Legal Updates

All Legal Updates

Succession Law changes considered by Parliament
The Government has recently provided its initial response to the New Zealand Law Commission (“the Commission”)’s recommendations to reform succession laws in New Zealand.
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Why do I need a will?
Death is the most uncomfortable fact of life. Perhaps this is why less than half of adult New Zealanders have a will. However, there are a number of good reasons to buck this trend by ‘getting your affairs in order’ sooner rather than later.
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Employers can still be stung during trial periods
A recent decision from the Employment Relations Authority (Authority), Williams v Team One Limited [2022] NZERA 180, is an example of the Authority upholding the important objects of the Employment Relations Act 2000 (the Act) by acknowledging and addressing the inherent imbalance of power between those in employment relationships as well as promoting the enforcement of employment standards.
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New immigration settings a green light for New Zealand businesses
The government has announced the full re-opening of the border two months earlier than initially anticipated. From 31 July 2022, New Zealand’s international border will open to all tourists and visa holders.
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What should I do if I think my employee has committed serious misconduct?
Employers were recently issued with a timely reminder to ensure serious allegations against employees are properly investigated prior to taking any disciplinary action.
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Fair Pay Agreements (FPAs): A Brief Overview

The highly anticipated Fair Pay Agreements Bill (“the Bill”) was introduced to Parliament this week and is expected to shake up the employment law scene.

The Bill provides a framework  within which fair pay agreements (“FPAs”) can be bargained The Bill’s objective is to “improve labour market outcomes in New Zealand by enabling employers and employees to collectively bargain industry-wide or occupation-wide minimum employment terms.

 
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What do the changes to the COVID-19 traffic light system mean for my business?

With modelling showing an expected decline in the current Omicron outbreak in early April, the Government has confirmed that long-awaited changes to New Zealand’s COVID-19 Protection Framework will shortly come into effect. 

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Solvency – A Plague On Directors’ Minds
Solvency issues are top of mind for many Kiwi businesses in the face of the prolonged disruption caused by COVID-19, together with rising interest rates, inflation and supply chain issues.
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COVID-19 Vaccine Mandates continue to fall away
Fonterra has discarded its strict vaccine policy and is instead allowing unvaccinated staff to take daily rapid antigen tests.
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Restraint of Trade Clauses in Employment Agreements – Enforcement remains available to employers.

The Employment Relations Authority (“the Authority”) decision O’Brien v Discovery New Zealand Ltd issued a firm reminder that properly drafted restraint of trade provisions can and will be enforced against employees seeking to jump ship. 

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Vaccine mandate order overturned for Police and Defence Force
As it turns out, vaccine mandates may not be enforced as easily as originally anticipated. A recent COVID-19 High Court case has determined the vaccine mandate for police and defence force staff to be ‘unlawful’. The order requiring New Zealand police and defence force to be vaccinated has now been quashed.
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New COVID-19 employment case indicates employer’s health and safety obligations to protect employees may be expanding

Does providing public commentary constitute work? A recent Employment Relations Authority (“the Authority”) case suggests it can and highlighted the expectation on employers to take extra health and safety steps for staff if such commentary is resulting in employee harassment.

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Company directors may face personal liability for employment law breaches

Company directors have been put on notice: they may be held to be personally liable for their company’s employment law breaches; even if they genuinely believed the company was complying with its legal obligations.   

