Employment Overview – 2020

EMPLOYMENT OVERVIEW – FOR EMPLOYEES

During the Covid-19 lockdown, one of the unfortunate realities is that cash flow for many companies has decreased, or in some situations dried up all together. This has led to great uncertainty for some employees, especially regarding the following questions:

  1. Can my employer stop paying me my full wage?
  2. Can my employer make me redundant?

 

Can my employer stop paying me my full wage?

  • Your employer cannot stop paying you your full wage without a variation to your Employment Agreement, and you and your employer must agree to this variation
  • If your employer wants to stop paying you your full wage, they must set out the proposal in writing
  • Your employer’s proposal should make clear the extent to which they want to reduce your pay, and how long the reduction will last
  • Once the terms have been proposed, you are entitled to review the proposal for a reasonable period. You may want to seek legal advice during this time.
  • After your review, you can agree to the proposal or reject it.

 

Can my employer make me redundant?

  • Your employer must consult you before making you redundant
  • Your employer must also go through the workplace change process, considering factors such as whether the employee / multiple employees can work reduced hours for reduced pay. Once they have gone through this process, they must explain the reasons why redundancy is required
  • Your employer must follow a fair and proper process. If they do not meet this obligation, you can make an unjustified dismissal claim
  • If you do make this claim, you must file it within 90 days of your being made redundant, so it is important to act quickly

NB: Please note that the above is a general overview of the topic and is not advice. Every situation is different and would require advice tailored to the individual. 

How can we help?

Seeking advice from Linwood Law will allow you to ask questions specific to your case. We can review your Employment Agreement and help with your claim, should you choose to make one. To make an appointment with one of our solicitors, please feel free to contact us on 03 389 2121 or click here.


COVID-19 AND LABOUR MARKET TESTS

COVID-19 has affected the New Zealand economy drastically. Media coverage has drawn particular attention to the problem of unemployment. New Zealand’s unemployment rate has grown since COVID-19 hit, and projections from Treasury have indicated that the issue will likely get worse before it gets better. One of the New Zealand Government’s top priorities is to ensure New Zealand citizens and residents re-enter the labour market as quickly as possible.

Accordingly, Immigration New Zealand (INZ) have decided to assess employers’ Labour Market Tests (LMTs) using a standard much stricter than the one used before the COVID-19 crisis. Any employer who wishes to employ a migrant under the Essential Skills Work Visa (ESWV) category must carry out an LMT before doing so. The purpose of an LMT is to ascertain whether there are any New Zealand citizens or residents suitable for the applicant’s role. The change will therefore affect applicants for the ESWV and their employers.

We briefly summarise the most important aspects of the changes below. Please note that these changes apply to all current and future ESWV applications, even those submitted before COVID-19 but still under assessment.

Timeframes: Employers will need to complete their LMTs as close as possible to the date the application is submitted. INZ are likely to correspond with employers after applications are submitted, so the LMT is more like an ongoing process than a single task which employers can ‘cross off the list’. INZ intend to take this approach because the number of New Zealanders available to apply for the job is likely to increase as time goes on, at least in the foreseeable future.

ANZSCO Requirements: Any applications where the employee’s role is low-skilled ( i.e. at ANZSCO Level 5) are almost certain to be declined. INZ will make exceptions for roles where no New Zealanders are readily able to be trained, but given New Zealand’s expanding labour pool, such exceptions are likely to be few and far between.

Sustainable, Ongoing Employment: As per usual, employers will need to prove to INZ that the role they offer to the client is financially sustainable and will continue long-term. INZ will scrutinise the viability of applicants’ roles in a stringent manner and ask the employer for supporting documents if necessary.

In summary, both employers and employees will face a higher ‘burden of proof’ when it comes to the LMT. Employers in particular should take due care to test the market comprehensively, especially after the prospective employee has applied for their ESWV.

If you have specific questions about your obligations as an employer, or have concerns about a prospective or current ESWV application, we are here to help. Our experienced immigration team can offer sound advice to help you prepare for any challenges that may arise in the LMT process. Feel free to call us on 03 3892121 or click here

NB: Please note that the above is a general overview of the topic and is not advice. Every situation is different and would require advice tailored to the individual.