Legal Compliance

Employee rights in NZ during natural disasters & emergencies

by Tanya Gray | Jun 2, 2021 | ConsultingHQ Blog, Health & Safety, HR Advice, Legal Compliance, Risk Management

Employee rights in NZ during emergency and disaster management

Contents

Do employee rights in NZ change in the situation where you are managing a civil emergency?
The Heath & Safety at Work Act 2015 requires employers to put the safety and wellbeing of employees before all else
Things for employers to consider in the face of a natural disaster:
Pay and leave during a civil emergency
Check force majeure clauses in employment agreement(s) and workplace policies to see if the specific circumstance is covered
Leave and payment options to consider in disaster management:
Employee dismissal for missing work during a natural disaster or emergency

Do employee rights in NZ change in the situation where you are managing a civil emergency?

The Canterbury area is currently welcoming dry weather following the devastating floods they have just experienced. This impacts business owners and employees, particularly in the area of employee rights in NZ where there is a natural disaster or emergency to be managed.

This weather event was so severe, the MetService issued a rare ‘Red Warning’ – which means an event is expected to be among the worst that we get. This means the weather will have a significant impact and the possibility that a lot of people will be affected.

In situations such as these people have to take immediate action with no time for giving consideration to matters such as ‘what are employee rights during flooding events or other natural disasters’.

The Heath & Safety at Work Act 2015 requires employers to put the safety and wellbeing of employees before all else

With infrastructure such as roads and bridges destroyed, causing disruption to transport – along with businesses and schools potentially being closed, and homes being damaged – this could leave some workers struggling to get to work.

When natural disasters or other serious events occur, the primary concern of all employers and their employees is the health, safety & security of people.

This comes before thinking about the interests of the business or organisation and during these events employers and employees should try to keep in regular contact and deal with each other in good faith.

Things for employers to consider in the face of a natural disaster:

Take care of the health and safety and wellbeing of your team, yourself, and your customers/clients.
If the workplace isn’t safe, don’t require your staff to work there. Make sure it’s safe first. Employees can stop work because of health and safety concerns under the Health and Safety at Work Act 2015. It’s primarily the building owner’s responsibility to ensure that buildings are assessed to determine whether they have withstood the event and remain structurally sound (in accordance with the Building Act 2004). Employers who occupy the building should follow the owner’s advice and be satisfied that the owner is performing their role. If an engineer or other competent professional advisor advises to not re-occupy the building, the building should not be re-occupied.
Proactive communication and support following a disaster are key to getting the business up and running again as quickly as possible. Contact your employees as soon as possible to advise them of the workplace situation and your expectations of them. Give them updates even if they are not required to be at work so that they know what is going on. Use texts and social media where possible to minimise overload of the telecommunications network. Remember your team could be under additional stress, provide them with support and help and show your concern. This could include access to an employee assistance programme for counselling, having a team debrief, daily blog or email.
If public transport is unavailable or reduced, think about facilitating carpools among team members. Smaller business owners could organise carpooling with other employers nearby. Consider any impact on employees getting to work on time and whether you can be flexible.
Consider wider infrastructure issues (e.g., road closures, power outages or water restrictions) and the impact of these on team members getting to and from work and whether you can be flexible.
In an extraordinary event, you may need to approach things differently. This may include temporarily changing your leave policy, letting employees work flexibly, or adopting a flexible approach to employees making personal phone calls to check on family during the workday.
Think about any negative impact on pay (e.g., processing of payroll) and try to minimise this.
Be up front and honest with the team about the situation and give them the opportunity to ask questions and raise any concerns they may have.

Pay and leave during a civil emergency

Employees may not be able to attend work for various reasons including:

An employer may be unable to provide work for employees who are willing and able to carry out their agreed hours of work.
An employer may be unable to provide a suitable and safe workplace for employees who are willing and able to carry out their agreed hours of work.
Employees can’t access the workplace because of restrictions not directly related to their own workplace and out of their employer’s control (e.g. road closures, safety issues relating to adjoining buildings, evacuation due to flooding or tsunami risk).
An employee (or their dependant) is sick or injured and unable to work.
An employee has to care for a dependant because usual care is unavailable.
An employee is willing and able to work but their usual mode of transport is unavailable.

Check force majeure clauses in employment agreement(s) and workplace policies to see if the specific circumstance is covered

Without being clear about what these documents include, employers and employees cannot just assume that time away from work in these circumstances would be either paid or unpaid. If these situations are not covered, then it is up to both parties to talk about it in good faith and agree on how the time away from work will be classed.

