Employer Contracting Out of Sick Pay

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675 posts

Ultimate Geek

#1449834 13-Dec-2015 21:04

AidanS: Thanks for all the responses guys!

I'm going to write a letter and see how things go. As I said before, when ANZAC day popped up on a Saturday a lot of the "casual" (my employer has no part time contracts, only full timers and casuals which are typically students) were legally entitled to that Saturday lieu day, as they work it every week, but the employer sent out an internal notice stating that casual staff only get the 1.5x pay rate and that's it.

I challenged it, and a few of us got lieu days. But most of the "casuals" (casual means regular weekend worker in 95% of cases in this company) were oblivious to their entitlements and trusted the information their employer was passing on to them (as anyone probably would!).

This sick day situation is now apparent to be the exact same thing. A tad disappointing considering this particular company has been an employer for 50+ years. Would be interesting to know how many $$$ they've saved from preying on the ignorance of students.

Casual should mean just that, someone without fixed hours that are asked to work as cover for someone who is sick or at busy times. The moment you start having fixed shifts, like every Saturday, you are no longer casual.

nitrotech

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#1449841 13-Dec-2015 21:18

throbb:
AidanS: Thanks for all the responses guys!

I'm going to write a letter and see how things go. As I said before, when ANZAC day popped up on a Saturday a lot of the "casual" (my employer has no part time contracts, only full timers and casuals which are typically students) were legally entitled to that Saturday lieu day, as they work it every week, but the employer sent out an internal notice stating that casual staff only get the 1.5x pay rate and that's it.

I challenged it, and a few of us got lieu days. But most of the "casuals" (casual means regular weekend worker in 95% of cases in this company) were oblivious to their entitlements and trusted the information their employer was passing on to them (as anyone probably would!).

This sick day situation is now apparent to be the exact same thing. A tad disappointing considering this particular company has been an employer for 50+ years. Would be interesting to know how many $$$ they've saved from preying on the ignorance of students.

Casual should mean just that, someone without fixed hours that are asked to work as cover for someone who is sick or at busy times. The moment you start having fixed shifts, like every Saturday, you are no longer casual.

+1 you are not a 'genuine' casual you are in fact a permanent part time employee - ether way no you can't contract out of stat holidays or sick leave (after 6 months) but you can for a genuine casual or fixed term employee pay an extra 8% to cover 'annual leave' the 8% must on top on the hourly rate - very important if your paid minimum wage.

Athlonite

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#1449843 13-Dec-2015 21:22

AidanS:
tdgeek: Under the Holidays Act 2003 all employees are entitled to a minimum of five days paid sick leave a year after the first six months of continuous employment and an additional five days paid sick leave after each subsequent 12 month period. The Holidays Act also provides sick leave entitlements after six months to employees whose employment is not continuous (including casual employees) if, during those six months, they have worked:

1. An average of at least 10 hours per week, and
2. At least one hour per week or 40 hours per month.

Sorted, it appears

Thanks for the response, I've had a good read of all the employment related legislation. But my core question is, can my employer contract out of those obligations? I signed a contract, can that contract overrule the default entitlements?

Cheers.

Legally probably no you may be better off asking you local community law office they should know alot better than we on here unless someone here is an employment law expert

raytaylor

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#1449994 14-Dec-2015 08:42

When I worked for the warehouse, if you were a casual staffer, you were not entitled to sick pay because you were not required to work any days at all.

The difference here is the requirement to work.
If they ring you up and you say no I dont want to work today, you are under no obligation to go to work, and therefore they are under no obligation to honour you as a full employee.

Remember too that sick pay is only paid when you are sick for shifts you are required to work. As a contracted employee with contracted shifts, If you are not sick, you dont get the pay.
If you are a casual employee, you have no contracted shifts and can simply say no I dont want to work for any reason such as I am sick, or i want to go see a concert today, or i think I'll sleep in today.

With Annual Leave its a different story.
On a casual contract, you should be paid in addition to your hourly wage. Since you effectively cant take a holiday from your required work hours. I think its an extra 8% on top of your existing wages or for every 11 hours worked you should be paid an extra hour.

Now here is where it gets murky.
I believe there are now changes to the zero hours contracts which mean if you are working the same shifts for more than a certain amount of time, you have effectively become a contracted employee as long as those shifts are the same days each week and the same time each week.

