other to avoid exposure. It may also heighten the obligations of the controlling 3rd party.

The outsourcing of employer responsibilities to temp agencies has always been a contentious subject for Unions and Employees. This new law therefore offers a new pathway and solution for employees in these arrangements as they no longer need to take on the legal challenge of proving that the 3rd party was their “employer” per se. However, with the changing future of what work looks like in New Zealand and the normalisation of flexible working, there are critics who question how this will operate in practice. It may be that this legislative change goes against the high productivity, high income economy currently envisaged for New Zealand as it’ll create more obligations and barriers for employers/businesses to overcome.

These are both interesting considerations to keep in mind for when we finally see the law applied in practice.

“Never A White Flag”, the memoirs of Jock Barnes, the leader of the 1951 Waterfront Workers strike/lockout – was the war cry of New Zealand’s longest industrial dispute, and according to the waterfront workers it was a lockout, not a strike.

What I learned when reading Barnes’ account was that much of what the union were fighting for are now taken for granted by both employers and employees today. The majority of employers understand that there is value in keeping your employees safe and that it is not just a moral imperative but a very real commercial one when operating a successful business.

The workplace disputes of today, while different in detail, still reflect the core concerns of employees who don’t feel they are being heard or their expectations are being met by their employer.

Failure to deal with employee concerns and rising expectations can be disruptive to a business’s performance and organisational culture, creating havoc and disharmony. There are still people on the waterfront who have their grandparent’s 1951 strike card – evidence that feelings last much longer than the next annual plan!

If you need guidance navigating through difficult conversations and building those relationships to have honest conversations, we can help.

Written by Adrian Tocker, Senior Associate.

I sat in a meeting earlier this week and I heard a conversation play out between an employer and their former employee who was made redundant as a result of COVID-19.</p

It was a conversation I have heard many times before, not just as a result of the pandemic but as part of the numerous summaries given around how an employment relationship had broken down.

The employee was talking about how they had dedicated more than 10 years of their life to the company, how they had been considered the office mother, been there when the employer suffered personal loss, how the employer had been to her home and shared meals with her family – and now she was suddenly made redundant and everything that had been a part of her for the last decade had been ruthlessly stripped from her. She felt disrespected, betrayed and unvalued. It was not fair.

The employer expressed that he didn’t have any choice, that no one foresaw the impact of COVID-19 and when the country went into lockdown the work coming in the door just stopped. If he hadn’t taken urgent and definitive action, the business would be gone and all he would have left would be immense debt and no way to trade out of it. It wasn’t personal.

It’s clear that businesses and the people who work for them are frequently speaking different languages. Most of the time it doesn’t matter that employers and employees don’t perceive the relationship the same as each other, as long as everyone does the work they are there to do. But when something goes wrong, the assumptions about what is understood and expected between each other can create or exacerbate hurt and damage.

Workers who have never needed to understand the complexities of running a business define their world by the day-to-day relationships and small familiarities that build up over time, and often personal life and the provision of labour become understandably blurred.

Employers often don’t share business needs and indicators, or what they mean, with their staff- because why would they need to know?

The difficulty comes when one affects the other, and the two parties can’t communicate well because they’re talking past each other. One is often saying ‘cashflow, debtors, insufficient pipeline” and the other is saying “sweat, loyalty, family”. It’s business vs identity.

Employers should learn from COVID-19. What we communicate to our employees, and how, should not just be about expectations and relationships but also about what it is to be in business, what it takes to stay in business and what you think about as a business leader.

Leaders should also listen and understand how their employees see their place in the business, how they understand their contribution and what they expect from them.

Ongoing and open communication should help to build a bridge across the gulf when difficult situations arise.

Written by Anna Jones, Chief Executive Officer and Director.

A new employment court finding further explores the commonly vexed question of when a contractor may actually be an employee. Leota v Parcel Express Ltd concerns a courier driver who has been engaged as a contractor but argued that he was not “in business for himself” as an independent contractor, rather he is actually an employee of the company. Whilst this judgement is fact-specific and does not mean that all courier drivers in New Zealand are employees, Chief Judge Christina Inglis conducts an in-depth analysis that sheds light on the real test – asking “what is the real nature of the relationship?”

Employee vs independent contractor

The distinction between an employee and independent contractor is that an employee works for the employer, within the employer’s business, to enable the employer’s interests to be met. An independent contractor is an entrepreneur that provides labour to others in order to achieve gains for their own enterprise. They are in business for themselves.

