COVID-19: Answering your difficult employment questions

Employment New Zealand has issued information about employment rights and responsibilities to employers setting our answers to frequently asked questions. We thought this was useful information that you might find helpful.

Note: This information is meant to provide general assistance to businesses and workers. Should you require legal advice, please contact Stephens Lawyers.

As an employer, can I pay staff less than their normal wages during COVID-19?

Employment law still applies to all employment relationships, regardless of the circumstances that we find ourselves in, including different alert levels during COVID-19. This means you can only reduce employees’ wages if they agree to it, after a discussion in good faith.

As an employer, you need to keep paying your employees at all alert levels, whether they are continuing to work at their usual place of work or from home, or if they are not able to work because of alert levels.

Employees should be paid their wages as set out in their employment agreement. If an employee has an employment agreement with minimum hours but has been working for more than the minimum hours for some time, you need to calculate their pay according to the number of hours that they have been working, rather than the minimum hours in their employment agreement.

The Wage Subsidy can be used to help pay their wages. You can only reduce how much you pay your employees if the employee has agreed to receive lower pay. This means that if they don’t agree to it, you will need to pay their normal pay, even if this is higher than what you received from the Wage Subsidy.

If you have money left over from the Wage Subsidy, for example, if an employee no longer works for you, you can use their remaining subsidy to pay other affected employees. If there are no other employees to use the subsidy for, then the remainder must be paid back.

If your employees cannot work normally and your business is struggling to meet its costs, the best thing you can do is to talk to your employees in good faith, explain to them your business’ financial situation and talk about what options are available to you and them, and agree to any changes. If your business has unionised employees, make sure that you involve the union in discussions relating to any changes.

There are other financial support schemes available to help you pay wages during this time. For example, the Leave Support Scheme can help you pay employees who have to self-isolate, even if you don’t qualify for the wage subsidy.

For further information about applying for the Wage Subsidy, visit the Work and Income website if you have questions relating to the wage subsidies, including how much you get, what the criteria are and how to apply. See Wage Subsidy.

 

Can I make my employees take annual leave or sick leave to help complement their wages?

At each alert level, employers and employees should first discuss whether the employee can work normally, how much work is available, and how to work safely at home or their usual place of work.

During any alert levels, employers cannot make employees take:

  • sick leave, if the employee is not sick,
  • advanced annual leave,
  • annual leave, without giving at least 14 days’ notice (unless the employee agrees to take annual leave, after a discussion in good faith).

If an employee can’t come to work because they have been told to self-isolate by the National Contact Tracing process or by a Health official, and they can’t work from home, the Leave Support Scheme is available to help pay their wages.

For more information, see Leave Support Scheme and Leave & Pay During COVID-19.


Can I ask my workers to pay for their own masks during COVID-19?

You are responsible for your workers’ health and safety at work. You must provide all appropriate personal protective equipment (PPE), and make sure they use, wear and maintain the required PPE. This includes face coverings when required to do so under COVID-19 rules.

Remember, face coverings required by COVID-19 rules and PPE required by health and safety at work law are different.

You cannot pass on the cost of providing PPE (in full or part) to the worker. You cannot make the worker provide their own PPE as a condition of employment.

For more information, see PPE Guide for Businesses and Contact Record Rule & Face Coverings.

 

Can I require that my workers get vaccinated for COVID-19?

Businesses cannot make individuals be vaccinated. However, businesses can require that certain work must only be done by vaccinated workers, where there is a high risk of contracting and transmitting COVID-19 to others. The Government has also specified that certain work can only be performed by vaccinated workers.

For a business to decide that work is high risk and therefore needs vaccination for health and safety reasons, the business must first assess their COVID-19 exposure risk. This applies to work done by all workers, whether employees or independent contractors.

The COVID-19 Public Health Response (Vaccinations) Order 2021 provides details of which work the Government has specified can only be performed by vaccinated workers.

For further information, see COVID-19 Vaccination & Employment.

Privacy Act 2020 comes into effect on 1 December 2020

Privacy Act imageThe Privacy Act 2020 which was passed earlier this year, comes into effect on 1 December 2020.

