Lane Neave Employment records Self-Audit for Retailers

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Employee Agreement Matters

Do you have copies of signed employment agreements for all employees?
Do all of your employment agreements contain the following minimum mandatory information/clauses/provisions?:
The names of the employer and employee
A description of the work that the employee will be undertaking (this should be more than just the employee’s job title)
The employee’s place of work
The employee’s hours of work (or if there are no agreed hours, an indication of the agreement relation to the days and/or times the employee is required to work)
The employee’s salary or wage (which should be at least the minimum wage rate, being $18.90 an hour as at 1 April 2020)
That the employee will be paid (at least) time and half for working on a public holiday and, if the public holiday is normally a working day for that employee, an alternative paid day off (no matter how many hours are worked on the public holiday)
That the employee will be required to work on a public holiday (if applicable to that employee)
An employee protection provisions (i.e. a clause that states what will happen to the employee in the event of an external restructuring)
A plain language explanation of what to do if there is an employment relationship problem, including reference that a personal grievance must be lodged by employees within 90 days of the act complained of.
Did you inform your employees about their leave entitlements under the Holidays Act 2003 at the time they entered into their employment agreement? Note: it is permissible to include this information in an employment agreement or in any offer of employment letter or in any other document that you provide to your employees.
Did you inform all your current employees at the time they entered into their employment agreement that they can obtain further information about their entitlements under the Holidays Act 2003 from: The union of which the employee is a member (if applicable); or The Ministry of Business, Innovation and Employment? Note: it is permissible to include this information in an employment agreement or in any offer of employment letter or in any other document you provide to your employees.

Wages/ Time and Holiday/Leave Records

Do you have accurate and up to date: a) Wage and time records; and b) Holiday and leave records For all of your employees?
Does the wages and time record and holiday and leave record comply with all the minimum legal requirements?
Notes:
The minimum legal requirements are available at:
https://www.employment.govt.nz/hours-and-wages/keeping-accurate-records/
an example of wages and time and holiday and leave record is available from the same website
you should also seek your own legal advice on record keeping obligations

Minimum Wage and payroll

Do you have adequate systems and processes in place to ensure that you pay at least the minimum wage to all employees for all hours worked (even if they are salaried workers)?
Notes:
it is not sufficient to simply rely on an employment agreement or rosters/timesheets as evidence of the hours an employee works (this is because an employee may work additional/different hours to those specified in such documents); and you should record all overtime and/or irregular hours worked by an employee (when compared to any specified set hours in an employee’s employment agreement) in your wages and time record (this is to show that at least the minimum wage was paid to each of your employees for every hour worked).
Are you paying all your employees at least the minimum wage?
Do you have or do you intend on implementing a payroll software system that is compliant with the requirements of the Employment Relations Act 2000 and the Holidays Act 2003?
Notes:
it is not enough to take a “set and forget” approach with payroll software, an employer must actively insert data (such as hours) to ensure the payroll system accurately calculates holiday pay etc.

Practices that undermine minimum employment rights of employees

Do you operate as a responsible employer?
Note: a responsible employer does not operate any practices that are unlawful or which can otherwise be manipulated/used to undermine any employee’s minimum legal entitlements. Such practices include, but are not limited to, the following:
requiring an employee to pay you a sum of money in return for promised employment (which is in breach of the Wages Protection Act 1983)
requiring an employee to repay some (or all) of their wages to you or withholding wages from your employees (which is in breach of the Wages Protection Act 1983)
withholding your employees passport from them
paying employees in cash only in order to avoid proper accounting for their hours/wages
threatening your employees with deportation.
Do you have a “clean record” as an employer?
Note: having a “clean record” means a Labour Inspector, the Employment Relations Authority or a Court has not decided that you have breached employment law obligations and you are not currently under investigation by the Labour Inspectorate.

Health and Safety

Do you understand your health and safety obligations?
Note: in broad terms this requires you to ensure, so far as is reasonably practicable, that the health and safety of:
workers (this includes your employees and any other contractors who may attend your premises from time to time); and
others (for example, customers) is not put at risk at your workplace by the work carried out by your business?
Do you understand the key health and safety risks that apply to your business? Are you aware of your duties as a Person Conducting a Business or Undertaking (PCBU)? Are you aware of your duties as an officer (e.g. if you are a director?)
Do you have appropriate systems and processes to eliminate, or if elimination is not possible, to minimise, the key risks that apply to your business?
Do you (and your workers) know why type of incidents/events need to be notified to WorkSafe and how to make such notifications?

Immigration

Do you sight the original right to work in New Zealand documents of each employee before they start work?
Do you keep accurate records of each employee’s right to work in New Zealand in their personnel files?
Do you track the visa expiry dates of your employees who hold temporary visas?
Do you ensure that your employees on temporary visas provide you with original evidence of their continued right to work in New Zealand on or before their visas expire?
Do you keep accurate records of each employee’s continued right to work in New Zealand (i.e. work visa extensions) in their personnel files?

Compliance with employment and workplace law

In light of the above questions, do you comply with your minimum employment and health and safety obligations?
Note: this includes, but is not limited to:
paying employees their salary/wages in full (i.e. not making unlawful deductions)
paying at least the minimum wage for all hours worked
paying annual leave correctly
paying public holidays correctly
allowing employees to take an alternative day and be paid for a day in lieu for any public holiday worked (if that public holiday was an otherwise working day)
paying employees their accrued and untaken annual leave entitlement on termination (for any reason);
complying with your obligations with regards to all leave entitlements (for example sick leave, bereavement leave, domestic violence leave)
allowing your employees to take their minimum rest and meal breaks
complying with your health and safety obligations.

Sign-Off

If you have answered “no” or “unsure” to any of the above questions, please discuss this with the Ministry of Business, Innovation and Employment and/or a legal adviser.
Ministry of Business, innovation and Employment
For further detailed information or to clarify your obligations, the Ministry of Business, Innovation and Employment contact details are:
W www.employment.govt.nz
P 0800 20 90 20

WorkSafe New Zealand
Worksafe New Zealand is the workplace health and safety regulator in New Zealand. You can find out more information about your health and safety obligations on their website or by calling them on:
W https://worksafe.govt.nz/managing-health-and-safety/
P 0800 030 040

Lane Neave
If you require further legal assistance or would like to undertake a comprehensive audit to ensure all employment obligations are being met, please get in touch with one of the Lane Neave advisers who will be able to provide a quote to assist you. Their details are:

Fiona McMillan
Partner, LLB, BA
M +64 27 351 2000
E Fiona.mcmillan@laneneave.co.nz

Holly Struckman
Senior Solicitor, LLB, BA
D +64 9 905 1930
E holly.struckman@laneneave.co.nz

Giuliana Petronelli
Solicitor, LLB, BEd PE, Grad Dip Tch
M +64 3 372 6377
E giuliana.petronelli@laneneave.co.nz
Please sign upon completion