After the earthquake.
Advice to employers, employees and property owners
This advice is to help businesses, their employees and property owners make safe and practical decisions in the following areas:
This information does not replace legal advice.
Health and safety general advice
As a business owner or manager, the Health and Safety in Employment Act requires you to provide a safe workplace for anyone entering your premises. Employees also have a responsibility to ensure their own safety.
Don’t rush in. Stand back and make a sensible, low risk plan for re-opening your workplace.
- You should check that: the building is structurally stable
- there are no live electrical cables, or gas leaks
- there is no unstable stock, equipment or machinery inside the building
- there are no chemical spills
- there is basic sanitation, including running contamination-free water
- emergency exits and equipment haven’t been compromised
- the water and sewage lines are not damaged
- toilets are working
- there are no security issues – refer to the NZ Police or your security firm if you have concerns.
If you find hazards, a full “hazard identification” should be made including plans to eliminate, isolate or minimise the hazards. Remember that it is quite likely there are new and unusual hazards in your work place that didn’t previously exist.
Make sure you are aware of any requirements of the authorities and emergency services, including Police, Civil Defence, regional and local authorities) and act in accordance with those requirements.
If you don’t have the expertise to check these things, get an engineering expert in to assist you.
Clean-up process and duties
You will want to get your business up and running so you can serve your customers and pay your employees.
You can ask your employees to help with the clean-up. If your employees are concerned about doing this work, they should discuss it with you.
Use safety gear
Appropriate protective clothing and equipment should be used in clean up duties. This could include:
- heavy shoes/boots
- a helmet and safety glasses
- heavy duty gloves
- face mask
- protective jacket and trousers
Gas or chemicals in the workplace
The primary concern at all times should be individual safety.
If there are concerns about gas or chemicals in the workplace, everyone should evacuate immediately and ensure the relevant authorities are informed.
If there is a gas leak, turn off the gas.
Employment relations general advice
Open communication and flexibility are vital
Much of what is happening as a result the earthquakes is probably not covered by employment agreements. It is very important that employers and employees talk to each other and take a common-sense approach to getting businesses up and running again.
Recognise that this has been a significant event
- People will react differently to the earthquakes; some may need extra support
- Many will be focussed on caring for their family/whänau
- Others will appreciate helping out to get things up and running
Working remotely following an earthquake
Following an earthquake, you may have the option to work remotely.
If there is the option to work remotely
Employers should have a policy in place to ensure employees are able to work from home and to do so safely.
- should act in accordance with their employment agreement and, in good faith, discuss options for working remotely with their employer
- may be able to work remotely or make up some hours later, depending on the nature of the work and the duration of the closure.
If there is not an option to work remotely
- should consider providing special paid leave to employees
- may request that the employee takes annual holidays.
Read further information about holidays and leave
Employers may have to close their business permanently and terminate employment or make staff redundant. If that happens these matters in the Employment Act apply:
- procedures on consultation
- good faith and
- other relevant matters
- other employment agreement obligations.
It is important to get advice at this point.
- may be entitled to emergency financial assistance through Work and Income, if employers are not able to provide paid leave. Work and Income can be contacted on 0800 779 997.
- should be expected to remain available to return to work during the period the workplace is close, unless employees are on planned leave of some description (ie, sick, annual or other)
Both employees and employers
- may agree to temporary arrangements that are different from their current employment agreement
- should talk to each other, recognising the unique nature of the event and the need for flexibility
- should both agree to any changes to the employment agreement covering wage payments or redundancy before they are implemented
- should be aware that there are no specific provisions in the Holidays Act that relate to closures because of an earthquake or similar situation.
If an employee is sick or caring for a sick spouse/partner or dependant
The provisions for sick leave in the Holidays Act will still apply.
If the workplace is open but the employee feels unsafe
Under section 28A of the Health and Safety in Employment Act an employee may refuse to do work if
- they believe the work is likely to cause them serious harm
- may continue to refuse to do such work if they have reasonable grounds for their belief and have first attempted to resolve the matter with their employer without success.
Reasonable grounds include, but are not limited to, acting on the advice of a health and safety representative or civil defence officials in the case of an earthquake.
An employee who refuses to do work because they feel unsafe is required to do any other work within the scope of their employment agreement. Stopping work without discussing their concerns or appropriate safety measures with their employer could put their employment at risk.
Employers have a general duty to involve employees in health and safety matters (section 19B of the Health and Safety in Employment Act).
If the employer has taken all practicable steps to ensure the safety of employees while at work and employees still choose not to work they should be placed on leave without pay.
If the employee is unable to get to work
Be flexible. This is a time for employers and employees to be understanding and to take a common-sense approach
Managers should work with their staff to find a practical solution. If working from home is an option then this should be encouraged.
If an employee has concerns
If an employee has concerns they feel are not being resolved they should
- talk to the Health and Safety representative in the business
- consult a union delegate.
If an employer has concerns
If an employer is a member of a local business association and has concerns that are not being resolved, they should
- contact their association with their queries
- contact MBIE on 0800 20 90 20 to be connected to appropriate services to assist.
Commercial property general advice
It is the owners’ responsibility…
to make sure the building is usable after an earthquake. We recommend the building is assessed by a Chartered Professional engineer who specialises in structural assessment.
Further advice for building owners: building safety in earthquakes
It is an employer’s responsibility to identify hazards, under the HSE Act, to employees at work and to take all practicable steps to ensure that they are protected from those hazards.
It is a tenant’s / employer’s responsibility to
take all practicable steps to ensure the safety of their employees even if an assessment clears the building for re-occupation. A common approach is that the building owner gets their building structurally assessed and shares the findings/report with the employer.
Residential property general advice
It is the tenants responsibility to ..
- contact their landlord as soon as possible and advise them of any structural damage
It is the landlords responsibility to
- contact their tenants and check whether or not they have noticed any damage to the property as a result of an earthquake.
The following section outlines legal obligations of employers and employees following the earthquakes.
Section 45 (1) (c) of the Residential Tenancies Act (RTA) it states that landlords are required to:
“Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises”;
If there is visible evidence that there may be some structural concerns with a dwelling, landlords are advised to get a structural engineer to inspect the dwelling to ensure that it complies with the Act. Landlords are not necessarily obligated to get a structural engineer to check the safety of a building
If a tenant wants to find out information about the home they are living in and cannot get that information from the landlord, we encourage them to
- contact their local council and ask to see the building file for the property or
- commission their own report.
Building files are publicly available information and free to access.
Risks or damage
If a landlord is given a notice under Section 124 of the Building Act by the local authority to carry out work to remove or reduce danger, failure to comply is an offence and the person committing the offence is liable to a fine not exceeding $200,000. Generally the local authority would bring a court action in respect of this section of the Building Act.
Generally liability regarding an injury is covered under ACC legislation. If a landlord has not remedied known faults with the property they could be responsible for some compensation at the Tenancy Tribunal.
If there is no agreement between the parties and the tenancy is deemed uninhabitable by someone with the appropriate qualifications/authority to make such a judgement, such as local council or emergency services, the rent terminates and the tenant can give two days written notice to end the tenancy.
The Ministry of Business, Innovation and Employment (MBIE) contact centre (0800 20 90 20) is open from 8.30am to 5pm Monday to Friday to answer health and safety and employment relations enquiries.