Leave & Policies – HRtoolkit

Is the Employment Relations Act a storm in a tea break?

Posted on November 3, 2014 - 10:36 am by Lisa Mackay

You can’t switch on the radio at the moment, without hearing about “workers rights to tea breaks being taken away”. So is this hype, or is it reality?

At HRtoolkit, we think it is hype
The updated legislation is just catching up with what already happens in most workplaces. All employees are still entitled to reasonable breaks for rest during the day, changes to the legislation just no longer specify the lengths or duration of breaks. And lets face it, do you know anyone who actually sits down for a specific 10 minute break every day?

So what are reasonable breaks?
Obviously this is yet to be tested in case law, but if you are challenged on whether you are providing “reasonable breaks” you can bet that 2 X 10 minutes plus a 30 minute meal break will still be the bench mark you are measured against.

What else has changed?
It’s important that all employers have a clear understanding of what has changed in order to see how, if at all, these changes impact on their businesses. The six main areas targeted by this Act are:

Flexible working arrangements
The rules around rest and meal break
The continuity of employment for specified employees
The duty of good faith in relation to releasing personal information during restructures
The collective bargaining framework, including strikes and lockouts
Requirements for the Employment Relations Authority in giving its determinations

THE CHANGES IN DETAIL

Flexible work

The changes to flexible working arrangements aim to improve people’s participation in the labour market and to better reflect modern lifestyles. Flexible working arrangements help employees find the right work-life balance for them and their employer. The key changes are:

Extending the statutory right to all employees to request flexible working arrangements. Currently only caregivers have this right.

Employees can ask for flexibility from their first day on the job. This removes the requirement of six months’ prior employment with the employer before an employee could make a flexible work request.

There is no limit on the number of requests an employee can make in a year. Current provisions restrict employees to only one request per year.

The employer must respond to a request for flexible working within 1 month. This must be done in writing and with an explanation of any refusal. This is reduced from the current 3 months provision.

Rest and meal breaks

The Bill makes the rest and meal break rules in the Employment Relations Act more flexible. The Bill aims to balance the importance of rest and meal breaks with business continuity needs. The Bill says employees are entitled to reasonable rest and meal breaks to rest, eat, drink and take care of personal matters. The Bill enables employers and employees to negotiate, in good faith, rest and meal breaks that meet legal requirements and allow the business to work.

The Act allows reasonable limits to be agreed or imposed as to when rest breaks and meal breaks can be taken and it gives employers the ability to dictate when breaks will be taken, if they cannot agree with employees. This replaces a rather prescriptive determination of when breaks are to be taken.

It gives employees the right to be reasonably compensated where the employer cannot reasonably give the employee rest and meal breaks. However the Act still:

requires employers to pay employees for rest breaks
stops people contracting out of legal rest and meal breaks or the requirement to give compensation instead of breaks
does not overrule any other law that makes an employee take rest and meal breaks in a certain way

Continuity of employment
Part 6A of the Employment Relations Act (Protection of vulnerable workers)

In 2012, the Government completed a review of the continuity of employment provisions (Part 6A) in the ER Act. The review found that businesses found it difficult to put the law into practice. The problems came from transferring employees’ entitlements and information to a new employer. The Bill aims to fix these issues. The Bill will give more certainty and clarity to employers while keeping key benefits for affected employees. The main changes include:

The new Act exempts SMEs employing 19 or fewer employees from having to take on employees affected by the work changing hands or meet their entitlements. Currently all restructures involving vulnerable workers would be subject to part 6A, irrespective of size.

The new Act sets timeframes for employees to choose whether or not to move to a new employer (elect to transfer) during a restructure involving vulnerable workers.

The new Act requires that the old employer give the new employer detailed information on each employee that is transferring. It also introduces a mechanism for apportioning liabilities for service-related entitlements between employers where the parties are unable to agree between themselves.

The Act now provides the new employer protection from unjustified increases in employee costs or changes to terms and conditions of employment. This takes away the possibility of outgoing employer to increase wages or to move poor performers to the affected areas just prior to the affected areas.

Good faith

This change amends the good faith provisions that require an employer to give an employee relevant information if the employer is proposing to negatively affect an employee’s employment. It aims to clarify what information employees are entitled to during restructures or other situations where they may lose their jobs.

An employer must give the affected employee relevant confidential information about the affected employee themselves.
An employer does not have to give the affected employee confidential information about another employee.
An employer does not have to give confidential information that legally must stay confidential, or where there is a good reason to keep the information confidential
Employees should still know the identity of their accuser or the nature of allegations made against them unless there is good reason to keep this information confidential.