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MikeB4

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#1449996 14-Dec-2015 08:47

From MBIE

"For most employees, there is a minimum provision of five days’ paid sick leave a year after the first six months of continuous employment and an additional five days’ sick leave after each subsequent 12-month period. Exceptions are covered under “The effect of various work patterns”. Employees can continue to accumulate 5 days of sick leave every 12 months, until they reach a maximum balance of 20 days of sick leave. At this point, no further sick leave can be accrued, greater than the 20 day maximum.

Sick leave can be used when an employee is sick or injured, or when the employee’s spouse or partner or a person who depends on the employee for care (such as a child or elderly parent) is sick or injured.

At any time when the employee does not have a sick leave entitlement (including during the first six months of employment), the employer and employee can agree to the employee anticipating the sick leave entitlement. In this case, any sick leave taken can be deducted from the next entitlement that arises."

"Most employees are entitled to sick leave whether they are full or part-time, permanent or fixed-term employees, providing that they have completed six months’ continuous service.

The Act also provides sick leave entitlements after six months to employees whose employment is not continuous if, during those six months, they have worked for the employer for:

an average of at least 10 hours per week, including
at least one hour per week or 40 hours per month.

People on a series of fixed-term agreements, or employees sometimes described as “casual”, would become entitled to sick leave if they met this test.

The payment for sick leave would be made where it is a day that the employee would otherwise have worked and would be made at the employee’s relevant daily pay or average daily pay (if it is not practicable or possible to work out what an employee would have earned on the day, or if the employee’s pay varies within the pay period). The entitlement to sick leave is subject to the same test each 12 months.

If in any year the work pattern does not meet the above test, then no new sick leave entitlement arises. However, the employee may requalify for sick leave on the basis of six months’ service."

lxsw20

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#1449998 14-Dec-2015 08:55

jeffnz: I would join the Union thats what they are there for and they will take the emotion out of it. I wouldn't suggest going to the Labour department.

Do not blindly join a union. Get to know what it's about, talk to current members and talk to non members first. Some unions are just not worth the union fees.

trig42

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#1450000 14-Dec-2015 09:00

OP is the retailer in question NZ based or Australian based?

Maybe they have brought over Australian contracts (not sure what the rules are there)? Pretty shoddy if they have though - big companies should have HR departments qualified to provide support in the country they are operating in.

But yeah, it is my impression (IANAL) that a company cannot contract out of the law. The murky area is whether or not you are casual (it doesn't sound like you are, more permanent part-time).

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BTR

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#1450010 14-Dec-2015 09:31

I would try and speak to them in a civil manner, if that fails contact the dept of labour and then name and shame them.

crimson

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#1450070 14-Dec-2015 11:19

lxsw20:
jeffnz: I would join the Union thats what they are there for and they will take the emotion out of it. I wouldn't suggest going to the Labour department.

Do not blindly join a union. Get to know what it's about, talk to current members and talk to non members first. Some unions are just not worth the union fees.

Fully agree with this. I was on a casual contract with unpaid holidays and no sick days. Supposedly banks did it to reduce the number of FTEs in the books. According to union reps, this happened with previous employees and they sorted it out in 6 months. I brought it to their attention (politely, with the facts) and it was sorted in 1 day with all holiday pay backdated (sick days weren't an issue for me as I didn't take any). The government websites were pretty good about getting the facts without getting tied up in the language of the Employment Contracts Act and Holidays Act in terms of your minimum (uncontract-outable) rights.

Some key rights for people on casual contracts from memory (it was 2006 but not much has changed):
-If you work regular hours, they aren't allowed to have you on a casual contract to begin with.
-If you would normally work on a day a holiday falls, then you are entitled to your usual pay, or 1.5x + day in lieu if you work that day.
-Sick day entitlements as previously mentioned in thread.

They can't avoid these in any way, shape or form. They will say all kinds of rubbish (i.e. quote your contract) as they aren't actually aware of the law! YES, when you learn HR, you aren't even taught those two laws believe it or not (and if you did, they certainly didn't retain it!) The first approach is to gather together the facts, make the argument (best in writing where you can fine tune it) in a polite, respectful manner.

