Client Update – October 2023

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Client Update – October 2023

Election 2023

This is an Election 2023 update that contains a summary of employment related policies that, to date, have been promoted or otherwise raised by the main political parties.

Polling Day – 14 October 2023

All employees that will be working on election day are entitled to leave work at 3pm for the remainder of  the day, without any deduction from their wages, for the purposes of voting, if they have not otherwise had a reasonable opportunity to vote, on the day, before starting work.  However, if an employee is required for essential work or services after 3pm, they are allowed to have no more than 2 hours off work, on pay,  to cast their vote (and noting that polling closes at 7pm on October 14th).

Advance voting is open from now until Friday 13 October, so employees will have had a reasonable opportunity to do so, but voting “on the day” can still remain preference for some.

 

EMPLOYMENT POLICIES (Sorted alphabetically)

Please note that this is not an exhaustive list of policies, but is a summary of what the parties have stated publicly as a policy, or have intimated as being one:

 

ACT PARTY

  • Restore 90-day trial periods for all employees.
  • Freeze Minimum Wage for 3 years.
  • Abolish Fair Pay Agreements.
  • Remove January 2nd as a public holiday.
  • Remove the recently added extra 5 days’ sick leave.
  • “Speed up” the Personal Grievance process by requiring Authority decisions to be delivered within a month of the investigation meeting concluding, and potentially removing the Authority Member if this is not achieved.
  • Remove reinstatement as a remedy the Authority or Employment Court can award.
  • Prevent contractors challenging their employment status.
  • Introduce an “hours based” annual leave accrual system.

 

We note that the policy for the Authority to deliver decisions within one month of the investigation meeting appears to ignore that reasons for delay may be explicable and/or multi-faceted.  Such a policy would otherwise not appear to achieve the stated aim of resolving personal grievances quickly.

 

GREEN PARTY

  • Extend paid parental leave to 15 months.
  • Provide 1-month minimum entitlements to redundancy compensation.
  • Introduce default union membership.
  • Strengthen laws against bullying and harassment in the workplace.
  • Adjust bereavement leave entitlements so they are culturally appropriate.
  • Ensure employment laws enable flexible working arrangements including working from home or a four-day working week.
  • Extend the living wage beyond the core public sector, including to contractors.
  • Minimum wages to increase in line with inflation.

 

We note that minimum entitlements to redundancy are currently subject to agreement between employers and employees.  It is not yet clear whether the Green’s proposal for a 1-month minimum payment for redundancy is in addition to a notice period (where such notice period is 4 weeks), but it may be.  We note that the proposals around flexible working arrangements are otherwise already allowed for in Part 6AA of the Employment Relations Act.

 

LABOUR PARTY

  • 4 weeks of paid partner’s parental leave, starting with 2 weeks from 1 July 2024.
  • “Transform” the construction industry.
  • Increase recruitment from overseas for senior medical workers.
  • Increase minimum wage toward Living Wage rate.
  • Better define in legislation who is a contractor and who is an employee.
  • Remove starting out and training rate wages.
  • Government to match KiwiSaver Contributions, for employees on parental leave, to a maximum of 3% where the employee also makes KiwiSaver contributions.
  • Explore menopause leave.

 

Any proposal to better define “contractor” from employee could have merit, also noting the recent Uber case (currently awaiting a Court of Appeal hearing).  There was a tripartite working group established in 2019, involving business, unions and government sectors that delivered recommendations in December 2021 on this proposal.  Unfortunately, their recommendations have languished as a function of the stated focus on “bread and butter” issues.

 

NATIONAL PARTY

  • Restore 90-day trial periods for all employees.
  • Abolish Fair Pay Agreements.
  • Double the number of seasonal workers.
  • Stop funding workforce development and regional employment initiatives.
  • Remove median wage requirements for work visas.
  • Allow parents to share the 26 weeks’ paid parental leave allowance (with no provision for more)
  • Explore menopause leave.

 

While National and ACT agree on repealing the Fair Pay Agreements Act, we note that while National were previously opposed to increasing sick leave, it has recently indicated to the contrary.  However, that stance may change in relation to individual or collective agreements, should National form a coalition government.  Any changes to sick leave will also not be of automatic application to all employees, as sick leave entitlements in employment agreements may be different to that specified in the Holidays Act.

 

NZ FIRST

  • Potential compensation for people who lost their jobs due to COVID-19 vaccination requirements.
  • Examine raising the Minimum Wage to $25 per hour and allow businesses a tax concession to do so.
  • Redefine small to medium enterprise from 19 employees to 50 full-time equivalent staff.
  • Negotiate for the full reinstatement of the 90 day trial programme and expand its reach to more small businesses.
  • Remove the Accredited Employer Worker Visa and replace it with a Skills Shortage Visa and Labour Shortage Visa.
  • Reinstate the Targeted Trade & Apprenticeship Fund to assist employers to take on more Apprenticeships and Trade workers.
  • Establish an ‘Essential Worker’ workforce planning mechanism to better plan for skill or labour shortages in the long term.

We note that potential compensation for those who were unvaccinated against COVID-19 and who lost their jobs as a result is, according to NZ First, likely to be in the ‘hundreds of millions’, paid for by taxpayers, and the level of compensation would be determined following a new 12-month inquiry, replacing the current Royal Commission of Inquiry into Covid.  The expansion of the 90 day trial period to more small businesses may be linked to the policy of redefining a small business as those with no more than 50 full-time equivalent staff.

 

TE PĀTI MĀORI

  • Increase minimum wage to $25 per hour with annual increases to cost of living.
  • Remove starting out / youth rate wages.

We note that removing starting out / youth rate wages could have the unintended consequence of increasing youth unemployment, which many employer submissions to MBIE on previous minimum wage increases have highlighted as a possibility as, in light of this change, the preference would be to hire workers with experience, thus limiting job opportunities for those starting out their working careers.

 

Final comments

Overall, there is a real mix of policy on offer.  No matter the outcome of this election, it is clear that there will be change.  The extent of any change will be predicated on the final make up of Parliament which may not be confirmed before 3 November 2023, being the date results are officially confirmed.  That of course, also depends on whether a coalition can be formed following the election.

