LawNews - Issue 10

NEWS Apr 8, 2022 Issue 10

Inside ■ TRUST LAW

Be wary of the bright-line test P03

■ EMPLOYMENT

How fair pay agreements will work P04

Why a co-governance

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REFERENDUM COULD BE A RISK

Contents 03 BRIGHT-LINE TAX PROPERTY

Tax traps abound when shifting property out of a trust

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

04 BARGAINING UNIONS EMPLOYMENT

Everything you need to know about fair pay agreements

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

06-07 JUDICIARY EXTREMISM VIOLENCE

10-11 FEATURED CPD

The unintended consequences of a co-governance referendum

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Apr 8 2022 Issue 10

TRUST/TAX LAW

How moving property out of a trust may trigger the bright-line test Vicki Ammundsen & Stephen Tomlinson A warning to anyone thinking of transferring residential property out of a family trust: you could be caught by the bright-line test.

The test, applying to the disposal of residential land within 10 years or, in some cases, five years from the date it is acquired, applies to transfers of residential land to and from family trusts, along with the resettlement of residential land from one trust to another.

So, if ownership of a property changes within the relevant bright-line period, the clock is effectively reset. And any increase in value, whether or not a profit has been realised, is likely to trigger a tax liability, with the transferor liable for tax on the profit at their marginal income tax rate.

build land’.

Exclusions apply to the disposal of the main home, transfers pursuant to a contracting out agreement and the disposal of inherited property.

Tax liability Where residential land is transferred from a trust to a beneficiary or is resettled from one trust to another, a tax liability may arise even where no money changes hands.

If the bright-line test applies, then residential land is deemed to have been disposed of at market value. Even if the bright-line test does not apply to the disposal of the land by the trust, the new owner will still be subject to the 10-year bright-line test (or the five-year brightline test if the property is ‘new build land’) when they subsequently dispose of the residential land.

Review of trust arrangements For several reasons, clients are currently reviewing trust arrangements.

Obligations imposed on trustees under the Trusts Act 2019 have resulted in some clients wondering whether using trusts to hold assets still makes sense for them.

Some clients are also considering transferring income-earning assets, including residential rental property, out of trusts to minimise exposure to the new domestic trust disclosure rules.

Bright-line test The 10-year bright-line period applies where residential land was acquired on or after 27 March 2021, unless it is ‘new build land’.

The five-year bright-line period applies where residential land was acquired on or after 29 March 2018, but before 27 March 2021, and also to ‘new

Rollover relief Until recently, rollover relief from the bright-line test applied in only a narrow set of circumstances.

Rollover relief means the transferor is deemed to have disposed of the residential land at cost (rather than market value) and the transferee is deemed to have acquired the residential land on the date that the transferor acquired the land. Effectively, the transfer is ignored for income tax purposes.

The main circumstance in which rollover relief used to apply was where residential land is transferred pursuant to a contracting out agreement. Tax avoidance issues may arise where persons use a contracting out agreement as a device to transfer assets in or out of trusts.

The Taxation (Annual Rates for 2021–22, GST, and Remedial Matters) Act 2022 extends rollover relief from the bright-line test to certain transfers of

residential land on or after 1 April 2022 to and from family trusts. Full rollover relief applies only if the residential land is transferred at no more than cost.

While the extension of rollover relief to transfers of residential land to and from family trusts is welcomed, the reforms do not go far enough. Essentially, there are two problems.

First, where residential land is transferred from a trust, rollover relief applies only where the residential land is transferred to a ‘principal settlor’ who previously transferred the land to the trust. This means that rollover relief will not apply where the principal settlor made cash settlements on the trust or provided a guarantee to put the trust in a position so it could acquire the land.

Second, rollover relief does not apply to trust resettlements, despite officials previously indicating that it should. This appears to be an oversight, and Inland Revenue’s commentary on the new legislation states that this will be fixed in the next available tax bill.

More reform likely It appears that Inland Revenue will revisit the application of rollover relief to trust resettlements in the near future. It is not clear, however, whether rollover relief will also be extended to all transfers from a trust to a ‘principal settlor’. In the meantime, lawyers and accountants need to appreciate that rollover relief from the bright-line test for transfers of residential land to and from trusts is still limited. ■ Vicki Ammundsen is the director of Vicki Ammundsen Trust Law and Stephen Tomlinson is the principal of Tomlinson Law. Both are members of the ADLS Trust Law Committee. ■ We have an upcoming CPD event in this area.

