The article should be read in conjunction with the information provided by the Government. Links to Government websites are cited throughout the article and should be checked daily as the Government releases new updates regularly.
Both employers and employees should abide by the public health guidance from the Ministry of Health on COVID-19 at Ministry of Health COVID-19 – Latest Updates.
Maintaining Good Faith
The Employment Relations Act 2000 (“the Act”) imposes a statutory duty on employees and employers to act in good faith. The duty to act in good faith is central to any employment relationship and applies in every employment situation. Both employers and employees must remember to deal with each other in good faith throughout the COVID-19 Alert levels.
COVID-19 Working Arrangements For Employees
The Government has provided information on the below circumstances which may arise throughout the COVID-19 emergency.
Working From Home
Health and Safety obligations still apply to employers therefore, employers and employees should discuss the option of working from home and consider whether there are any risks to the employee’s health and safety (or those at the employee’s home), and whether the employee has access to equipment, furniture and support required to complete their work.
Reduced Hours
If any changes are to be made to an employee’s hours, this must be done with the agreement of both the employer and employee. If both parties agree on the reduction of hours (or increase) then the new hours should be recorded in writing.
Annual Leave
Employers and employees may agree to annual leave during temporary closures of a workplace due to COVID-19 such as during a Level 4 lockdown. If an employer and employee cannot agree, an employer may direct annual leave to be taken, if they have first discussed this with the employee and provided 14 days’ notice before the annual leave is to be taken. Annual leave must be paid at the employee’s contracted rate of pay.
Redundancy
Regarding the possibility of redundancy, it is important that employees are aware of their rights which include:
- the right to access relevant information regarding the continuation of their employment, about the proposed decision (before the decision is made); and
- the right to comment on the provided information before the decision is made about their employment.
In addition to the statutory duty to act in good faith, employer’s contractual obligations remain unchanged despite the current COVID-19 emergency. Therefore, in regard to redundancy provisions, employers are still bound to follow the processes and timing contained in their employment agreements.
Visit Changing an employee’s working arrangements for more information on changing an employee’s working arrangements.
COVID-19 Wage Subsidy Scheme
The Wage Subsidy is designed to keep employees connected to their employers therefore an employee should be receiving at least 80% of their usual wages. If it is impossible for the employee to pay that amount, then the employer must pay at least the subsidy rate (ie, full-time or part-time).If an employee’s usual wages are less than the subsidy, the employer must pay them their usual wages.
Employers must apply for the Wage Subsidy on behalf of their employees.
The Wage Subsidy Scheme supports employers adversely affected by COVID-19, so that they can continue to pay their employees, and supports workers to ensure they continue to receive an income, even if they are unable to work.
Please see Work & Income Wage Subsidy for a full list of businesses/organisations who are eligible.
An employer, contractor, sole trader or self-employed, may qualify for the COVID-19 wage subsidy if they can satisfy the following requirements:
- their business is registered and operating in New Zealand;
- their employees are legally working in New Zealand;
- their business has experienced a minimum 30% decline in actual or predicted revenue over the period of a month, when compared with the same month last year, and that decline is related to COVID-19;
- their business has taken active steps to mitigate the impact of COVID-19; and
- they have retained the employees named in their application for the period of the subsidy.
Visit the following links to make an application for the wage subsidy:
The Wage Subsidy Will Be Paid At A Flat Rate Of:
- $585.80 for a person working 20 hours or more per week; or
- $350.00 for a person working less than 20 hours per week.
The subsidy is paid as a lump sum and covers 12 weeks per employee.
For an employee that works variable hours or is employed as a casual worker, the applicable rate will depend on the average of hours worked by that employee.
Minimum Wage Increase
The minimum wage increase still applies throughout this COVID-19 emergency. The minimum wage will increase from $17.70 to $18.90 per hour for adults and for starting out/training positions it will increase from $14.16 to $15.12 per hour.
The following link provides information to employers and employees on the minimum wage increase amidst the COVID-19 situation: COVID-19 & Wage Increase.
Employees Working In Essential Services
Essential services must still operate in a way that minimises the risk of COVID-19 transmission, and must operate in a way that ensures the health and safety of all essential service workers.
Reasons essential service workers should or may wish to stay at home
Essential workers may be unable or may not wish to work, for the following reasons:
- The worker is sick with COVID-19, or unwell generally.
- The worker needs to self-isolate as per Ministry of Health guidelines, due to recent travel or close contact with someone confirmed to have COVID-19.
- The worker is caring for dependents who are required to self-isolate, as per Ministry of Health guidelines.
- The worker, or someone they live with, meets the definition of a vulnerable person, including those who are 70+, pregnant, taking certain medication, or receiving certain treatment. These people are advised to stay home at Alert Level 2 or higher.
- The worker does not believe their workplace has adequate health and safety measures to minimise their risk of contracting COVID-19.
**For essential workers who require sick leave due to COVID-19, the Government is working on arrangements**
Steps to raise and address workplace concerns
Under the Health and Safety Act 2015, an employer has a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of their workers and any other workers they influence or direct.
A worker must notify their employer if they:
- believe they are at risk of spreading COVID-19 and why.
- are concerned that attending their workplace places them at risk of being exposed to COVID-19 and why.
- have any concerns about working that puts themselves or others at risk.
If the employer agrees that there is a reasonable risk related to COVID-19 (or any other risk), they must do what is reasonably practicable to address the risk.
For more information regarding essential workers, please visit: Guidelines for Essential Workers & Essential Businesses
Childcare
The Government has stated that essential workers should organise their own child care if possible however, in the event they are unable to, information and contact details of home-based child care providers can be found at this link:
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Employment Law
We advise on employer obligations, provide guidelines on hiring staff, assist with employee performance issues, restructures, personal grievances and disputes. We help organisations meet their health and safety obligations.
about the author
Tesa Va’afusuaga
SOLICITOR
Tesa has appeared in the Waitangi Tribunal and District Court, and prior to practising as a solicitor, was an assistant registrar in the Waitangi Tribunal and executive assistant to Chief Judge Isaac in the Māori Land Court.