 

For any advice from our employment law specialists, please contact us via email or by mobile:

Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215

Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891

Frances Lear (Partner) – frances@mdjlaw.co.nz or 021 237 7811

Saadi Radcliffe (Senior Solicitor) – saadi@mdjlaw.co.nz or 021 557 236

Alec Nash (Solicitor) – alec@mdjlaw.co.nz or 021 352 288

 

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

Client Update – August 2023

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Sexual Harassment Amendment Act

As highlighted in our May 2023 client update, the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill came into force on 13 June 2023.   All new employment agreements must now include a reference to the 12-month period for raising a personal grievance for sexual harassment.   Existing employment agreements are not required to include such reference, but the 12-month period for raising a personal grievance for sexual harassment will still apply.  The 12-month period begins from the date on which the action alleged to amount to the personal grievance occurred or came to the notice of the employee, whichever is later.

COVID-19 Restrictions Removed

At 12.01am Tuesday 15 August 2023, all remaining COVID-19 restrictions were removed.  Those related to wearing masks in certain healthcare settings, and a mandatory 7-day self-isolation period if an individual tested positive for COVID-19.  The removal of the self-isolation period also concludes the COVID-19 Leave Support Scheme.  Employers can still apply for the Leave Support Scheme if the employee’s self-isolation period started before 13 August 2023.

Employers are still obliged to comply with Health and Safety requirements and can undertake their own health and safety assessments related to COVID-19, which could include (after consulting with staff) whether employees are required to wear face masks, or to be vaccinated.

Other Bills

The Employment Relations (Protection for KiwiSaver Members) Amendment Bill would allow an employee to raise a personal grievance where their KiwiSaver status causes an adverse impact on their employment terms and conditions.  This bill aims to address the issue where employers include a “total remuneration” clause in an employment agreement which includes the employer’s contribution to an employee’s KiwiSaver.  Where the employee is on minimum wage, the effect of such a clause means the employee is being paid less than minimum wage.  This is something we have observed before so if some of your employees are paid the minimum wage, it’s a good idea to check.

The Employment Relations (Restraint of Trade) Amendment Bill has been referred to the Select Committee with submissions closing on September 18 2023.  This bill would restrict the use of restraint of trade clauses to only employees who earn more than three times the minimum wage.  If enacted, restraints of trade would have no effect on employees paid less than that. For qualifying employees, employers would be required to pay half the employee’s weekly earnings for each week that the restraint of trade remains in effect, and the maximum duration for any restraint would be 6 months.

Case law:

Riddler v Meridian Energy Ltd [2023] NZEmpC 87

The Employment Court was asked to determine whether the employee could proceed in a claim solely against a contended controlling third party, having already entered into a settlement agreement with the employer.

Mr Riddler was an employee of Fujitsu New Zealand Limited.  Fujitsu had a commercial arrangement with Meridian Energy to provide it with information communications technology equipment and services.  Those services were provided by Mr Riddler.  At some point, Meridian asked Fujitsu to remove Mr Riddler.  Mr Riddler was advised by Fujitsu to no longer attend Meridian’s premises.  A disciplinary process then occurred and Mr Riddler was dismissed from Fujitsu.  Mr Riddler raised a personal grievance with Fujitsu, and put Meridian on notice as a contended controlling third party that Meridian’s actions had led to Mr Riddler’s dismissal.

Fujitsu and Mr Riddler entered into a settlement agreement.  Meridian was not party to that settlement.  Mr Riddler then sought compensation against Meridian.  The Employment Court dismissed the claim and confirmed that action against a claimed controlling third party must be joined to a claim against the employer.  Mr Riddler’s claim was not successful as he needed to have a claim against Fujitsu to which Meridian could be joined as a party.  The settlement agreement with Fujitsu was a bar to that happening.

GF v Comptroller of Customs [2023] NZEmpC 101

This recent Employment Court judgment was notable for its discussion of tikanga in employment law, and increasing the s 123 compensation “bands” for hurt and humiliation.

GF was a customs officer that was subject to the COVID-19 Vaccination mandates.  GF did not wish to be vaccinated and did not consider that their work was covered by the mandates.  GF was subsequently dismissed from employment.

The Court found that Customs had voluntarily imported tikanga values into its employment relationships with staff.  That meant in addition to its statutory obligations to be a fair and reasonable employer under the Employment Relations, and further, to be a “good employer” in terms of the Public Service Act, Customs also had to act in accordance with tikanga values in dealing with any employee.

The Court held that where an employer incorporates tikanga values into its employment relations framework, the extent to which tikanga has been met will be relevant to assessing the reasonableness and fairness of an employer’s actions, and if good faith requirements have been met.   The Court held it was for Customs to consider how applicable tikanga should inform its conduct in dealing with employment issues, and act accordingly.

In concluding that Customs had acted unfairly and unreasonably in dismissing GF, the Court also took the opportunity to increase the compensation bands for hurt and humiliation payments (often referred to as a s 123 payment) in line with inflation.

For any advice from our employment law specialists, please contact us via email or by mobile:

Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215
Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891
Frances Lear (Partner) – frances@mdjlaw.co.nz or 021 237 7811
Saadi Radcliffe (Senior Solicitor) – saadi@mdjlaw.co.nz or 021 557 236
Alec Nash (Solicitor) – alec@mdjlaw.co.nz or 021 352 288

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

Client Update – May 2023

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Fringe Benefit Tax Exemption Extension

From 1 April 2023, employers are exempt from Fringe Benefit Tax when subsidising an employee’s public transport fares for travel by bus, train, ferry or cable car.  In addition, employers can now provide self-powered or electric powered bicycles or scooters to employees, and contribute toward “ride-share” schemes which offer self-powered or electric powered bicycles or scooters for hire.  Note, that “ride-share” does not include the likes of Uber.  The key criterion for the exemption is that the benefit needs to be mainly for travel between home and work.  Other vehicles which are a mobility device and not a motor vehicle can also be added to the exemption. Regulations are likely to be made in order to limit the maximum allowable cost on the relevant bike or scooter to prevent abuse of the exemptions.

Holidays Act Changes

The Government has confirmed that the long awaited Holidays Act changes have been delayed, yet again, until after the election.

Sexual Harassment

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill has passed through the Committee of the Whole House stage, so is likely to be passed into law soon.  It just needs the third reading and Royal Assent.  If/when passed, this will extend the 90-day time limit for a sexual harassment PG to 12 months.

