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Employment

A loved one has lost capacity, now what?

Employment, Estate, First Job, House, Kids, Media, News, Property, Relationships, Retirement
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What happens if your loved one loses mental capacity due to illness or accident?  Who will make decisions about whether they need to go into care?  Who can manage their finances to pay for their medical costs and living costs?

 

Hopefully your loved one has enduring powers of attorney in place appointing people to make decisions about their welfare and property.  But what if there are no enduring powers of attorney?

 

In that case, you will need to apply to the Family Court for orders under the Protection of Personal and Property Rights Act 1988 (PPPR).  There are various types of court orders that can be made appointing one or more people to manage someone else’s affairs.  Deciding which court orders to apply for depends on the circumstances and needs of the person who has lost capacity.

 

Before applying to the court, you should be aware of the strict legal obligations and responsibilities you will have if appointed, and that the court will have ongoing oversight to ensure affairs are being managed appropriately.

 

While it may cost a few hundred dollars to get enduring powers of attorney while someone is healthy, it can cost a few thousand dollars to get court orders if  they lose capacity there are no enduring powers of attorney in place.  So, it is a good idea to encourage your loved ones to get enduring powers of attorney while they are still healthy.

Kerry Bowler, Solicitor Kerry Bowler

Handling an employee’s poor performance

Employment, First Job, Latest news, Media, News, Relationships
0

Luke’s juggling a lot right now—his first baby on the way, a crash in Sally’s Tesla, and new business work piling up. But his biggest challenge? His employee, John.

John does not have the experience he made out during his interview and he is not able to complete tasks given to him.

Luke has done his best to mentor John and to train him on the job, but John doesn’t seem to want to learn or improve. Luke is at his wits’ end as his business can’t continue like this. Luke has no idea what to do to fix the situation with John and is not sure if he can just let John go.

First things first, Luke pulls up a copy of John’s employment agreement to see what it says about dealing with poor performance. Luckily for Luke, the employment agreement sets out exactly what he should do as his agreement sets out a process for addressing poor performance. He also recalls his lawyer telling him that the Employment Relations Act requires employers to act in a fair and reasonable way and to act in good faith towards John.

Luke has also realised that he can’t just fire John for his poor performance.

Luke can see that his mentoring John was a good start, but it is clear to him that he now needs to take the formal steps set out in the employment agreement to let John know that he is concerned about his performance and that he will place him on a performance improvement plan.

After having a chat with his lawyer, Luke finds out that some of the steps that he is going to need to take are:

  1. Identify the issues with John’s performance: clearly identify the performance problem, whether it’s related to the quality, quantity, or timeliness of John’s work.

 

  1. Communicate his concerns to John: Luke decides to invite John to a meeting to discuss his performance. He’s then going to meet with John to discuss the performance issues, explaining what areas need improvement and why it’s affecting the workplace.

 

  1. Provide support and clear expectations: Luke realises he needs to offer support, so, he has decided to offer John some further training and additional resources. He’s also going to set clear, achievable performance goals and a reasonable timeframe for improvement, and let John know the possible consequences if his performance does not improve.

 

  1. Monitor John’s progress: Luke has set up some reminders in his diary to monitor John’s progress towards meeting the set performance goals and provide regular feedback during meetings.

 

  1. Hold a formal review: If John’s performance doesn’t improve, Luke will arrange a formal review meeting for John to respond to the feedback.

 

  1. Implementation of further performance improvement plans, final warning or dismissal: If there is still no improvement, Luke now knows that he has some options about how to proceed from there – such as a performance improvement plan, issuing a final warning, or, in more serious cases, proceeding with dismissal.

Luke has decided to keep in touch with his lawyer as he works through the process with John to make sure that he meets his obligations as an employer. He’s keeping his fingers crossed that John will improve, and that a formal review and other actions won’t be necessary.

 

Kristin O’Toole

 

 

 

Annual Leave and the Path to Parenthood: Luke’s Story

Employment, First Job, House, Kids, Latest news, Media, News, Uncategorized
0

Luke is very excited about the impending birth of his first child and is taking the time to reflect on his life so far. As he is driving to the store to pick up some groceries, he recalls the first job he ever had – working as a bartender in a lovely little Scottish pub in Dunedin. His pay wasn’t significant back in those days, but he worked hard and he saved his pennies. It wasn’t long before he’d saved up enough to go on a big holiday!