This addresses the current situation whereby an employee may demand to see information that may be confidential, including evaluative or opinion material, on the premise that it is being used to make a decision about their employment.These changes do not affect an employer’s obligations under the Official Information Act 1982 or the Privacy Act 1993.

Collective bargaining

The changes to collective bargaining aim to increase choice and flexibility in the collective bargaining framework, reduce ineffective bargaining, and improve fairness and balance in bargaining requirements. The key changes are:

Under the new Act, the duty of good faith during Collective Bargaining does not require parties to reach a collective agreement and the parties will be able to ask the Authority to declare that bargaining has ended. Currently parties to a collective agreement (CA) are required to conclude bargaining unless there are genuine grounds for them not to.

Employers are now allowed to opt out of a Multi-Employer Collective Agreement (MECA) bargaining from the start if they have decided not to be a party to that MECA. Currently an employer is required to attend bargaining and consider, and respond to, claims for a MECA. This sometimes has brought employers in competitive markets to bargain together.

Under the new Act employers will no longer have to offer new employees, who are not union members, the same terms and conditions of the collective agreement for their first 30 days of employment. The existing 30-day rule gives non-union members who are new employees, the terms and conditions from the collective agreement. These employees will then need to opt out and sign an Individual Employment Agreement if they do not wish to form part of the collective.

The new Act allows proportionate pay reductions as a response to partial strikes. This will allow for more flexibility on what terms and conditions employers are able to offer to new employees.

The new Act requires advanced written notice of any proposed strikes and lockouts in all sectors.

Employment Relations Authority

The Bill introduces requirements for when and how the Authority must give determinations. The Chief of the Authority can extend these timeframes, if they are satisfied that there are exceptional circumstances.

At an investigation meeting’s conclusion, the Authority must (where practical):

give an oral determination, and a written record of that determination within 1 month, or
give an oral indication of the Authority’s preliminary findings to the parties (unless extra evidence is provided) and deliver a written determination within 3 months of the investigation meeting or when extra evidence is provided, whichever is later
The Authority can only reserve its determination if there are good reasons why it is not practical to give either an oral determination or indication of preliminary findings. A reserved determination must be delivered within 3 months of either the investigation meeting or any extra evidence being provided, whichever is later.
The Authority can also decide matters without holding an investigation meeting. In these situations, the Authority must give a written determination within 3 months of receiving evidence from the parties. This amendment to the ERA is intended to help to ensure that the Employment Relations Authority issues its determinations in a more timely manner.

Managing the Christmas Madness

Posted on November 20, 2014 - 7:07 pm by Lisa Mackay

With about 5 weeks until Christmas, we thought it might be helpful to give you a heads-up on what you as business owners need to remember before you take a well-earned break.

Here are our top 5 frequently asked questions about leave entitlements:

What is a closedown and what do I have to be aware of?
Public holidays – what are employees entitled to?
What if staff don’t have any annual leave available?
Sick leave leading up to Christmas – can I question if it is genuine?
Need some help?
What is a closedown and what do I have to be aware of?

Closedown refers to instances when an employer customarily closes their business for a period of time. This usually occurs at Christmas, however, for some industries it may be at the end of a certain season. The closedown may occur across an entire workplace or for only part of the business.

The employer may implement such a closure only once a year and require employees to take annual holidays during the period of the closedown, even where this requires employees to take time off for which they are not fully reimbursed because they have not accrued enough holiday pay.

If you chose to implement a closedown, you must give your employees 14 days notice. This is a minimum. If you know well in advance when the closedown will occur, let your employees know. It is always a good idea to put these decisions in writing so there is no confusion closer to the time when the closedown period is occurring.

If you are considering having a regular closedown period, you may want to ensure that you have it included in an annual leave policy. It is not included in the standard Code of Conduct document, however, it could be included if it is going to be a regular occurrence.

Public holidays – what are employees entitled to?

Employees are entitled to a paid day off on a public holiday if it would otherwise be a working day. Over Christmas and New Year the public holiday entitlements are: Christmas Day (25 December), Boxing Day (26 December), New Year’s Day and the day after (01 and 02 January).

Remember, an employee cannot be entitled to more than four public holidays over the Christmas and New Year period, regardless of their work pattern.

