Negotiation key to leave arrangements

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The Ensign has been approached by a worker wondering if employers can make staff take annual leave for the days a business is closed due to flooding or an area being evacuated. Reporter Sandy Eggleston asked University of Otago law lecturer Dawn Duncan what rights workers have in these circumstances.

Employers cannot make staff take annual leave unless they are given 14 days notice.

University of Otago law lecturer Dawn Duncan said the same rule under the Holidays Act applied in the situation where a business had to close its doors due to an adverse event.

“There’s nothing special or different for natural disasters,” Dr Duncan said.

“Annual leave in that situation is by negotiation.”

However, the legal position in these situations could be quite unclear.

What staff were entitled to would depend on what was in the employment agreement or workplace policy.

“Some workplaces will have specific arrangements for working from home or special leave as part of their emergency plans.”

There were special legal rules applying to shift workers as the situation could constitute the cancelling of a shift, which would mean compensation could be payable.

“Where shift workers are affected they should check their employment agreements for the notice and compensation that will apply in shift cancellation situations.”

Where employees were not covered by the shift cancellation rules and there was nothing in the employment agreement or the employer’s policies, it was largely up to the people involved to find a solution.

“This negotiation should be done in good faith and the parties could agree to some kind of special or discretionary paid leave, or to some rearrangement of planned hours or working days.

“Sadly, there are no specific rules for what happens to wages where there is a natural disaster and people can’t get to work.”

Government may provide hardship grants or additional disaster recovery support to workers or businesses affected.

“It may also be possible for employees to access their income protection insurance .. or discretionary hardship support through Work and Income, depending on their individual circumstances.”

Dr Duncan said it was an area of the law that needed to be reformed to give greater guidance on what should happen in situations such as natural disasters or disease epidemics.

“Especially given the increasing frequency of extreme weather events and the prospect of diseases like coronavirus.”