FREQUENTLY ASKED QUESTIONS

Holidays

Who gets paid on a Public Holiday?

Employees who would normally work on the day that the public holiday falls but who get the day off because the business is shut or the staff levels are reduced, are paid for the hours they would normally have worked at their relevant daily pay rate.

Employees who would not normally have worked on the day that the public holiday falls and still do not work, are not entitled to be paid for the day at all. An example of this would be an employee who works Wednesday to Saturday when the public holiday falls on a Monday.

Employees who work on the public holiday will be entitled to time and a half pay for the hours worked and will also get an alternative day off.

For more information see Holidays Act 2003

Can an employee ask for money instead of their annual leave?

The provisions of the Holidays Act 2003 entitle each employee to a minimum of four weeks' annual leave for rest and recreation.  Paying cash instead of holidays would be against these provisions.

Agreements

Do I have to give my employees an Employment Agreement? 

Yes you do. The Employment Act 2000 makes it mandatory. The Employment Relations Authority has the ability to fine you up to $10,000.00 if you do not provide an adequate employment agreement. 

Can I offer a fixed-term agreement to a new employee?

Yes you can but you must have a genuine reason for offering a fixed term agreement such as covering maternity leave or for a particular short-term project. If you do employ someone on a fixed-term arrangement you should include the reason in the employee's letter of employment or employment agreement and explain the length of the contract and its reasons at the outset. A fixed-term agreement cannot be used simply to make it easier to get rid of someone without using normal disciplinary procedures.

Can I offer a new employee a trial or probationary period?  

Yes you can as long as you make the existence of a trial period clear to the employee in their written employment agreement. A trial period does not make it any easier to get rid of someone who is not performing. During the trial period you must actively manage the employee so that they know what is expected of them, your performance expectations and they must receive adequate training in order to meet them. If the trial is not successful, you must still go through proper performance management and disciplinary procedures.

Terms and Conditions

Must I provide meal breaks for employees?

You are not required by law to provide set meal and rest breaks.  However employers should provide breaks that are appropriate to the working environment in order to protect the staff from fatigue and to promote productivity.  The duration and timing of breaks should be negotiated with the employees and ideally detailed in the employment agreement or company policy.

Do I have to provide a place for employees to take a break?

Yes.  Every employer must provide a room in which employees can prepare and eat meals during breaks.  The room should have tables and chairs, facilities for boiling water and heating meals as well as be equipped with a sink, hot and cold water, and preferably a fridge.  There should be cupboards for storing food and crockery and the waste bin must have a lid.  The room should be set aside for the purpose of a rest/lunch room and away from any hazardous materials and the toilets.

Can I change the terms and conditions of employment for my staff?

Yes.  However this must be done by negotiation and in consultation with the employee/s concerned.  The employee has to agree to the changes before they can take effect.  This does not completely prohibit you from running your business as you wish but you must have sound commercial reasons for making any changes and you must follow a fair and reasonable process.  Unfortunately the law does not expressly say what this must be.  We would suggest that any consultation process would include meetings with the employees ( including allowing the employee to have a support person present), providing opportunity for the employee to fairly consider the changes suggested and giving a reasonable time frame for any changes to take place. 

If no consultation takes place or there are no solid business grounds for these changes then the employee can refuse and could take a personal grievance.

Selling a Business

What happens to terms and conditions if I sell my business?

Recent amendments to the Employment Relations Act 2000 provide some employees with legal protection if the business they work for has been sold or restructured.  These “Protected Employees” include people working in the cleaning and food catering services, laundry for schools, health or residential care sectors, caretaking services in the education sector and orderly services. 

Disciplining and Dismissing

Can I fire someone immediately for serious misconduct?

In practice, no you can’t. You must still investigate any allegation appropriately. If after following the correct procedure, which may involve suspending the employee, you find that there is a case to answer of serious misconduct, you may be able to terminate the employment without notice or without the normal oral and written warnings. See the section on disciplinary procedures for more detail.  

