In the wake of COVID-19, NZALPA Advocates Joy Walpole Leva’a and Rachel Piriou have been hosting monthly meetings to catch up with our general aviation members to discuss issues of interest to this important sector of the industry. Increasingly, questions have been raised about pilots’ rights and entitlements when it comes to minimum employment standards and concerns raised about employers who are not complying with these standards. Here, Rachel briefly outlines answers to some of the more frequently asked questions from our GA members

Independent contractor or employee?

Employees and contractors have very different rights, entitlements and responsibilities. Consequently, it is important to know whether you are actually a genuine independent contractor or, in fact, an employee. While there are legal tests to help determine the answer, the enquiry is frequently not straightforward.

The Employment Court has held that “while the factors relevant to an assessment may vary from case to case, including in terms of weight, the most common questions can usefully be summarised, along with the direction in which an affirmative answer tends to point, as follows”:

What are other kinds of employment status (other than permanent employment)?

Two other types of employment that we see regularly in the general aviation sector are casual employment and fixed-term employment.

What does casual employment mean?

There is no statutory definition of a casual employee in the law. This term usually refers to a situation where the employee has no guaranteed hours of work, no regular pattern of work, and no ongoing expectation of continuing employment (they are employed when and if needed). In this situation, there is no obligation on the employer to offer work to the employee and the employee has the right to decline the work.

Problems can arise when the nature of the employment changes from casual to one which has more continuity and regularity. Similarly, some employers may try to erroneously classify an employee’s employment as casual, when it is actually permanent, in order to minimise or avoid legal obligations they have towards that employee.

Employment rights also apply to casual employees, but the way in which annual holidays, sick and bereavement leave are applied can vary. Please contact NZALPA if you have any questions or concerns about your casual employment.

What does fixed-term employment mean?

An employer and employee may agree that employment will be for a fixed term. An employer and an employee can agree to employment ending:

• at the close of a specified date or period;

• on the occurrence of a specified event;

• at the conclusion of a specified project.

However, the employer must, at the time the agreement is entered into, have genuine reasons based on reasonable grounds for stating that the employment will end in that way, and the employer must advise the employee of those grounds. The following reasons do not constitute genuine reasons for a fixed term employment agreement:

• to exclude or limit the rights of the employee under the Employment Relations Act;

• to establish the suitability of the employee for permanent employment;

• to exclude or limit the rights of an employee under the Holidays Act.

Note also that the employment agreement of someone employed on a fixed term must state in writing both the way in which their employment will end and the reasons for ending the employment in that way. If this requirement is not met (including because of the absence of genuine reasons based on reasonable grounds), the employment will not end at the specified time if the employee elects to treat that term as ineffective.

What are the minimum employment rights in terms of pay?

Minimum wage rates apply to all employees, whether they are fulltime, part-time, fixed-term, casual, working from home, or paid (totally or partly) by commission or per flight. The current hourly rate (before tax) is $18.90 for an adult. If you are paid per flight, you must still be paid the minimum wage for each hour worked. Under the Wages Protection Act, an employer can only make deductions from your salary or wages with your written consent or at your written request. You may vary or withdraw a consent given or request made at any time.

What are your minimum employment rights in terms of hours of work?

You must be paid for all the hours you have worked, including activities at the start or end of a shift. Any extra hours you are asked to work must be paid at least at the minimum wage rate.

What can you do if you are concerned about any of these issues in your workplace?

If you experience any of these situations in your workplace, please contact the head of your CEA Contract Management Group or your Council Admin Head (if applicable), or either Rachel (rachel.piriou@nzalpa.org.nz) or Joy (joy.walpole@nzalpa.org.nz) at NZALPA.