The case

Mr Leota (Leota) was recruited to be a courier driver for Parcel Express Ltd (Parcel Express) after an employee of Parcel express who was also a member of his local church encouraged him to consider working for the company. Leota was engaged and signed a contract which described him as an independent contractor. Leota worked for Parcel Express for about a year and only stopped working after Leota began to have concerns about payment.

When determining the real nature of the relationship, Inglis J considered the degree of control Leota had over his business, the relevance of industry practice and the economic reality of the arrangement.

The “degree of control” exerted by the principal is an important factor in determining employment status. The court has previously said “the greater degree of control stipulated by the contract…the greater the risk that it may cross the boundary line and become a contract of employment”. When considering a variety of factors, the Court determined that Parcel Express exerted a high degree of control in relation to Leota’s work and this left Leota with no autonomy over his own business and work.

When discussing industry practice, Inglis J indicated that a cautious approach must be taken and that it is not enough that an industry considers it workers are engaged as independent contractors. If Parliament had intended courier drivers to be categorised as independent contractors, they would have specified it under the Act. The fact that English was Leota’s second language and he had no knowledge about what the industry practice meant that it was not realistic to look to industry practices in this case, as it would not have been known or understood by Leota when entering the contract.

The court also considered the economic reality of the relationship and determined that Leota was unable to grow his business due to the restrictions and conditions imposed by the contract. These conditions were found to benefit Parcel Express and grow their company, not Leota’s.

All in all, Inglis J weighed up the facts and found that Leota was indeed an employee of Parcel Express and was not in business of his own account. The fact he was labelled an “independent contractor” and even acknowledged he had been informed he would be “his own boss” was just one consideration and not enough to tip the scales sufficiently.

To read the full case click here or you can access our case summary here to read more about the finding.

When it comes to working and COVID-19, businesses have had to navigate the obstacles and new requirements that come with Alert Level 3. Over the past couple of weeks, we have been assisting and supporting clients manage their workplace and deal with the tough COVID-19 questions. We would like to share our top 4 commonly asked questions from April that may help your business adjust to the “new normal” and weather the lockdown period.

Do businesses have to pay the wage subsidy back to MSD if an employee resigns during the 12 week period?

If the employee voluntarily leaves/resigns, then a business does not have to pay back the subsidy to MSD. You are however required to notify MSD that this employee has left. As the intention of wage subsidy is to pay wages, not other business expenses, it is our view that you would be required to use the remaining portion of the subsidy to pay other staff.

Do you have to pay employees if they refuse to return to work?

Firstly, you would need to understand why an employee is refusing to return to work. If they have health and safety concerns about returning to work, then these will need to be understood and worked through with the employee. If they are refusing to come to work based on legitimate health and safety concerns, then they may be entitled to receive pay.

If the employee is sick, then they may be entitled to paid sick leave if they have any available. However, if after consulting with the employee, and determining they have no valid reason for refusing to work, then they would not be entitled to be paid.

What are the main health and safety obligations businesses have during this period?

The health and safety obligations for businesses during this period differ depending on the industry the business works in, and will need to be assessed on this basis, including:

All employers operating under Alert Level 3 must have a Covid-19 Safety Plan, outlining how they will be operating safely.

Can I restructure my business during this time? If yes, what process must I follow?

An employer is entitled to review their structures during this period, even if they are receiving the government wage subsidy. Normal employment law obligations still apply, which requires full consultation process undertaken in good faith. A full consultation process requires engagement with employees on a proposal for change that has not yet been decided upon, an opportunity for employees to comment on that proposal, seek independent advice and careful consideration of any feedback received prior to making a decision on how the employer proceeds.

Restructure processes need to be specific to the employer’s individual circumstances. We are happy to provide more guidance on this.

If you need more information or guidance on how to navigate Alert Level 3 and Covid-19, get in touch by clicking here.

It is likely that the public holidays will fall within New Zealand’s Alert 4 COVID-19 lockdown period, which means employers are beginning to ask questions about how they will pay their employees’ wages when they are receiving the government subsidies as well as beginning to face potential hardship. As employers’ obligations are not limited to just public holidays, we have answered some of these questions, and more, below:

For public holidays, notably Good Friday and Easter Monday, is it ok that I still endeavour to pay up to 80% of employees’ wages? Does it matter if there’s a public holiday included?

At this stage, there has been no change to the employer’s Holiday Act obligations, so the existing legal obligations apply – i.e. if an employee does not work on a day they would normally work, (e.g. Good Friday on the 10 April 2020), they must be paid the wages they would have received had they worked for the day.

