Covid-19: Some hospitality workers asked to work during lockdown in apparent breach of restrictions

Thursday, 19 August 2021

The Director-General of Health talks to Stuff about the lockdown, and why he's confident we will trace the origin of the Delta outbreak.

Some bar and restaurant staff say they are being asked to come into work even though it’s banned under level four restrictions, causing stress and confusion – a repeat of lockdown last year.

Workers said they were also feeling stressed about pay, with some reporting they had been asked to take annual leave instead of being paid for their rostered shifts.

Meanwhile, others in the industry are concerned the wage subsidy will not be properly implemented – given there are still some cases dragging through the courts from employers who did not follow the rules in 2020.

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Unions told Stuff they had already been on the phone to numerous employers to explain that staff were not allowed to come in and clean or do other work since the “stay home” measures kicked in at midnight on Tuesday.

“The number one issue we have so far – and it’s only day two – is employers actively trying to force staff into work to do deep cleans. And what’s shameful is that they won’t pay their workers if they won’t come in,” said Raise the Bar Hospitality Union's Chloe Ann-King.

“That’s wage theft, if they’re saying they won’t pay this week’s wage, which is for hours they’ve worked for already.”

Some hospitality staff say they are anxious about the latest lockdown.

Gerard Hehir, Assistant National Secretary at Unite Union, said they already had a number of employers “of interest” who had asked workers to breach the rules.

“What I’ve been met with immediately are health and safety concerns, managers trying to call people in. And we will have those issues again when we move levels, calling people in early to prepare. We are saying – level 4 is level 4,” he said.

“The next concern is going to be pay.”

Bartender Jason Barley, 23, said he had been called into work at a Viaduct hotel yesterday, where he worked part-time while studying at university.

“I was like: is that legal? I’m a bartender, surely I’m number one on the list that isn’t essential,” he said. “But they’re saying you can run room service or do deep cleaning. While it seems technically allowed it’s so strange because I’m a bartender, and I’m not going to be doing my normal job.”

Bartender Jason Bartley, 23, was laid off after the last lockdown.

Bartley said he usually worked nights, because he had university classes in the day, so he was unable to go to work anyway.

“It’s stressful, it’s unclear, and no one knows what’s going on. They’re panicking.”

Bartley said it was doubly stressful for him given the last lockdown he was working at Sky City, which made mass redundancies when the pandemic first hit.

He received the wage subsidy at 80 percent of his earnings at level four, but once things returned to normal he was never rostered back on shift again, and was later let go.

“And then post-Covid, they couldn’t get workers. Everyone is short-staffed and desperate, but at the same time it’s a weird mistrusting, protecting yourself atmosphere that makes it uncomfortable to work in,” he said.

Unite union’s Gerard Hehir says the law is clear – workers should be paid their rostered hours.

“Everyone only has part-time contracts even if you’re doing full-time hours. I was doing 50 hours a week for example. Hospitality was already a difficult industry, but Covid has made businesses even more cautious in the way they hire someone.”

Ann-King said she had numerous messages yesterday from workers asking if they had to take annual leave, which was disappointing.

“It’s a breach of the Holidays Act. And employers should know that. They’ve had 18 months to learn about this, and it’s ridiculous they still don’t understand it,” she said.

“We know what happened last time in level four lockdown, many employers put hundreds, thousands of workers through employment processes that weren’t legal. And meanwhile their workers were unable to pay rent or buy food. Businesses were more concerned about their economic wellbeing than the wellbeing of their workers.”

Hehir said part of the problem was the way contracts worked in the hospitality industry. Most workers were on part-time contracts with a small number of guaranteed hours, or on “casual” contracts, even though they had regular work.

Therefore, some employers tried to pay workers according to the hours on their contract, not what was actually worked in the weeks prior to lockdown, he said.

“But it should be simple. If you’ve got a roster – stick to it. That’s a contract and it should be paid,” he said. “If you’re going to take the subsidy, stick hard to the rules. Don’t be cutting peoples’ positions and wages without talking to them.”

Marisa Bidois, chief executive of the Restaurant Association, says hospitality is doing its best to keep workers.

Hehir said workers were in a stronger position than last lockdown in that there had been an Employment Relations Authority decision about how the subsidy was paid, if it came to that.

The case, against the Dove Hospice, effectively found that employment law obligations - and in particularly the need to consult before making changes to wages - did not “go out the window” during a lockdown.

The Employment Relations Act 2000 provides that terms of employment cannot be unilaterally varied, the authority said.

It confirmed that reducing wages to 80 percent without the written consent of the employee was unlawful.

Hehir said the case should serve as a reminder going into this lockdown that employers can’t just say “I’m going to do something” and make changes.

“That’s a misunderstanding of the relationship with employees,” he said. “They are not your slaves, they are not pieces on a chess board. You actually have to talk to them.”

Christchurch hospitality worker Gracie Irving says it's a hugely stressful time for many people.

Restaurant Association chief executive Marisa Bidois said she was unaware of any businesses asking workers to come in.

“Obviously at level four it’s clear that people should be at home, and unless you’re an essential worker you should be not out and about,” she said.

The hospitality sector was focused on keeping its workers, given the current shortage, she said, and advised workers to go through its support system online if they were having difficulties.

“Last time - when there were displaced people - some employers were renting out homes and selling homes to support their businesses,” she said. “For as many who weren't quite following the rules there were some making extreme sacrifices as well.”

Businesses will be able to apply for the wage subsidy from Friday and can access more money this year than last, Finance Minister Grant Robertson said yesterday.

Given Auckland was likely to be in Covid-19 alert level 4 for at least a week, the subsidy scheme would become available across the country.

Businesses that suffered a 40 per cent loss of revenue because of the return to level 4 could apply and receive $600 per full-time employee.

Hospitality worker Gracie Irving, who worked at Pomeroy’s craft beer bar in Christchurch, said she was hoping it wouldn’t come to that. Last lockdown there was huge restructuring in the industry and it was extremely stressful, she said.

“Personally I feel three days off work money-wise will be ok,” she said. “But I’m full-time. It can be really stressful and really worrying for staff who are casuals. I have heaps of friends who are mums or studying who are casual workers with one or two companies, and the wage subsidy doesn’t necessarily work for them.”

Irving said she felt it was a “cleaner and the queen” situation.

“It shouldn’t matter what your employment status is, we should treat the cleaner with the same amount of respect and attention as any other employee.”