Luke had always dreamed of flying to Indonesia to see the Komodo dragons in the wild. Once he was sure he had enough in the bank, he went to ask his manager, Mr Moyes, if he could have some time off.

“Tell me lad,” Mr Moyes said, furrowing his brow, “how long have you been working for me now?”

“Why, nearly six months, Mr Moyes! I reckon I deserve a break” Luke said, sheepishly. Beads of sweat began to drip down his pimply face.

“Well, Luke,” Mr Moyes began, shifting uncomfortably in his seat, “it’s not that I don’t think you deserve a nice holiday. Aye, you’re an excellent worker, and you have a knowledge of whisky as fine as any Scotsman! But I just wonder, won’t the shortfall from the lack of wages during your holiday be an issue?”

Luke gulped.

“But sir, I thought I would simply take annual leave. After all, I’ve accrued ten days’ worth. That’s more than enough for my holiday, assuming it doesn’t take longer than that to find the Komodo dragons.”

“Well, you see Luke,” Mr Moyes responded, offering a wry grin. “Here in Aotearoa New Zealand, you can’t actually take annual leave until you’ve been working continuously at the same place for 12 months. You continue to accrue it, yes, but there’s no entitlement to actually take the accrued leave until your first anniversary of employment. You can take annual leave you’ve accrued before then, but this is at my sole discretion, being your gaffer and all”.

“Oh,” Luke exclaimed, crestfallen. He had so been looking forward to travelling to Indonesia. Mr Moyes looked him up and down and sighed.

“Tell ya what lad, I think we’ll manage without you. You can take the leave you’ve accrued, no problem”.

Luke jumped for joy. He was going to Indonesia! He paused, wondering if he could try his luck further.

 

“Actually Mr Moyes, how would you feel if I went to Indonesia for three weeks instead of two?” Mr Moyes jumped out of his seat.

“That’s a bit cheeky!” he said, his eyes as big as wagon wheels. “But alright, you can take leave that you haven’t accrued yet in this country too, also at my own discretion. Just be warned, though. If you leave my employ before you’ve accrued that extra week of leave, I’ll require you to pay me back. Every cent!”

Mr Moyes’s warning fell on deaf ears though, as Luke could think only about Indonesia, sipping on coconuts and surveying the local fauna.

Of course, Mr Moyes was right.  Most employees are entitled to four weeks of annual holidays, and they start accruing this leave from their first day on the job. Accrued leave then sits there, unused, until the 12-month anniversary of your employment. Your employer can let you take the leave you’ve accrued before the 12-month anniversary, but this is at their sole discretion.

 

You can also take leave before you’ve accrued it but this can be risky, as you may have to pay your employer the difference, if you resign before it’s accrued.


Luke snapped back to reality. He hadn’t worked for Mr Moyes for some time now, but he would always remember his words and his warning. He smiled, and thought about the life lessons he would pass down to his child. Unfortunately, contemplating this was very distracting for Luke, and he crashed into the car in front of him! Luckily, no one was hurt, but Luke wondered what Sally would think of him crashing her brand new Tesla…

 

Jamie Graham

Business briefs

Commercial, Employment, News, Your Own Business
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Commerce Act 1986 and Commerce Commission review

Last year the government announced a comprehensive review of New Zealand’s competition framework to combat monopolistic practices and boost economic productivity. Limited options and high price points in the grocery, banking and building supply sectors are reflective of market failures resulting from such practices and, subsequently, prompted this review.

 

Commerce Act 1986: The review includes a revision of the long-standing merger regime embedded in this legislation. Although mergers can enhance efficiency, they may also create a power imbalance in the market and limit consumer choice. The current regime will be reconsidered to mitigate the risks posed by larger companies that make small, incremental acquisitions of smaller companies.

 

The government also wants to provide greater clarity to the Act’s anti-competitive conduct provisions. Its aim is to increase certainty as to what constitutes anti-competitive collusion – in turn, appeasing concerns that typically deter businesses from engaging in beneficial collaboration.

 

Commerce Commission: The review will also evaluate the commission’s structure and governance – specifically, whether it is capable of effectively enforcing competition laws. The introduction of specific commissioners and a divisional model to contribute to accountability and strategy will also be considered.

 

The government’s focus on strengthening competition laws aims to deliver greater choice, lower costs and increase productivity for all New Zealanders.

