Employers obliged to pay quake-hit workers

Damage to the commercial heart of Sydenham, Colombo Street South where buildings have yet to be assessed after the earthquake. Photo / NZPA

Workers worried about loss of pay following Saturday's earthquake could have a case for the Employment Relations Authority if their employer refuses to pay them.

Bridget Smith, senior associate at Minter Ellison Rudd Watt Lawyers, said employers were obliged to pay their staff where a person had made them self available for work, but the business was unable to open.

"The guiding principle if you don't have work for your employees to do but they can otherwise come in and do it then they should be paid."

However where an employee can't go to work but the employer has work for their staff to do, then they are not obliged to pay that staff member, Smith said.

Council of Trade Unions secretary Peter Conway said the majority of employers he was aware of "have been doing the right thing", and were continuing to pay their staff whether or not that person could come into work.

"We are now getting into the situation where what happens if you can't open or you are going to be closed for an extended period of time."

Conway said the government now needed to step up and help those businesses who were struggling to survive following the earthquake.

Smith said employees needed to call their employer to check whether they needed to go into work, before talking to them about pay.

"If your employer does not have work for you to do and they are saying we're not paying you, you could take your case to the Employment Relations Authority and allege either that you have been unjustifiably disadvantaged in that you haven't been paid or you could argue the employer has given you no choice but to leave so you have either been constructively or actually dismissed."

However if the situation was so dire that the employer was not in a position to pay their staff and that business closed down, then it could be difficult to recover any money from it, Smith said.

"In the short term if you are an employee and you have an employer saying the business isn't opening and I don't have to pay you, actually the answer is that's not strictly true."

The Department of Labour says the overarching advice to employers and employees was one of communication.

The DOL says in and advisory note on its website: "This is an unusual situation, and much of it is probably not covered by employment agreements. It is very important that employers and employees are talking to each other."

"The earthquake caused a range of damage to businesses in the Canterbury region and it may take time for workplaces to be able to reopen. Where a workplace is affected, employers and employees should seek agreement to what is needed in their unique situation. Generally, however, wages are payable if the employee is available and willing to perform work."

- NZ HERALD ONLINE