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LEGAL LOWDOWN

NEWSLETTER #2 – August 2013

KiwiSaver: HOW, WHEN & WHY? What is KiwiSaver? KiwiSaver is a voluntary savings scheme which helps members save for their retirement. Such savings are made up of contributions from you, your employer (if employed) and the government. You can choose your KiwiSaver scheme or else be enrolled in one of the default schemes. How do I access or withdraw my KiwiSaver Contributions? Generally you cannot withdraw your contributions until you qualify for New Zealand Superannuation (currently at the age of 65). However there are limited and special circumstances in which your contributions may be withdrawn early as outlined below.

Employment

2

A look at minimum employment rights and what you need to know about starting a new job or signing a new employment contract.

Services

3

A brief overview of recent and upcoming OCLC events and legal services, including our outreach and public events and seminars.

EPOA

4

A look at how to protect yourself if something happens to you, rendering you mentally incapable of making your own decisions.

KiwiSaver Withdrawals: EARLY WITHDRAWAL CRITERIA EARLY WITHDRAWAL CRITERIA There is a strict criteria under the KiwiSaver Act 2006 (“the Act”) which allows early withdrawals of KiwiSaver contributions ONLY in the following circumstances: Significant Financial hardship; which includes inability to meet minimum living expenses, inability to meet mortgage repayments, medical treatment, palliative care or funeral costs Serious illness; meaning totally and permanently unable to work in a job suited to your education, experience or training, Permanent Emigration; If you plan to live in another Country for good (except Australia). You must wait 12 months after you have emigrated to apply, Purchase of your First Home; $1000 for

each year you have contributed to KiwiSaver up to $5,000 or

evidence that you have tried to find other sources of funds

If a KiwiSaver member dies; In such case the administrator of your estate or next of kin will need to apply to withdraw such funds.

a statutory declaration about your assets and liabilities

HOW TO WITHDRAW YOUR FUNDS? If you're an employee and it has been less than three months since you joined KiwiSaver, you can apply to the Inland Revenue Department (IRD) for a significant financial hardship withdrawal. Otherwise, you would need to make a withdrawal application to your provider. All KiwiSaver schemes have different processes to withdraw funds. Application forms can be obtained directly from your provider. You'll also need to provide the following:

any other information that will prove your financial situation and need for the money Ultimately it is not the providers who determine your withdrawal application but their independent trustees who have the last say. It is a matter of whether you NEED the funds for essentials as opposed to WANTING the funds for non-essentials. Some providers have determined in certain cases that school trip fees, holiday costs and even monthly Digital Television bills to be non-essentials. For more information on matters relating to your KiwiSaver contributions, see your KiwiSaver Scheme Provider.


Information for you BEFORE you start New Employment The law requires that every employee (whether new or existing) must have a written employment agreement or contract. There are two types of employment contract; an Individual Contract or a Collective Contract. Collective Contract – If the work offered to you by the employer is covered by a collective employment contract negotiated by a union and an employer, the employer will offer you the collective contract to consider. The collective agreement is usually in writing. If you choose to accept the terms of the collective agreement as the terms of your employment, then you will sign the collective agreement and become a member of that union. Individual Contract – If the work offered to you is not covered by a collective employment contract, you and your Employer will personally negotiate the terms of your new employment. Your employment contract will be an individual contract. Common Problem – While your employer ought to have a written individual employment contract prepared and ready to discuss before you start work, quite often, your negotiation will have been conducted and agreement reached verbally. You will then start employment immediately on the basis of the verbal agreement terms without a written employment contract. This will often lead to problems if you have an issue with the terms of your employment. To avoid these difficulties, you should be aware of the legal obligations of an employer towards a new employee and the new employee’s rights prior to the start of employment. If you are going to be on an Individual employment Contract it is important to remember that you must have a signed written employment contract before your employment starts. It is not good practice to start work before you have been given a written employment contract to consider and subsequently sign. Importantly, remember that your employer must do the following before your employment begins: The Employer must negotiate terms of the employment contract in good faith. The Employer must give you a written copy of your proposed employment contract. The Employer must tell you that you are entitled to seek independent advice on the proposed employment contract. The Employer must give you a reasonable opportunity to seek that advice. The Employer must consider and respond to any issue you raise regarding the proposed contract. The employer must keep a copy of your employment contract whether you have or have not signed it. Your Individual Employment Contract must include these terms: Your name and your employer’s name A description of the work you will be performing A statement as to where you will be carrying out your work (the work place) Your times of work Your wage or salary to be paid by your employer A simple statement of the services available to resolve employment relationship problems A reference to the period of 90 days within which you ought to raise any personal grievance Other terms are implied by law even if they are not included in your written contract. For example, your entitlement to annual leave, sick leave or bereavement leave will be read into your employment contract even if they are not spelt out in your contract. Your Employment agreement (whether individual or collective) must not include anything that is contrary to law.