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Guidelines for determining COVID-19 commercial rent relief released
Following the enactment of the COVID-19 Response (Management Measures) Legislation Act 2021 (“Act”), the Ministry of Justice has now published guidelines to assist parties when negotiating COVID-19 lockdown rent relief agreements.
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Buying a Business in Covid-19? Due diligence issues to consider
Like many other big decisions, before buying a business you need to ask the right questions.  This is known as due diligence (“DD”) and should involve assessment of the financial, operational and legal affairs of your target business.  Done well, DD will help you to more fully understand your target’s business, identify and assess financial, legal and operational risks and opportunities, and inform whether and at what price, you want to proceed with the acquisition.
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Do I Have To Pay My Unvaccinated Employees Redundancy Compensation?
What exactly is the nature of an unvaccinated employee’s dismissal under a vaccine mandate? Are such dismissals redundancy situations and if so, will redundancy compensation need to be paid?
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Employers put on notice: vaccine mandates not a green light for termination
The Employment Court has reinforced the need for employers to follow a robust consultation process when engaging with unvaccinated staff.
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It’s go time for Overseas Investment Act reforms – what you need to know about today’s changes
Today (24 November 2021) marks the introduction of significant changes to the Overseas Investment Act 2005.  This is the final stage of reform which began in 2018.
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Time to negotiate: Commercial rent relief mandate enacted
The COVID-19 Response (Management Measures) Legislation Act (“Act”) has come into force, mandating landlord and tenant rent relief negotiations in the COVID-19 pandemic from mid-August 2021.
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Employers Rejoice – Court of Appeal rules discretionary bonuses to no longer be included in Holiday Pay
In 2020 the Employment Court in Metropolitan Glass & Glazing Limited v Labour Inspector (“Metropolitan Glass”) turned settled understanding of employers obligations to quantify holiday pay on its head when it determined short-term incentive or productivity-based discretionary bonuses ("STIB” schemes) fell within the definition of “gross earnings” under s 14 the Holidays Act 2003 (“the Act”).

This decision significantly limited the scope of payments that fell outside the definition of “gross earnings”, exposing many New Zealand employers to additional financial liabilities. It meant discretionary payments made under incentive or productivity-based schemes must be included in calculation of an employee’s gross earnings when determining their holiday pay entitlements
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Shopping for Medical Certificates and Vaccine Exemptions

Recently, the government announced a new traffic light system to replace the alert level system when 90% “double jabbed” vaccine coverage is reached in each District Health Board’s geographic area.

 

As part of this announcement, a number of legislative changes regarding vaccine mandates were signaled. Of particular note was the proposed, vaccination certificate regime, under which vaccinated Kiwis, along with those medically unable to be vaccinated, would enjoy a wider range of freedoms than those voluntarily unvaccinated.

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Covid-19 Commercial Rent Relief Update

Earlier this month, we wrote about the COVID-19 Response (Management Measures) Legislation Bill (“Bill”). If passed, the Bill will have the effect of inserting an implied clause into many commercial leases providing for a rent reduction where, because of an epidemic, the tenant cannot gain access to the premises to fully conduct its business.

 

The Bill has since been through a public consultation process and the Finance and Expenditure Committee (“Committee”) has now published a report which summarises the various submissions on the Bill that the Committee received.

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COVID-19 vaccinations in the workplace: Obligations for employers (Part 3)
Hot on the heels of our previous articles, the third instalment of our ‘Vaccinations in the Workplace’ series looks at new Worksafe guidelines for deciding whether certain work should be performed by a vaccinated worker.
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New 2021 Resident Visa Announced
On 30 September 2021, Immigration Minister Kris Faafoi announced the introduction of the new 2021 Resident Visa.
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Commercial rent relief to be mandated

A newly proposed law looks set to require commercial landlords to negotiate rent relief deals with their tenants, in a bid by the Government to counter the economic effects of COVID-19 lockdowns on New Zealand businesses. 

Parliament went into urgency on 29 September 2021 for the first reading of the COVID-19 Response (Management Measures) Legislation Bill (“Bill”). The Bill seeks to amend a number of existing laws, however, it is the changes the Bill proposes to make to the Property Law Act 2007 (“Act”) which have received the most attention thus far. 

