Guest Blog – The team at Chapman Employment Relations have put together this handy list of Curly HR Questions and Answers that small business owners often come across. If you want to know more, you can get in touch with the team at Chapman Employment Relations here. Q1. Amy has been overpaid $800 in her last pay. She spent it but now payroll have said they will be deducting it from her next pay. She complains to you that it is unfair. What do you tell her? ! A: The full amount has to be deducted. She shouldn’t have spent it and should have raised it with you when she saw that her pay was different. B: She can agree with payroll how much is deducted and it can be over several weeks if she’s spent it all. C: An employer has the right to deduct a full overpayment in the pay-run following the overpayment. D: If it hasn’t been advised in writing, then no deduction can be made. Answer: B is fairest. While C is legally correct, it might not considered good faith. Deductions should always be put in writing so there is no confusion. Q2. With the changes to rest breaks, Amy has had someone in her team ask if he can move his tea breaks to the end of the day so he can leave 30 minutes early. Amy asks if this is okay. What do you tell her? A: The time allocated for rest breaks under the ERA is 10 minutes per break, so he could only leave 20 minutes earlier. B: The company can provide a longer break so could allow the employee to leave 30 minutes early (15 minutes per break). C: Tea breaks are now provided as per your company policy. If you can’t provide them (e.g. sole charge role) only then can they be moved. D: If tea breaks aren’t provided, employees must be compensated for it instead Answer: This is a curly one. Breaks should be by mutual agreement but if agreement can’t be reached, Amy’s company can decide on timing. Compensating for breaks can only occur if the company can’t provide breaks – it’s not an employee’s decision. So the only answer that’s not right is A, as there are no timings listed in the ERA anymore! Q3. One of Amy’s team, Paul, has resigned and is leaving on 27 March. He has 3 weeks annual leave which would take him through to 17 April, so he’s arguing because Easter falls in that time, he should also get paid an extra 2 days for Easter on top of the 3 weeks annual leave. Which answer is correct? A: Because Paul is starting a new job on Monday 30 March, he will be employed by the new company over Easter and the new company will need to pay for the 2 public holidays. B: He won’t get Easter public holidays from either company as he’ll be too new. C: He’s actually right. As his AL takes him past Easter (even though you are paying it out) he should get Easter paid by both of you. D: He should only get the Easter stats once so can choose which company should cover them. Answer: C is correct. This is a strange loophole in the Holidays Act. Q4. Amy has got a university intern working in her team for 3 months. He understands that they are not an employee as the ERA defines an employee as someone being rewarded for their work – and the intern is unpaid. But the intern has asked what happens with ACC. Which answer is correct? A: Because the intern is in a workplace, if they had an accident it would be work related and Amy’s company would have to pay the first week. B: If the intern had an accident while in the workplace, because they are not an employee it would be a personal injury. C: They wouldn’t be covered by ACC at all. D: It would be a work injury however they would get no paid sick leave as they are not an employee. Answer: B is correct. The intern will be covered but as a personal injury so ACC will kick in week 2. Self-employed parental leave entitlement In October 2013 Cathryn Grey and her husband assumed care of a baby they were adopting. Ms Grey had stopped working as a self-employed educator a few months before to prepare. However in mid-October, the Ministry of Business, Innovation and Employment told Ms Grey that she wasn’t eligible for paid parent leave. Under the Parental Leave Act a person must have been self-employed for at least an average of 10 hours a week over the preceding six or 12 months. MBIE took that to mean you must have worked every week however the ERA have ruled that as she had worked an average of 10 hours a week for the last 12 months, she was eligible. Quick test: Does the same apply for employees? Answer: Employees have to have worked every week, but if you’re self-employed the average applies.