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■ notifies the union that its application to initiate bargaining for

EMPLOYMENT LAW

How fair pay agreements will work and who they will cover The framework in the bill does not cover contractors, but the government has indicated that work will begin shortly on proposals to incorporate contractors into FPAs in the future

Liz Coats & Katherine Pigou

Liz Coats

After several years of discussion and public consultation, the government has introduced the Fair Pay Agreements Bill.

Employers and employees alike will be keen to understand the proposed framework for fair pay agreements (FPAs). They now have an opportunity to review the bill and can provide submissions as part of the parliamentary process. The government intends the FPA legislation to be in place by the end of 2022.

Key points As our previous article discussed, the purpose of an FPA is to provide for the minimum binding standards for both employers and employees in a particular sector or occupation through collective bargaining.

The bill in its current form outlines the framework for the proposed FPA system. For employers, the key points are: Katherine Pigou

Initiation of bargaining The bill includes a process by which eligible unions can seek to initiate bargaining through an application process, through the chief executive of the Ministry of Business, Innovation and Employment (MBIE).

An eligible union can initiate bargaining for an FPA if the chief executive: ■ is satisfied that the union’s application for that FPA meets: 1. the representation test threshold requirements of either 1,000 employees or where 10% of the employees in proposed coverage support the initiation of bargaining for the proposed FPA; or 2. a public interest test, based on certain criteria that are applied to employees who would be covered by the proposed FPA (such as low pay, little bargaining power or lack of pay progression); and

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the proposed FPA has been approved.

If the coverage substantially expands during bargaining, then the relevant representation or public interest test will need to be re-tested. A union cannot initiate bargaining if the proposed FPA and an existing FPA have the identical coverage.

Coverage The union that initiates bargaining for the FPA defines the work the FPA is to cover, but this coverage can change during the bargaining process.

The coverage of a proposed FPA must be described as either industry-based (an ‘industry FPA’) or occupation-based (an ‘occupational FPA’). Where there is an overlap in coverage between two FPAs, the Employment Relations Authority must determine which FPA provides better terms overall for the employees covered by both agreements.

All employers and employees within the proposed coverage are covered by an FPA. However, an FPA can differentiate between employees located in different regions. An employer business can also be exempt where it is in significant financial hardship.

The framework in the bill does not cover contractors, but the government has indicated that work will begin shortly on proposals to incorporate contractors into FPAs in the future. Penalties will apply to employers who seek to avoid the coverage of FPAs by engaging workers as contractors when they are, in reality and as a matter of law, employees.

Bargaining representatives Unions will represent employees, and employers will select their ‘employer bargaining party’ (or parties). This may include eligible employer associations, a specified employer bargaining party (in relation to certain public service personnel), and other default employer bargaining parties that may be specified in regulations.

Bargaining process Parties are required to bargain in good faith.

Bargaining parties must use best endeavours to represent the collective interests of all those in coverage, including non-members.

There are specific provisions that require bargaining parties to ensure effective representation of Māori interests and views.

Minimum requirements Certain terms must be included in an FPA (referred to as ‘mandatory content’), such as when the FPA comes into force and expires, its coverage, the normal hours of work, minimum base wage rates, overtime, penalty rates and any superannuation entitlements.

An FPA must apply for no less than three years, but no more than five years.

Bargaining parties are also required to discuss certain other terms, such as whether to include health and safety requirements

Continued on page 13

Apr 8 2022 Issue 10

PUBLIC LAW

More British judges quit Hong Kong’s top court Eric Yan-ho Lai Lord Robert Reed and Lord Patrick Hodge, the UK Supreme Court President and Deputy President, have resigned from their roles on Hong Kong’s top court.

On their departure, they criticised the state of civil liberties and the rule of law in Hong Kong after the implementation of the national security law by Chinese authorities in 2020.

Reed and Hodge are not the first foreign judges to leave the court following the national security law, which the local administration has used to target the political opposition and shut down independent media publications.

James Spigelman, a former Chief Justice in Australia, resigned in September 2020. And Brenda Hale, a retired President of the UK Supreme Court, decided not to renew her term of office in June 2021.

Spigelman and Hale did not explicitly cite the national security law in their departures, though both had expressed their concerns on other public occasions. After their departure, the UK Supreme Court reasserted its confidence in the city’s rule of law and independent judiciary.

