Last updated: 18 August 2020
The response to COVID-19 has deeply disrupted the labour market with far-reaching and unprecedented effect on workplaces and workplace relationships. Many businesses, employers, workers, and their representatives have concerns about what is happening and what they can expect from the labour market regulator at this time.
Below are answers to some frequently asked questions about Employment New Zealand’s (ENZ’s) approach and what it expects of workplaces in relation to COVID-19.
What services does ENZ provide?
Labour Inspectors protect NZ employers and employees through enforcing and monitoring compliance with minimum employment standards such as the minimum wage, holidays and leave entitlements. They also provide guided self-resolution through the Labour Standards Early Resolution Team.
Employment mediators provide a range of high quality mediation and case management services to people who have disputes in employment or have had a breakdown of their employment relationship.
Provide public information and education services to promote and encourage employers and employees to understand and act on their employment rights and responsibilities:
- employment.govt.nz website
- ENZ Facebook(external link)
- ENZ LinkedIn(external link)
- ENZ Newsletters(external link)
- Brochures and leaflets in printed and digital format
- E-learning modules(external link) about employment legislation.
Work with and provide resources for specialist audiences, such as:
- Sector leaders, industry bodies, large employers, and professional service providers encouraging them to improve working conditions, including pro-actively leading employment standards, and future proof NZ businesses ability to trade
- Community organisations, ethnic based connectors, and education providers to ensure hard to reach audiences access, and are supported to act on, employment information and services.
- Administering the stand-down list of employers who have breached minimum employment standards.
- Tracking and reporting of work stoppages.
- Overseeing the receipt and processing of collective agreements.
- Supporting the operation of the Employment Relations Authority.
Where is ENZ putting its focus in relation to COVID-19?
Employment Law has not changed. ENZ’s priority is to support the all-of-government (AoG) response as New Zealand works to eliminate COVID-19, while ensuring that employment law still applies. Any temporary changes of function are listed below.
This sees ENZ:
Receiving and assessing COVID-19 Wage Subsidy, Wage Subsidy Extension, and Leave Support Scheme complaints
Assessment approaches include:
- providing guidance on the employment.govt.nz website
- guiding employers through their obligations
- offering "early intervention/fast track" mediation services to support quick resolution of employment relationship problems before issues reach the point where a more formal mediation process and/or Employment Relations Authority intervention are required
- engaging directly with the leadership of larger or more complex workplaces and worker representatives, to support them to work through and resolve current workplace relationship issues and potential structural adjustments
- identifying those employers who are refusing to comply with employment standards for follow-up action from the Labour Inspectorate
- referring complaints to the Ministry of Social Development where potential Wage Subsidy, Wage Subsidy Extension, or Leave Support Scheme fraud is identified.
Continuing to deliver core services, which within the COVID-19 environment means that apparent and serious breaches of "good faith" are more likely to attract attention to an employer’s action.
Assessing and responding to questions and complaints received through the Employment Line, Employment NZ Contact Us channels, social media channels and Wage Subsidy, Wage Subsidy Extension, and Leave Support Scheme Complaint form
Undertaking Labour Inspectorate field work, increasingly utilising remote means and automated audit based approaches
Offering mediation services, primarily through remote means
Engaging with sector and industry leaders to confirm any messaging, industry leadership, and support they are providing to ensure their sector understands the expectations on them, particularly at this time. Offering resources, assistance, and support as needed
Supporting the Employment Relations Authority.
What are ENZ’s expectations of employers in relation to COVID-19?
Employment law has not changed. This means that employers are still expected to meet employment law obligations as outlined below.
- Employers must engage with employees and their representatives in good faith, including in a manner that is not misleading or deceptive.
- If their employees are represented, including by a union, employers must engage with their employees’ representatives.
- Employers cannot unilaterally change employees’ terms and conditions (eg hours, days, pay rate). This does not mean that employers cannot propose changes to employees’ terms and conditions, but any changes need to be genuinely agreed following a good faith process and should be recorded in writing. It should also be clear whether the change is permanent or temporary.