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Dismissal for failing to vaccinate against Covid-19 - Employment Relations Authority has first word
On 1 September 2021 the Employment Relations Authority (“Authority”) issued a decision in GF v New Zealand Customs Service [2021] NZERA 382 where it grappled with the vexed issue of an employee (“GF”) being dismissed from their employment for failing to vaccinate against Covid-19.
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Commercial leases and rent relief during the COVID-19 pandemic
The effect of COVID-19 on New Zealand businesses has been profound. In the wake of the initial Alert Level 4 lockdown in March 2020, followed by several periods of Alert Level changes since then, commercial landlords and tenants were left out of pocket, scrambling to negotiate to reduce or defer rent and outgoings and in some cases, resorting to cancellation.
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COVID-19 Vaccinations in the Workplace: Obligations for Employers (Part 2)
Following on from our last article, in this article we are covering off more questions regarding the debate around COVID-19 vaccinations in the employment context, and what employers should be vigilant of.
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COVID-19 Vaccinations in the Workplace: Obligations for Employers (Part 1)

New Zealand’s vaccination rollout has gathered pace with approximately 782,000 Kiwi’s now fully vaccinated.  As vaccination rates increase with the availability of the Pfizer vaccine (Vaccine) and the anticipated easing of some border restrictions, a number of questions from employers and employees will arise about their obligations and rights when it comes to workplace vaccination requirements.  

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Property purchasers beware! Rights of way: How to prevent neighbour warfare

A recent case has highlighted the importance of proper due diligence by purchasers in assessing legal title to a property and, more particularly, the effect of any right of way easement affecting the title.

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BEWARE LENDERS: New due diligence duty & fit and proper person certification for directors and senior managers

From 1 October 2021, directors and senior managers of lenders (i.e. a person or business providing credit under a consumer credit contract, including some mobile traders), must comply with new due diligence duties and obligations under the Credit Contracts and Consumer Finance Act 2003 (the “CCCF Act”).

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Mainzeal: Round 2 of 3
The Court of Appeal’s recent judgment in Yan v Mainzeal Property & Construction Limited (in Liquidation) [2021] NZCA 99provides further guidance about the circumstances in which directors in office during a period of balance sheet insolvency will be held liable for breach of directors’ duties under the Companies Act 1993.
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Buyers and sellers beware! New Tax Rules 2021: What you need to consider when buying or selling a business
If you are buying or selling a business this year, think carefully about how the purchase price should be allocated to the assets being sold/purchased. 
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Further COVID-19 relief available for SMEs
Relief is now available for small and medium sized enterprises (“SMEs”) whose revenue has been affected by the recent COVID-19 Alert Level hikes (from Alert Level 1 to Level 2 for most of the country) during February 2021, with applications for grants and subsidies having recently opened on the Inland Revenue and Work and Income websites.
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Residential Tenancy changes – A new landscape for Landlords and Tenants
The Residential Tenancies Amendment Act 2020 came into force on 12 August 2020.  It changed the landscape for Landlords and Tenants in New Zealand by amending the Residential Tenancies Act 1986 (“the Act”).  Whether you’re a Landlord or Tenant, here’s how the changes affect you.
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Employment Court Clarifies Criteria for Fixed Term Employment Agreements

A sincere belief that the circumstances warrant a fixed term agreement will not meet the criteria set by the Employment Relations Act

Fixed term employment agreements are strictly regulated by section 66 of the Employment Relations Act 2000 ("the Act"). If the criteria set by section 66 are not met, a fixed term agreement may be held to be invalid, resulting in the employee being a permanent employee instead.

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Employment Law and the 2020 Election - What's on offer?

New Zealand's General Election is being held on 17 October 2020. This article provides a snapshot of some of the parties’ proposed policies on wages and working conditions. 

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Supreme Court decision heightens risk of personal liability for directors

After a long gestation period, the Supreme Court has released its judgment in Debut Homes v Cooper [2020] NZSC 100 which clarifies the circumstances in which a director of a closely-held company will be personally liable for debts incurred by a company following a decision to continue trading when the company is in financial difficulty.