The latest resignations are particularly significant in that they represent the UK dropping its institutional support for Hong Kong’s legal authority.

During the colonial era, the British Privy Council had the power of final adjudication over Hong Kong.

In 1984, when Britain and China signed the Joint Declaration on Hong Kong’s sovereignty transfer, they established the Court of Final Appeal as Hong Kong’s top court, and agreed it could invite judges from other common law jurisdictions to sit.

In 1997, the two jurisdictions agreed that Britain would provide the court with two serving law lords.

Later, judges from other common law jurisdictions, including Australia, Canada and New Zealand, also joined.

Hong Kong authorities believed the presence

of foreign judges would enhance confidence in judicial independence and boost Hong Kong’s international reputation as a global financial hub.

As Lord David Neuberger, one of the British judges on the court, put it in 2017: “Foreign [judges] are the canaries in the mine: so long as they are happy to serve on the HKCFA, then I think you can safely assume that all is well with judicial independence and impartiality in Hong Kong, but if they start to leave in [droves], that would represent a serious alarm call.”

The alarm rang in July 2020, when the Chinese authorities imposed Hong Kong’s national security law.

The law established a “committee for safeguarding national security”, which is supervised by an envoy from Beijing and is not subject to judicial review.

The national security law empowers the Hong Kong chief executive to handpick judges to handle related cases. It also allows the Secretary for Justice to remove a jury trial if a national security case is tried at the level of the high court. As of now, no foreign judge has been picked to hear a national security law case that has reached the high court on appeal.

A condemnation The resignation of the two British judges marks a dramatic shift in the UK’s position. Their statement says that remaining on the court would be seen as an endorsement of Hong Kong’s departure “from values of political freedom, and freedom of expression”.

Although the court handled many non-national security law cases fairly, foreign judges have been involved in Hong Kong’s weaponisation of its courts to crack down on free speech and political participation.

One constitutional review, endorsed by Lord Reed, led to the imprisonment of a former pro-democracy lawmaker for contempt after he chanted protest slogans in the legislative chamber.

The resignations of Lords Reed and Hodge signal to the global community that foreign judges in Hong

Kong cannot do much to observe and safeguard human rights in the existing system. Under Hong Kong law, foreign judges are barred from attending hearings of the high court appeal committee, which decides whether leave is granted for appeal. In short, foreign judges can hear only cases filtered by the local judges, who can also give rulings disrespecting basic legal rights.

After the resignation, the Chinese and Hong Kong authorities, the Hong Kong Bar Association and the Law Society of Hong Kong expressed regrets and said they suspected possible “political interference” by the British parliament.

However, they have missed the point. Lords Reed and Hodge said their decision is not about local courts’ commitment to the rule of law, but about the administration’s attitude to political and speech freedoms.

The remaining foreign judges, who include three from Australia and five from the UK, have for now decided to remain on the court, but are retired from their other judicial roles. The UK Supreme Court’s decision is institutional, and backed by the UK foreign secretary. It marks the end of its confidence in Hong Kong’s authorities.

Hong Kong’s rule of law has changed significantly since its handover to China, and the city’s top court has little room to provide a remedy. The more the Chinese and Hong Kong authorities weaponise laws and courts to achieve their political ends, the less it is possible for them to maintain public and global confidence in the city’s rule of law and independent court. ■ Eric Yan-ho Lai is the Hong Kong Law Fellow for the Center for Asian Studies University of Georgetown, and a doctoral candidate at SOAS University of London ■ The above was first published in The Conversation and is republished with permission 05

CONSTITUTIONAL LAW/OPINION

New Zealand’s own Catch-22 Chris Trotter The laws of the land should come at the end of the political process, not at the beginning.

The vexed question of Crown/Māori co-governance, with all of its profound constitutional implications, is opening up deep divisions in New Zealand society precisely because its promoters are determined to embed it in law without first submitting it to the rigors of democratic scrutiny.

This is a bold and, some would say, reckless strategy but it is far from being a new one.

Ever since the 1980s, our politicians and public servants have been content to toss the political hot potato of Māori-Pakeha relations into the lap of the judiciary. Rather than confront this most difficult of issues head-on, the people’s representatives have relied upon unelected judges, tribunals and bureaucrats to do their job for them.

The Americans tried this in relation to the vexed question of slavery in the 1850s. What they ended up with was the Dred-Scott decision of the US Supreme Court, a judgment which made the American Civil War (18611865) inevitable.