 

 

Reform of overseas investment laws to boost economic growth

The Overseas Investment Act 2005 will undergo significant reform, the government has announced. New Zealand is currently ranked the most restrictive country in the OECD for overseas investment.[1] The reform intends to combat this position by increasing openness to foreign investment that should attract more international investors.

 

To achieve what the government believes will be a more dynamic and competitive economic environment, a suite of statutory changes have been proposed to reduce barriers to investment where such investment does not present any identified risk to New Zealand’s interests. Key proposed changes include:

  • Fast tracking approvals: simplifying the assessment process by establishing basic tests and assuming investment will be permitted unless risks are flagged
  • Targeted scrutiny: retaining flexibility to analyse investments on a case-by-case basis and impose conditions or block them if necessary, and
  • Retaining current scope: ensuring the government can continue to scrutinise sensitive investments, including farmland.

 

Legislation to implement these changes is expected to be introduced this year.

 

 

Tax changes for charities

Charities can expect to see a raft of tax changes in May. These changes are intended to reduce the scope for exploitation of loopholes in the current framework. In other words, the government wants to ensure that entities receiving tax benefits are distributing their funds for charitable purposes – as opposed to structuring themselves as charities and building up funds that are not being used for charitable purposes.

 

This review will focus on charities that operate commercial businesses and whether they should pay tax on profits retained in the business. When announcing the changes, the Minister of Finance, Nicola Willis, mentioned that entities such as cereal manufacturer Sanitarium and early childhood education provider BestStart are among the types of organisations potentially impacted by the changes.

 

This removal of tax-free status is to be balanced against the need to support charities and to recognise the significant role New Zealand charities play in our communities. As a result, some charities may lose certain tax benefits.

 

These changes are part of a broader tax policy work programme that also includes exploring user-pays models for infrastructure projects and other revenue raising measures. The changes aim to ensure fairness while maintaining vital support for the charitable sector.

 

 

[1] BusinessNZ, 6 September 2024. https://businessnz.org.nz/wp-content/uploads/2024/09/240906-A-future-for-Foreign-Direct-Investment-into-NZ.pdf

 

 

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Fair Pay Agreements Repeal Act 2023

Commercial, Employment, First Job, Your Own Business
0

What this has meant for you

Many people welcomed the introduction of the original Fair Pay Agreements Act 2022 (FPA) to set minimum pay and working conditions across various sectors. Others worried it could limit flexibility or create extra compliance costs. Now, the Fair Pay Agreements Repeal Act 2023, enacted just over a year ago, has turned back the clock on these industry-wide agreements.

 

Why repeal?

The main reason for the repeal stemmed from a change in government policy. The FPA, introduced by the previous government, aimed to improve wages and standardise conditions for employees in historically low pay sectors such as cleaners, hospitality workers and early childhood educators. Critics argued that this approach was too broad, as it could force employers to follow terms that they hadn’t agreed on, leading to reduced flexibility in workplaces.

 

By repealing the FPA, the current government signalled that pay and conditions should largely be negotiated between individual employers and employees or through standard collective bargaining processes rather than a universal, sector-wide system. Supporters of the repeal believed this would allow businesses to be more agile and able to respond quickly to changing market conditions.

 

Implications for employees and unions

For employees who would have benefitted from agreements under the FPA, the repeal has meant a return to individual employment agreements or traditional collective bargaining through unions. Workers in industries where wages are typically low may feel the difference most, especially if they were expecting a lift in pay or improved working conditions under the FPA process.

 

Unions have lost a tool for coordinating negotiations. The FPA regime gave unions a clear pathway to start negotiations on behalf of employees across an entire sector, even if there was initially low union membership. Without the FPA, unions are now focussing again on bargaining at a company level or encouraging voluntary industry-wide agreements. This may be a setback for union-led initiatives to raise pay and conditions in sectors with historically vulnerable workers.

 

Implications for employers

Employers now have more freedom to negotiate pay and conditions directly with their teams, without the worry of being locked into sector-wide rules. Businesses that operate in specialised markets or have unique staffing needs may welcome this. They can continue to tailor employment agreements to suit their circumstances, offering different pay structures, benefits or flexible arrangements.

 

On the other hand, before the repeal some employers saw a benefit in a level playing field for everyone in their industry. If all competitors had to meet the same pay and conditions then there was less concern about undercutting each other on labour costs. Those businesses may now have to keep a closer eye on what others in their sector are doing, particularly if new entrants offer lower pay.