All employment agreements will need to be amended to provide a specific reference to the 12-month period for raising a personal grievance for sexual harassment.  Once the law is in force, the new timeframe will apply only where the action alleged to be a personal grievance occurred or came to the notice of the employee.

Crimes (Theft by Employer) Amendment Bill

This has been drawn from the ballot.  This bill would make it a criminal offence for employers not to pay money owed to employees under the employment agreement, or as required by law.  If an employer is found to have intentionally failed to pay money owed to employees, that employer is liable to a fine of up to $30,000.  If the employer is an individual, they can be liable for a term of imprisonment of up to 1 year or a fine of up to $5,000 or both.   As a Member’s Bill however, it remains to be seen what support it receives in the House, and so whether it has any prospect of becoming law.

Case law: New Zealand Steel Ltd v Haddad [2023] NZEmpC 57

The Employment Court has again confirmed that an employer proposing to make employees redundant must consult with employees on redeployment opportunities.  A failure to do so will affect the fairness of the entire redundancy process.

New Zealand Steel (NZS) issued a restructuring proposal for the Process Computing department to managers in the department, who subsequently discussed the proposal with their teams and provided initial feedback that the proposal worked.  Only one position was proposed to be redundant, that of Mr Haddad, who was in the position of Process Computing Manager.  Mr Haddad was away on leave at the time the proposal was discussed.  On his return, he was presented with the proposal, and provided feedback on it.  He made it clear that he did not want to be made redundant but wanted to be redeployed.

However, NZS did not involve Mr Haddad in the feedback discussions or subsequent restructure proposals, such as what roles Mr Haddad’s colleagues would be moved to.  Mr Haddad was then advised of his role being made redundant.  NZS then failed to consider Mr Haddad for other roles, with a manager dismissing Mr Haddad’s interest in another role as “saving his bacon”.

The Court agreed that the decision to disestablish Mr Haddad’s role had been predetermined.  The Court also held that the redeployment discussion is not to be conducted unilaterally outside of the consultation process.  NZS had been put on notice that Mr Haddad wanted to be redeployed and was therefore obligated to act in good faith by identifying and discussing suitable roles with Mr Haddad, and to substantively justify its decision as to why redeployment was not possible.  Mr Haddad was reinstated by the Court to a role of Project Manager, which existed and should have been considered at the time of restructuring.

Case law: Taylor v Roper [2023] NZSC 49

ACC cover generally prevents a party suing for damages. This Supreme Court decision was about whether Ms Taylor could sue for damages for workplace events, or if that was prevented by ACC. Ms Taylor was a junior member of the RNZAF.  Her superior, Sergeant Roper sexually assaulted her and confined her (“false imprisonment”).    Ms Taylor had cover for mental injury (PTSD) arising from the sexual assault, but also sought damages in respects of the false imprisonment.

The Court of Appeal considered the mental injury was caused by the sexual assault and covered by ACC.  However, the Court of Appeal allowed the claims for damages for false imprisonment to proceed.  The Attorney-General appealed that decision to the Supreme Court.

The Supreme Court held that ACC cover encompassed PTSD from both the assaults and the false imprisonment. Therefore she could not advance the damages claim.  While the assaults were a material cause of mental injury, whether the false imprisonment was also a material cause was irrelevant as cover for mental injury would have been granted for either.  There was no distinction here which facet of the events caused Ms Taylor’s PTSD.

For any advice from our employment law specialists, please contact us via email or by mobile:

Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215

Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891

Frances Lear (Partner) – frances@mdjlaw.co.nz or 021 237 7811

Saadi Radcliffe (Senior Solicitor) – saadi@mdjlaw.co.nz or 021 557 236

Alec Nash (Solicitor) – alec@mdjlaw.co.nz or 021 352 288

 

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

Legal Update – March 2023

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Welcome to our latest update.  As an election year it is likely a range of employment policies will be promoted by political parties in their efforts to control the Treasury benches.

It is also a busy time for the incumbents.  So far this year the income insurance bill has been deferred, work to define who are ‘employees’ and ‘contractors’ has been postponed pending the outcome of the “Uber” appeal, the minimum wage increases to $22.70 (gross) per hour from 1 April 2023, potential changes to the Holidays Act are afoot, and we may see the first applications for Fair Pay Agreements approved by MBIE and commencing negotiation.

Disaster Management

The recent natural weather events in Auckland and the effects of Cyclone Gabrielle in the East Coast and Hawke’s Bay are a timely reminder to ensure that your business preparedness plans are refreshed and reviewed, including the often difficult question of payment when work is unavailable in the event of a disaster.  Ensuring that your employees are aware of what to do in the event of a disaster also helps you to ensure compliance with health and safety and employment obligations.

Income Insurance Scheme

The Government has confirmed that the Income Insurance Scheme has been “kicked down the road” to address at a future date.

We have previously written about this scheme which proposes to levy a small tax on employers and employees for the purpose of providing income protection to employees who are unable to work due to illness, or who have been made redundant.

Holidays Act

We anticipate a Parliamentary Bill will be introduced this year to address issues in the long-derided Holidays Act[1].

The following changes are likely to be made to the Holidays Act (and associated legislation), assuming the Holidays Act Taskforce recommendations are implemented:

  • Annual leave entitlements to be available for use as they accrue (currently already customary practice in many workplaces).
  • Changes to the method of calculation for leave payments.
  • Employees returning from parental leave entitled to annual leave at their normal rate, despite parental leave absence.
  • Sick leave entitlements to apply from the first day of employment.
  • Bereavement leave entitlements for a wider group of relationships; and
  • A requirement to provide payslips to employees showing their used and remaining leave entitlements and how these are calculated.

We will send a further update once the bill is introduced.  We anticipate a brief period for submissions, before being enacted prior to Parliament being dissolved on August 31st (barring any further unforeseen events).

Fair Pay Agreements

There are currently three FPA applications being assessed by the Ministry of Business, Innovation and Employment[2].  These relate to:

  • Bus drivers, coach drivers and cleaners on interurban, rural and urban bus transport;
  • Hospitality (as including receptionists); and
  • Supermarket and grocery stores.

Once approved, negotiation between the bargaining parties will (all things being equal) commence.  It is unlikely that any FPA will be finalised by the end of this year.  The National Party has committed to reversing FPA legislation should they become the government after October.

Case law  – Controlling third parties (triangular employment) relationships.