Some might argue that our own Dred-Scott decision was delivered by Lord Cooke of Thorndon in 1986 in his celebrated judgment fleshing out the principles of the Treaty of Waitangi and describing the relationship it established between the Crown and Māori as ‘akin to a partnership’.

As the years passed, and as 06

successive generations of politicians continued to shy away from confronting directly the constitutional implications of Lord Cooke’s principles and partnership, inevitably they morphed into a rough user’s guide for parliamentarians charged with giving legal effect to Māori claims.

It is difficult to avoid the suspicion that the politicians of both parties were more than happy to allow the judiciary, the quasi-judicial Waitangi Tribunal and the fearsomely bureaucratic Office of Treaty Settlements (OTS) to carry the burden of shaping the structure of Crown/Māori relations in the 21st century.

Arguably, it was in the interests of both major parties to remove the potentially explosive issue of race relations from the brutal arena of electoral politics, not least because the latter showed every sign of delivering inconvenient answers to questions most senior politicians now deemed

too sensitive for resolution by majority votes.

Extreme opinion The dangers attached to debating the meaning of the treaty and the future of Māori-Pakeha relationships outside the tightly circumscribed environment of the courts, the Waitangi Tribunal and the OTS were exposed in the brutal election campaign waged by the Don Brash-led National Party in 2005.

Alone among the leaders of the two main parties, Brash was unwilling to allow the political logic of Māori nationalism to pass unchallenged into the DNA of the body politic. Had Brash defeated Helen Clark (herself no fan of the Māori nationalist ‘haters and wreckers’), the government he led would have unwound everything that followed New Zealand Māori Council v Attorney-General.

Nowhere was this determination to keep treaty matters beyond the reach

of the voters more jarringly on display than in the triumphalist remarks of the Rt Hon Sir Geoffrey Palmer QC. In a paper entitled Māori, the treaty and the constitution, delivered to the Māori Law Review symposium on the Treaty of Waitangi and the constitution held on 12 June 2013, the politician who served the original ball to Lord Cooke in 1986 declared: “Insulation from the ravages of extreme opinion has been achieved. The settlements have become mainstream.”

Nine years on, Palmer’s confidence that ‘extreme opinion’ has been successfully frozen out of the treaty debate is beginning to look misplaced.

Had the decolonisation process demanded by Māori terminated with the treaty settlements – as both Labour and National hoped it would – mainstream New Zealand would, indeed, have breathed a sigh of relief and embraced its outcomes with pride.

But, as the late Moana Jackson and his fellow constitutional revolutionaries made clear in the years following Palmer’s address, the process of decolonisation had only just begun.

Treaty-related change What has never been particularly clear, however, in relation to decolonisation, was how its proponents proposed bringing it into being.

On the face of it, the radically different society that was bound to arise in Aotearoa-New Zealand if the

Continued on page 07

Photo: Phil Walter / Staff / Getty Images

Co-governance:

Attempt to halt by stealth the decolonising revolution that is already underway – the New Zealand history curriculum, Three Waters, the Māori Health Authority – and you will conjure up a racial conflagration 10 times worse

Apr 8 2022 Issue 10

Continued from page 06

full social, economic, political and cultural logic of tino rangatiratanga was translated into the nation’s institutional arrangements – essentially ‘cogovernance’ – could emerge only out of a full-blown revolution.

This was not a possibility immediately obvious to the country’s political scientists.

But there was another way.

Blindingly obvious in retrospect, it emerged only slowly from the close observation of how treaty-related change unfolded in New Zealand society. In the absence of a formal written constitution, bi-partisan agreement on key issues became the de facto test of whether or not significant constitutional change could take place.

After catching a glimpse of the abyss into which New Zealand was likely to fall if Pakeha politicians attempted, à la Brash, to wind back the historical clock and, once again, make the treaty ‘a simple nullity’, both National and Labour reverted to their earlier reliance on the courts, the tribunal and the OTS. Not surprisingly, these latter bodies have been granted considerable latitude by the nation’s leading politicians to determine the future shape of Crown-Māori relations. Politics, like nature, abhors a vacuum.

This was the way Māori could construct their decolonised constitutional edifice one brick at a

If mainstream New Zealand was shocked by the violence unleashed on the final day of the anti-vaxxer occupation of Parliament grounds, can it imagine the response to an attempt by right-wing Pakeha politicians to stuff the genie of co-governance back in his bottle?

time. So long as both National and Labour accepted the jurisprudential and academic wisdom of their politically insulated advisors, and refused to play the race card, progress along the decolonisation road would be made – incrementally and relentlessly.