 

Looking ahead

With the Fair Pay Agreements Repeal Act 2023 having been enacted just over a year ago, any ongoing negotiations under the FPA system may have continued in the same manner. In many cases, however, collective bargaining would have reverted to the familiar structures of individual employment agreements or smaller-scale union negotiations.

 

Unions and advocacy groups are now working on other ways to improve working conditions, such as lobbying government for different legislation or regulations. Meanwhile, most businesses wanting to be seen as good employers have developed their own internal policies to offer competitive pay and benefits. Despite the repeal, it’s unlikely the debate over fair pay will disappear. The broader issues of cost of living, pay equity and income inequality remain hot topics, particularly for Māori, Pasifika, women and young people.

 

Final thoughts

By repealing the FPA, the government returned New Zealand’s industrial relations framework to a more traditional form of negotiation. That shift has had significant effects on those who had hoped the FPA would boost minimum wages and conditions.

 

Whether you are an employee wondering about your pay, a union leader planning next steps or an employer seeking certainty around labour costs, the key takeaway is the same: make sure you understand your current rights and obligations, and be ready to adapt.

 

If you’re unsure about how this change has affected you, do talk with us. With the future of workplace legislation still in flux; staying informed and being proactive will serve you best.

 

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Health and safety: Successful prosecution of former chief executive

Commercial, Employment, Your Own Business
0

Lessons to be learned

Stevedore, Pala’amo Kalati, was struck and killed by a falling container at the Auckland port on 30 August 2020.

Mr Kalati’s death led to Maritime New Zealand’s successful prosecution under the Health and Safety at Work Act 2015 (HSWA) of both Port of Auckland Ltd (POAL), the company that runs Auckland’s port, and its former chief executive.[1]

This is the first time that the chief executive of a New Zealand company has been prosecuted over a workplace death.

 

The accident

The circumstances leading to Mr Kalati’s death were complex. However, the principal cause of his death was that he had been instructed to work on the deck of a ship contrary to the port company’s policy of remaining more than three container lengths away from an operating crane. Consequently, Mr Kalati was in the path of a falling container when the mechanical locking mechanism securing it to the crane failed while it was being lifted.

 

Prosecutions

Maritime New Zealand brought prosecutions against both POAL and its chief executive under section 48 of the HSWA. This section makes it an offence to fail to comply with a duty under the legislation that exposes a person to a risk of serious injury or death.

POAL pleaded guilty; it was fined $561,000 in 2023. The port’s chief executive defended the charges.

 

Due diligence requirement

Section 44 of the HSWA imposes a duty on the officers of a company, which includes directors and senior managers such as a chief executive, to exercise due diligence to ensure that their company complies with its legal duties under the legislation.  This is defined as exercising the skill and care that a reasonable person would use, taking account of their position, their responsibilities and the nature of the company’s business.

 

This section of the HSWA specifically states that to exercise due diligence, an officer must:

  • Keep up to date on health and safety issues
  • Understand their business and its health and safety risks
  • Ensure their business has, and uses, appropriate measures to eliminate or minimise health and safety risks
  • Ensure their business has processes for assessing new information about health and safety risks, such as incident reports, and acting on it promptly, and
  • Confirm that the measures and processes referred to above are being used and are working.

 

The court had to consider the duty imposed by section 44 on an officer in a large organisation when they were not involved in the day-to-day operations of that organisation. The chief executive’s lawyers argued that the chief executive could not be expected to know about everything that was going on at the port. The court accepted this but it found that the chief executive had a personal duty to ensure that the port company had measures in place to counter health and safety risks, and that they were implemented. He also had a duty to verify from time-to-time that these measures were effective.

 

The former chief executive was found guilty of two of the three charges brought against him. He is yet to be sentenced.

 

Lessons for company officers

This is the first case in New Zealand in which a senior officer of a company has been convicted following a workplace death. The outcome of any similar future prosecution will depend heavily on the facts of the individual case. For example, the extent of the duty in section 44 depends on the exact role the officer has in the company and the type of business it operates. The court’s decision, however, makes it clear that officers need to ensure that:

 

  • Their company has systems to ensure accurate information about health and safety matters flows to them from those carrying out the company’s work
  • They know how the company’s staff actually carry out their work as opposed to how they are supposed to do it (work as done v work as planned), and
  • New health and safety measures are implemented promptly once they know they are needed.