Why I don't necessarily go with the union is that it then becomes an issue between the employer and union, and to be honest, my employer ran rings around them. Your union may vary or your employer might not have the resources to play them. Without a union I believe the next step was a labour inspector, who can be called upon to investigate the claims. There was a line I called prior to bringing this up to clarify my rights and what the process would be.

Note: For clarification, I worked full-time, so it was a clear cut case. Others experience may vary.

AidanS

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Ultimate Geek

#1450073 14-Dec-2015 11:30

trig42: OP is the retailer in question NZ based or Australian based?

New Zealand owned and operated.

Geese

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#1450084 14-Dec-2015 12:21

crimson: Some key rights for people on casual contracts from memory (it was 2006 but not much has changed):
-If you work regular hours, they aren't allowed to have you on a casual contract to begin with.
-If you would normally work on a day a holiday falls, then you are entitled to your usual pay, or 1.5x + day in lieu if you work that day.
-Sick day entitlements as previously mentioned in thread.

I worked for a temp agency for 2 years, and the place I was sent to work was regular monday to friday work 40 hours/week. Never got holiday pay or sick pay. The guy running the agency said it was "built into the pay". I have felt for years I've been wronged, especially when in 2012 another temp agency accumulated holiday pay and paid out when I left.

However being 2004-2006, I'm sure its too long ago to do anything now.

crimson

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#1450098 14-Dec-2015 12:41

Geese:
crimson: Some key rights for people on casual contracts from memory (it was 2006 but not much has changed):
-If you work regular hours, they aren't allowed to have you on a casual contract to begin with.
-If you would normally work on a day a holiday falls, then you are entitled to your usual pay, or 1.5x + day in lieu if you work that day.
-Sick day entitlements as previously mentioned in thread.

I worked for a temp agency for 2 years, and the place I was sent to work was regular monday to friday work 40 hours/week. Never got holiday pay or sick pay. The guy running the agency said it was "built into the pay". I have felt for years I've been wronged, especially when in 2012 another temp agency accumulated holiday pay and paid out when I left.

However being 2004-2006, I'm sure its too long ago to do anything now.

Yes, I would say too late (but I could be wrong!).

Just to clarify (I went into more detail before as I would assume it was a common issue), on a casual contract they are obligated to pay holiday pay. An 8ish% loading (I think that is the minimum in the act) which is to cover the accrual of annual leave. This is not for public holidays or sick leave.

employment.govt.nz is amazing for anyone wanting to look up their employment rights

surfisup1000

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#1450099 14-Dec-2015 12:48

Employer contracting out of basic human rights and working conditions?

Good try.

The employers name Scrooge by any chance? Probably deserves a visit from 3 ghosts anyway.

[assuming it is an employer rather than a contractor relationship - although modern companies are classifying empoyees increasingly as contractors these days but without the typical contractor benefits of 3 times the pay]

gzt

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#1450114 14-Dec-2015 13:25

Geese:
crimson: Some key rights for people on casual contracts from memory (it was 2006 but not much has changed):
-If you work regular hours, they aren't allowed to have you on a casual contract to begin with.
-If you would normally work on a day a holiday falls, then you are entitled to your usual pay, or 1.5x + day in lieu if you work that day.
-Sick day entitlements as previously mentioned in thread.

I worked for a temp agency for 2 years, and the place I was sent to work was regular monday to friday work 40 hours/week. Never got holiday pay or sick pay. The guy running the agency said it was "built into the pay". I have felt for years I've been wronged, especially when in 2012 another temp agency accumulated holiday pay and paid out when I left.

However being 2004-2006, I'm sure its too long ago to do anything now.

The way I read it there is a 90 day limitation on personal grievance. That extends to three years in some circumstances. But imho this one falls outside 'personal grievance' territory...

... and falls in to recovery of penalties. The test for that one is 12 months OR 12 months from when you reasonably became aware of the issue. Ie; the test is subjective depending on the issue etc so it looks like you have a chance there depending on how courts view that breach. Best course of action talk to an employment lawyer on that one.

Edit: added link

Geektastic

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#1450169 14-Dec-2015 14:51

The only instance I can think of where this might be the case is when you do what my wife does and contract as a business to the company to provide services, rather than on an employee basis. Of course they are employing her, but they do so by employing our company not her.

She therefore gets no holiday, sick pay or paid public holidays.

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