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kenkeniff

628 posts

Ultimate Geek


  #2464433 17-Apr-2020 19:36
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BlinkyBill:


Mate, I am not confused. If you were employed for over 12 months, add up the total number of hours you were paid for and divide by 52. It is not relevant whatsoever if you worked 5 here and 25 there.



You may well be correct however I wouldn't be so confident until you can point to specific official advice. As above I think those citations are relevant and contrary to your interpretation. When Hon Grant Robertson says "use normal hours in the period before COVID-19"  I don't take "before" to mean an entire 12 months.


The scheme has already been significantly updated at least twice due to oversights, Ministers have had to produce numerous individual clarifications as well as the constant website updates. I don't think this is as clear cut as you think and there's no reason to think this isn't another grey area they need to tidy up.


In fact "ordinary wages" and associated terms have specific meanings and calculations in both the Employment Relations Act and Holidays Act (which is also referred to by other Acts not just related to holiday pay).


For example:


http://legislation.govt.nz/act/public/2003/0129/latest/whole.html#DLM236852


8. Meaning of ordinary weekly pay


(1) In this Act, unless the context otherwise requires, ordinary weekly pay, for the purposes of calculating annual holiday pay,—
(a) means the amount of pay that the employee receives under his or her employment agreement for an ordinary working week; and


(2) If it is not possible to determine an employee’s ordinary weekly pay under subsection (1), the pay must be calculated in accordance with the following formula: a − b / c 
where—
a is the employee’s gross earnings for—
(i) the 4 calendar weeks before the end of the pay period immediately before the calculation is made; or
(ii) if the employee’s normal pay period is longer than 4 weeks, that pay period immediately before the calculation is made
b is the total amount of payments described in subsection (1)(c)(i) to (iii)
c is 4.


There are similar calculations for "relevant daily pay", "Average daily pay" etc.


There's no reason to believe that "ordinary wages" would not be intended to be treated similarly to "ordinary weekly pay" based off the greater of the last pay period or 4 week period; which would make a lot more sense than "your average over the last year" (which I can't find used anywhere else apart from the subsidy level eligibility).


 
 
 

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kenkeniff

628 posts

Ultimate Geek


  #2464462 17-Apr-2020 22:09
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At least two of the largest casual workforce employers have determined a 4 week average to be most appropriate for their casual workers:

 

https://www.scoop.co.nz/stories/BU2003/S00494/burger-king-leaves-workers-in-the-dark-over-lockdown-pay.htm

 

  • Restaurant Brands are paying all staff 100% of their average earnings over the past 4 weeks...
  • McDonalds are paying 80% of average earnings over the past 4 weeks...

 

RANZ (industry body of largest casual workforce employers) supports this (either or the 52 week average) with:

 

 

https://www.restaurantnz.co.nz/2020/03/29/frequently-asked-questions-covid-19-wage-subsidy/

 

Q. Can I base the average earnings of an employee on the past 4 weeks.

 

Yes, if they are a regular employee and a four-week average is an accurate reflection...

 

In good faith, ensure you consult with the affected employees about how you will be calculating their weekly wage payment. If an employee raises issues about how the average is being calculated you will have to work through this with the employee and iron out any creases, to ideally reach acceptance of calculating the average this way and for this to be evidenced in writing/email.

 

 

EY confirms it is situation dependant: https://www.ey.com/en_nz/covid-19/all-you-need-to-know-about-the-new-zealand-wage-subsidy

 

How do I determine what an employees’ usual hours of work are? This will depend on each employee’s employment agreement and circumstances. We recommend further advice is sought where employees have variable hours of work and/or regularly work overtime.

 

As does: https://www.rsm.global/newzealand/sites/default/files/media/rsm_fact_sheet_-_covid-19_wage_subsidy_scheme.pdf

 

Q: What about employees with variable hours?
A: A common-sense approach would apply:

 

For example: what would a normal period of work look like for this employee?
A review the last 12 months of payroll history may be sufficient to establish what is ‘normal’

 

Most other sources I've seen ignore the issue altogether or only refer to the calculation for claiming the actual subsidy which needs no further clarification.


dejadeadnz
2394 posts

Uber Geek
Inactive user


  #2464505 17-Apr-2020 23:38
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To the OP: if you have genuine concerns, take it to the relevant authorities or go and seek some serious advice. This really is a topic that is way, way too complex for any kind of informed discussion on a general discussion board. As (as far as I am aware) the only lawyer who reasonably openly comments on law-related issues on here regularly, I wouldn't be comfortable with dispensing advice on this topic on as a non-specialist in the employment field. The other major "contributor" to this thread (using that term loosely) is a non-lawyer with a fairly apparent and searchable record of making "I am right; you are wrong. Here is my summarised/paraphrased advice which I supposedly got from some lawyer" type claims (which are then demonstrably disproved by simple and easily obtainable information from true specialist lawyers in respect of complicated legal issues). 

 

 




kenkeniff

628 posts

Ultimate Geek


  #2464510 18-Apr-2020 00:39
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As I mentioned I don't have enough skin in the game to take this up personally with anyone of authority - but have suggested the others to do so.

 

I'm not accusing anyone of doing anything not loosely "justifiable" under the current rules but rather pointing out that the rules need to be clarified for all; so that casual workers are consistently paid fairly based on their actual normal / expected hours as seems to be intended.

 

Hopefully this will prompt anyone else who may be in the same position to investigate the options for themselves and possibly result in some collective action.


BlinkyBill
1443 posts

Uber Geek
Inactive user


  #2464537 18-Apr-2020 07:43
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Dejadeadnz is wrong, and I’m right.

 

this is simple to understand, and the correct first recourse is Employment NZ. No need to go to specialist employment lawyers, unless there is a serious inequity that is not quickly resolved.

 

My credentials? I am an employer of 100 people, I do retain a specialist employment lawyer, and I have had a briefing on this topic from my payroll provider.


dejadeadnz
2394 posts

Uber Geek
Inactive user


  #2464547 18-Apr-2020 08:35
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Haha a briefing from your payroll provider? Boy, that will be a rock solid defence from any claims if they are wrong. And it’s not like payroll providers haven’t gotten people into pickle in respect of matters like the Holidays Act and how to calculate pay, just by one of one example. How many employers that could squash your 100 person company are running remediation programs after taking “advice” from payroll providers again?

BlinkyBill, a few misguided one liners would certainly be helpful, especially when it comes to actual issues and problems that real and probably not very well off people are having. 

Edit: I should further add that you would have noted that I said people would concerns should take the questions to the relevant authorities and regulator. There are also employment lawyers who provide pro bono advice through community organisations like the CAB. Those people are on any day of the week more credible than you or your payroll provider. 


BlinkyBill
1443 posts

Uber Geek
Inactive user


  #2464615 18-Apr-2020 11:36
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I got a briefing, not advice. If I need advice I go to my specialist employment lawyer.

 

I consider it irresponsible to advise people to go directly to an employment specialist when this matter is a) not complex and b) the first avenue should be Employment NZ.


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