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Workplace Employment Investigators Require a Licence or Practicing Certificate
There has been a recent, and significant, clarification of the licensing requirements for employment investigators.
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Supreme Court confirms mining legislation no longer gets the “special treatment”

The recent Supreme Court case of Rangitira Developments Limited v Royal Forest and Bird Protection Society of New Zealand Incorporated [2020] NZSC 66 has clarified the legal position regarding the relationship between the Reserves Act and other relevant legislation.

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Protecting your Personal Information in the Digital Age

From 1 December 2020, the Privacy Act 2020 (“the Act”) will replace the Privacy Act 1993 (“the 1993 Act”). The Act introduces sweeping reform to promote New Zealander’s confidence that their personal information is secure and treated properly by public and private sector agencies.

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Employment Court widens the definition of gross earnings - Employers beware
Gross earnings provide the basis on which an employer calculates an employee’s annual holiday pay.
If an employer does not get this calculation right based on a misunderstanding of what constitutes ‘gross earnings’, they may find themselves in a situation where an employee’s holiday pay entitlements have been underpaid, resulting in an unexpected liability under the Holidays Act 2003 (“the Act”).
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First Employment Relations Authority Determination on Government Wage Subsidy Pay Reductions and Dismissals
With the Government Wage Subsidy Extension continuing to be available until 20 October 2020, the Employment Relations Authority (“ERA”) on 30 June 2020 issued a timely determination on whether or not an employer is released from the obligation to pay wages or salary under an employee’s employment agreement and/or the Wages Protection Act 1983 by accepting the Government Wage Subsidy (“GWS”).
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Small Businesses and Rent Disputes
Small businesses paying full rent on commercial leases when Covid-19 measures prevented them fully occupying their premises have today been given a pathway to rent reductions in a long-awaited government package released today.
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Planning redundancies once your employees’ wage subsidy runs out? Not so fast!

Planning redundancies once your employees’ wage subsidy runs out? Not so fast!

Times are tough for many New Zealand businesses right now. As a result of Covid-19 and its implications, many businesses have had to lay off staff or temporarily or permanently close due to significant decreases in revenue.

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COVID-19 – New Relief For Small Businesses – Government Small Business Cashflow Scheme

On 1 May 2020, the Government announced a new initiative to help small businesses grapple with the devastation inflicted by COVID-19 and the Government’s response to it: the Small Business Cashflow Scheme (SBCS).

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Government Support for Business
The Government has this morning introduced a new suite of measures to provide relief for businesses during the COVID-19 pandemic. Finance Minister Grant Robertson stated that the measures apply and impact on small and medium-sized enterprises (“SMEs”) in particular, and largely relate to tax payments and deadlines, commercial leasing and mortgages, and business advice.
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Covid-19 – Changes to Company & Insolvency Law to help Preserve Businesses
Today the Government announced urgent legislative changes to the Companies Act 1993 (“the Act”) to help companies face the unique challenges presented by COVID-19.
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Commercial Leases - Covid-19 and no access to premises
The spread of COVID-19 in New Zealand and the Government’s response of introducing a nationwide lockdown has meant that all non-essential businesses have closed for the initial 4 week period, preventing many businesses’ access to their premises. The unprecedented circumstances have left tenants and landlords scrambling to assess their obligations under leases, especially in relation to rent and outgoings payments.
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Covid-19: Know your obligations as an employer
While the number cases of Coronavirus (“COVID-19”) in New Zealand remains relatively low, it is now inevitable that the outbreak will have a significant impact on many aspects of daily life. 
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Chasing the Loan Sharks Out of the Water
The Credit Contracts Legislation Amendment Bill (“CCLAB”) received Royal Assent on 19 December 2019, and introduces a number of changes that strengthen the requirements of responsible lending for banks and financial institutions.
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REINZ/ADLS Agreement for Sale and Purchase – Update 2019
Banking on pulling out of purchasing a property? Not so fast!
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Turbulence in the regions 2
In this second article in our three-part series, we look at some of the important changes to aviation law contained in the Civil Aviation Bill. This topic formed part of presentations by Ford Sumner’s Jaesen Sumner and Sarah Churstain at the recent New Zealand Airports’ Conference.
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Turbulence in the regions?
Big legal changes are currently on the horizon for New Zealand’s aviation industry. When the Civil Aviation Bill has its First Reading and is referred to the Transport and Infrastructure Select Committee during the next 18 months, it will represent the culmination of over half a decade of policy work by officials at the Ministry of Transport, begun under the last National Government.
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Trusts Act Overhaul – What You Need To Know
The Government has introduced significant changes to trust law that will impact anyone that is a trustee or beneficiary of a trust in New Zealand.  It is important for trustees and beneficiaries to be aware of the influence the changes will have on their rights and obligations.  In short, trustees will face increased compliance requirements and beneficiaries will receive a greater amount of information about the trust.
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Do you offer financial advice? You may want to read ours...
The Government has introduced a new financial advice regime that will likely impact any business or individual involved in the delivery of financial advice, services or products in New Zealand.
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A reminder to chatterboxes - Confidential remains confidential
Parties to a Record of Settlement (“ROS”) may be subject to penalties under the Employment Relations Act 2000 (“the Act”) if they breach agreed terms of settlement.
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A lifeline for the construction industry? New procurement rules announced