This was the true significance of the He Puapua report: not that it supplied the Labour government of Jacinda Ardern with a blueprint for change but that it demonstrated persuasively how her government’s – or any government’s – blueprint for change could be transformed into reality.

Catch-22 No revolutionary explosions required, only the slow but steady roll-out of measures weighed carefully, and approved, by the wise men and women of the judiciary, the tribunal, the public service and the universities.

Measures relatively easy for politicians and journalists to understand – and defend. Measures which, if halted – as they almost certainly would be by the referendum on co-governance

proposed by Act’s David Seymour – would call into being precisely the revolutionary conditions they were intended to avoid.

It’s New Zealand’s very own version of Catch-22. Attempt to halt by stealth the decolonising revolution that is already underway – the New Zealand history curriculum, Three Waters, the Māori Health Authority – and you will conjure up a racial conflagration 10 times worse.

If mainstream New Zealand was shocked by the violence unleashed on the final day of the anti-vaxxer occupation of Parliament grounds, can it even imagine the response to an attempt by right-wing Pakeha politicians to stuff the genie of cogovernance back in his bottle?

It took a whole room-full of seconded police officers working the phones and the computers for several days to gather from all around New Zealand the 500 constables needed to drive the occupiers from Parliament grounds.

Imagine, then, the effort required to quell demonstrations and occupations

several orders of magnitude larger than the bedraggled remnants of ‘Camp Freedom’.

In the end, I suspect that’s what Lord Cooke, Sir Geoffrey Palmer, and Moana Jackson realised.

‘Complementary democracy’ The colonial state, or what’s left of it, lacks both the will and the means to restore itself. The extreme element may yearn for another General Cameron to put the natives in their place, but they have not thought through the grim logic of their position.

They do not understand that it would lead inexorably to a civil war – the outcome of which would be far from certain.

It’s hard to imagine a more Kiwi predicament: to implement a cogovernance revolution, one manageable (and eminently justifiable) change at a time or to reject the whole concept of ‘complementary democracy’ (as the public service boffins are now calling co-governance) and spend the next decade turning ourselves into Northern Ireland. That is to say, engaging in fratricidal strife for years and years, only to bring it all to an end with a powersharing arrangement.

If we’re wise, we’ll skip the fratricidal strife bit and go straight to powersharing. There are worse things in this world than co-governance. Just ask the Ukrainians. ■ Chris Trotter is a political commentator and writer of more than 30 years’ experience. He is the author of the Bowalley Road blog ■

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CASE NOTE

Otago Regional Council wins battle over water from Clutha River Sacha Jugum Appeal by District Council from Environment Court decision that fixed community water scheme consent at 25 years – whether longer duration appropriate – whether end use of water relevant – applicable principles – procedure – whether errors of law – relevant factors – operative regional plan – environmental and measurable effects – precedent – appeal dismissed

The Clutha District Council had a resource consent to take water from the Clutha River for a rural scheme that expired in 2018. When it applied to the Otago Regional Council to renew the consent for 35 years, the ORC fixed the duration of the consent at 25 years.

The Environment Court upheld the ORC decision. The CDC appealed the Environment Court decision to the High Court. The Environment Court had noted that some of the water would be used by dairy farms to wash down dairy sheds, and the CDC contended that having regard to this factor was an error of law [together with other alleged errors of law].

Applicable principles – detailed chronology of procedural steps and decisionmaking process – analysis of the original consideration of relevant factors, and the selection of those factors – assessment of policy factors, including the prioritisation of water for human consumption, rather than other uses – consideration of the range of potential water uses and the way these were contemplated and weighed during the decision-making process – whether the potential end use of

Photo: Walter Bibikow / Getty Images

Clutha District Council v Otago Regional Council [2022] NZHC 510 (Nation J)

the water could be seen as too remote, given that such usage was not expressly monitored – the scope of potential “adverse effects” relevant to the decision-maker – acknowledgement of expert evidence, particularly in relation to water quality and whether this was affected by the extent of water usage – recognition of the “fundamental purpose” of the Resource Management Act 1991, being the promotion of “sustainable management of natural and physical resources” – comprehensive reference to precedent and public policy Held: The CDC’s appeal is dismissed and the decision of the Environment Court is upheld. ■

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Apr 8 2022 Issue 10

LEGAL PROFESSION/PART OF A SERIES

A week in the life of an employment lawyer Alexandra Sims Working in employment law involves a range of different tasks that all have the same focus: people. If you are looking for a job where people are at the centre of everything you do, then employment law is a great option.

