News
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”.
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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.
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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/
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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.
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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.
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Despite high expectations, the new ‘Resurgence Wage Subsidy’, not to be confused with the original ‘Wage Subsidy’ or the later ‘Wage Subsidy Extension’, will not be available to some businesses who are hard hit in Level 3.
That is because you can't receive the Resurgence Wage Subsidy at the same time as you are getting other COVID-19 payments like the Wage Subsidy Extension or the Leave Support Scheme.
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There have been numerous articles concerning the legality of pay cuts by employers during and since lockdown, many of which provide misleading commentary.
One such article advised that “employment law had not been suspended and that any employer wanting to reduce an employee’s pay would need to obtain their consent”. That is not the full story. Another was dismissive of the “no work, no pay” principle and supported the Employment Relations Authority’s finding in one case that the employees were “ready, willing and able” to work during lockdown and therefore should have received their full pay for the period in question.
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Whether or not investigation interviews should be recorded can be a vexed question. Following are some of the pros and cons you may wish to consider:
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Key Themes
- Current upswing in revenue attributed to pent up demand from Level 4.
- June quarter GDP could be down 19% - so decline in discretionary spending expected.
- Employer has a right to restructure - financial losses not a pre-requisite.
- Comprehensive written proposal is essential to communicate and justify the plan.
- Consultation period can be short – the quality of engagement is important, not the duration.
- Feedback is huge - affected employees want to retain jobs because few other opportunities.
- Predetermination an issue – but final decision does not have to be different from the proposal.
The Government has today, announced changes in criteria to qualify for the COVID-19 Wage Subsidy Extension.
The criteria previously required employers to demonstrate a 50% decline in revenue for the last 30 days prior to applying (in comparison to the same period in 2019).
This has changed to a 40% decline in revenue for a 30 day period in the 40 days before applying (starting no earlier than 10 May 2020), compared to a similar period last year.
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The Employment Court has just released its decision in the matter of Leota v Parcel Express Couriers Limited, finding that Mr Leota is an employee and therefore entitled to bring a personal grievance against Parcel Express. While this decision is limited to the facts of the case, it is easy to see it forming the basis of a wider application for courier drivers, and other workers purported to be contractors.
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Many people seem unclear about whether employees can be required to use their annual holidays; and whether the wage subsidy can be allocated to payment of holiday pay.
The answers are:
- Employees may be directed to use their annual holidays by giving 14 days’ notice, provided genuine efforts have first been made to reach mutual agreement on when the holidays will be taken. Note that this applies to “entitled” holidays (i.e. those remaining from the employee’s allocation at their last anniversary date) as opposed to the leave being “accrued” in the period since the last anniversary date.
- The wage subsidy can be used to part pay annual holidays if you made your declaration for the wage subsidy before 4pm on 27 March 2020.
- The wage subsidy cannot be used to part pay annual holidays if you made your declaration after 4pm 27 March 2020.