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Working in the Trans-Tasman Bubble

During New Zealand's lockdown in 2020 people were permitted to have a small bubble of close friends and family. Restrictions were placed on us though as to who these people were and from how far a field. Our bubbles were small, intimate and made us feel safe because we were all looking out for one another to ensure we did not spread any sickness if we were unfortunate enough to come into contact with COVID.

Now those bubble have pretty much disappeared and we are all once again interacting with strangers and hoping that everyone we see out and about is using their COVID tracking app. Basically New Zealand has been in its own bubble of normal life for quite sometime with the occasional alert level change for some or all of the country.

Recently however the New Zealand and Australian governments, as well as the Cook Islands decided to get in to a bubble together. This bubble does have its own limitations, restrictions and requirements but it does mean that travel is now possible between these nations. And with that we now need to look at the rights and responsibilities of employers and employees when travelling for business or pleasure. It's important to note that only New Zealand and the Cook Islands have a travel agreement together.

The Trans-Tasman and NZ-Cook Islands bubbles enables people to travel quarantine-free between New Zealand and Australia, or New Zealand and the Cook Islands. This arrangement is subject to change and will continue to depend on how the spread of COVID is managed within each of the nations communities. This means that there are going to some implications that you will need to make yourself aware of before you decide to send staff over the ditch for that business trip or getting away on that much delayed holiday on the Gold Coast (or any part of Australia).

Sending Employees to Australia or the Cook Islands

Employers can send employees to Australia or Cook Islands on a business trip, provided they meet the eligibility criteria for travelling set by the New Zealand, Australia and Cook Islands governments. It's critical however that you have a contingency plan in place and agree with them on the course of action in case something unexpected happens.

As an employer, you still have health and safety responsibilities for your workers even if they are in another country. For this reason it's a good idea to weigh up the benefits to your business and the risks involved when sending any employee overseas during a global pandemic. All of your decision making should be done in good faith.

  • When your employees are on a business trip, you have an obligation to cover any expenses incurred for business-related purposes, such as transport, travel insurance, accommodation and meal allowances.

  • If they need to pay for managed isolation because of the business trip, you need to cover this as well.

  • If they become stuck overseas during a business trip and cannot return to New Zealand as planned or work remotely, you still need to pay them as per the employment agreement.

  • If they contract COVID-19 during the business trip, you may need to pay them under other types of leave, if they run out of sick leave.

  • If they don’t have travel insurance, you may also need to pay for medical costs.

Holidaying in Australia and The Cook Islands

Employees granted leave by their employer are responsible for their own safety if they choose to travel within this bubble. They are also expected to cover and costs relating to normal holiday activities including managed isolation if the area that they are travelling to requires it before entry. Any issues relating to the employees application for leave will still fall under any of the normal laws related to taking annual holidays. It is also important that you and your employer come to an agreement on the best course of action should the unexpected happen.

  • You can agree with your employer to take your laptop with you and work remotely if you happen to be stuck overseas.

  • If you contract Covid-19, you can take sick leave (if available).

  • If you cannot work remotely and do not have enough annual leave to cover an extended period, then you need to talk to your employer to see if you can use other types of leave, whether you need to take unpaid leave for part of the time you are away, and how long your employer can hold your job open for you.

  • Your employer cannot automatically dismiss you if you become stranded overseas beyond your approved leave. Your employer must act in good faith, so they need to consider other workplace changes (changing hours of work, arranging remote working, approving further types of leave, etc.), and follow a fair and proper process before making any decision.

  • If you become stuck during your personal travel and are unable to work remotely, then your employer will not be required to pay you under the employment agreement.

Acting in good faith

The term Acting in good faith is used a lot when discussing the employer/employee relationship and how one should act. Although there is no definitive definition in general it means that both parties strive to up front and honest in their dealings and to always act in a way that ensures the relationship is a healthy one.

  • Employers and employees need to work together to protect New Zealand and keep each other safe. This means that normal obligations to keep in regular contact and to act in good faith are more important than ever.

  • Regular employment law still applies to all employment relationships – regardless of the circumstances that we find ourselves in. This includes anything that has been agreed to in an employment agreement.

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