I have been lucky enough to gain experience across a broad range of employment matters during the two years I have been working in this area of the law. During my first few months on the job, I attended an Employment Relations Authority hearing with one of my colleagues who represented a contractor arguing that she was really an employee.

I have worked alongside our corporate teams on due diligence reports, considering the employment risks involved in a deal.

I have completed health and safety compliance schedules for several of our large clients, assisted senior colleagues with workplace investigations and prepared submissions for court. The list goes on!

I had an interesting start to my legal career. Only a few weeks into my first job, the pandemic took off and we were thrown into a new working-from-home environment. The employment team quickly became experts in all things covid-19 and we were advising across a broad range of employment issues which arose at the same time as the government was legislating daily from the podium.

It’s been interesting to say the least. But I have been lucky enough to be supported by a great team at the same time as learning a huge amount in a short space of time.

Here is a summary of what my last week looked like:

Tuesday

An exemployee took our client’s confidential information when they left

■ Check my emails and reply to one from the lawyer on the

■

■ ■

■

Wednesday ■ Check my emails. There is one from the lawyer, saying

■

■

■

Monday ■ Start with a weekly team meeting where we chat about our weekends and update on what we have on for the week.

■

■ Go through my emails. Finish off the email I started drafting on Friday to a client asking whether they can mandate covid-19 vaccinations for all employees.

■ Present at a webinar with a senior solicitor and partner in my team to several of our clients on how to carry out a disciplinary investigation.

■ Prepare a letter to a lawyer on the other side of a breach of confidentiality matter that is going to the Employment Relations Authority. An ex-employee took our client’s confidential information with them when they left. The matter is set down for a two-day investigation meeting on Thursday and Friday.

other side of the confidentiality case. Her client has put forward a settlement offer. Forward the offer to my client and call them to discuss.

Draft a letter and email back to the lawyer, advising that our client has not accepted the terms of the settlement offer and put forward a counter-offer.

Respond to emails and draft a health and safety policy while I wait for a response from the lawyer.

No response. I carry on preparing evidence for the investigation meeting, which includes drafting our opening submissions.

Prepare for an evening meeting with a client based in the US seeking advice around employers mandating covid-19 vaccinations in New Zealand.

■

■ ■

that her client will accept our counter-offer if we increase compensation for hurt and humiliation from $10,000 to $30,000.

Forward the email to my client and call them to discuss.

My client instructs me to respond with an offer to increase compensation to $17,000. Prepare email and send to lawyer.

Continue preparing for the investigation meeting as it could still go ahead. Call our witnesses to prep them on the questions they may be asked, ERA process and evidence they may be referred to.

Get a call form my client asking whether I have heard anything from the lawyer regarding my client’s offer. Advise my client that I have not heard anything, and I will follow up.

Call the lawyer and get her answer phone. Continue my hearing preparations.

Receive a call from the lawyer at 4pm just before our opening submissions are due to be filed at 5pm. Her client has accepted our offer and agreed to withdraw proceedings on the basis that we draft a record of settlement containing the terms of our offer.

Call my client to advise that the offer has been accepted and email the lawyer to confirm our conversation on the phone.

Draft record of settlement and send to other side to review and sign. Draft joint memorandum withdrawing proceedings

Continued on page 13 09

FEATURED CPD

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IN PERSON

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This year’s youth advocates half-day conference will provide practically focused sessions on a range of pertinent topics presented by youth justice professionals.

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Reflecting on your goals for this year? Are you performing at your peak?

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FIND OUT MORE 10

Apr 8 2022 Issue 10

adls.org.nz/cpd

Harm and revenge in the digital space

Webinar 1.5 CPD hrs Monday 30 May 1pm – 2.30pm Presenter David Harvey, retired District Court Judge Chair and commentator Arran Hunt, partner, Stace Hammond

cpd@adls.org.nz

09 303 5278

An update on the Harmful Digital Communications Act, this webinar will be a useful and timely refresher. It will cover principles, offences, case law and enforcement and be helpful to those practising in civil, criminal and family law, or with an interest in the interface between technology and the law.