However, we may see some legislative changes with the public holidays in April 2020. If anything changes, we will update you.

Note: there are 3 upcoming public holidays in April:

  1. Good Friday: Friday 10 April 2020
  2. Easter Monday: Monday 13 April 2020
  3. ANZAC Day: Saturday 25 April 2020 – Mondayized to April 27 2020

These public holidays will all fall during the lockdown period so make sure you are aware of your obligations for these days.

What if I require my worker to work on a public holiday but I cannot afford to pay them time-and-a-half due to COVID-19?

Again, if the Holiday Act specifies that there is a legal obligation on employers to pay the employee time-and-a-half for all hours worked on a public holiday, you cannot contract out of the law.

If you cannot afford to pay time and a half, you will need to enter into a discussion with your employee to reach an agreement on a reduced hourly rate [that rate cannot be less than minimum wage]. If you cannot reach agreement, you cannot refuse to pay time and a half for work on a public holiday and you will need to take advice regarding your options to operate.

My employee has asked to take bereavement leave. Can I just try to pay the 80% of the wage or pass on the government subsidy?

Bereavement leave is paid with the same calculation as public holidays – employees must be paid the wages they would have received had they worked for the day. This is a statutory obligation and the employer and employee cannot agree to to go outside the law. The Government may make some amendments to recognise that the current circumstances are clearly not normal, but this is yet to occur.

This means that if the employee and employer have agreed that there is a change to wages, whether it is being paid at 80% of their usual remuneration or paid a reduced hourly rate, then relevant daily pay will be calculated on that figure. E.g. if an employee earning $100 per day and then agreed to be earning $80 per day, $80 a day would be the employee’s relevant daily pay and the amount they would have received if they had worked on the day that was taken as bereavement leave.

If the employer has tried its best to pay 80% but is unable to do so, and are only passing on the subsidy to the employee, the employer must record the bereavement day and ensure the amount is recorded at relevant daily pay, the balance of the subsidy then becomes wages.

If you are still confused about employer obligations for Bereavement, Alternate and Public Holidays, please see below:

Payment for a Public Holiday:

Alternative Holiday

Sick, Bereavement and Alternative Leave

An employee must receive their daily pay or average daily pay for each day that is taken as sick leave, bereavement or alternative leave.

From 11.59pm on Wednesday 25th March 2020, the only businesses/jobs open in New Zealand are those that are considered “essential” as they are either services for health, safety, welfare or essential infrastructure.

The definition of “essential” businesses and the updated list can be found here – however, these are some important questions that employers have been asking:

As an Essential Service, what if one of my employees refuses to come to work due to their concerns regarding the risk of COVID-19 and wants to go into lock down?

As your business has been defined by the Government as an essential service, your business needs to continue to operate and provide those essential services to support our community, including your employees’ families.

All employees need to continue attending the workplace and undertaking their duties. The only exceptions to this are employees who are sick, employees who are required to stay at home under the government requirements, such as employees over the age of 70 or employees who are immuno-compromised or employees who qualify for self-isolation leave.

If an employee simply fails to attend work, then their absence should be treated as an unauthorised absence. Every reasonable effort should be made to contact the employee to understand why they have not attended work. If you are unable to contact the employee, it may be treated as an abandonment of employment.

If you have determined the absent employee has not abandoned their employment but has just decided not to attend work, there is no requirement to pay the employee during this time. The employer should address non-attendance in its normal manner which may include commencing a disciplinary process, however while remembering good faith obligations to be fair and reasonable given the circumstances.

What if my worker is not sick but lives in a household that has others who have been required to self-isolate due to complying with the Ministry of Health guidelines for COVID-19 (over 70, immuno-compromised or caring for dependants who are required to self-isolate)? Do they have to come into work?

When an employee is living in the same household as a person who fits this category but is not dependant on them for care, then they are required to come to work unless you agree with them otherwise.

Where an employee is required to care for a dependant person who is required to self-isolate, including children under the age of 14 who do not have any other person able to care for them, they will be eligible for COVID-19 leave and the leave payment provided for by the government. You may agree to top up their payment through the use of sick leave, annual leave or discretionary paid leave but there is no requirement to do so.

If an employee still doesn’t want to come into work because they are concerned about harming their family and are uncomfortable attending the workplace, then you should consider all available options, such as:

For more information and updates about essential businesses, go to Covid19.govt.nz or get in touch if you need advice.

Written by Adrian Tocker.