Employers and employees need to work together to slow the spread of COVID-19, protect New Zealand and keep each other safe. This means that normal obligations to keep in regular contact and to act in good faith are more important than ever. This is how employers and employees can be kind to one another.
Regular employment law still applies to all employment relationships – regardless of the circumstances that we find ourselves in. This includes:
- having a written employment agreement for every employee, and doing what that agreement requires
- keeping each written employment agreement up to date, including documenting any changes that affect rates of pay or hours worked
- meeting legislative and any relevant contractual requirements for changing employment arrangements
- complying with all minimum standards legislation and with the Employment Relations Act 2000.
Deal with each other in good faith
Employers and employees, and their representatives, must discuss in good faith the implications of the COVID-19 situation on their working arrangements.
Good faith includes the following three elements:
- Parties must not act in a misleading or deceptive way.
- Parties must be responsive and communicative.
- Before making a decision, which may result in employees losing their job, the employer must give the affected employees sufficient information to be able to understand the proposal and then give them a proper opportunity to comment.
Good faith is also wider than this. It is more than just following the letter of the law. It involves treating others fairly using common sense.
Where changes to current working arrangements are proposed by an employer, there are specific good faith requirements that must be followed. Any changes made need to be consulted on and agreed to by both parties.
Any agreed change to the employment agreement should be recorded in writing. Having the agreed terms and conditions in writing is a legal requirement, whether the change is temporary or permanent.
Access to financial support
Financial support schemes, such as the wage subsidy scheme and the leave support scheme may be available for businesses, employers and employees.
Alternatives to redundancy
An employer can’t make changes to terms and conditions agreed in an employment agreement, including hours of work, wages or salary, or the nature of the job itself, without the agreement of the employee. This should be recorded in writing.
In some situations, such as genuine financial, commercial or economic problems, or a genuine restructuring of the business, an employer may consider proposing some or all of the following workplace changes, as an alternative to redundancy:
- changes to an employee’s job description
- a change to when or how work is undertaken (for example, shift work)
- reducing an employee’s hours
- reducing an employee’s wages or salary, while still at least meeting the minimum wage requirements for each and every hour worked.
In these situations the employer must follow good faith processes for workplace change, which includes giving the employee a fair opportunity to consider, seek advice from their representatives, and respond to the proposed change.
Any agreed changes must be recorded in writing and signed by both parties, and the employee must be given reasonable time to consider the proposal.
Redundancy should only be considered if no suitable alternative arrangements have been able to be found, following a good faith process.
Ending an employment agreement due to vaccination requirements
Employers may terminate an employment contract if an employee has chosen not to get vaccinated against COVID-19, but their work requires vaccination.
Employers and employees must continue to deal in good faith, and employers must still consider all reasonable alternatives first, such as finding other work within the business that does not require vaccination.
If the employer terminates the agreement they must provide a minimum four-week paid notice period. This applies to employees who do not have a notice period, or whose notice periods are shorter than four weeks. If an employee has a notice period longer than four weeks in their employment agreement, that will continue to apply.
If an employer and employee have not been able to agree to alternative working arrangements, (e.g. the company cannot afford to keep the employee or has changed its operating model), redundancy may be considered.
Proposals that involve redundancy must be consulted on in accordance with good faith requirements and other employment law obligations, including any contractual consultation processes.
We recognise that these are unique and challenging circumstances and a ‘reasonable’ timeframe for negotiation and discussion with staff may be shorter than required for a process undertaken pre-COVID.
Government, businesses and workers all have the same aims: to support businesses to continue through this period, retain as many jobs as possible, and ensure that those jobs do not reduce in hours or pay, more than what is necessary.
Where the circumstances require a hastened process to engage with staff on those issues, the Employment Relations Act 2000 allows flexibility in the processes, including consultation timeframes, to achieve workforce and workplace changes. The key is that both employers and employees must deal with each other in good faith throughout any process.
- engage with employees and their representatives meaningfully
- provide them with as much time as possible to consider and respond to any proposal for change
- consider any feedback and concerns they raise.
Employees also have a duty to act in good faith. This duty should inform how they and their representatives receive and consider proposals put forward by the employer.
Employees who have been made redundant are entitled to work, or be paid, their notice period and redundancy entitlements as agreed in the employment agreement. Where no notice period has been agreed, a reasonable period of notice must be provided.
Employers who are receiving a wage subsidy should also read the information on wage subsidies and redundancies.
If an employer has been placed into receivership the receiver will have responsibility for decisions on running the business. Each situation will be different depending on the nature of the company in receivership. Contact the receiver for specific information about your situation if your employer has been put into receivership, or seek legal advice. You may wish to contact a Community Law Centre for advice or your union.
Depending on the circumstances the receiver may cancel your existing employment agreement, or they may offer you a new employment agreement with different conditions. Employment laws still apply, and the receiver will be required to keep in regular contact with you and act in good faith.
Termination on ‘frustration of contract’ grounds
A frustrated contract is a contract that, after it was agreed, becomes incapable of being implemented, due to an unforeseen event (or events), resulting in the obligations under the contract being radically different from those considered by the parties to the contract at the start.
Employers would not be able to terminate the employment on ‘frustration of contract’ grounds where workers are able to do the majority of their usual duties.
There might be circumstances where COVID-19 disrupted businesses in such a material manner that the employer was unable to determine with any certainty how they may be able to continue or resume operations. Whether this would be enough to provide legal justification for termination of employment would depend on the specifics of each agreement and the requirements of the job.
Employers are strongly encouraged to seek specialist advice before relying on ‘frustration of contract’ grounds to terminate an employment agreement.