Note – if a public holiday occurs during the closedown period (as happens over the Christmas and New Year period) then the employee is entitled to paid public holidays if they would be otherwise working days for them, irrespective of how much paid annual leave they have or have not accrued.

What if staff don’t have any annual leave available?

If you have an employee who has not been employed for 12 months up to the closedown date and they do not have an annual holiday entitlement, they should be paid 8% of their gross earnings up to the closedown date, less any leave already taken. This paid leave is then deducted from their accrued leave entitlements.

For an employee who does not have any or enough leave owing, they would need to take leave without pay or the employee may take annual leave in advance of entitlement if there is an agreement between the employer and the employee. The risk associated with this is that they may leave your employment before they have accrued the leave. It is important that you have in writing that the employer can deduct money from the employee’s final pay, if the employee has not accrued the leave before leaving the organisation. A clause covering deductions for leave taken in advance of entitlement is covered in the standard HRtoolkit employment agreements.

Sick leave leading up to Christmas – can I question if it is genuine?

As well as employees taking annual leave for the summer break, you may see a rise in sick leave during the festive season. Work Christmas parties and end of year get-togethers with friends take their toll on staff. Remember, a hangover due to excess drinking at the work Christmas party is not genuine sick leave.

Need some help?

Give us a call on 0800 HRtoolkit (46 86 65) and we will be happy to provide you with support and advice on closedowns or any leave issues that you may have. Annual leave information is available at Document Downloads on www.hrtoolkit.co.nz

The morning after the night before – sick leave and annual leave

Posted on November 27, 2014 - 1:05 pm by Lisa Mackay

SICK LEAVE

With Christmas only a few weeks away, the thoughts of your staff may be turning towards the office Christmas party and to taking leave over the holiday period. This raises a couple of staff management issues which become relevant at this time of year:

Does a hangover count as sick leave?
Can some annual leave balances be reduced?

The hangover
We have all heard the ‘I’ve got food poisoning’ excuse for not coming to work, particularly the morning after the staff Christmas Party when people have thrown caution to the wind, overindulged and woken up the next morning with a throbbing headache and worse. At this time of year, the reality is that there is an awful lot of ‘food poisoning’ going around. However, a hangover definitely does not count as genuine sick leave and you are within your legal rights to challenge someone you think is abusing their sick leave entitlements.

Obviously, as business owners and managers, we know the difficulties associated with managing unplanned absences. It is far easier to plan if you know that people are going to be on leave. With this in mind, it is a good idea to follow the maxim that prevention is better than cure and to take proactive steps as follows:

Ask staff to think ahead, plan in advance and book a morning’s annual leave if they are planning a big night out in the run-up to Christmas and over New Year.
As far as the morning after the staff Christmas party is concerned, let everyone know how many staff can have the next morning off, and the first people to book that time off will get it – first come, first served. For the rest, they will have to suffer their hangovers at work with those who chose to stay on the orange juice.

Allowing such a degree of flexibility at this time of year will be recognised and respected by your staff, and approaching this topic with humour and understanding will be appreciated.

Pushing the boundaries
Unfortunately there are always a few people who push the boundries, leaving the office short-staffed by taking sick leave after a heavy night. If you believe someone is claiming sick leave when they actually have a hangover, you are within your legal rights to challenge this. Our recommendation would be for the following course of action:

The first time it happens speak to them and make it clear that you believe they were not genuinely sick and that a hangover does not count as genuine sick leave. If, after this, you have reason to believe that they have abused their sick leave entitlements again, you may continue up to and including disciplinary action.

If they ignore the first discussions, begin the Disciplinary process. If it is established that the sick leave was in fact a hangover, and they knew the consequences of claiming that it was sick leave (as a result of your discussion) then we would recommend issuing a First written warning letter.

This may feel like a stringent approach, but the reality is that the rest of the staff will probably already know that the ‘sick leave’ was in fact a hangover and if others see someone getting away with it, they will very quickly start to copy the behaviour. Avoid the problems by quickly nipping unacceptable behaviour in the bud and your staff will realise that you won’t tolerate the abuse of sick leave.

If you need further information give us a call on 0800 HRtoolkit (0800 47 86 65). Its easier and more cost effective to get it right first time, let HRtoolkit show you how.

ANNUAL LEAVE

December and January are quiet months for many businesses, so this is a really good time of year to get those annual leave balances down. Legally, you are limited about when you can require an employee to take annual leave. However, you can certainly open discussions with your staff because, in many cases, your employees would love the opportunity to take an extra-long Christmas break, or to work a four day week throughout January, but they have never thought to ask.