 

If you have any concerns about whether your company is fulfilling its duties under the HSWA, or the extent of your personal duties as an officer of a company or other organisation, please do not hesitate to contact us.

[1] Maritime New Zealand v Gibson [2024] NZDC 27975.

 

 

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Failure to return an employee’s personal information led to expensive results for an employer

Commercial, Employment, First Job, Latest news, Media, News, Online, Relationships, Social Media, Trusts
0

In a recent decision of the Human Rights Review Tribunal an employer has been ordered to pay an ex-employee damages of $60,000 for interfering with the employee’s privacy.

 

The CEO invited the employee out of the office for a coffee meeting. During that meeting, the CEO gave the employee a letter detailing concerns about the employee’s performance. While they were out of the office, a director of the employer took the employee’s work laptop, personal USB flash drive, and personal cell phone from the employee’s desk without the employee’s consent or knowledge.

 

About a week later, the employee’s employment was terminated.

 

The employer later returned the personal cell phone, but did not return the personal information that had been stored on the work laptop or the employee’s USB drive.

 

Despite several requests over a long period of time, the employer failed to return the employee’s personal information and USB drive. Instead, the employer effectively blocked the employee’s attempt to obtain the return of his information, engaging in a range of tactics that delayed the return of the information.

 

The Tribunal found that the employer had collected the employee’s personal information when uplifting the laptop, cell phone and USB. It went onto find that the employer had breached information privacy principles 1, 2, and 4 of the Privacy Act 1993 because the employer had not collected the personal information for a lawful purpose or directly from the employee, and the personal information was collected in circumstances that were unfair and constituted an unreasonable intrusion on the employee’s personal affairs.

 

The Tribunal went on to determine that the breaches were an interference with the employee’s privacy as they had caused significant humiliation, injury to feelings and loss of dignity to the employee. In support of this finding, evidence had been provided by the employee that three weeks after the collection of his information, he was formally diagnosed with acute anxiety and depression, prescribed antidepressants, and sleeping medication. The employee had also started attending counselling.

 

The employer argued that the health conditions were caused by the loss of work, not by breaches of the collection principles. However, the collection does not need to be the sole cause of the consequences suffered.

 

Emails and other correspondence in evidence showed that the health conditions were attributable to distress about the collection of the information, including the inability to retrieve it, and not knowing who had seen it, and who was using and sharing the personal information

 

The Tribunal also found that the collection had caused the employee loss and detriment when he couldn’t complete his tax return on time, leading to a penalty. It also negatively affected his interests as it impacted his health, his career prospects and removed access for him to a personal USB and he did not have access to all his personal information that had been on his laptop.

 

The Tribunal found that an award of damages of $60,000 appropriately reflected the significant level of humiliation, loss of dignity and injury to feelings experienced by the employee because of the wrongful collection of his personal information.

 

A prompt return of the personal information wrongly collected would have significantly reduced the humiliation, loss of dignity and injury to feelings experienced and therefore the amount of any award.

 

This claim was decided under the Privacy Act 1993 because the actions all occurred prior to that act being replaced by the Privacy Act 2020. However, it is still relevant to conduct under the 2020 Act – information privacy principles 1 – 4 and the test to show an interference with privacy has remained largely unchanged.

 

The decision is: BMN v Stonewood Group Ltd [2024] NZHRRT 64.

 

Joanne Dickson

Over the fence

Animals, Employment, Overseas, Property, Rural
0

Requirements when transporting livestock

The Animal Welfare Act 1999 outlines the standards and guidelines when transporting all live animals.

All animals must be provided with reasonably comfortable and secure accommodation when being transported. Animals must not be transported in a manner that causes unnecessary pain or distress, and regular welfare checks must be completed.

The legislation is supported by the Animal Welfare Regulations 2018 that outline the regulations that must be followed at each stage of transporting an animal, including but not limited to:

  • Requirements for a transportation vehicle
  • Preparing animals for transport
  • Loading and unloading
  • The journey
  • Special requirements depending on the mode of transportation, and
  • Documentation required.

Animals must not be transported where they are unfit for travel unless a veterinary certificate is obtained. This includes where the animal has:

  • Ingrown horns
  • Bleeding horns or antlers
  • Lameness
  • Late-term pregnancy
  • Injured or diseased udders, or
  • Eye cancer.