Must I allow an employee a representative at a disciplinary meeting?

Yes. If you are meeting with an employee to discuss concerns relating to their performance or conduct at work, then you must inform them of the reason for the meeting and that it could result in disciplinary action. You must also tell the employee that they are entitled to bring a representative or support person of their choice to the meeting. You must give them notice of the meeting time and date which allows sufficient time to arrange a representative. 

What do I do if the employee opts not to bring a representative? 

As long as you have made it quite clear that the employee had the right to bring someone then you should make a note at the meeting that indicates the employee’s decision not to have representation and ask them to confirm this in writing.

Can I ask an employee to resign?

No.  If you put pressure on an employee to resign or make the working environment so intolerable that the employee resigns then this would be constructive dismissal.  The behaviour of the employer must be such that the employee feels no other alternative exists but to resign and the employer could be reasonably expected to be aware of that risk. 

Can I dismiss someone who has been off sick for some time?

There is no legal process to follow except that you are expected to have behaved in the same manner as any fair and reasonable employer.  You need to have a good reason for the dismissal and have acted fairly in your treatment of the employee. 

The law does not require that you hold a position open for a person for a given period but the reasons for dismissal must be fair and you should be able to justify the dismissal.  You should think about the length of time the employee has had off to date and the effect this has had on your business.  The entitlement to sick leave, the prospects for recovery, the length of tenure and any opportunities there are for assisting with lighter duties or alternative work should all be considered. 

What is considered a fair procedure will vary with the circumstances but you must communicate and consult with the employee and give them reasonable notice that their sickness/absence is likely to lead to termination.  If the process is not fair then a personal grievance could follow.

Unions

Can I stop a union entering my business? 

The Employment Act 2000 gives unions the legal right to enter your business for purposes related to the employment of its members or for legitimate union business. This includes recruiting employees as union members and discussing union business with existing members.  However, union representatives must not disrupt normal business operations as far as is possible and must comply with your health & safety procedures. The union representative must give a reason for wanting to be in the workplace and if wanting to recruit members, they should have reasonable grounds, that its membership rule covers at least one of your employees.  The Employment Act 2000 recognises the employee’s right to join a union and for that union to subsequently represent them in the workplace.

How many union meetings can a union member go to in a year?

Unless your Collective Agreement specifically offers better terms, you must allow your union members to attend at least two union meetings per year.  These meetings can last up to two hours.  You must pay the staff who would otherwise be working for the time taken to attend these meetings.  You do not have to pay staff that have attended the meeting but otherwise would not have been working, such as shift workers.  You do not have to pay the union members for any more than two hours for each meeting. 

A meeting between an individual employee and the union representative does not count as union meetings and are additional to the entitlement and paid as if working.

Is striking legal?

Yes, under the Employment Relations Act 2000.  There are some conditions that apply.  The strike must relate to bargaining for a collective agreement, the existing collective agreement must have expired and bargaining must have commenced 40 days prior to the start of the strike.

If there are reasonable health and safety grounds, then a strike or lock out could also be lawful but must be a last resort.

Pay

What is the minimum wage?

The level of the minimum wage is reviewed every year. Currently there are different levels of minimum wages, depending on the age and training levels of the employee. Youth minimum wage rates have been abolished and replaced by New Entrants minimum wage.

As of 1 April 2008 the minimum wage rates are:

Adult minimum wage: $12.00 per hour

New Entrants minimum wage: $9.60

Employees with a training agreement linked to an NZQA qualification are paid at the appropriate rate for their age.

These minimum wages apply to all types of employees, including part-time, casual, employees who are paid by commission or on a piece-rate basis and employees, home workers.

For more information on the minimum wage and change from Youth Minimum Wage to New Entrants Minimum wage rates click here.

What are the requirements for paying wages?

It is best practice to cover the details for paying wages/salary in the employee’s employment agreement.  Alternatively you must have your employee’s written agreement. You cannot make any deductions from your employee’s wages other than those required by IRD, without their prior permission. 