Remember that annual leave is accruing all the time, but is paid out at the rate of pay relevant at the time of taking the leave. As a result the cost of the leave increases every time you give someone a pay increase. It also has to be paid out if any employee leaves. It is important to record annual leave that has been taken and to keep annual leave balances within a manageable level.

Need more information?
We are happy to provide you with advice on any leave concerns that you may have. Its easier and more cost effective to get it right first time, let HRtoolkit show you how.

Genuine but regular sick leave

Posted on June 28, 2016 - 10:37 am by Lisa Mackay

With winter upon us, we thought some advice on how to deal with genuine, but regular sick leave might come in handy. Blatant abuse of sick leave is generally easy to deal with through the disciplinary process, but someone who has frequent, genuine sick-days is more difficult to manage.

Frequent genuine sick leave users are parents with childcare responsibilities or people with poor health and underlying medical issues. It is normal to be sympathetic to people in this kind of situation, but it is still very disruptive to the workplace. The impact of having a team member who is unreliable in their attendance (however genuine the reason) can be huge. Extra work is either given to team mates to cover, or remains ‘on hold’ until the employees return to work. This may result in resentment or the perception that taking the ‘odd-day off’ is acceptable.

Discuss the issue with compassion and honesty

Speak to the person about your concerns and explain your sick leave policy, as well as the impact on their team and your business. Then work together to find ways to minimise the impact. Can your employee work effectively from home? Or flexibly in the evening or at weekends? Can you change their hours or days of work to accommodate their needs, or put additional support mechanisms in place?

If you make special arrangements, we recommend you communicate these arrangements and the reasons for them to the rest of your team. This will help mitigate any resentment of perceived special treatment.

If the situation doesn’t improve, let your employee know that they they owe a duty of care to act in good faith in the employment relationship. Persistent unreliability without any effort to correct the situation runs the risk of breaching this duty of good faith. In this situation your options can include disciplinary action or considering medical retirement. But before taking action we recommend you seek professional advice. The circumstances of individual cases may differ and any action taken needs to be appropriate to the situation.

At HRtoolkit we have everything you need to help manage those tough decisions.
Let us show you how.

Sick leave abuse

Posted on October 18, 2016 - 12:01 pm by Lisa Mackay

With Halloween and the Christmas party season fast upon us, we thought a review of sick leave policy might be in order.

Unfortunately there are a few people who abuse sick leave. From the classic Monday-morning-sickie (which has more to do with partying than illness) to just not being bothered to get out of bed. But let’s be clear, although a hangover may make you feel like you’re dying – it isn’t genuine sick leave.

Sick leave abuse is an important issue in all businesses, and the obvious salary cost should not be your most important concern. Your staff will be very aware that one of their colleagues is chucking a sickie. If your team see someone getting paid days off without consequence, they are more likely to lower their productivity. Your team will stop working hard to cover for their colleague who is abusing the system, and will start taking those extra paid days off themselves.

Download our quick guide to managing sick leave and let HRtoolkit help you effectively manage your team.

An introduction to parental leave

Posted on October 18, 2016 - 12:15 pm by Lisa Mackay

At work we all rely on the skills and experience of our staff and colleagues, but outside of work we also have family responsibilities.

Our business and employment environments rely on the skills and experience of our team, but outside of work we also have family responsibilities. Whether we have our own children or not, we are all care-givers of future generations.

As employers, it’s important to formally accommodate a degree of harmony between people’s work and family life. The Parental Leave and Protection in Employment Act helps us do just that.

Notwithstanding the goodwill when someone is blessed with a child, and the recognition of the rights of employees to have time off for parental leave, there will always be the question of who pays and what is affordable.

The introduction of Government paid parental leave was a significant step to address the loss of income experienced when parental leave is taken from work. And Government paid parental leave is perhaps the best solution, because it recognises that although many businesses agree with the importance of paid parental leave, small businesses may not be able to directly bear the cost burden.

A brief summary of the main provisions of the Act:

A female employee who is having a baby
An employee whose spouse/partner is having a baby
An employee who is assuming the sole care of a child he/she intends to adopt.
A couple who are spouses/partners and are assuming the care of a child under 6 years they intend to jointly adopt. In this case the couple concerned can nominate which of them is primarily eligible for the parental leave.

Although the provisions under the Act appear complex and potentially confusing at first sight, they simply reflect the entitlement options for employees in a variety of circumstances. As an employer, you are only likely to be dealing with individual cases, so simply need to assess the request for parental leave and follow a clear process to meet your obligations.