New Zealand’s construction industry is growing rapidly. In recent years, the industry has used a ‘lowest price model’ approach when awarding construction projects. This has led construction companies to cut costs and under cut each other to secure tenders.

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Fair Trading Act Reminder

The Commerce Commission (“the Commission”) recently took issue with Hell Pizza as a result of its online advertising of the “Burger Pizza”.

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Subbies suck it up again?
On 5 September, Auckland and Waikato-based Stanley Group/Tallwood became the latest in a long line of construction companies to go to the wall.  Initial estimates put the amount owed to creditors at $5 million, with individual subcontractors reportedly owed up to $600,000.
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Incorporated societies update - do your clubs rules need a refresh
The suspensions occurred in the context of Avondale’s prospective plans to rationalise its landholding.
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Overstepping on your restraint of trade clause
The recent High Court case of Commerce Commission v First Gas Limited highlights the need for businesses to think carefully about restraint of trade clauses when it comes to their contractual arrangements.
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High Court exercises jurisdiction to award non-party costs
A recent decision in the High Court in the case of Minister of Education v H Construction North Island Ltd (in rec and liq) has seen a parent company, uninvolved as a party to the legal proceedings, be ordered to pay non-party costs of over a million dollars.
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Law changes for rental properties
From 1 July 2019, several significant changes came into effect which impact landlords, residential tenants and property managers. 
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Court of Appeal rules on interest rate swaps

The Court of Appeal at the end of June held in Bushline and Coomey v ANZ that ANZ’s representations to dairy farmer borrowers were false and of legal consequence

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Breaks legislation – Do employees have to take breaks?

The law regarding break allowances for employees has recently changed.

The Employment Relations Amendment Act 2018 has amended the Employment Relations Act 2000 to state that:

“an employee is entitled to, and the employee’s employer must provide the employee with, rest breaks and meal breaks”.

Are you up to speed with the new changes and what they require?

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Are You Still Relying on Employment Trial Periods?

Trial periods are no longer available for employers with more than 19 employees

If you are an employer that relies on trial period provisions when employing new employees, you need to be aware that the law has now changed.

If you have over 19 employees, you can no longer use a 90 day trial period and any attempt to use one will not be effective.  A new approach is needed.

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Changes to Employment Law in 2019
We address recent changes to the Victims' Protection Act 2018 and the Employment Relations Amendment Act 2018.
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Employment Law Changes

The Employment Relations Amendment Bill 2018 was passed on 5 December. There are 3 stages of changes, taking effect the day after the date the Bill becomes an Act (expected to be this week), 6 months after the date the Bill becomes an Act, and then 6 May 2019.

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