FREE LEGAL SERVICES We provide FREE Legal Services to the South Auckland Area (except Mangere). Our services range from Legal Advice, Assistance and Information to Legal Education and Representation. Check out PAGE 3 for more details on our upcoming events and services. For more details please contact: Our office on (09) 274 4966 or

WELCOME TO THE TEAM! We welcome our newest Senior Solicitor Soane John Foliaki to the team. Soane joins us from Manukau law firm Inder Lynch and has many years’ experience in immigration, family and criminal law. Soane is very excited to be commencing his role in community law and utilising his skills and expertise to assist our community with their legal needs.

See our OCLC website: www.otaracommunitylawcentre.com


SERVICE CLINICS Otara OCLC 120 Bairds Road Otara

Otahuhu We currently do not have an Outreach clinic in Otahuhu

Appointments available: Monday – Friday

Manukau Salvation Army 16B Bakerfield Place Manukau

Papakura Papakura Citizens Advice Bureau 4a Opaheke Road Papakura

Appointments available: Monday-Friday

Appointments available: Thursday

Pukekohe Heartland Services 2 King Street Pukekohe

Manurewa Manurewa Marae 81 Finlayson Ave Manurewa

Flat Bush Hilltop Community Centre 30 Hilltop Road Flat Bush

Flat Bush Chapel Downs Primary School 170 Dawson Rd, Flat Bush

Appointments available: Fortnightly on Tuesday

Appointments available: Wednesday

Appointments available: Fortnightly on Friday

Appointments available: Fortnightly on Wednesday

OCLC SERVICES: RECENT UPCOMING EVENTS FREE LEGAL EDUCATION We deliver/ Co-ordinate Legal Education to community groups or organisations in our service area. We provide education sessions on the following areas of law: Employment, Tenancy, Consumer, Human Rights, Youth Rights, Traffic, Immigration, NZ legal system, Maori Legal Issues, Privacy, Care of Children, WINZ entitlements and other topics. For more information on any of our legal education services please contact our office (09) 274 4966

FINANCIAL SERVICES COMPLAINTS LTD PUBLIC SEMINAR OCLC in partnership with Financial Services Complaints Ltd (FSCL) will be holding a public seminar on 3 October 2013 at the Clover Park Community House, 12pm-2pm regarding COMPLAINTS ABOUT FINANCE COMPANIES which will cover: Brief information about FSPR and dispute resolution schemes; FSCL process and types of complaints dealt with; Case Stories – examples of outcomes/settlements; Legislative changes- Reforms/Bills; Consumer Credit Contracts (incl. repossession, financial hardship and oppression) Questions/discussions For more information and to register for this seminar please contact: wipere.mita@otaralaw.org.nz or (09) 274 4966

AND

MĀORI LAND CLINICS Our Free Māori Land Advice & Education Clinics are designed to inform, educate and advise Māori Land owners, shareholders and trustees on various aspects of their Māori Land.