In such cases, a veterinarian should be consulted. The veterinarian, at their discretion, may certify in writing that they consider the animal to be fit for transportation. The certification is only valid for seven days from the date of examination.

It is important to understand the requirements, as transportation of an unfit animal will constitute an infringement offence to the owner of the animal.

 

Recent NZ-UAE free trade agreement

The United Arab Emirates (UAE) is one of New Zealand’s largest markets in the Middle East, with goods and services exports totaling NZ$1.1 billion for the year ended 30 June 2024. Negotiations for a trade agreement, to be known as the Comprehensive Economic Partnership Agreement (CEPA), between New Zealand and the UAE concluded in Wellington on 26 September 2024.

The agreement will now undergo legal verification to prepare it for signature and public release. Once signed, both New Zealand and UAE will still need to take further steps before it becomes enforceable.

The key outcomes of the CEPA include:

  • A significant expansion of New Zealand’s free trade
  • New Zealand will have the best available access to the UAE market, with New Zealand goods exporters able to access the market duty-free. The CEPA will eliminate tariffs on 98.5% of exports to the UAE. This is planned to increase to 99% after three years. The initial access includes all New Zealand dairy, meat, horticulture and industrial products, and
  • The UAE is a key export destination and hub in the Gulf region. It offers significant opportunities to enhance cooperation across many areas, including agriculture and sustainable energy.

The UAE’s high-value market offers export growth for New Zealand companies, aligning with the government’s ambitious goal of doubling export value to the region within the next decade. Importantly, this also benefits our rural sectors, driving economic benefits across the country.

 

Employment contracts for seasonal workers

In September, important changes were announced to the Recognised Seasonal Employee Scheme (RSE) to support the growth of New Zealand horticulture and viticulture.

A notable change is the increase for the 2024–25 season RSE cap where 1,250 more workers can obtain an RSE Visa, thus increasing the cap to 20,750 workers.

 

Changes for employers

Employers are no longer required to offer their employees an average of 30 hours per week. Instead, they must offer a 30-hour minimum week calculated over a four-week period, for example: 120 hours within a four-week period. This is to account for fluctuation of working hours for weather-dependent roles and to minimise the number of hours having to be paid for unworked hours.

Previously all workers had to be paid at least 10% above the minimum wage. This is now only applicable where the worker is returning for their third or subsequent season, otherwise RSE workers only need to be paid at least minimum wage.

Employers may now impose a temporary increase on accommodation costs of 15% or $15.00, whichever is lesser of the two, for a 12-month period. If, however, the RSE employee was offered an accommodation cost agreement before 2 September 2024, then an increase cannot be imposed.

An employee’s ability to move between employers/regions has now increased from 14 to 21 days either side of the worker’s current move date where it is approved by the Agreement to Recruit (ATR). This is beneficial for employers with multiple worksites.

 

Changes for employees

RSE employees are now eligible for multi-entry visas, allowing them to return home for important events without needing to apply for another visa.

RSE employees may also be able to train, study or develop their skills while living in New Zealand, even if it does not directly relate to their role. They will, however, need to ensure they still meet their employment agreement requirements.

There is also no longer a requirement to be screened for HIV.

In response to these changes, RSE employer/employee actions may differ, depending on where you are in the ATR process.

If you are unsure of your obligations, don’t hesitate to contact us.

 

 

 

 

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Hiring casual employees

Employment, Your Own Business
0

Employers have significant legal responsibilities

With summer shortly upon us, the up take in casual work is synonymous with school and university holidays. Despite the short-term nature of these roles, whether it’s seasonal fruit-picking, a retail Christmas-casual or a restaurant needing extra cover for busy nights, if you hire staff on a casual basis you still have significant legal responsibilities.

 

Hiring casual employees can provide beneficial working arrangements for both parties, with employers able to offer work on an ‘as needed’ basis and employees having the flexibility to decide when they wish to work and which shifts they would like to perform.

 

However, as an employer you must remember that during ‘agreed periods of work,’ casual employees are entitled to similar protections to those to which permanent employees are entitled. This is highlighted in a recent case before the Employment Relations Authority (ERA).[1]

 

Background

Mr Ford was employed by Haven Falls Funeral Home as a casual employee. It was agreed he would complete an initial eight-week training period.