To help you, we have written a quick guide to parental leave for the HRtoolkit library.

Managing a Christmas closedown

Posted on December 2, 2016 - 9:26 am by Lisa Mackay

With the days getting longer and warmer, we are all beginning to focus on a long summer holiday relaxing at the beach. The Christmas period is usually a quiet time for business, and as an employer you may be considering a summer close-down.

So, what is a close-down?

A close-down is when an employer customarily closes their business for a period of time. This often occurs over the Christmas period, but for some industries it may be at the end of a season. A close-down can be across an entire workplace or only part of the business, but it’s important to understand you can only implement this type of closure once a year.

How does a close-down effect annual leave?

During a close-down, you can require all or some of your employees to take annual leave.
If you have a team member who has been employed for less than 12 months, they may not have accrued enough holiday pay. In this case, they should be paid 8% of their gross earnings less any leave already taken.
If you have an employee without enough annual leave owing, they would need to either take leave without pay or request annual leave in advance. Before paying annual leave in advance, check you have a clause in your employment contracts that money can be deducted from an employees final pay if the employee has not accrued enough leave before moving on. This clause is covered in the standard HRtoolkit employment agreements.
If a public holiday occurs during the close-down period, employees are entitled to paid public holidays, irrespective of how much annual leave they have (or have not) accrued.

How should I announce a close-down?

It’s important to consider what an annual close-down will mean for you, your business and your team. Company close-downs are legislated for in the Holidays Act 2010, and although you can legally give your employees as little as 14 days notice, it’s best to let them know well in advance. If you are considering implementing a regular close-down period, you may want to ensure you have it documented in your annual leave policy or code of conduct documentation.

It’s also a good idea to communicate with your team in writing, so there’s no confusion about when the close-down is occurring.

Learn more

Please don’t hesitate to give us a call on 0800 HRtoolkit (0800 47 86 65) if you have any questions about managing your annual close-down. We don’t charge for those quick questions, and often a few minutes with our experts is all you will need.

Do Restraints of Trade actually restrain?

Posted on September 26, 2017 - 4:48 pm by Lisa Mackay

NB this article is equally applicable to employees and Independent Contractors

Restraints of trade definitely have a bad reputation as being unenforceable, and I have heard many horror stories of salon operatives setting up shop in the immediate vicinity and nobbling your client base. However, the good news is that they can be made to be enforceable.

What you can and can’t restrain

Legally you are allowed to restrict someone from stealing your clients. However, you CAN’T prevent someone from earning a living.

Why do Restraint of Trades fail?

The most common mistake with Restraint of trade is putting in an unreasonable restraint such as “you shall not undertake work in competition within a 50 Km radius of the salon”.

Basically, this would restrict someone from earning a living in the same city as they are currently working. This is considered unreasonable. Unfortunately, if a restraint clause is found to be unreasonable then the whole restraint is found to be unenforceable, so you would not have a claim against them for setting up next door.

How do you make restraints enforceable?

For Salons a geographic restraint probably makes the best sense, so think about the area you want to limit. For example:

“You shall not undertake work in the suburb in which the salon is based, nor in the immediate surrounding suburbs”

This would be appropriate for a Grey Lynn, Auckland salon as this would restrict someone from setting up in Ponsonby, but they could still set up in Parnell. So, arguably, you are not limiting them from earning a living.

You also need to think about how long the restraint is for. 3 months may be too short a time period when you consider the cycle of your clients. However, 12 months would probably be too long a restraint. So, consider how often your clients visit you and base the restraint length on that.

Poaching Clients

The law is clear that you are not allowed to steal clients from an employer. This is a matter of good faith and therefore a fundamental principle of employment and contract law.

As such I recommend that, in addition to the Restraint of Trade, you have a Non-competition clause, for example:

It is an important term of this contract that you must refer all business during the term of this contract that may relate to the business of the company, to the company and that after the termination of your contract, you will not for a period of six months from the date of termination approach or solicit business from any client, customer or contact of the company for the purpose of selling products or services in competition with the company.

In summary

Think carefully about what you want to restrict, and be reasonable in your restrictions, and put in place a non-competition clause.

Help is at hand

Call the HRtoolkit team on 0800 HRTOOLKIT (0800 47 86 65) for more help and advice, NB we don’t charge for the 10 minute issues, and in the vast majority of cases 10 minutes is all it will take our specialists to solve the issue with you.