A triangular employment relationship is where a worker is employed by one entity, but works under the control or direction of another.   In this regard, a controlling third party (CTP) can be joined to a personal grievance where that CTP has a contract or other arrangement with the employer of the employee, and the CTP receives a benefit of the employee’s work.  The CTP must also exercise, or be entitled to exercise, control or direction over the employee that an employer otherwise would.

When employees apply to join a claimed CTP to a personal grievance, they must satisfy, in addition to the above, notification of the personal grievance to both the employer and the claimed CTP (subject to timeframes, generally 90 days), and that the claimed CTP’s actions caused or contributed to the grievance.

In Welten v McKay and Oji Fibre Solutions (NZ) Ltd[3], Welten was an employee of McKay.  McKay placed employees on site at Oji’s Kinleith Mill premises.  McKay and Oji had a services agreement in place regarding the process of poorly performing McKay workers. Oji raised with McKay their dissatisfaction with Welten’s performance.  Welten was removed from Oji’s Kinleith site by McKay.  No discussion had been had with Welten, either by McKay or Oji, about his claimed poor performance.  Welten raised a personal grievance with McKay, and raised notice with Oji that he considered them a CTP.

The Authority found that Welten met the standard to prove Oji was a CTP.  There was an agreement in place between McKay and Oji, Oji benefited from the work of McKay’s employees, and Oji exercised day-to-day control in the manner of an employer, over McKay’s employees. Finally, it was Oji’s dissatisfaction with Welten that directly contributed to McKay acting in removing Welten from site.

It appears from this determination that it may be difficult to avoid being joined to a grievance as a CTP, particularly where (a common enough occurrence), a contract or arrangement between business entities exists which provides for the placement of employees at another’s business and there is control and direction of those workers on site.

For any advice from our employment law specialists, please contact us via email or by mobile:

Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215
Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891
Frances Lear (Partner) – frances@mdjlaw.co.nz or 021 237 7811
Saadi Radcliffe (Senior Solicitor) – saadi@mdjlaw.co.nz or 021 557 236
Alec Nash (Solicitor) – alec@mdjlaw.co.nz or 021 352 288

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

[1]                https://www.mbie.govt.nz/business-and-employment/employment-and-skills/employment-legislation-reviews/holidays-act-review/.

[2]             MBIE has a FPA dashboard to track progress: https://www.mbie.govt.nz/business-and-employment/employment-and-skills/fair-pay-agreements/fpa-dashboard/.

[3]              Welten v McKay Limited and Oji Fibre Solutions (NZ) Ltd [2023] NZERA 60.

Legal Update – December 2022

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Fair Pay Agreements

The Fair Pay Agreement Act was passed into law on 26 October 2022, and took effect from 1 December 2022.  It is anticipated that the timeframe for bargaining and finalising a Fair Pay Agreement (FPA) will take around 12 months.

Fair Pay Agreements are a substantive change to the employment marketplace, and add to the existing collective bargaining framework.  While collective employment agreements (CEA) can still be negotiated at an enterprise level, Fair Pay Agreements can be negotiated between approved employee and employer representatives at an industry level.  Any negotiated agreement that is concluded, and ratified, will apply to all workers in that industry, regardless of union membership status.  Employees who have an individual employment agreement and work in an industry that is covered by a FPA will also have the option to choose the specific terms of employment that are more favourable to them.

There are obligations for both approved employee and employer representatives when bargaining for a FPA.  If you would like to know more about how FPA’s are likely to impact you, please contact us.

Potential employment law changes

There are a number of employment related bills currently in the ballot.  There are two bills that may be of interest and we will provide a future update if either of these are drawn.

Employment Relations (Privacy of Parties to Proceedings) Amendment Bill

This proposes that parties who are wholly or substantially successful in proceedings in the Employment Relations Authority can request anonymity when Authority determinations are made unless the decision is deemed to be of high public importance.  In addition, it would become unlawful for employers (and potentially that would include recruitment agencies or similar) to ask potential candidates whether they have pursued a personal grievance against an existing or former employer.

Crimes (Theft by Employer) Amendment Bill

This bill makes it a criminal offense for employers not to pay money owed to employees under the employment agreement or as required by law.  If an employer is found to have intentionally failed to pay money, that employer is liable to a fine of up to $30,000.  If the employer is an individual, they can be liable for a term of imprisonment of up to 1 year or a fine of up to $5,000 or both.

Case law

E Tū Inc v Rasier Operations BV

This is the “Uber” case where the Employment Court found that the four named employees in this case taken by E Tū were employees of Uber, and not self-employed.  The employer, Rasier Operations BV, has indicated they are appealing the decision, which is likely to be heard in 2023.

It is important to note that the Employment Court decision only relates to the four named drivers as employees of Uber.  It does not extend to declaring that all Uber drivers are employees.

Idea Services Ltd v Attorney-General (Court of Appeal)

This case was about the Government’s attempt to extend collective agreements until 12 months after the COVID pandemic had ended, using what is called an Immediate Modification Order (IMO).  The IMO (under the Epidemic Preparedness Act 2006) was part of the Government response to the Covid-19 pandemic.  An IMO temporarily changes the law if certain prerequisites are met.  The Minister needed to be satisfied that the legal requirement or restriction was impossible or impracticable to comply with, because of the effects of the epidemic.

A collective agreement usually continues in force for 12 months, after its stated expiry, if bargaining for a replacement has been initiated before expiry (s53).  The IMO sought to delay the 12 months starting until the epidemic ended.  The lawfulness of the IMO was challenged.

Idea Services Ltd submitted that there was ‘executive overreach’ in what the government had done: it had gone too far and its actions were not authorised by law.

The Court of Appeal found that there were fundamental constitutional issues, and  agreed that the IMO was invalid.  We acted for IDEA Services.

 

Annual closedown and 2023 open

This is our last client update for 2022.

Our office will be closed for the end of year break from 2pm Thursday 22 December and reopening on Monday 16 January 2023.  If you have any urgent employment matters that require assistance during the break, you can contact Paul, or Frances.