 

Mr Ford completed about three weeks of this training in Northland before incidents occurred that led to him returning home to Whanganui. As a result, Haven Falls decided not to offer Mr Ford any future work and notified him via a phone call and a letter soon after. Haven Falls believed that because Mr Ford was a casual employee, he had no expectation of ongoing work and they could simply inform him he was no longer required.

 

Mr Ford filed an application in the ERA claiming he was a permanent employee and had been unjustifiably dismissed. The ERA upheld Mr Ford’s casual employee  status and disagreed that he was a permanent employee. Nevertheless, his dismissal was still deemed to be unjustified.

 

The ERA held that Mr Ford was dismissed by Haven Falls during a period of employment. This meant that despite being employed on a casual basis, whilst Mr Ford was engaged for his eight-week training programme, he was entitled to the same entitlements a permanent employee is owed – including a fair process of dismissal. (Haven Falls informed Mr Ford of his dismissal via a phone call and a follow up letter.) Haven Falls did not carry out an investigation of the incidents, nor was there consultation with Mr Ford before the company decided to dismiss him. Haven Falls also failed to give Mr Ford a reasonable opportunity to respond.

 

Due to Haven Falls’ failure to follow the fair process owed to an employee engaged for a period of work, it was ordered to pay the following amounts to Mr Ford:

  • Lost wages of four weeks’ pay for the remainder of the agreed training period
  • Eight per cent holiday pay on top of the lost wages
  • Interest on the lost wages from 11 March 2020, until payment was made, and
  • $20,000 compensation[2] for humiliation, loss of dignity and injury to feelings.

 

Employers’ obligations

Previous cases have also stated that there are responsibilities to casual employees during periods of engagement. This case confirms that obligations are owed to a casual (or fixed term) employee during agreed periods of work. The high price for failing to meet these obligations is also shown in this case with, amongst other remedies being awarded to Mr Ford, an additional $20,000 compensation on top of the lost wages award.

 

The key outcome in this case is that when hiring casual workers or if you are signing up to a casual role this summer, be sure to keep these obligations and rights in mind. If you have any hesitation at all or if you are involved in a similar situation, please contact us.

[1] Ford v Haven Falls Funeral Home [2024] NZERA 224.

[2] Section 123 (1)(c)(i) Health & Safety at Work Act 2015.

 

 

 

DISCLAIMER: All the information published in Fineprint is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Fineprint may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

Business briefs

Commercial, Employment, News, Your Own Business
0

Companies Act reforms announced

The government has announced a suite of changes to the Companies Act 1993 aiming to improve fairness and the ease of doing business in New Zealand. The reform is expected to take place in two phases.

 

Phase One: The first phase focuses on the modernisation and simplification of the Act to better reflect a more evolved business and technological landscape.

 

Specific proposed changes include:

  • Providing a process for reducing the share capital of a company that does not require court approval
  • Amending the definition of ‘major transaction’ to exclude transactions relating to the capital structure of a company and clarify that a series of related transactions are captured by the definition
  • Adding additional types of transactions that can be approved by unanimous shareholder consent
  • Allowing companies to mingle unclaimed dividends with other funds after two years
  • Assigning unique identifiers to directors to prevent ‘phoenixing’ (where a new company is registered to take over an insolvent or unsuccessful one), and
  • Allowing directors and shareholders to have their residential addresses removed from the Companies Register, resolving safety and privacy concerns.

 

Further insolvency law amendments are also being proposed, including extended claw back periods, preference for long service leave and greater honouring of gift cards.

 

Phase Two: The second phase will involve a Law Commission review of directors’ duties and related issues such as director liability, sanctions and enforcement.

 

The bill introducing Phase One is expected to be introduced in early 2025 and Phase Two will closely follow.

 

 

Siouxsie Wiles employment decision

In July, the Employment Court ruled that the University of Auckland had breached its health and safety, and good faith obligations to Associate Professor Siouxsie Wiles.[1]

 

Dr Wiles was prominent in the media during the Covid pandemic, communicating complex Covid information in an understandable way to the public. Dr Wiles received harassment and abuse, both online and offline, from those who disagreed with her. She sought help from the university, but was told that it was not part of her academic duties and that she should minimise further public statements until a security audit had been completed.

