No more free passes for retailers finding employment loopholes during lockdown extension in a year of huge profits, a workers’ union says

Within the first week of lockdown, stories about workers raising concerns about being asked to work in-store, told to take annual leave during lockdown, and having their pay cut have already made headlines.

Swedish retailer H&M informed staff on Friday it would apply for the wage subsidy and committed to paying staff a minimum of 80 percent, as is required under the Ministry of Social Development’s criteria. 

While this is following the rules, the world’s second-largest retailer has previously paid below the 80 percent minimum companies are expected to try their best to meet.

And earlier this year posted a revenue of 298 million kronor (NZ$49m) for just its New Zealand operation and 1.67 billion kronor (NZ$280m) profit across the entire group over the six months to May 2021. 

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During the February Level 3 lockdown earlier this year, H&M’s employment practices came under scrutiny for dropping staff pay to 60 percent. Staff were told they could top up their pay using annual leave. 

This was despite receiving more than $3.2m in previous wage subsidies.

H&M has been approached for comment.

First Union organiser Ben Peterson says he is concerned that dodgy employment practices may become more widespread as the lockdown extends.

“Last year in lockdown we were worried about job losses in retail but what we found was that after lockdown people splurged and many of these companies did better than before lockdown,” Peterson says.

“Getting reports of employers still wanting to cut back on their wages and becoming opportunistic isn’t alright.”

Last week Newsroom reported that Kmart Petone staff were asked to work in store, as well as dispatch centres, for online orders and for presentation of the store. 

A Kmart spokeswoman says Kmart is operating online services for essential items only.

“Customers can order anything on the website, but only orders with 100 percent essential items will be shipped – non-essential items will be shipped when the current restrictions are lifted. Essential orders are being fulfilled from some stores as well as an online fulfilment centre.”

But Peterson has concerns that in-store shops aren’t designed to be online dispatch centres and was concerned how safely employees could work while socially distancing.

“Last year in lockdown we were worried about job losses in retail but what we found was that after lockdown people splurged and many of these companies did better than before lockdown.”
– Ben Peterson, First Union

He says some employers are “taking the piss” with the kinds of duties they are requiring and who they are including in the category of essential workers.

“It is supposed to be the most stringent stage of lockdown.”

Kmart did not answer Newsroom’s questions about how many staff were working in its stores, nor whether they were in bubbles but said numbers of team members onsite varied by store and volume. 

“We’ll continue to comply with all directions from the New Zealand Government.”

Peterson says the list of essential services by the Government is clear enough, however the Ministry of Business, Innovation and Employment should have more enforcement power to ensure businesses are complying. 

“There is enforcement for mask mandate or anti-lockdown protests but when a big business does something that doesn’t comply with essential service rules or employment law then MBIE’s got no Plan B apart from just trusting people to do the right thing.”

Dundas Street Employment Law partner Rosamund Webby says staff who may be confused about their work rights should raise these concerns with their bosses. 

“Be open with your employer from the outset if you have concerns about whether the activity might breach the current lockdown level or might be unsafe or unhealthy for you,” Webby says.

But in some situations – if you’re an essential worker for instance – refusal to attend work could become a disciplinary matter. However, that is largely depending on what the work is and what employment agreements might say. 

“Fair and reasonable employers will give you the information you need, and will be open in engaging with you about your concerns and needs.”

She says workers could also be given monetary incentives to work during lockdown.

“There’s nothing unlawful about incentivising people to work, but employers who are doing so totally need to give appropriate attention to health and safety and broader lockdown considerations.”

On staff being asked to take annual leave during lockdown, Webby says if an employee refuses to take annual leave during lockdown, they must be given at least 14 days’ written notice to take leave following “meaningful consultation”.

“Employers can’t otherwise insist on holidays being taken, and consideration also needs to be given to the fact that this entitlement exists for rest and recreation away from work.

“Spending it locked up with your significant other and children might not meet that intention.”

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