Consult, Consult, Consult

by | Aug 18, 2021 | Covid-19, Employment Agreements

Well, we are back at level 4 and everything crossed that the go hard, go fast approach will keep delta contained, and Lockdown short
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What have we learnt from last year?
Obviously, when we went into lockdown last year we were dealing with a total unknown in respect of what we could and could not do in respect of our employees.  Since then several cases have come before the authority, and these are some of the key learnings you need to consider:

  1. You CAN’T unilaterally make changes to someone’s terms of employment, you must consult
  2. If you receive the wage subsidy you HAVE to pass this on as wages, but this shouldn’t mean that people get a false pay increase because the subsidy level is higher than their normal pay.  In that case you pay them 100% of their normal pay, and use the balance to top up other members of the team
  3. You CAN’T force someone to take annual leave, but you can always ask them if they want to, and offer that as an option
  4. If someone is WILLING AND ABLE to work, then they are due to be paid, you can only vary that through CONSULTATION

What does Willing and Able mean?
To help with this assessment, here are some scenarios:

  1. An employee, such as a factory or café worker, may be WILLING to work, but because they can only perform their duties at the workplace, they are not able to get to work due to the lockdown, therefore they are not ABLE to work.  As such, there is not automatic right to pay, but you should be applying for the wage subsidy.
  2. An employee such as an essential services worker for whom work is available and they are ABLE to attend, but they are not WILLING to work (without good reason) has no automatic right to pay.  An example of a good reason may be that they are immune-compromised.  But if the reason is “I don’t want to work” then talk this through with them.  There are a lot of nasty stories out there about this Delta variant so they may have genuine concerns and you should work those through with them before saying you won’t pay.
  3. An employee who can work from home, e.g. an admin based person is both WILLING AND ABLE to work and therefore is entitled to pay.  However, in this situation, the amount of work may be lower than normal.  As such you need to consult with them about how you are going to handle the situation

So, in summary, you will need to look at this on a case by case basis, but we strongly recommend that any decisions to reduce pay are only done after you have gone through some form of consultation process.

Can they be required to work?
Work must be done within the confines of the current restrictions i.e. all but essential workers must be at home.  But, if they are receiving payment, you can be requiring them to do reasonable tasks for the time that they are being paid for.

Consultation templates
The Restructuring section contains the documentation you will need for this process.  The 2 main key documents are:

  1. Changing terms of employment consultation document – ideal for when you are changing terms, but not proposing redundancies
  2. Consultation document template – which includes the broader consultation requirements if you are proposing major changes including redundancies

We are here to help

We are still open as normal, and here to help, so please do call if you have any questions, 021 741 544 or 0800 HRtoolkit.  Please remember, the only daft question is the one you don’t ask!  Most issues can be solved very quickly and easily with a bit of early intervention.

In the meantime, stay home, stay safe, and let’s all follow the rules and hope that this lockdown will be short, sweet and effective

Cheers

Lisa Mackay
Managing Director