Dates for upcoming clinics are:

These clinics are run in partnership with the Māori Land Court – Tāmaki Makaurau and Te Mata Law.

For more information on these clinics contact Wi Pere Mita: wipere.mita@otaralaw.org.nz

Thursday 12 September 2013 Wednesday 9 October 2013 Thursday 14 November 2013

CONSULTATION HUI MĀORI COMMUNITY DEVELOPMENT ACT The Government is currently seeking feedback on the Māori Community Development Act 1962 (the Act) to discuss its future. The Act established the NZ Māori Council, Māori Wardens and Community Officers. The local public discussions will be held at: Orakei Marae- 4 September 2013, 4-6pm; and Te Puea Marae - 5 September, 8.30-10.30am Go along to have your say in the future of Māori Community Development.


PROTECTING YOURSELF IN CASE SOMETHING HAPPENS – ENDURING POWERS OF ATTORNEY Have you thought about who will take care of your affairs if something happens to you, rendering you mentally incapable of making decisions for yourself? There are legal options available to you if you would like your family or friends to manage your affairs in the unfortunate event that you are unable to make such decisions. You (“the donor”) may choose to appoint someone (“the attorney”) to have the power to look after certain aspects or all aspects of your affairs including your welfare and care, and/or property. Welfare and Care include your medical treatment and health matters. Property includes your houses, assets, car and other personal belongings. An Enduring Power of Attorney (“EPOA”) is a document where you formally appoint and authorise someone to make decisions in relation to one or more aspects of your life, usually after you become mentally incapable of making decisions for yourself. In order for you to be able to appoint someone to take care of your affairs, you must see a lawyer. This lawyer must be satisfied that you are mentally capable at the time you sign your EPOA. The person you appoint as your attorney must also be of sound mind at the time he or she is appointed. Mentally incapable means, a person who: lacks (wholly or partly) the capacity to understand the nature and to foresee the consequences of decisions relating to their personal care and welfare ; or wholly lacks the capacity to communicate decisions relating to their personal care and welfare; or not wholly competent to manage their property affairs. If you are unsure of your mental capability to appoint an attorney, a doctor is able to provide a medical assessment of your mental state for the purposes of appointing an attorney. Once the doctor has assessed you, he or she is able to provide a letter confirming whether you are mentally capable of appointing an attorney for the purposes of an EPOA. If the doctor is satisfied that you are mentally capable of appointing an attorney, you may do such by signing an EPOA agreement which must be witnessed by a lawyer. The EPOA relating to welfare and care does not come into effect until you are mentally incapable to make your own decisions. The EPOA relating to your property may come into force whilst you are still mentally capable. Your attorney must act in your best interests at all times and involve you in the decision making process as much as they can. There are other options available to you if you are rendered mentally incapable of making your own decisions before you have appointed an attorney. These options require Court Orders.

For more information on EPOA processes and PPPR Act topics please contact our office on (09) 274 4966

CHANGES TO CIVIL FEES On 27 May 2013, the Government announced changes to fees for civil court and tribunal services. The changes involve new fees, fee increases, some fee reductions, a pre-payment hearing fee system for the District Courts, High Court and Court of Appeal. Most of these changes came into effect on 1 July 2013. Further changes regarding civil enforcement fees are dependent on changes to District Court Rules and likely to come into effect later in 2013. Further fee changes requiring statutory amendments are likely to come into effect sometime in 2014. The changes were made following a comprehensive review undertaken by the Ministry of Justice. The changes fees are designed to protect access to justice while ensuring those who benefit from the courts contribute to their costs. The reasons for the changes are summed up by Courts Minister Chester Borrows - “The changes released today strike a better balance, ensuring access to justice while asking for a reasonable contribution from those who use, and therefore benefit from, civil courts and tribunals.” For More details see the Ministry of Justice website: http://www.justice.govt.nz/services/court-fees


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