For any advice from our employment law specialists, please contact us via email or by mobile:

Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215

Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891

Frances Lear (Partner) – frances@mdjlaw.co.nz or 021 237 7811

Saadi Radcliffe (Senior Solicitor) – saadi@mdjlaw.co.nz or 021 557 236

Alec Nash (Solicitor) – alec@mdjlaw.co.nz or 021 352 288

 

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

Client Update – October 2022

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Restraint of Trade Bill

Our June 2022 update mentioned the Hon Helen White’s Restraint of Trade Bill.  That was recently drawn from the parliamentary ballot.  With only around 44 sitting days before Parliament dissolves for the general election in 2023, it remains to be seen if this Bill will advance before then.

In short, the Bill would:

  • Restrict any Restraint of Trade (ROT) to 6 months;
  • Allow a ROT only where an employee is paid more than 3 times the weekly adult minimum wage;
  • Require an employer to pay reasonable compensation to an employee to which a ROT can apply an amount no less than half that employee’s weekly salary or wage for the duration of the ROT;
  • Require the ROT to specify the proprietary interest the employer has; and
  • Apply to all existing Individual Employment Agreements that have a ROT provision, 6 months after the Bill comes into force

 

Other employment law updates

 

Worker Protection (Migrant and Other Employees) Bill

 

This Bill would amend and strengthen the powers of immigration officers and labour inspectors and align the powers of the Labour Inspectorate and Immigration New Zealand to support greater collaboration to undertake compliance and enforcement activities.

 

Employers would be required, when issued a document production request by a labour inspector or immigration officer, to comply with that request within 10 working days.  Employers that fail to provide requested documents could be issued infringement notices.  Such documents that could be requested include wages and time records, leave records, employment agreements, bank statements, and financial statements.

 

There would also be an expansion of the “stand-down” list that currently restricts employers who have breached minimum employment standards from employing migrant workers, to include employers who had been issued with an infringement notice or convicted of immigration offences under the Immigration Act 2009.

 

Further amendments would be made to the Companies Act 1993 so that a person convicted of migrant exploitation or people-trafficking offences could be disqualified from being a director, promoter or manager of any company if the offending was enabled or otherwise related to the use of a company.  This adds to the banning order power of the Employment Court by allowing the District Court or High Court to permanently disqualify individuals convicted of immigration breaches, from being a director, promotor or manager of any company.

 

 

Screen Industry Workers Act 2020

This recently enacted legislation repeals the “Hobbit Law” which specified that screen production workers did not have the ability to challenge their working conditions, or challenge their employment status to determine if they were an employee or independent contractor.

 

The Act applies to individuals who are not employees that work in certain screen productions specified as being computer-generated games, films and programmes.  Those individuals can now bargain for individual or “collective contracts” which must include mandatory terms as specified in the Act. The Act also increases protections for individuals in cases of bullying and harassment.

 

Case law

E Tū Inc v Carter Holt Harvey Ltd

This is the first Employment Court judgment relating to the use of holiday leave during the COVID-19 Level 4 Lockdown in March 2020.

Carter Holt Harvey (CHH) required employees to take 8 days of annual leave during the third and fourth weeks of the Level 4 lockdown, from 9 – 22 April 2020.  CHH was to pay employees as normal from 26 March to 8 April.  No consultation was entered into with employees or their union.

The Court found that CHH failed to engage in discussion to reach agreement with the employees for the requirement for them to take annual leave, and so had acted unlawfully.

Interestingly however, the Court found that the Level 4 lockdown was not dissimilar to an annual closedown period.  Further, it stated there is no obligation on an employer to ascertain what employees will be doing during a period of annual holidays and then assess whether that, in fact, constitutes rest and recreation.

 

 

For any advice from our employment law specialists, please contact us via email or by mobile:

Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215

Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891

Frances Lear (Partner) – frances@mdjlaw.co.nz or 021 237 7811

Saadi Radcliffe (Senior Solicitor) – saadi@mdjlaw.co.nz or 021 557 236

Alec Nash (Solicitor) – alec@mdjlaw.co.nz or 021 352 288

 

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

Client Update – September 2022

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COVID-19 Traffic light system removed and Commemoration Day

From Tuesday 13 September, the COVID-19 Protection Framework (traffic light system) has been removed.

However, the removal of the traffic light system is not a full return to the pre COVID-19 days.  There are some elements of protection that remain which are:

  • Masks are still required in all healthcare settings and aged care.
  • The 7 day isolation period now applies only to individuals who are sick with COVID-19. Their household contacts only need to undertake a Rapid Antigen Test (RAT) each day for 5 days, before going about their usual activities.

While the requirement for individuals who are sick with Covid-19 to isolate remains, the Covid-19 Leave Support Scheme is still available for employers.

All other businesses and places can put in place their own requirements regarding wearing masks.

There is now no requirement for incoming travellers to New Zealand to be vaccinated.  That applies to both tourists and air crew members.  All travellers are still encouraged to do a RAT on day 0/1 and day 5/6 of their arrival into New Zealand, but this will not be enforced.

All government vaccination mandates end on Monday 26 September (also the date of the one-off public holiday to commemorate Queen Elizabeth II).  However, employers, marae and those who facilitate special events can still maintain their own vaccination policies.

Commemoration Day for Queen Elizabeth II

The Government has also announced that Monday 26 September will be a one-off national public holiday to commemorate the passing of Queen Elizabeth II.  This decision is in line with similar holidays that have been declared in the UK and Australia.  Urgent legislation will be passed by Parliament next week to confirm this one-off public holiday.

Notwithstanding that Monday 26 September will be a one-off public holiday, it will be treated as a standard public holiday thereby meaning the usual requirements for public holidays apply for employees.

For any advice from our employment law specialists, please contact us via email or by mobile, and stay safe:
Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215
Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891
Frances Lear (Partner) – frances@mdjlaw.co.nz or 021 237 7811
Saadi Radcliffe (Solicitor) – saadi@mdjlaw.co.nz or 021 557 236
Alec Nash (Solicitor) – alec@mdjlaw.co.nz or 021 352 288

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

Client Update – June 2022

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Client Update – June 2022

Finally, we bring you a client update that does not canvass COVID-19 related issues:

New whistleblowing legislation

The Protected Disclosures (Protection of Whistleblowers) Act 2022 comes into force on 1 July 2022.

‘Serious wrongdoing’ now includes behaviour that is a serious risk to the health and safety of any individual.  Also, the protections in the Protected Disclosures Act will apply to the person making the disclosure even where the person is wrong, and there is no serious wrongdoing, unless the disclosure is made in bad faith.