The new Act replaces the Privacy Act 1993 and includes a number of significant changes, including:

  • Mandatory notification of harmful privacy breaches. If organisations or businesses have a privacy breach that poses a risk of serious harm, they are required to notify the Privacy Commissioner and affected parties. This change brings New Zealand in line with international best practice.
  • Introduction of compliance orders. The Commissioner may issue compliance notices to require compliance with the Privacy Act. Failure to follow a compliance notice could result in a fine of up to $10,000.
  • Binding access determinations. If an organisation or business refuses to make personal information available upon request, the Commissioner will have the power to demand release.
  • Controls on the disclosure of information overseas. Before disclosing New Zealanders’ personal information overseas, New Zealand organisations or businesses will need to ensure those overseas entities have similar levels of privacy protection to those in New Zealand.
  • New criminal offences. It will be an offence to mislead an organisation or business in a way that affects someone’s personal information or to destroy personal information if a request has been made for it. The maximum fine for these offences is $10,000.
  • Explicit application to businesses whether or not they have a legal or physical presence in New Zealand. If an international digital platform is carrying on business in New Zealand, with the New Zealanders’ personal information, there will be no question that they will be obliged to comply with New Zealand law regardless of where they, or their servers are based.

Further information is available on the Office of the Privacy Commissioner website, see: privacy.org.nz/

If you have any questions relating to the new Privacy Act and how it may impact your Society, please contact Stephens Lawyers.

 

Reform of the Incorporated Societies Act 1908

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The Government has announced that it plans to update legislation relating to Incorporated Societies, having now signed off changes to a draft Incorporated Societies Bill.

The Bill which is expected to be introduced to Parliament later this year will apply to the more than 23,000 incorporated societies that operate in New Zealand.

For more information see http://www.scoop.co.nz/stories/BU1906/S00662/incorporated-societies-bill-closer-to-introduction.htm and https://www.mbie.govt.nz/business-and-employment/business/regulating-entities/incorporated-societies-act-review/

If you have any questions relating to the proposed Bill and how it may impact your Society, please contact Stephens Lawyers.

Korean Film Festival returns

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The Consulate of the Republic of Korea in Auckland and Korean Cinerama Trust will open the are Korean Film Festival in Auckland this week, with additional screenings in Hamilton. The festival will open with a special screening of Netflix title Okja on Thursday 19 October.

Starring an international cast including Tilda Swinton, Jake Gyllenhaal, Paul Dano, Steven Yeun, Lily Collins, Giancarlo Esposito and An Seo Hyun, Okja was an Official Selection of the 70th Cannes Film Festival.

Okja tells the story of a young Korean girl Mija (An Seo Hyun) who for 10 years has been caretaker and constant companion to Okja — a massive animal and an even bigger friend at her home in the mountains of South Korea.

Deftly blending genres, humour, poignancy and drama, Director Bong (Snowpiercer, The Host) begins with the gentlest of premises, the bond between man and animal and ultimately creates a distinct and layered vision of the world that addresses the animal inside us all.

Chair of the Korean Cinerama Trust, Michael Stephens, said, “It is particularly pleasing also to know Okja has a New Zealand connection, with the Sound Design Post production work for Okja undertaken by Wellington based Sound Designer Dave Whitehead, who has worked previously with Director Bong and on other Korean films.”

Following the Auckland premiere screening of Okja, 6 more free Korean titles will be offered in Aucklanders until Sunday (22 October) including one of Bong Joon Ho’s earlier films, The Host. The kids’ programme on Sunday includes Nori Roller Coaster Boy, the first TV show made under the Korea-NZ co-pro treaty. John MacKay’s POW partnered with Korea’s XrisP and did much of the post, including the English language dub.

Korean Consul General, Ms Chang-soon Cha, said: “This year’s festival features a collection of contemporary Korean movies including a number of heart-warming family movies and animations. I believe in the power of the movie, especially in this multicultural society. It connects people and helps people understand different cultures, and it ultimately binds us in harmony.”

Tickets for Auckland screenings are free, allocated on a first-in best-dressed basis. Two free screenings will be offered in Hamilton at Lido Cinema next week. The Festival presented a special screening of Okja in Wellington on 1 October at the Roxy Cinema.

