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Thelma French & Associates HR advice & consulting

Returning to Work - Practical Tips

Thu Oct. 14th 2021

In light of all the calls we have been receiving, we thought we could assist by providing practical advice on current employment matters.

In this newsletter we will cover:

  • Covid 19 - returning to work protocols
  • What you can and can’t ask about vaccinations
  • Clause for Individual Employment Agreement for new employees required to be vaccinated
  • Xmas Closedown (as opposed to Covid Lockdowns)
  • Immigration Change

Returning to Work Protocols

Different workplaces are able to return to work at different levels. We are sure you are all aware of the level in which you can operate. We have had a number of clients contact us about staff wary of returning to the workplace with unvaccinated colleagues and questions about what can be done about this.

You can only require staff to be vaccinated if there is a government mandate covering your sector, or if you can show a strong health and safety reason why this is necessary. Without a mandate, there is a high threshold to meet. The first thing you should do is undertake a thorough Health and Safety Risk Assessment and show the reasons why you believe it is the proper approach for your business.

You can find out more information about a risk assessment in regards to Covid19 here.

In any event, you should have clear policies and procedures to ensure your workplace is as safe as possible and communicate these to your team verbally and in writing to help alleviate any concerns. Listen to the points they raise and involve them in creating the workplace environment that will work best for your business. We strongly recommend that any policies and procedures are provided to staff as a draft document and genuinely seek and consider their feedback.

We have an updated checklist for returning to work and can help with communications to your team and advice on how to best deal with specific queries.

What you can and can’t ask about vaccination

You can ask if someone is vaccinated but unless they fall under a Government-mandated category, they don’t need to tell you. If you want to ask them you would also need to explain why you want to collect this information, how it will be used and stored in accordance with the Privacy Act 2020 as it is personal and private information.

Clause for Individual Employment Agreement for new employee requirement to be vaccinated

If, following your Health and Safety Risk Assessment, you believe some or all of the staff in your business should be vaccinated, you are able to address this during the interview process, including the application form and the Individual Employment Agreement.

If you require assistance with the wording please contact us.

Christmas Closedown

With all that is going on at the moment, it’s easy to forget it’s only just over two months until Christmas!

You may be rethinking your closedown period due to the lockdowns you have had this year or maybe planning to close down as usual. This is a good time to be considering your options and making sure you are communicating with your team.

There was an Employment Court ruling in 2020 in the case of Metropolitan Glass & Glazing Limited v Labour Inspector MBIE that provided clarification regarding payment during Christmas Closedowns and now is the right time to review what you need to do as an employer.

You are required to give a minimum of two weeks’ notice to your team of the closedown dates, but we recommend giving as much notice as possible so that people are aware and can make plans.

In the past, it has been common for companies to pay staff their entitled Annual Leave if they have any. If they haven’t been employed for a full year, or have used all their entitlement, then the common practice has been to allow people to use accrued leave to cover this period.
The Employment Court ruling changes how we are to handle this.

The ruling states:

Employees who have no entitled leave at the beginning of the closedown must:

  1. Be paid 8% of gross earnings since their start date or since their last anniversary date for leave entitlement.
  2. Their annual leave anniversary date then needs to be moved to the start of the closedown period.

For example: If you had a staff member start work on 1 June 2021 and you closed down on 21 December 2021, they would have worked for you for 6mths. This would mean they had no entitled leave but they would have accrued two weeks annual leave. You would need to:

  1. Pay them 8% of what they have earned since 1 June 2021
  2. Move their anniversary date for annual leave entitlement to 21 December 2021
  3. If the 8% does not cover them for the entire period e.g. you close for three weeks and the 8% is only equivalent to two weeks wages, then you can agree to treat the remainder as unpaid leave or leave in advance.

If the employee has any entitled leave (even if it is not enough to cover the whole period) then the entitled leave must be used and then the remainder of the period can be paid as leave in advance or unpaid leave and their anniversary date does not move.

Leave in advance: If the employee wishes to have the remainder of the closedown period paid as leave in advance, and you agree, we strongly recommend that this is recorded in writing and signed by the parties. Just let us know if you want assistance with the wording of this.

Immigration Changes

There was a major immigration announcement last week relating to those people currently in NZ and want to apply for residency.

People who were in the country on 29 September 2021 on specific visas, and who meet one of three criteria, now have an opportunity to apply for a one-off Resident Visa.

Applications open on 1 December 2021 for those who already have an application for a Skilled Resident Visa in the pipeline. All other eligible visa holders are able to apply from 1 March 2022 until July 2022.

There is an eligibility checker on the Immigration Website. To summarise they must currently:

  • Be on one of the relevant visas and paid above $27 per hour AND
  • Have been in NZ three years OR
  • Are working in a role on Immigration’s “Scarce List”.

Note: those on a visitor visa, student visa and working holiday visa are NOT eligible.

Applications can be made online and Immigration believes that 80% of applications should be able to be processed within 12 months.

This visa gives the successful applicants residency followed by a two-year journey to permanent residency and then a further step to citizenship.

Full details of the new visa and all criteria can be found on the Immigration NZ website.

This is general information. Please contact us to discuss your specific circumstances or if there are any other HR related matters you would like assistance with.

Thelma brings a practical, “no fuss” dynamic to dealing with otherwise difficult and complicated HR issues. She has shown an ability to negotiate past the emotional obstacles; get to the core issues; and formulate a mutually acceptable solution in a friendly and enthusiastic manner.
Financial Controller, SME, Auckland
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