If an employee’s partner or dependent family member isn’t injured or sick but he or she requires care, e.g., because their child’s school is closed, the employee cannot take sick leave. In some cases, employees may be able to continue to work while caring for their family, if the employer and employee agree to this arrangement. If it is not appropriate or possible for staff to continue working, employees and employers will need to agree on what basis the employee is off work.

Leave and payment options to consider in disaster management:

Annual holidays
Anticipated annual holidays or additional annual holidays
Using an entitled alternative holiday
Special leave, either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
Leave without pay
Employees can take sick leave if their partner or dependents are injured or sick and they have sick leave available, or the employer agrees to extra sick leave
Other paid or unpaid leave either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
Advance on wages

Whichever option the employer and employee agree on may depend upon the circumstances, including the nature and extent of the disaster and how long it lasts.

Once all leave entitlements under the Holidays Act 2003 and any negotiated additional leave or any anticipated leave entitlements run out, employees and their employers will need to consider further options in good faith (and consider the impact these options will have on business recovery later).

NB: There are special rules for shift workers relating to the cancellation or early ending of a shift. (Seek HR advice from ConsultingHQ if you have shift workers and you are unsure of what it means for your business).

Employee dismissal for missing work during a natural disaster or emergency

In situations such as the Canterbury flooding, an employee may not be able to come to work for a variety of reasons e.g., they cannot access work due to circumstances out of their control, telecommunications systems are down and they cannot contact you, or they themselves are injured or sick.

New Zealand employment legislation is very clear that employers must follow a fair and reasonable process in disciplinary matters, and keep an open mind when dealing with problems, and act in good faith before dismissing an employee. The reasons that an employee could be dismissed for during a disaster or emergency are very specific.

If your business is faced with a potential disciplinary situation, we recommend you seek advice from ConsultingHQ Consultants before taking any action.

Contact us to find out how we can help your business.

Vaccinations in the workplace

by Tanya Gray | Apr 13, 2021 | ConsultingHQ Blog, Health & Safety, HR Advice, Legal Compliance, Risk Management

Covid-19 vaccinations in the workplace

Contents

What are my responsibilities as an employer in relation to the Covid-19 vaccine?
As it is not mandatory, what can employers do to get their employees vaccinated?
Can an employer request its employees to be vaccinated?
If an employee refuses to be vaccinated, what can an employer do?
Can I make vaccinations a condition of recruitment?
Can employees take leave when they get vaccinated?
Vaccination Policy – Our Recommendation.

COVID-19 vaccines will play a critical role in protecting the health and wellbeing of people in New Zealand which will enable our social, economic, and cultural recovery.
Workplaces in New Zealand will be essential in making access to vaccines as easy as possible for all those employed in them – including employees and independent contractors. To help New Zealand’s COVID-19 Immunisation Programme succeed, the Government is recommending employers encourage and support their workforce (including part time, casual and independent contractors) to get vaccinated.

This could include:

facilitating on-site vaccinations
allowing workers to get vaccinated during work hours without loss of pay, and
providing workers with relevant and timely information from the Ministry of Health about vaccination and its benefits.

What are my responsibilities as an employer in relation to the Covid-19 vaccine?

The Health and Safety at Work Act 2015 states that employers have an obligation to ensure a safe workplace, as reasonably as they can, and vaccinations can be critical to this. Therefore, an employer must do what is reasonably practicable to reduce the likelihood of infection in the workplace.

As it is not mandatory, what can employers do to get their employees vaccinated?

Ideally, all the workforce would choose to be vaccinated to control the risk of infection, some may not, therefore a business must have additional health and safety plans in place to manage these circumstances.

Can an employer request its employees to be vaccinated?

The employer can request but cannot require an existing employee to be vaccinated.

If an employee refuses to be vaccinated, what can an employer do?

In relation to health and safety in the workplace, a PCBU (person conducting a business or undertaking) must ensure health and safety as far as reasonably practicable.

Given the current state of transmission in New Zealand, where workplaces have been able to operate safely without vaccinated staff, it will currently be hard to argue that a person being unvaccinated is a significant health and safety risk but that will depend on the industry and any further changes (such as borders opening).

The employer can ask employees whether they have been vaccinated for risk assessment purposes. If an employee declined to provide the information, the employer should proceed as though the employee has not been vaccinated but should first inform the employee of this assumption.

If workers in the workplace are not vaccinated, the PCBU should do a risk assessment to decide if further control measures are needed to reduce the risk of transmission. Alternative control measures could include (but are not limited to): lower risk duties or worksites for the worker; eliminating or limiting close or face to face interaction with others; working from home where possible; increased social distancing requirements; increased hygiene and cleaning practices; additional training and posters; temperature checks; and additional PPE.

