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Immigration, Employment and the Tech industry: FAQ in a post Covid-19 environment

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Anthony Harper

On Thursday, 3 September 2020 our leading experts in employment, immigration and technology law appeared as a panel for IT Professionals New Zealand. As part of this, our experts answered some frequently asked questions around employment, immigration and ensuring performance of contracts.

If an employee chooses to work from home, what is the best way to ensure that employers and employees are meeting their health and safety obligations?

There has undoubtedly been a significant shift towards employees working from home over the last six months. The Health and Safety at Work Act 2015 requires that an employer must ensure they are able to do so safely. This would include an initial assessment of the employee’s work station at home, implementing any measures and continued monitoring of that set up. In practice this may include:

  • Establishing a Flexible Working Policy that covers any “working from home” health and safety requirements. The policy should cover frequently asked questions, such as, who will cover any costs of working from home;
  • Requesting that employees complete a health and safety working from home survey and take pictures of their work stations and send these to the designated Health and Safety Officer for assessment;
  • An assessment of employees’ mental and physical health, while working from home.

If an employee gets “stuck” overseas but they remain employed by a New Zealand employer, does the Employment Relations Act 2000 still apply?

If an employee is based overseas temporarily, working remotely but continuing an employment relationship that was conceived in New Zealand, then that employee likely remains employed in New Zealand.

Importantly, those employees must continue to have their employment agreements honoured and will benefit from the statutory protections of those located in New Zealand.

If that employment relationship is to be terminated, all usual processes will apply as if the employee were located in New Zealand. Importantly, employees will also have a right to raise a personal grievance in the same way that any other employee on a New Zealand employment agreement can.

When will those under the Skilled Migrants Category be able to enter or return to New Zealand?

The New Zealand Skilled Migrant Category Visa is for people who are able to fill New Zealand’s deficit with respect to certain skills, experience and qualifications. For New Zealand’s IT industry, it is estimated that over 50% of employees are migrant workers, and the majority will be on a Skilled Migrant Category Visa.

Many people are trying to get back into the country at present, including New Zealand citizens, residents and visa holders alike. Unfortunately, New Zealand does not currently have the facilities to support an increased rate of return to New Zealand and priority is being given to citizens and residents.

It is predicted that economic migration will eventually become a Government priority to support the regrowth of New Zealand’s economy. Any delay to this focus is likely a consequence of the impending election and political will dictating border restrictions.

Can businesses still avoid liability by relying on force majeure clauses in contracts?

In general terms, a ‘force majeure clause’ is a clause which provides a party with relief from liability where they are unable to perform their obligations due to an event or circumstances outside of their reasonable control. Often the clause also goes on to state that relief will not be available where the event or circumstances could have been prevented or avoided if the affected party had exercised a reasonable care and/or the affected party has failed to take reasonable steps to overcome the event or circumstances.

With the initial onset of Covid-19, in a number of cases force majeure clauses would have been triggered, where the impacts of Covid-19 genuinely prevented performance.

Moving-forward, it is possible that (in some cases) force majeure clauses will continue to provide relief where contractual performance is affected by Covid-19. However, Covid-19 is obviously firmly on everyone’s radar at the moment and by now parties should have developed plans to address the impact of Covid-19 on their businesses (including their contractual obligations). If a party is impacted by another Covid wave or lockdown and it has not adequately prepared for this, it may not be entitled to relief from liability.

Now more than ever it is critical for businesses to adopt and maintain good risk management practices to address foreseeable and material risks, including Covid-19-related risks.

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