The protections in the Act extend to someone who discloses information in support of, or relating to, a protected disclosure (again unless that is knowingly false or the person is acting in bad faith).

Contracting out – any provision in an agreement that stops someone from disclosing information that could support or relate to a protected disclosure will have no effect.  This would presumably include confidentiality clauses in settlement agreements.

Disclosure can now be made directly to an appropriate authority at any time.  There are a number of other changes – we recommend that you seek advice if you are unsure of the implications for you.

Engaging independent contractors

Changes to the Fair Trading Act 1986 come into force in August 2022.  Those may have consequences to businesses engaging independent contractors.  “Trade” in this legislation includes (but is not limited to) any business, industry, profession, occupation etc relating to the supply of goods or services.

Protections against unfair contract terms have been extended to cover standard form small trade contracts.  ‘Standard form’ means ‘take it or leave it’ contracts with no opportunity for negotiation.  ‘Small trade contracts’ are between parties engaged in trade (not a consumer contract) where the value is less than $250,000 annually, from when the relationship first starts.  Unfair contract terms might include a contract that allows one party to terminate, or vary the terms, but not the other.  There is also a new prohibition against unconscionable conduct and various other changes.

Potential employment law changes

Employment law bills

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Bill is currently before Select Committee.  If enacted, this would extend the timeframe for raising a personal grievance for sexual harassment from 90 days to 12 months.

The Fair Pay Agreements Bill is also before Select Committee.  This provides a framework for collective bargaining for fair pay agreements for minimum terms and conditions of employment across industries or occupations, rather than just between unions and particular employers.

A new bill that would remove the restriction on trading and selling alcohol on Good Friday and Easter Sunday had its first reading in late May.

Restrictions on restraints of trade for lower-paid workers?

There are a number of employment related bills in the Parliamentary ballot.  One to watch out for is MP Helen White’s Employment Relations (Restraint of Trade) Amendment Bill.  This would restrict the use of restraint of trade clauses for lower-paid workers.  If enacted, restraints of trade would have no effect if an employee earns less than three times the minimum wage.  Employers would be required to pay half the employee’s weekly earnings for each week that the restraint of trade remains in effect, and the maximum duration for any restraint would be 6 months.

Compulsory redundancy compensation?

The Government is considering public submissions on the proposed Income Insurance Scheme, designed by the Government, Business New Zealand and the New Zealand Council of Trade Unions.  If introduced, permanent employees made redundant or who have to stop working because of a health condition or disability, would get four weeks’ notice, and their employer would continue to pay wages for four weeks at 80 percent of their usual salary when the job ends.  After this second month, the income insurance payments would begin, again at 80 percent of their usual salary, up to the current ACC cap. The payments from the employer would be in addition to any other redundancy provisions in an employment agreement.

The scheme would be administered by ACC, and funded by levies on wages and salaries, with both employers and workers paying an estimated 1.39% each.  The proposal includes up to twelve months of support for re-training.

Case law

Employees vs volunteers:  the Employment Court’s recent decision involving the Gloriavale Christian Community examined whether three people born into the community, who began working at the age of six, were in fact employees.

The question of whether an employment relationship exists involves looking at the real nature of the relationship – the label used by the parties to describe the relationship is not determinative.  Each case will depend on its own particular facts.

The defendant argued that work done by the plaintiffs between the ages of six and 14 were chores, that work done when they were 15 was part of their schooling, and work undertaken from 16 years of age was done on a voluntary basis.  The Court disagreed, and held that from the age of six, the plaintiffs were employees.   The work undertaken as children was strenuous, difficult and at times dangerous, was for the benefit of Gloriavale’s commercial activities, and were performed over a long period of time. It could not be considered chores.  At age 15, the work undertaken could not be described as educational work experience, and for other reasons, the work undertaken from the age of 16 could not be considered volunteer work.

There are a range of arrangements that sometimes call into question whether there is in fact an employment relationship, for example, students, trainees, interns, independent contractors, volunteers, and people following a spiritual calling.  We recommend seeking advice if in any doubt about whether an employment relationship exists: significant consequences in terms of wages, leave, and other minimum entitlements can arise.

Restraint of trade: earlier this year, the Employment Relations Authority issued its determination in Tova O’Brien v Discovery New Zealand Limited.   Ms O’Brien left Discovery for a new role at Mediaworks.  She argued they were not in competition as they both operated in different media formats and targeted different audiences, and therefore her restraint should not apply.   Discovery succeeded in upholding the restraint but lost on the duration of the restraint.  The notice period was taken into account – the notice period, plus the restraint period, together came to 6 months which was longer than necessary to protect Discovery’s proprietary interests. The restraint of trade period was reduced to 7 weeks (on top of the 3 months’ notice period).

Holidays Act 2003: for those that may have missed it, the Court of Appeal overturned the Employment Court’s decision in Metropolitan Glass & Glazing Ltd v Labour Inspector, Ministry of Business and Innovation and Employment.   The Court of Appeal held that Metropolitan Glass’ short term incentive bonus scheme was a discretionary payment and did not form part of the “gross earnings”.  The incentive scheme was not part of the calculation for annual leave holiday payments.New Zealand Law Awards 2022

Nominations for these awards are now open.  We would be grateful if you have the time, and are prepared, to nominate us for the employment law category of the firm awards.  If so, the link is below:

https://keymedia.eventsair.com/PresentationPortal/Account/Login?ReturnUrl=%2FPresentationPortal%2Fnew-zealand-law-awards-2022%2Fnzla22firm

For any advice from our employment law specialists, please contact us via email or by mobile:

Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215

Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891

Frances Lear (Senior Associate) – frances@mdjlaw.co.nz or 021 237 7811

Saadi Radcliffe (Solicitor) – saadi@mdjlaw.co.nz or 021 557 236

Alec Nash (Solicitor) – alec@mdjlaw.co.nz or 021 352 288

 

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

COVID-19 Update – May 2022

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Changes to the COVID-19 Public Health Response

Over the past month, several changes to the COVID-19 public health response have taken effect, including moving to the ‘Orange’ light setting of the COVID-19 protection framework, changes to gathering sizes, face mask requirements, vaccination mandates, and the opening of borders to allow international visitors from approved countries to enter New Zealand without isolating.