If an employer believes on reasonable grounds that there is a real and imminent risk to health and safety which can only be adequately addressed by vaccine (this is only likely to be in very limited situations where close contact is unavoidable and PPE not wholly effective e.g. health care situations) the employer must consult with the employee and explore all reasonable alternatives and it will only be when all other options are exhausted, that termination of employment would be justifiable. The employer should take specific expert advice on the health and safety requirements, risk and employment implications.

If your employee refuses to be vaccinated, taking no further action to prevent infection in your workplace will not satisfy your legal health, safety, and wellbeing obligations.

Can I make vaccinations a condition of recruitment?

Employers can require vaccination as a condition for new employees, but only where this is reasonable for the role e.g. where the employer has identified real and imminent risk to an employee working without vaccination and has considered alternatives. This is only likely to be reasonable in limited circumstances such as nursing homes.
Employers need to be careful that they are not exposing themselves to discrimination claims by rejecting an employee based on the candidate’s decision to refuse vaccination. That decision could be based on a pre-existing medical condition or religious grounds. Given the current state of transmission in New Zealand, where workplaces have been able to operate safely without vaccinated staff, it will currently be hard to state that a person being unvaccinated is a significant health and safety risk unless the business is particularly high risk or there is a law change. However, when NZ’s borders reopen, this may create a different situation.

Can employees take leave when they get vaccinated?

If an employer is asking an employee to receive the vaccine, then the employee should be paid for the time it takes to get the vaccine. If the employer is encouraging employees to receive the vaccine, the employer should discuss time off work and whether the time will be paid with the employee and come to a mutual agreement. Employers should consider whether allowing paid time off work will help encourage staff to receive the vaccine.

Vaccination Policy – Our Recommendation.

Start now by thinking about factors specific to your particular workplace including:

What do your employment agreements include? Requiring a new employee’s agreement to be vaccinated as a condition of commencing employment is likely to be lawful in most circumstances, However, employers must exercise caution when deciding not to hire an employee whose refusal to be vaccinated is linked to a human right such as religion or disability.
What risks are you managing in your workplace by seeking to require vaccinations?
Are you providing a safe and healthy workplace if you don’t require vaccinations?
Are other steps being taken to achieve the same outcome of minimising the spread of the virus, such as physical distancing, mask wearing and/or sanitising?
Is it relevant what the prevalence of the virus is at the time vaccinations are being required?

Commence conversations with your employees about COVID-19 vaccinations as soon as possible. The consultation and support approach is the best way. Remember that all discussions about COVID-19 vaccination must be fair and reasonable and done in good faith.

Keep up to date with information that is provided on NZ government websites and think about where your business and workers fit in the vaccine rollout. Share information with your team.

Make vaccination as easy as possible for your people.

If your business is considering a vaccination policy for employees as part of your response to Covid-19, please feel free to contact us for advice specific to your situation.

Contact us to find out how we can help your business.

Force majeure clause

by Tanya Gray | Aug 20, 2020 | ConsultingHQ Blog, Employment Agreement & Policies, Legal Compliance

Business owners who do not have an allowance for force majeure in employment agreements moving forward would be wise to consider this now.

Contents

Force majeure is not straightforward – there are strict and precise rulings around the use of this clause.
Force majeure must render business operations not possible to continue.

Force majeure allows employers to be excused from contractual obligations to employees (or any other contracted party) due to enforced ceasing of business due to pre-specified external forces.

Effectively, force majeure enables employers to be excused from contractual obligations to an employee under certain conditions where they are prevented from following certain usual business practices due to significant circumstances beyond their control preventing business operations.

Force majeure is not straightforward – there are strict and precise rulings around the use of this clause.

In wording a force majeure clause to include temporary business closure due to coronavirus or any other communicable disease, one must have specifically included pandemic, epidemic or outbreak of disease in the force majeure clause. It is worth noting that an epidemic – while serious in its own right is not the same as a pandemic.

Importantly, Force Majeure covers specifically what the parties agree on – so the clause must be very specifically and carefully worded. There is no overriding governance or independent doctrine on the intention of the force majeure clause and any legal challenge will rest solely on the working of the clause in question.

Force majeure must render business operations not possible to continue.

The one thing that is clear however is that the event or situation enabling enactment of the Force Majeure clause must be significant and must render business operation or operations by impacted employees either physically or legally impossible.