The full list of festival titles is:

Auckland
19 Oct (Thurs. 6:30pm) Okja, M
20 Oct (Fri. 6 pm) My Brilliant Life, M
20 Oct (Fri. 8:45 pm) The Host, R13
21 Oct (Sat. 4 pm) How to Steal a Dog, PG
21 Oct (Sat. 6:30 pm) All About My Wife, M
22 Oct (Sun. 2 pm) Nori Roller Coaster Boy & The Little Penguin Pororo’s Racing Adventure, G

Hamilton
25 Oct (Wed. 6:15pm) The Host, R13
26 Oct (Thurs. 6:15pm) The Thieves, R16

Health and safety: Providing protective gear

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The Ministry of Business, Innovation & Employment has provided useful guidelines for employers who provide Personal Protective Equipment (PPE) to their employees to enable employers to comply with the new Health & Safety legislation which takes effect in April 2016.

Before providing PPE, you should first ask whether there is a better way of dealing with the risk. Can the risk be eliminated? If not, how can you best control the risk?

If PPE is needed, your business is responsible for supplying appropriate PPE. You can do this in two ways – by buying the PPE yourself, or through allowances added to your workers’ pay. The cost of PPE must be covered by the business. Workers must take responsibility for wearing and using it properly.

For more information, see: http://www.business.govt.nz/news/health-and-safety-providing-protective-gear 

If you are concerned about ensuring your business stays compliant with the new legislation, please contact:
Michael Stephens or Alan Henwood at Stephens Lawyers on 04 915 9580

Health and Safety Reform Bill passes

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The Health and Safety Reform Bill passed its third reading at parliament yesterday. The Bill creates a new Health and Safety at Work Act.

The Bill is the first significant reform of New Zealand’s health and safety laws in 20 years and addresses the recommendations of the Independent Taskforce on Workplace Health and Safety.

The new law will be supported by regulations that are being developed in time for April 2016.

Until the Act comes into effect in April 2016, the current Health and Safety in Employment Act 1992 remains in force.

Stephens Lawyers will be carefully reviewing the new legislation and providing more comprehensive information on the practical impact of the legislation and steps clients should take in advance of it coming into force on 4 April 2016.

For more information about the new law visit WorkSafe New Zealand’s website

 

2015 K-Culture Festival: Experience Korea; Saturday 1 Aug, Shed 6, Wellington waterfront

Stephens Lawyers looks forward to attending the 2015 K-Culture Festival: Experience Korea on Saturday, 1 August in Wellington. The Festival is co-hosted by the Korean Embassy in New Zealand, the Korean Association & Wellington City Council at Shed 6 on the waterfront from 11.00am.
Entry is free and visitors have a chance to: enjoy Korean traditional and contemporary performance including K-Pop Competition; taste Korean Food; & experience Korean culture by learning Korean traditional games, making traditional crafts and trying Hanbok (traditional dress).
K Culture Festival - Copy

 

Key Changes to NZ Employment Law – Are You Ready?

The Employment Relations Amendment Act 2014 came into effect on 6 March 2015. Here are some of the key day-to-day changes:

1. Flexible working arrangements:

  • Employees have a statutory right to request flexible working arrangements that were previously confined to care givers.
  • Employees can ask for flexible working arrangements from their first day on the job and as many times as they want.
  • Employees can make as many requests as they want.
  • Employers must respond to a request within 1 month, in writing and explain any refusal.

2. Rest and meal breaks:

  • General rights replace strict rules for employee rest and meal breaks.
  • Employers can make reasonable restrictions on rest and meal breaks.
  • Employers must provide reasonable compensation where they cannot reasonably give breaks – the employer cannot fail to give either.
  • Rest breaks must be paid.
  • Any other law requiring breaks takes priority over the Act.

3. Negotiating in good faith:

  • Employers and employees are encouraged to negotiate in good faith regarding flexible working arrangements and meal and rest breaks.
  • Employers must give an employee relevant information where they are proposing to make a decision that will or is likely to have an adverse effect on the continuation of that employee’s employment i.e. during a restructure or sale of a business.

If you have any questions or would like to take steps to comply please call 04 472 9632 or email richard.chiu@slaw.co.nz

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