Two key provisions that affect workers and employers are:

COVID-19 Public Health Response (Protection Framework) Order 2021

Medical grade face masks are still mandatory for some workers under the ‘Orange’ light setting of the COVID-19 protection framework.  This mandatory requirement applies to all workers who work with members of the public, customers, or clients, on premises that are open to the public, where they are:

  • A worker at a food and drink business or service; or
  • A worker at a close-proximity business or service; or
  • A worker at an event.

Employers must have systems and processes in place to ensure, as far as is reasonably practicable, that:

  • workers at the workplace wear a face mask, or a medical grade face mask; and
  • mitigate, as far as is reasonably practicable, the risks of spreading COVID-19 where workers are unable to wear a face mask in certain circumstances.

Note that face mask requirements have also changed for the ‘Red’ light setting, which we will cover in a future update if New Zealand moves back into ‘Red’.

COVID-19 Public Health Response (Vaccinations) Order 2021

The Government mandate to be vaccinated, and for the employer to hold records of that vaccination, no longer applies to workers at:

  • an education service;
  • a food and drink business or service;
  • a gym;
  • a permitted event; or
  • a close proximity business or service.

If you are uncertain of what your obligations are as an employer or worker, please discuss your circumstances with us.

Case Commentary

There have been a number of Court cases on COVID-19 related matters over the past few months, including last week’s High Court case where Grounded Kiwi Group successfully challenged the ‘lottery’ system used for spaces in MIQ.   We expect to see more decisions from the Courts, including in the employment jurisdiction.

Two recent cases dealing with vaccine mandates include:

Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291

This decision of the High Court focused on whether the vaccination mandate that applied to workers in the New Zealand Police and the Defence Services was a justifiable limitation on the right to refuse medical treatment under s 11 of the New Zealand Bill of Rights Act.  The reason given by the government for the mandate was to ensure the continuity of the public services provided by these agencies, due to the risk of absenteeism caused by the pandemic, instead of being aimed at limiting or stopping the spread of COVID-19.   The difficulty for the government was that the Police and Defence already had existing vaccination policies in place requiring their staff to be vaccinated against COVID-19.

The Court found that as the existing vaccination policies had led to a high rate of vaccination in the workforce, the mandate applied only to a small group of employees, and was therefore an unjustified limitation.  There was no evidence that such a small group of employees being vaccinated would materially affect the ability of the Police or Defence Services to provide continuity of services.

The mandate was subsequently set aside by the Court.

NZDSOS Inc v Minister for Covid-19 Response [2022] NZHC 716

As with Yardley, the Court was asked to determine whether the vaccination mandate was a justifiable limitation on the right to refuse medical treatment for workers in the health and education sectors.

In the education sector, vaccination mandates were justified in October 2021, with the Delta variant in the community.  The mandate was necessary to reduce the spread and risk of infection.   When Omicron started spreading in an uncontrollable way, the justification for the mandate became less apparent (and in fact the vaccination mandate for the education sector was removed on 4 April 2022).  Despite this, there was a justifiable reason for the vaccination mandate.

For the health sector, the Court found that a zero-tolerance approach was required given that members of the public accessing critical health services will frequently be vulnerable and often unable to make choices about the healthcare they access. It found that the public could reasonably expect that all steps reasonably taken to minimise patient exposure to COVID-19 had been taken.  The justification for mandates existed based on inhibiting the spread of COVID-19.  The government has since stated their intent to review the scope of the mandate for the health and disability sector.  If the mandate is not reduced in scope, it may become unjustified.

Justice Cooke did note that even a more limited mandate for the health and disability sector would need an assessment as to whether it is truly necessary.  Following the reasoning in Yardley, hospitals and aged-care facilities are likely to have high vaccination rates, and an ability to impose vaccination requirements on staff.

Sick Leave during COVID-19

The Omicron outbreak has led to many employers asking if they need to pay employees who are required to self-isolate.  The COVID-19 Leave Support Scheme is available to employers in this circumstance, but does raise some key issues.

The Leave Support Scheme (LSS) was updated on 14 March 2022.

The LSS is available to employers to support employees (or to self-employed people) who must isolate if directed to do so (for a wide range of reasons). This includes those who have COVID-19, or who are household contacts of someone who has COVID-19.  However, this does not include what used to be called a “casual contact” of someone who has COVID-19, or someone who is isolating due to a belief that they are at greater risk of harm.

Requirements for Support

The employee must be isolating for at least 4 consecutive days.  It does not matter if these days are working days.

From 14 March 2022, employers can only apply for the LSS payment within 8 weeks of the day that the employee’s self-isolation period ends, if the period ends on or after 14 March 2022.  Employers can still apply for the LSS for the employees whose self-isolation period ended before 14 March 2022.

If the employee is required or advised to self-isolate for longer than 10 days, or again at a later date, the employer can apply for a further LSS payment.

What can I get?

$600.00 a week for full-time employees (20 hours per week or more) and $359.00 a week per part-time employee. Use the average hours worked each week over the last 12 months to calculate.

The employer will receive 1 payment for the first 10 days, and then 1 payment for each additional 7 days thereafter that the employee is required to isolate.

If you have any remaining subsidy, after the employee has been paid their usual wages or salary, this can be used to pay other affected employees.  If you have no other affected employees, or they’re already being paid normal wages, the LSS must be repaid.

Sick Leave

The LSS is silent on whether employees should have sick leave deducted at the same time that the employer receives the LSS.  However, the purpose of the LSS is to assist employers with the costs of paying for employees who, because of COVID-19, are required to self-isolate.  If the employee is sick, sick leave should be deducted as normal, subject to usual rules about the use of sick leave.  The situation is different if the employee is not unwell during their period of self-isolation.  We recommend employers obtain advice specific to their situation.

 

For any advice from our employment law specialists, please contact us via email or by mobile, and stay safe:
Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215
Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891
Frances Lear (Senior Associate) – frances@mdjlaw.co.nz or 021 237 7811
Saadi Radcliffe (Solicitor) – saadi@mdjlaw.co.nz or 021 557 236
And a warm welcome to our new team member, Alec Nash (Solicitor) – alec@mdjlaw.co.nz or 021 352 288

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James

Covid-19 Update – Outbreak August 2021

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COVID-19 Resurgence – Client Update August Outbreak               

The Government has announced updated support for businesses and the self-employed affected by the current outbreak.

Note that MSD will not pay an employer more than one COVID-19 payment for the same employee at the same time. We suggest you consider which MSD payments which you are eligible for, select the most appropriate, and speak to us if you have any questions.