The other factor that is clear is that the nature of the force must be out of the control of the business owner – and not possible to work around in any way.
It is also worth noting that where business operations are made very difficult due to employee restrictions, this is not the same as being rendered impossible. Force Majeure may only be put in place where business operations are physically or legally not possible.

In summary, force majeure is a specialised area of HR where employers really need to seek specialist advice to ensure the Employment Agreement is written to include specific situations, and must be very clear about the fact that the specified situation must be unavoidable, be out of the control of the business owner and must prevent business continuance.

Traditionally, Force Majeure would have included Acts of War (which would include terrorism, but there is no harm in specifically including terrorism), a change of law or government required restriction of trade and ‘acts of God’ – which would include all natural disasters, but not necessarily include business closure due to communicable diseases.

Indeed, where Coronavirus is the cause of business closure – and the closure meaning that the business is not able to trade in any capacity, a force majeure clause must specifically state that cease of trade due to a pandemic is covered.

In the case of a pandemic being the ‘external force’, the clause should go into further detail in the instance of an employee being prevented to work due to quarantine requirements – even though business operations may be able to continue in some way.

In its own right, this example must be a mandated requirement. The following of recommended advice from health experts in quarantining, for example, would not suffice.

So – force majeure, while straightforward in principle in enabling an employer to be excused from obligations to employees, is not at all straightforward in implementation. The clause must be broad enough to cover most possible situations, yet specific enough to state the exact situation and action agreed and allowable.
Finally (and importantly), a force majeure clause must be both reasonable and not be off putting to a potential employee.

Please contact us for assistance in this area. Our team of HR experts will be happy to discuss this with you.

Contact us to find out how we can help your business.

When can you recruit after making someone redundant

by Tanya Gray | Aug 17, 2020 | ConsultingHQ Blog, Legal Compliance, Restructures and Redundancy

Making a position redundant in your business

Contents

Business restructuring process must precede redundancy
Restructuring process
Positive side effects of managing a restructure and redundancy process correctly are as follows:

When can you recruit after making someone redundant? When you make a position redundant in your business, it is the job that is disestablished – not the employee.

The affected employee only has to leave the business if there is no other suitable job for him or her at that time.

Employers are required to offer upcoming suitable positions to the person affected by the position’s disestablishment for six months following disestablishment.

This being the case, the short answer is that if a position is disestablished, you cannot hire a new employee into it – simply because it no longer exists.

Business restructuring process must precede redundancy

When can you recruit after making someone redundant? The process prior to disestablishing a position in your business is also critical to transparency and risk reduction – given how frequently employees losing their jobs due to their position being disestablished (or made redundant) challenge the decision with a grievance.

The risk of grievance is reduced significantly if the employer follows the correct restructuring process leading up to any positions being established or disestablished. The process can also get messy if any performance management of the employee has taken place leading up to this process. This can be challenged as a sham redundancy- buts that’s another blog topic!

A restructure process must be based on the needs of the business and be managed in accordance to the business plan. Restructuring is conducted when a business moves to a growth or scaling up phase as much as it is when a business needs to scale down.

Restructuring process

When can you recruit after making someone redundant? After the business planning and structure revisions are considered at management level – based on business requirements, the initial stage of restructuring is one of consultation and soliciting feedback from the employees. Anyone potentially impacted by a change in the structure must be consulted – and there is a strict sequence of events to be followed to ensure this process is compliant. We are not listing that information here, simply because compliance requirements can change from time to time.

Employees should be invited to have a support person attend meetings with them (but are not required to do so) – meaning that enough time to allow people to contact their support person and enough time to consider the situation to hand must be allowed for in the process – but not so much time that they begin to become anxious. A couple of days are generally enough.

Most employers getting into difficulty with grievances have skipped this step and presumed that they have the right to make changes that impact on employees without a consultation process.

Following consultation, the employer is required to take time to consider feedback before moving forward.

In the case of a team where all employees have the same position and one or more positions are to be disestablished, in the absence of a company policy stating the redundancy structure when restructuring occurs (which we recommend for all businesses), each team member must be individually met with an interviewed for the remaining positions.

In this instance, a selection process is required. That process must also be transparent and laid out at the initial consultation so that everyone knows what to expect.

Following your reconsideration, another meeting must be held.

Positive side effects of managing a restructure and redundancy process correctly are as follows:

Firstly, you have taken time to consider the restructure from a business point of view and you have a business based reason for the moves at play. This ensures no personality or performance related issues are able to be connected to your decisions.