What do I have to include when I am calculating annual leave payments?

Total gross earnings include all payments an employee receives as part of their agreement.  This is salary and bonus or commissions.  It also includes the first week of ACC payment for work related injuries.  However out of pocket expenses and redundancy compensation is not included.

I have a roofing business.  Do I have to pay my employees if they can’t work because of the weather?

This will depend on your employment agreement.  If this situation is not covered in the agreement then you would need to negotiate with your employee.  You would need to agree whether the time away from work will be paid as leave, a paid day off, an alternative holiday or is taking leave without pay.  Unless it specifically states in your agreement you cannot simply not pay a staff member if they cannot work.

Parental Leave

Do I have to provide parental leave?

Yes, as long as your employee meets the set criteria. Your employee must have worked for you for at least 6 months and not taken parental leave in the 12 months before the expected date of birth or adoption. They must also have worked for you for an average of 10 hours per week, which is at least one hour in every week or 40 hours per month. In the case of adoption, the child must be under six years old.  Where two partners wish to share the leave, they must both meet the two eligibility tests above.

What is the payment entitlement?

The Government can pay a maximum of $391.28 per week for up to 14 weeks when the employee takes the parental leave.  The IRD pays this fortnightly directly to the employee’s bank account.  When an employee wishes to apply for the payment, you are required to complete an application form confirming that the employee is eligible for leave and their earnings. 

Do I have to leave their job open?

If the position is a ‘Key Position’ and the employee is requesting more than four weeks leave you may be able to argue that it would be damaging to the business not to find an alternative employee. However it is not a recommended course of action and can not be done just for convenience. It would be strongly recommended that you discuss any such plans with the Employment Relations Service on 0800 800 863. 

Health and Safety

What must I do to comply with Occupational Safety and Health?  

The Health & Safety Act requires that you maintain a safe workplace for your employees. You must have practical health and safety policies and procedures in place to protect your employees and other visitors to your work place. If you have over 30 employees this also includes designating members of your own staff as Health & Safety Representatives. It is your responsibility to ensure that your employees have all the safety equipment and/or clothing they need and that they follow any policies and procedures that are in place. 

Do I have to provide protective clothing?

Yes, you are obliged to provide and pay for suitable protective clothing if your workplace has hazards that could result in harm for the employee.  Depending on your working environment this could include; overalls, gloves, safety boots, ear muffs, hard hats or safety glasses.  You cannot pay the staff an allowance instead of providing the protective clothing.

Since the protective clothing belongs to the employer, you are able to place a clause in your employment agreement allowing for a deduction of costs if an employee does not return the protective clothing when they leave your company.

If the employee genuinely wants to wear their own protective clothing and the employer deems the clothing to be suitable, the employee can do so.

Where can I get additional help and support?

Call Hughes Consulting Group 09 359 9982. 

Employment Issues

What happens at mediation?

The Employment Relations Act sets out a process for dealing with employment relationship issues.  For most employers this means a personal grievance and often after the initial lawyer's letter mediation provides the solution.

At mediation, an independent person, the mediator, is assigned to assist both parties to talk about the issues that they have.  This could be as a result of a perceived wrongful dismissal; it could be negotiation of new contractual terms or any other issue on which employer and employee have reached stale mate.  The mediator’s role is to help you find a solution that you are both happy with, they are not there to speak for you or to take sides. 

The parties at mediation usually include the employer and employee and representatives for both sides.  The representative can be anyone though in practice the employee is likely to bring a lawyer or advocate and unless feeling particularly brave the employer should bring someone suitably qualified as well.  Having this representation can take the emotion out of the proceedings allowing the facts and practicality of the situation to come to the fore.  For more information click here.

The consulting arm of hughesdirect can assist you with personal grievance issues and act as your representative for the process.  Contact Hughes Consulting Group on 09 3599982 or info@hughesdirect.com