- Employers cannot agree or contract to pay less than the law requires for work performed (eg at least the minimum wage for each and every hour worked), annual leave or public holidays.
- Employers cannot require staff to take annual leave without agreement or 14 days’ notice, or to use 'accrued' or 'anticipated leave' or other contractual leave entitlements (eg long service leave) without agreement.
- Employers cannot require staff to come to the workplace when they are sick. If an employee is sick they must stay home.
- Employers cannot unilaterally make an individual redundant without undertaking a redundancy process in a good faith and non-discriminatory way, which involves all of the potentially affected workforce.
What are ENZ’s expectations of employees in relation to COVID-19?
Employment law has not changed. This means that employees still have to meet employment law obligations, including as outlined below.
- Employees and their representatives must engage with employers in good faith, including in a manner that is not misleading or deceptive.
- Employees and/or their representatives must receive and consider their employer’s proposals with an open mind and having regard to all of the circumstances.
- Employees do not have to accept any proposal received.
- Employees should provide their agreement in writing and receive a copy of that agreement.
What does employment law look like in the COVID-19 environment?
Employers have different business models, financial viability, and employment conditions. Some are providing 'essential services', some are not, and some are providing a mix of services. This means there is not a one size fits all way to determine a COVID-19 approach that will make sense in all circumstances.
The set of guiding principles below may help parties to engage in good faith and arrive at genuine agreement in respect of COVID-19 approaches. While it is not the only approach possible, it is an approach that is likely to be transparent, fair, acceptable, and ultimately enduring to employees and their representatives. It should, therefore, keep the risk of any related issues to a minimum.
- Early engagement on presenting issues and the options available to address. If your employees are represented, including by a union, you must engage with your employees’ representatives.
- Ground proposals in facts which have been evidenced. Financial disclosure is likely to assist in the current circumstances. Employees and/or their representatives must receive and consider their employer’s proposals with an open mind and having regard to all of the circumstances.
- Make it clear employees do not have to accept any proposal. Have a process available for those that do not agree to the proposal.
- Provide employees and their representatives adequate time to respond to proposals, and consider any responses in good faith. Noting that in the current situation, there may be circumstances where consultation on changes can be truncated if the employer genuinely needs to make rapid adjustments to cope with their circumstances under COVID-19 alert restrictions, but truncated processes must still occur in good faith, and provide opportunity for workers to seek advice.
- Get agreement in writing – it’s a legal requirement and provides protection against subsequent claims.
It is important to note that employees may take a personal grievance where an employer does not act in good faith. Unions may also bring an action for breach of good faith by an employer.
In such situations, the Employment Relations Authority or the Employment Court may award penalties for a breach of good faith. The Labour Inspectorate can also seek penalties where employees don’t have written employment agreements accurately reflecting working and remuneration arrangements.
From a regulatory perspective, apparent and serious breaches of good faith are more likely to attract attention to an employer’s action.
Do the rules apply to my business?
Employers who are not sure if the rules currently apply to their business should seek professional advice to clarify their thinking. This should be done before taking any action that might later cause legal or other problems.
If an employer does not do this, and the Labour Inspectorate later investigates and finds breach(es) of employment law, they will not hesitate to use the full range of enforcement tools as they would in the normal course. The Labour Inspectorate considers this is the only fair thing to do for workers and for businesses that are meeting their obligations – especially in these tough times.
Businesses should also be aware the Labour Inspectorate is working with the Ministry of Social Development and will pass on information concerning any abuse of the Wage Subsidy, Wage Subsidy Extension or the Leave Support Scheme or the previous Essential Workers Leave Scheme.
What should I do if I have concerns about what is happening?
First read the COVID-19 information on this website, and contact us if you need to. If you believe your employer is receiving the Wage Subsidy, Wage Subsidy Extension, or the Leave Support Scheme but not meeting the conditions they agreed to, you can make a complaint using our online form.