Secondly, because the team has been informed from the outset, had the opportunity to input and to consider what the business needs, they will adjust much more easily to losing a job or a teammate.

Employers acting in good faith putting business needs at the fore will generally manage this process without it feeling personal for the employees, which means less risk and less grief due to a team member’s job and thus a team member being removed.

If you feel you need assistance or guidance with this process, our team of HR experts are here to help or to manage the process for you. Often that is easier for all concerned. Please contact if you feel that this would be helpful for you.

When can you recruit after making someone redundant.

Contact us to find out how we can help your business.

Parental leave

by Tanya Gray | Jul 7, 2020 | ConsultingHQ Blog, Leave & Payroll, Legal Compliance

Paid Parental Leave in NZ Extends to 26 weeks from 1 July 2020

Parental leave commenced on or after 1 July 2020 will have four additional weeks of Government funded paid parental leave than was previous allocated. It extends from 22 weeks (established 2018) to 26 weeks, enabling more New Zealand parents to spend time with new babies without financial burden. Parental leave is paid up to a maximum $606.46 before tax per week. If usual earnings are less than this amount, the employee’s full pay is paid.

This includes paid employment for self employed people. They would receive the equivalent of the minimum adult wage for ten hours per week if they were making a loss in their business. Criteria for eligibility for parental leave is unchanged. Employees are still required to provide details in writing to an employer regarding parental leave including the type of leave, commencement date and duration of parental leave. This may not be a discussion only – it must be formally documented.

If your employee’s partner or spouse is intending to take some of the paid leave, this must also be detailed. Employers may need to assist employees with this documentation and must respond formally within 21 days. If you are unable to keep an employee’s job open for the intended period of leave, you must declare this as part of your response.

The employee will have the right to disagree with this (and it must be apparent in your letter that this may be the case) – and the employee must be made aware that she or he will have the opportunity to consider other similar jobs for 26 weeks following their return to work date should their main job not be kept open for them. Employers do not have the right to decline parental leave and if they do so, employees may call the Labour Inspectorate for assistance on the matter.

The employer must also make it clear that the employee should confirm the return to work arrangement 21 days before returning and make clear the circumstances under which the employee may return to work early should she or he wish to. If you intend hiring a contractor for temporary placement for parental leave cover, you will also need to consider recent changes in the Triangular Employment Amendment Act 2020 – where employers of contractors may be served a personal grievance by an employee placed through a third party (effective June 2020).

If your employee raises a complaint around your management of the parental leave arrangement, it must be raised either 26 weeks after the event took place, 26 weeks from the expected date of birth or date of birth OR eight weeks after the end of any period of parental leave taken. Any problems arising must be made clear by the employee to allow you the opportunity to remedy the situation. If you require assistance, please let us know!

Contact us to find out how we can help your business.

Triangular employment law change

by Tanya Gray | Jul 7, 2020 | ConsultingHQ Blog, Legal Compliance

Triangular Employment Law Change

Contents

Examples of Triangular Recruitment include:

Government has addressed employment relations for third party contracted employees in the workplace and has announced the Employment Relations (Triangular Employment) Amendment Act, which has come into effect on 29 June 2020.

Triangular Employment Law Change – Triangular Employment is where the employee is introduced to a business (and paid by) by a third party – usually on a temporary basis or specific contracted period, or to work on a specific assignment. In practical terms, this means that if a contractor or temp employee is disadvantaged, mistreated or discrimianted in the workplace, he or she may bring a grievance against both the employer whose workplace they are placed in and the third party who has placed him or her there. This change requires employers of temporary workers to be far more focused on the welfare of their employee while in the care of another employer than is presently the case – and closes a gap in employment welfare that has caused issues for many employees & contractors.

Examples of Triangular Recruitment include:

Temps placed in short term roles by temp agencies.
Contractors put in place for fixed term contracts.
Contractors employed to manage specific processes or projects.
Secondment by an employer of an employee to another business – for example to oversee implantation of a technical project on site for an ongoing project.
Work for hire arrangements.
Subcontractors or employees on site for tradespeople – plumbers etc on domestic or commercial jobs, or security teams on site at events.

All aspects of induction and process management training will be required to be handled as if the external or temporary party were an employee to ensure it is a safe working experience. On site employees in Construction are already required to undergo site safety training before commencing work. This Amendment ensures they are protected if that does not happen adequately. This effectively makes the on-site employer responsible for the health and wellness of all employees on site. Employers should utilise all standard good workplace process for recruitment of external or temporary employees as they do for internal. Any grievances raised would be managed in the same manner as grievances against primary employers involving investigation including mediation.