The opening of the Trans-Tasman bubble between New Zealand and Australia recently was largely greeted with relief and a sense that we might finally be turning a corner in our ongoing battle with the COVID-19 virus. But it also raised some questions for employers and employees travelling abroad.

Where are you going?

When the Government announced the bubble on April 19 it warned that a ‘flyer beware” policy applied to quarantine-free travel and it was up to travellers to have contingency plans in case the COVID-19 levels changed in either country.

If an employer gets an application for leave, they are entitled to ask the employee: “Where are you going?” If they are going overseas, then all the potential outcomes should be put to the employee. They may grant leave subject to certain conditions or their own ‘flyer beware’ policy.

What happens if an employee travels overseas and ends up stuck because the borders close and they cannot get back into the country? It should be made clear that if the employee gets stuck overseas, or the Trans-Tasman bubble closes, or they have to self-isolate on their return, they may not get paid.

Ready, willing and able to work

If the employee is ready, willing, and able to work and do their job while they are overseas (or in isolation) they are entitled to be paid for the hours worked, but it depends on the industry and the nature of the role.

If an employee has access to all the technology and tools they need to continue working remotely they should be allowed to do that. But take, for example, a tradie who is on the tools all day and gets stuck overseas or is required to self-isolate for two weeks when they return. It comes back to that concept of whether they are ready, willing, and able to work. If a tradie cannot (or is unable to) perform their duties because they are stuck overseas, then they cannot expect to be paid during that period.

The situation may be different if an employee travels to Australia for a work trip. The legal principle of being ready, willing, and able to work still applies but because the employee was overseas for work purposes at the request of their employer, the employer will likely be liable to pay the employee their full wages.

Communication is key

Declining leave is a tricky one. Legally, both parties must try to agree fairly, reasonably and in good faith when leave is taken. Employers must have a good reason for declining leave and discuss those with the employee, e.g., the business cannot replace them if they get stuck overseas for a period of time.

Employers need to be careful to outline the potential outcomes rather than issue threats to employees applying for leave. One New Zealand corporation was forced to backtrack after an internal memo warned staff they faced “possible ‘termination’ if a border closure meant they were stuck across the Tasman for an extended amount of time beyond their approved leave dates.” Employers need to sit down and talk with their employees to make sure they understand the potential consequences of their travel plans and document the conversation so if something does happen, they are covered.

Even though the Government has opened the Trans-Tasman bubble, the onus is still on employers to meet their health and safety obligations towards their employees and customers.

If you have any questions, please contact us at Aspiring Law.

Employment & HR