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Since our last article on this subject in March, the vaccination debate has rapidly gained momentum. Support for further Level 4 lockdowns is very low and the Government says that more than 90% of the eligible population need to be vaccinated to manage future outbreaks without lockdowns.  Within the next few weeks, every person 12 years and over should have had the opportunity to be vaccinated.  The next question is what will your policy be?

In Australia a full Federal Court has found private employment advisor Employsure, via a targeted Google Ads campaign, falsely represented that it was, or was affiliated with, a government agency.

The Employsure advertisements on Google represented themselves until late in 2018 as "Fair Work Ombudsman Help - free 24/7 employer advice" and "Fair Work Commission Advice - free employer advice" and referred potential customers to domains such as fairworkhelp.com.au, employersupport.com.au and employerline.com.au.

The ACCC further accused Employsure of promising free IR advice but using "high pressure sales tactics" to lure businesses onto long-term service contracts worth thousands of dollars a year. 

The same tactics appear to be employed by Employsure in NZ with their current domain of employerline.co.nz/free-employer/advice. Earlier this year Employsure also entered into an enforceable undertaking with MBIE regarding incorrect payment of various types of leave and incorrect recording of wages and leave.

Applications for the Wage Subsidy can now be made through Work and Income.  This time the requirements are more onerous. 

Employers are facing situations where some employees may refuse a COVID vaccination, or may be unable to be vaccinated due to pre-existing conditions.  Fortunately, the experience so far is that very few people are in this category, probably due to the fact that those being offered vaccinations initially are those most exposed to risk in front line border operations, MIQ or the health system.  Recent surveys indicate that up to 75% of people will, or probably will, have a COVID vaccination when it’s offered, but that still leaves a significant number of people who may not.

To decide an employee’s entitlement to public holidays you first need to know whether a particular day of the week would otherwise be a working day for the employee. This requires an individual assessment for each employee.  For employees with a fixed work pattern that is easy to determine. For employees who work flexibly this is more complicated. 

The UK Supreme Court has ruled that Uber drivers are 'workers' for the purpose of rights under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998.

But that’s not as straight forward as it may at first appear.

Different jurisdictions have come to different decisions about whether Uber drivers are employees or contractors.  The US and Australian jurisdictions have determined the drivers are contractors, whereas in the UK they are held to be “workers”. Now our Employment Court has decided one kiwi Uber driver is a contractor, having recently decided in the Leota case that Mr Leota as a courier driver, is an employee.  See here for further information on the Leota case. 

Regardless, the lot of dependent contractors will receive close scrutiny in 2021 with the government promising to “work with unions and employers to develop a better statutory regime to protect dependent contractors”.

What are the Public Holidays?

The answer to that question will vary depending on the employee’s work pattern.

This year Christmas Day and New Years’ Day fall on a Friday so there are no transfer issues there, but Boxing Day and 2 January fall on Saturday, so those public holidays will transfer for many employees.

More than 6000 employee complaints have been lodged with MBIE since the start of March. That's more than 10 times as many as during the same seven-month period last year.

The system is simply overloaded as any new application may not be set down before 2021.

It’s time to consider private mediation services - a fast and effective way to pragmatically deal with such issues so people can move on.  See: https://www.teesdaleassociates.com/services/mediation-and-conciliation-new-service/

Currently there is a lot of misinformation that employees who have taken a COVID-19 test and been advised to self-isolate while waiting for their test result, should be granted special leave paid by the employer.

To be clear, employees who are waiting for a test result, or who subsequently return a negative test result, are not eligible for the Government’s Leave Support Scheme.

A member of our team fell ill this week, showing some symptoms indicative of Covid-19. On the advice of their GP, they were tested for the virus.

The process for the test was straightforward with the GP’s surgery advising a specific time to attend their premises later the same day for a swab test.