 

Resurgence Support Payment (IRD)

The COVID-19 Resurgence Support Payment helps to cover wages and fixed costs for businesses who have been directly affected when there is an increase in their location to Alert Level 2 or higher for a week or more.

Am I eligible?

To be eligible, your business must have experienced at least a 30% drop in revenue or a 30% decline in capital-raising ability over a 7-day period, due to an increase in Alert Levels.

What can I get?

A business may receive $1,500 plus $400 per full-time employee, up to a total of 50 full time employees. The maximum payment is (thus) $21,500.

Sole traders can receive a payment of up to $1,900.

When can I apply?

Applications for the COVID-19 Resurgence Support Payment (RSP) will open at 8am on 24 August 2021. You need to apply through Inland Revenue. The link is here: https://www.ird.govt.nz/covid-19/business-and-organisations/resurgence-support-payment and we also suggest that in advance you use the calculator on this site to assess your entitlement.

It is also possible that the Government could decide to activate the RSP multiple times if there are multiple alert level increases from Alert Level 1. Businesses and organisations can apply for the RSP each time it is activated, as long as they meet the eligibility criteria.

 

Small Business Cashflow Loan Scheme (IRD)

If you employ 50 or fewer staff, you may be able to apply for the Small Business Cashflow Loan Scheme. This is a one-off 5-year loan. You can borrow a maximum of $10,000 plus $1,800 per full-time-equivalent employee within your business (to a maximum of $100,000, or $11,800 for sole traders).

Loans will be interest free if they are paid back within 2 years. The interest rate is 3% for a maximum term of 5 years.

 

Am I eligible?

Your business must have experienced a minimum 30% decline in actual or predicted revenue over the period of 14-days, compared to the same 14-days a year ago (or 2 years ago, if that period was also affected by COVID-19).

When applying for the loan, you need to be able to declare that your business is “viable” and that you have been in business for 6 months or more. All your employees must be legally working in Aotearoa.

“Viable” here means you have a plan to remain “viable”, and evidence for this could include a cash-flow forecast, a plan for where future revenue will come from, financial statements to show the business has enough resources to sustain itself (including the loan) or an accountant’s assessment that the business is “viable” and ongoing.

When can I apply?

Applications are open until 31 December 2023 through myIR, the Inland Revenue Portal. If your business does not have a myIR account, you will need to create one to apply.

 

COVID-19 Wage Subsidy Scheme (MSD)

This subsidy is available for any business or self-employed person in any part of Aotearoa that will lose revenue due to a move to Alert Level 4, or simply cannot operate due to an Alert Level rise.

Am I eligible?

Businesses and self-employed people must expect a 40% drop in revenue to be eligible to receive the wage subsidy. That revenue drop is over the period 17 August 2021 to 30 August 2021 (inclusive) when compared to a typical 14-day consecutive period of revenue in the six weeks immediately prior to the move to Alert Level 4 on 17 August 2021. That calculation is exclusive of the impact of any of the COVID-19 financial support schemes and is slightly different for seasonal businesses.

What can I get?

You will receive a 2-week lump sum payment, calculated accordingly:

  • $600 per week for each full-time employee; and/or
  • $359 per week for each part-time employee.

Use average hours worked by the employee over the last 12 months to calculate.

Do I need to pay my employees their full pay?

At a minimum under the wage subsidy rules (but remembering that ordinary employment law still applies!), you must pass on the full wage subsidy to your employee. If the wage subsidy is more than your employee’s pay, you can continue to pay them at their normal rate.

What else do I need to do?

You need to declare that you have taken active steps to mitigate the impact of the move to Alert Level 4 on 17 August 2021 on your business activities (including, but not limited to, engaging with your bank, drawing on your cash reserves as appropriate, making an insurance claim). Collect evidence to demonstrate this and the impact the August 17 outbreak has had on your business.

You also need to retain all employees referred to in your application, use your best efforts to pay them at least 80% of their usual pay, and again, comply with your ordinary employment law obligations.

When can I apply?

Applications for the August 2021 Wage Subsidy are for the next 2 weeks. You need to apply through Work and Income, here: https://www.workandincome.govt.nz/about-work-and-income/news/2021/wage-subsidy-august-2021-announced.html

 

Support for essential business and their workers:

Leave Support Payment (MSD)

This payment is available for employees (or self-employed people) who must isolate if directed to do so (for a wide range of reasons). This does not include, for example, casual contacts of someone who has COVID-19, or someone who is isolating due to a belief that they are at greater risk of harm.

Am I eligible?

Businesses need to have experienced either a minimum 30% decline in actual or predicted revenue over the period of a month (compared to the same month in 2020) or a reasonably equivalent month, and that revenue loss is attributable to the COVID-19 outbreak, or your ability to support an affected employee has been negatively impacted due to the restrictions.

What can I get?

$585.80 a week for full-time employees (20 hours per week or more) and $350 a week per part-time employee. Again, use the average hours worked each week over the last 12 months to calculate.

The payment covers 2 weeks per employee from the date your application is submitted. If the employee for whom you applied returns to work before 2 weeks, you need to repay whatever amount was not used, or use that to pay for other isolating employees.

Apply here: https://www.workandincome.govt.nz/covid-19/leave-support-scheme/index.html

 

Short-term Absence Payment (MSD)

This is a one-off payment of $350 for employees who must miss work while waiting for a COVID-19 test result and cannot work from home.

This is only available once every 30 days.

Apply here: https://www.workandincome.govt.nz/covid-19/short-term-absence-payment/

 

We are all currently working remotely. For any advice from our employment law specialists, please contact us via email or by mobile, and stay safe:

Paul McBride (Partner) – paul@mdjlaw.co.nz or 021 614 215

Guido Ballara (Partner) – guido@mdjlaw.co.nz or 021 782 891

Frances Lear (Senior Associate) – frances@mdjlaw.co.nz or 021 237 7811

Saadi Radcliffe (Solicitor) – saadi@mdjlaw.co.nz or 021 557 236

Emma Rose Luxton (Solicitor) – emmarose@mdjlaw.co.nz or 021 751 247

 

Disclaimer – this newsletter is necessarily brief and general in nature.  You should therefore seek professional legal advice before taking any action in relation to any matter addressed above.  © McBride Davenport James