Do I need to pay people after a natural disaster or emergency?

Posted on April 11, 2018 - 2:01 pm by Lisa Mackay

The following guidance is copied from the Employment New Zealand Website

If a natural disaster or other serious event happens, the health, safety, and security of people should be the main concern of all employers and staff. This comes before thinking about the interests of the business or organization. Employers and employees should remember to keep in regular contact and deal with each other in good faith.

The workplace after a disaster or emergency
Pay and leave if an employee is not working after a natural disaster or emergency
Employees’ right to refuse work for health and safety reasons
Employee checklist of things to think about
Employer checklist of things to think about

1. The workplace after a disaster or emergency

After a disaster:

Always follow the advice of the Ministry of Civil Defence and Emergency Management – they’re the experts.
Be careful, exercise care and good judgement at all times.
If there’s damage to any buildings, be alert and cautious if you’re entering affected areas.
Never enter areas cordoned off for safety reasons – you could put yourself or others at risk.

Building assessments and re-entry after a disaster

Following an earthquake or a significant aftershock:

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.

When an assessment is necessary

If the local council advises building owners to conduct assessments following an emergency.
If the owner or employer thinks the building might have been damaged in some way (you or others might see cracks in the building or if buildings similar to your building have encountered problems).
If there are any known structural weaknesses in the building that previous assessments have identified and have been brought to the attention of owner or employer.
If the aftershock is of similar size to the original earthquake. A reassessment should be made particularly if structural damage was observed, but after smaller events it may not be necessary.
For more information read WorkSafe New Zealand’s(external link) position statement. The Health and Safety at Work Act 2015 also supports this approach. The owner and the employer are both PCBUs(external link), and have duties to consult and engage with each other, and to work together in relation to the health and safety of workers and others affected by their respective businesses.

Building re-entry

If there’s any chance that a workplace may not be safe, employers should make a careful external visual inspection before allowing staff back in. If during an external visual inspection you see cracks or you have the slightest doubt about the integrity of the building, do not enter – get an expert assessment before you go in.
If the employer’s external visual inspection is clear and damage is unlikely, you should still make an internal visual inspection before you let staff back in the building. If you have the slightest doubt about the integrity of the building, exit immediately and get an expert assessment report before you go in again. When making an internal visual inspection or entering the building for the first time, as a precaution you should:
- Be on alert as the contents of the building may have shifted and material may have fallen. There might be new hazards or risks (eg spilled liquids or damaged racking for stored goods, uneven or damaged floors).
- If you know there are chemicals or other dangerous materials in your workplace, make sure you’re protected with appropriate protective gear and be careful when you first go in. Stop – look – assess – and don’t take any risks. If you’re unsure or have any concerns, there are professionals who can help you make your workplace safe.
- Treat all services as live and avoid any exposed wiring.
- Make sure there is at least one clear exit (wedge open a door and keep your exit path clear from debris).
- Wear a suitable safety mask (in case of dust), safety helmet and safety googles.
- Take a torch if necessary.
- Have someone keeping watch outside who can go for help if you strike a problem and can’t get out.
- Assume any water eg dripping onto floors is contaminated with sewage.
If you know or suspect that there may be hazardous dusts, such as asbestos or silica, in your workplace, contact WorkSafe New Zealand(external link) or seek professional assistance before entering. A simple dust mask may not project you from exposure and appropriate respiratory protective equipment must be selected, fitted and worn by someone with sufficient training to wear it properly and ensure that it’s effective.

2. Pay and leave if an employee is not working after a natural disaster or emergency

There are different reasons why an employee doesn’t work in this situation. These can include:

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 (eg 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.

Employers and employees can’t assume that time away from work in these circumstances would be either paid or unpaid without looking at the employment agreement, workplace policies and the specific circumstances. The employer and employee should look at their employment agreement to see if this type of situation is covered. If it’s not in the agreement, then it is up to both parties to talk about it in good faith and agree what the time away from work will be classed as.

If the employee’s partner or dependent family member isn’t injured or sick but he or she requires care, eg because their child’s school is closed, the employee can’t 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’s not appropriate or possible for staff to continue working, employees and employers will need to agree on what basis the employee is off work.

Options for leave and payment

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 for. 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).

There are special rules for shift workers relating to the cancellation or early ending of a shift.

Shift workers

If an employee is a shift worker and is willing and able to carry out their agreed hours of work, but their employer either

can’t provide them with work, or
can’t provide them with access to a suitable and safe workplace,

this is considered a cancellation of the employee’s shift.

