Employee Rights and Covid-19

24 March, 2020 | Rachael Chandra

Employee rights under various legislation, including the Employment Relationship Act 2000, Health & Safety at Work Act 2015, Wages Protection Act 1983, Holidays Act 2003 and Minimum Wage Act 1983 remain protected during Covid 19.

 

Notwithstanding the extreme circumstances Covid 19 poses for New Zealand, employees remain entitled to the following:

• Minimum wages;
• All minimum leave entitlements;
• Terms and conditions of employment under Employment Agreements being honoured;
• A safe workplace;
• To be treated in good faith as regards any decision that is likely to affect the terms and conditions of employment; and
• The mutual obligations of trust and confidence.
• A right to privacy
• The right not to be discriminated against

 

Minimum Wages and Leave Entitlements

During Covid 19, employee entitlements to minimum wages and leave entitlements under various statutes remain unchanged.

 

Terms and Conditions of Employment, Variations and Redundancies

Employment agreements set out employees’ terms and conditions of employment, in addition to their minimum statutory entitlements.

During Covid 19, the employer may face a situation where certain terms and conditions of employment may not be capable of being honoured for whatever reason. That includes the ability to continue to offer the employee his/her role, the contracted hours of work and payment for hours worked.

There are a number of scenarios that may come into play in such a situation.

• Restructures/Redundancies;
• Variation to terms of employment, for instance reduced hours and/or reduced wages;
• Option of using up annual leave; and
• Applying for the government wage subsidy.

Regardless of what the employer proposes to do, employees are entitled to a fair and just process as regards any changes to the terms of employment. In other words, an employer cannot unilaterally make a decision to change an employee’s terms of employment without first consulting the employee in good faith.

For instance, to tap into the wages subsidy, the employer must obtain  the employee’s consent to provide an “employee privacy statement” to the Ministry of Social Development.

In the event of a proposed restructure/redundancy/or any other change to terms of employment including wages, hours etc, the employee is entitled to a consultation process that is carried out in good faith, is fair and just, before any decision is made.

The process should include:

• Providing the employee with details of the proposal;
• providing the employee with information about why such an option is being proposed;
• inviting the employee to a meeting (albeit a telephone or video meeting in the current Covid 19 circumstances);
• advising the employee of their right to a support person/representation;
• having a meeting which may be held via telephone or video conference;
• allowing the employee to give their thoughts and feedback and considering those with an open mind; and
• communicating the decision and the reasons for it.

 

Employment Relationship Problems

Employees facing employment relationship problems as a result of breaches by the employer of their obligations, are in the first instance (bearing in mind their duty of good faith) required to raise the issue(s) with the employer. This however may not always be possible.

In the event the problem cannot be resolved through discussions with the employer, the employee may raise a personal grievance with the employer. The personal grievance must be raised within 90 days of when it arose.

The Employment Mediation Service will continue providing mediation services throughout Covid 19, albeit via telephone or video link.

 

Safe Workplace

During Covid 19, and in particular lockdown periods, a number of employees will be working from home. The workplace becomes the workspace at home.

The employee is entitled to support from the employer as regards setting up a safe work environment at home. That may include things such as having a suitable desk, chair and anything else that would make the work space at home safe.

For those employees who are required to continue working at their usual place of work, the employer must take all reasonably practicable steps to ensure they provide a safe workplace. Employees too are obliged to take reasonable care for their own health and safety. That will mean that all government requirements must be followed at all times.

The experienced employment team at Smith & Partners will continue acting for our clients during this time also, although we will be doing that via telephone or other online conferencing means. If you need advice on your employment rights and obligations, or you want to raise a personal grievance contact us to set up an appointment.

Contact PA to the employment team Suzanne Sumner, to become a client and set up a time for a phone or video conference meeting – phone 09 837 6840 or email suzanne.sumner@smithpartners.co.nz