Covid 19 coronavirus Delta outbreak: Explainer - Hospitality and retail workers' rights during level 4 lockdown

Photo / Tim Mossholder, Unsplash

Originally published by The Spinoff

Understanding your rights as an employee can be super confusing at the best of times and, in a lockdown, working out your entitlements gets even trickier. Here's a guide to questions you might have about your rights during level four.

Should I still be getting paid during lockdown?

Yes, your employer has to continue honouring your employment agreement, even if level 4 means you cannot work.

There is a caveat here as employment issues like this are up for interpretation and are not necessarily hard-and-fast rules. However, a decision made last year by the Employment Relations Authority confirmed that workplace closures as a result of Covid-19 do not alone allow an employer to withhold wages.

This is because you are ready and able to work, but circumstances outside your control (the lockdown) mean you cannot.

If my employer has to shut during level 4, do I have to take annual leave?

No. Your employer can only require you to use annual leave entitlements with 14 days' notice.

What about sick leave?

Employers cannot make employees take sick leave because of the lockdown.

How do I access the wage subsidy?

Your employer should access the subsidy on your behalf and pass it on to you if their revenue has dropped at least 40 per cent because of the alert level change.

How much am I entitled to be paid from the wage subsidy?

The wage subsidy is $600 a week for each full-time employee (20 hours a week or more) and $359 a week for each part-time employee (less than 20 hours a week).

In general, you should be paid as normal according to your employment agreement.

If that's not possible (ie your employer truly can't), they must try their best to pay you at least 80 per cent of your usual wages. Failing that, they must at the very least pay you the full subsidy rate. If you usually earn less than the subsidy amount, your employer must pay you your usual wages.

Any reduction in pay needs to be agreed in writing between you and your employer.

Your employer should be clear about how they are calculating what you would normally earn, especially if you have recently worked less than normal. For example, your employer could choose to use the ordinary weekly pay calculation from the Holidays Act 2003 (s8), based on your "ordinary" weekly gross earnings before the lockdown.

I work different hours each week – am I entitled to be paid the subsidy?

Yep, it just gets a little more confusing. You're entitled to your average hours of pay.

If you work variable hours, employers should use some kind of average (the MSD website suggests using the average weekly hours over the last 12 months, or over the period of time you've been employed if it's less than that). It should not be based on the minimum guaranteed hours in your contract if you usually work more than those hours.

I'm a casual employee – can I get the subsidy?

Casual workers aren't entitled to ongoing work, so there is no guarantee that you will continue to be employed. But your employer can still apply for the wage subsidy on your behalf and pay you accordingly. For casual employees, the same calculation above for average wages applies.

What if I've just taken time off for a holiday? Will that get taken into account when calculating my normal wages?

Paid leave should be included in your hours worked and shouldn't mean a deduction from your normal wages. The rules become a little more unclear if you've taken unpaid leave though – I'll update this if I get clarification.

Can my boss use what's left over from my wage subsidy for other expenses?

No. Any difference should be used to top up the wages of other affected staff only – the wage subsidy is designed to keep employers connected to their employees.

I work in a bar/restaurant/cafe, should I be at work in level four?

Nope. Bars, cafes and restaurants cannot operate at level four.

I work in retail, am I an essential worker?

Maybe. There is a list here of businesses that can remain open to the public and have customers on their premises.

Outside of this list, general retail, homeware and clothing stores can operate through contactless delivery of "essential" products only. They cannot have physical storefronts open to the public and customers must not collect goods from stores.

What counts as essential goods?

While the rules are not prescriptive, it certainly does seem irresponsible for businesses to interpret these ambiguities liberally. According to the business.govt website, essential items are those that help people "remain healthy and safe while isolating, work or study from home, stay in communication with whānau and friends and remain up to date with news and health information". Think necessary clothing, medicinal and hygiene products, cellphones, whiteware, heaters, home office equipment.

What are some things that aren't essential?

Items like game consoles, suits, high heels, makeup, jewellery and most sports equipment are not essential.

A cautious reading of the rules, which businesses should be following, would mean these are examples of non-essential items and your employer shouldn't be shipping out orders of them – by doing so they're creating unnecessary risk and putting extra strain on national distribution lines which means a longer wait for people who have ordered actual essentials.

I've noticed a store I shop from is still selling non-essential items online. What should I do?

Out of 20 local clothing websites I visited (for "research" purposes) today, only eight seemed to be following the rules with separate essential item categories, and a delay on non-essential items till alert levels change. Some were offering delivery of jewellery, suits, vases, party dresses, high heels, watches, dress shoes and scented candles.

All of which seem like a very loose reading of the definition of essential goods. Level four isn't meant to be a free-for-all online shopping situation.

If you see this and have concerns, get in touch with the store. Let them know you have worries about their adherence to the level four rules that are there to protect their staff and wider community.

Though it's frustrating, and businesses should ideally be taking a cautious approach to the rules, there's always the possibility they have honestly misunderstood the definitions around what constitutes essential. If they don't address your concerns, perhaps take your money elsewhere.

If I do have to come into work to package essential orders, what safety measures should my employer have in place?

"If you work, it should be safe," says national coordinator for First Union Ben Peterson. In general your workplace should be operating at bare minimum staffing levels, there should be social distancing in place, everyone should be wearing masks (and your employer should provide them).

Raise the Bar hospitality union has a very useful infographic here that explains this in more detail. If you are feeling unsafe, contact your union for support.

Can the business I work for offer click and collect?

Most likely not. Unless you work at a supermarket, retail stores should only be fulfilling orders via post or delivery.

What happens if I don't feel safe going to work?

An employee can justifiably refuse to attend work if there is a serious risk to health and safety. If the risk level is less than this, and you still refuse to attend work because you don't feel safe – it depends whether that concern is reasonable for this to be justified.

However, it's important to note that your employer needs to take into account any genuinely held fears and whether support can be provided to address or mitigate these.

What if I or someone in my bubble has an existing high-risk condition or I need to isolate? Do I have to go to work?

In these situations, your employer should be flexible. Your health and safety is a priority. Peterson says there would be an "expectation for employers to be flexible in this situation" as "there is financial support available for businesses" by way of the Covid-19 leave support scheme.

What should I do if my employer isn't following the rules?

Unfortunately these rules are based on a high-trust model and there's not a huge number of labour inspectors to ensure the rules are being followed.

Peterson believes the breach of these rules by businesses could potentially pose an even bigger risk to public health than the anti-lockdown protests. So, if there are issues, it's worth bringing them up with your employer.

Peterson acknowledges that it's especially difficult for workers to voice concerns, especially for those whose employment can be precarious, but says "people should feel confident there are people out there who will back you".

Check in on your coworkers and do what you can to make sure you're all being treated fairly and consistently. Go to your employer as a unified group if you need to. It's a good reminder to join your union if you've been thinking about it – there's power in numbers.