Whether an employee is entitled to compensation from their employer for ‘cancelling’ these agreed shifts or ending a current shift early will depend on the terms of their employment agreement, the date of their employment agreement, and the specific circumstances of the cancellation.

If the date of an employee’s employment agreement was April 1 2016 or later, their employment agreement and employer must comply with the shift cancellation requirements of the Employment Relations Act 2000.

This means their employer can’t cancel one or more of their shifts unless:

the employment agreement has:
- a reasonable period of notice for cancellation, and
- reasonable compensation payable to the employee if the employer cancels a shift without giving reasonable notice, and
the employer either gives the employee the above notice or pays the reasonable compensation above, and
cancelling the shift doesn’t breach the employment agreement.

If the employment agreement doesn’t have a valid shift cancellation provision and the employer cancels a shift anyway, the employer must pay the employee what they would have been paid if they had worked the shift.

Employers must also pay employees what they would have been paid if they had worked the shift if:

the shift is cancelled but the employer doesn’t tell the employee until the start of the cancelled shift, or
the rest of the shift is cancelled when the employee has already started the shift.

In this situation, the remuneration the employee gets when the shift is cancelled is included in their ordinary weekly pay and relevant daily pay.

If the employer doesn’t comply with the law in relation to providing reasonable notice or reasonable compensation for shift cancellation, then the employee may be able to raise a personal grievance.

If an employee’s employment agreement is dated before 1 April 2016, their employer has until 1 April 2017 to comply with the shift cancellation provisions of the Employment Relations Act 2000. Employees may still be able to claim compensation, depending on what their employment agreement says. Employees, who are unsure of whether their employer is required to compensate them, should seek further advice.

If an employee is not entitled to compensation for shift cancellation their employment agreement may have other options relating to a disaster that apply to their situation. If none of these apply, they can still discuss options for leave and holidays with their employer in good faith. This may also apply when the current roster ends if the employer and employees have not agreed to a new roster

Hours of workhas more information.

3. Employees’ right to refuse work for health and safety reasons

If it’s not safe to be at work, employees can stop work because of health and safety concerns under the Health and Safety at Work Act 2015. Alternatively, they may be able to take strike action under the Employment Relations Act 2000. If the employee and employer have made reasonable efforts but still haven’t been able to resolve the issue, they can use the problem solving framework under the Employment Relations Act 2000 or ask WorkSafe New Zealand(external link) for help.

Refusing to work under the Health and Safety at Work Act 2015

An employee has the right to stop work, or refuse to carry out work if they think that doing the work would expose them, or anyone else, to a serious risk to health or safety from an immediate or imminent hazard. A trained health and safety representative may also direct employees to stop unsafe work.

If you have stopped work because of health and safety reasons:

You need to let your employer know as soon as you can that you have stopped work and why. This should include explaining what your concerns are to your employer eg point out or explain cracks in the building structure that you have seen.
Your employer may give you safe and suitable alternative work at the same or a different location until it’s safe for you to return to your normal work.
You need to make reasonable efforts to resolve the issue with your employer in a timely, final and effective way. You can’t just refuse to work and then do nothing. Both you and your employer must act in good faith.
Once you’ve tried to resolve the issue with your employer, you don’t have to start work again if you still reasonably believe that you or another person would be in danger.
Your employer can’t treat you adversely because you stopped work due to health and safety concerns. This includes being dismissed or made to resign, not having the same terms of employment, conditions, opportunities for training and promotion as other people with similar qualifications, skills or experience, or being threatened with any of these.

Worksafe New Zealand(external link) has more information about your rights and obligations.

Strike action and lockouts for safety or health reasons

Employees can take lawful strike action or employers can lock out employees, if they’ve reasonable grounds for believing that it’s justified for safety or health reasons.

Strikes and lockouts has more information.

4. Employee checklist of things to think about

Take care of your own health and safety. This includes when you’re in the workplace and also if you’re at home (eg you may be suffering from stress or anxiety associated with the disaster). For many people getting back to work and normal life as quickly as possible can help to reduce anxiety and stress.
Take care of the health and safety of your dependants. If you’ve a dependant who is injured or sick then you may be able to use dependant sick leave to care for them.
If you’re not coming into work, do your best to make sure that your employer knows this and that you apply for the correct leave type to suit your situation.
If your workplace is safe and you plan to return to work, make sure that:
- Your transport is organised – check out public transport availability, carpark building availability, alternative routes in case of road closures. See whether you can car pool with workmates, you could ask your employer to facilitate this for you.
- You continue to exercise care as you travel to work, even if your workplace is safe, you may be travelling through areas that have increased risk.
If your workplace is not safe, you can refuse to work.
Act in good faith and be honest with employer about how you are feeling and any concerns you have. If you are finding your return to work difficult, get help and support, your workmates (and employer) are probably experiencing similar feelings to you.