 

Although the university was commended for the actions it did take, ultimately, those actions were insufficient. The Employment Court was critical of the university’s delay in responding to safety concerns and the university’s misplaced focus on Dr Wiles’ outside activities. The court found that the onus was on the university to obtain the right health and safety advice, and proactively put a plan in place. By failing to do so, the university was not acting in good faith and was breaching its contractual obligations to be a good employer.

 

This ruling serves as a good reminder that employers, especially those in the public sector or that engage with the public, should consider health and safety risks in relation to employees’ work-related activities, including where those activities pose a risk of harassment. Employers may also be responsible for work related activities occurring outside of an employee’s work premises and normal working hours.

 

 

New bill to improve consumer data rights

Parliament is currently considering the Customer and Product Data Bill – a bill designed to increase consumer control over their data. It is currently with the select committee. If passed, the legislation will create an obligation for businesses that possess customer data to provide, on request, that data to those customers and certain third parties.

 

The bill will help consumers access their data to compare services and change providers, making it easier for new or smaller businesses in an industry to compete with the ‘big players.’ The bill introduces hefty fines for non-compliance, including a fine of up to $50,000 for failing to respond to a data request and a fine of up to $5 million for making an unauthorised data request. Initially, the bill will only apply to the banking, electricity, and telecommunications sectors.

 

 

Changes to insurance industry coming

The Contracts of Insurance Bill, that awaits its second reading, will make significant changes to the rights of policyholders and insurers to promote confidence in the insurance market and ensure that insurers operate fairly. The bill proposes several changes to insurance contracts legislation, including:

 

  • Disclosure duties: The bill draws a distinction between consumer policyholders (where the insurance contract is for personal, domestic or household purposes) and non-consumer policyholders. Consumer policyholders will have a duty to take reasonable care not to make a misrepresentation to the insurer.
    Non-consumer policyholders will have a duty to make a fair representation of the risk. This shifts the burden on insurers to ask the right questions to reveal all the information they need
  • Unfair contract terms: The bill removes the existing exception for standard form insurance contracts from the unfair contract term provisions in the Fair Trading Act 1986. In other words, the unfair contract terms regime will apply more widely to insurance contracts, meaning insurers must make sure that the provisions of their insurance contracts are fair.
    There are still some exceptions in insurance contracts that will not be subject to the unfair contract terms regime, including event, subject or risk insured, sum insured, the basis for settling claims, excess, and exclusions or limited liability in certain circumstances, and
  • Proportionate remedies: Insurers will no longer be able to avoid an insurance contract for any failure or misrepresentation of a policyholder. Instead, insurers will have proportionate remedies based on how it would have responded if it had known the relevant information, such as reducing the amount paid on a claim.

 

Uber appeal dismissed: drivers are employees

In 2022, the Employment Court made a landmark ruling against Uber when it found four Uber drivers were employees and not independent contractors.[2] Uber appealed the decision, and the Court of Appeal issued its decision in August.[3] The Court of Appeal criticised the Employment Court’s approach, stating that the first step should be to look at the parties’ agreement governing the relationship, rather than whether the individual is vulnerable or suffering from an imbalance of power. Ultimately, however, the focus should still be on the parties’ mutual rights and obligations, interpreted objectively.

 

Despite these criticisms, the Court of Appeal still dismissed the appeal affirming the finding that Uber drivers are employees. This means Uber must provide the drivers with employee benefits, including minimum wage, leave entitlements and holiday pay.

 

The decision only applies to the four Uber drivers, but it has implications for all businesses that engage contractors, particularly for those operating in the gig economy. It is a timely reminder for businesses that rely on contractor workforces to ensure their contracts accurately reflect the nature of the relationship with their workers.

 

The Workplace Relations and Safety Minister Brooke van Velden has indicated that the coalition government intends to amend the Employment Relations Act in 2025 to increase certainty and clarity for contractors and businesses regarding employment status of workers. The changes will provide a four part gateway test which, if met, would mean a worker is a contractor. More information on the government’s announcement can be found here.

 

If you would like to know more about how any of the items in Business briefs may affect you and your business, please don’t hesitate to contact us.

[1] Wiles v University of Auckland [2024] NZEmpC 123.

[2] E Tū Inc v Rasier OperaAons BV [2022] NZEmpC 192.

[3] Rasier OperaAons BV v E Tū Inc [2024] NZCA 403.

 

 

DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2022.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650

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