5. Employer checklist of things to think about

Take care of the health and safety 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.
Staff communication and support are very important. Following a disaster, contact staff 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 staff may 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 car pools among staff. Smaller employers could organise carpooling with other employers nearby. Consider any impact on staff getting to work on time and whether you can be flexible.
Consider wider infrastructure issues (eg road closures, power outages or water restrictions) and the impact of these on staff 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 a adopting a flexible approach to staff make personal phone calls to check on family during the workday.
Think about any negative impact on staff pay (eg processing of payroll) and try to minimise this.
Act in good faith and be honest with staff about the situation. You can provide them with an expert report showing the workplace is safe, this will reassure them. If an employee has a concern about the workplace being unsafe, ask them the specifics of their concern (eg have they seen cracks) so that you can investigate.

Combat Workplace Winter “sickies”

Posted on May 30, 2018 - 4:16 pm by Lisa Mackay

Coming into winter people catch colds or worse, the flu. When someone calls in sick, it can be stressful managing without that extra worker. You may think you need that employee at work, but do you really want staff showing up full of the flu, only to spread it through the whole department? At the other end of the spectrum you may have staff who appear to be demonstrating patterns of non-genuine sick leave. For example someone who has a pattern of not showing up on a Monday, or someone who regularly fails to show up for work the day after pay day. Or the case where you recognise a staff member seems to be taking an excessive amount of sick leave.

‘Pulling sickies’ is often a knock-on effect from not addressing repetitive, low-level skiving. If issues such as talking too much on your phone during work time, showing up to work late repeatedly or having long lunches are addressed early the employment relationship, it sends a signal of laxness that can lead to a more serious form of ‘skivitis’ – non-genuine sick leave. Take a look at our quick guide to sick leave issues it’s a great tool to assist you when you are looking at framing up a sick leave policy

Non-genuine sick leave is a tricky area to navigate. As employers you want to think the best of your workers – because let’s face it – they are the back bone of your business. Yet you know at its essence it is disrespectful and damaging behaviour. However, if you have workers with patterns of absence it is important that you deal with it – and promptly. Start with downloading the HRtoolkit sick leave policy, which outlines:

Protocols for calling in sick (will you allow texting or is it strictly calling).
Who staff are to call, when sick. If it is a Manager then ensure during induction the staff have the contact number loaded into their phone from day one.
Outline the statutory requirements for when a medical certificate is required.
Protocols for your shift workers.

Then communicate the policy with your staff.

I was recently discussing this very issue of poor productivity due to low level skiving and suspected non-genuine sick leave with the director of a Tech company. I advised him to implement a code of conduct and a sick leave policy and discuss it with the staff. The owner felt uncomfortable and said he didn’t want to come across as an ogre or a suspicious person. He was surprised to know this is actually a reasonably common response from Kiwi business owners – Kiwi’s on the whole, are culturally averse to having the ‘courageous conversation’.

Framing your conversation around what you want to see, and the potential impacts on co-workers who may have to pick up the extra work, rather than focusing on the negatives, should assist the conversational flow. For example:

“We all want the business to succeed and I want to be able to trust my workers to perform their role well, and not worry about unexplained absence, people showing up late, or phoning in sick two hours after start time. We are all professionals. I am implementing some simple guidelines and company protocols to assist us all and clarify the expectations of the business around workplace performance….”

All companies should have a clear policy on sick leave and absenteeism. Please download HRtoolkit’s sick leave policy to assist you.

When you have established the boundaries for sick leave and reporting in sick, you also need to address your internal communications, including:

A handover of any client appointments, training courses, new staff starting and/or any key workflow issues you as a manager need to know about.
Inform reception
Informing Payroll – administration of sick leave can be particularly time consuming if managers do not pay attention to the details:
- WAGE/TIMESHEET: ensure that the person covering’s timesheet states who they are covering for e.g. Aaron Staples covering for John Bana sick

Good communication in conjunction with good company policies ensures your company manages the winter chills and ills more effectively.

Category Archives: Leave & Policies