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FIND OUT MORE

Class and funded litigation LITIGATION PROFESSIONAL OBLIGATIONS

Livestream 2 CPD hrs Tuesday 31 May 4pm – 6.15pm Presenters Paul Collins; Philip Skelton QC; Angela Parlane and Jonathan Woodhams

The rapid growth in class and funded litigation has exposed a range of professional responsibility issues and challenges not encountered in regular litigation. The Conduct and Client Care Rules do not always fit neatly with the sort of professional challenges lawyers face. This seminar is intended to help lawyers navigate this potentially perilous field, identifying and avoiding professional issues before they become a problem.

IN PERSON

The deportation process PRACTICAL GUIDANCE PROCESS

Livestream 2 CPD hrs Wednesday 15 June 4pm – 6.15pm Presenters Richard Small; Deborah Manning; Bernard Maritz and Terri Thompson

LIVESTREAM

A practical guide for lawyers. While most deportations have been on hold, they will be resuming as the border reopens. So it is time to refresh your knowledge in this area.

In this seminar, you will receive practical guidance and valuable insights into the deportation process from the perspectives of counsel, INZ Compliance and MBIE Legal.

Chair Stewart Dalley, partner, D&S Law

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CPD IN BRIEF

What judges want

In Person | Livestream 1.5 CPD hrs Thursday 9 June 4pm – 5.30pm Presenters Raynor Asher QC, Richmond Chambers and Davey Salmon QC, Mills Lane Chambers

Focussing on trial and appellate submissions, the panellists will provide invaluable insights into how to approach drafting, the structure and language to be used and ways to ascertain whether you’ve achieved your purpose.

Chair Paul David QC, Eldon Chambers

IN PERSON

Developments in consumer law

First, do no harm

Livestream | In Person 2 CPD hrs Thursday 23 June 4pm – 6.15pm Presenters Brigette Shone, special counsel, Russell McVeagh and Charlotte Fleetwood-Smith, consumer law specialist, Russell McVeagh

In Person | Livestream 2 CPD hrs Thursday 18 August 4pm – 6.15pm Presenters Judge Sharon Otene; Alison Cleland and Anthony Dickson

Are your clients prepared for significant changes in this area of law?

Consumer law has been a moving feast of legislative and case law developments in the past 12 months. Significant changes to the Fair Trading Act come into force on 16 August 2022 with the unfair contract terms regime extending to business-to-business or “small trade” contracts and a new statutory unconscionable conduct regime being introduced.

IN PERSON

Choosing a business structure

Chair Judge Emma Parsons

FIND OUT MORE

Thursday 19 May | Online Workshop | 4 CPD hours

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LIVESTREAM

This seminar will cover key legal and tax considerations. It will interest commercial lawyers at entry level and above, along with general practitioners.

Accountants, tax consultants, business advisors and company directors may also benefit from attending.

Personal Effectiveness Workshop 2022 Visit adls.org.nz for more information.

LIVESTREAM

Fundamentals of public family law and the wellbeing of tamariki. This is a little-known, let alone well understood, area of law. Providing an essential understanding of the context and nature of the legislation, this seminar will help lawyers better comprehend – and perform − their role in this crucial area.

IN PERSON

Livestream 2 CPD hrs Tuesday 9 August 4pm – 6pm Presenters Greer Fredricson, special counsel, Chapman Tripp and Robert Grignon, senior legal advisor, Chapman Tripp Chair Andrew Lewis, principal, Andrew Lewis Law

LIVESTREAM

Apr 8 2022 Issue 10

Continued from page 04

or leave entitlements in the FPA, but these are not mandatory terms to include in the final FPA.

Who pays for bargaining?

Training and a government-provided bargaining support person will be offered to each side in bargaining. Assuming no more than four FPAs in bargaining per year, the government will also contribute up to $50,000 per bargaining side, with additional funds provided in some cases.

The New Zealand Council of Trade Unions and Business New Zealand will each receive $250,000 per year to support their coordination roles in the FPA system.

Disputes Where disputes arise about coverage, parties can access mediation or seek a determination in the Employment Relations Authority (ERA). Where parties

Continued from page 09

in the ERA and send to the other side for the same.

■ Call my client to update them. Send them the record of settlement for signing. Finalise record of settlement and joint memorandum. File memorandum and send record of settlement to MBIE for certification.

Thursday ■ Quiet start as I was meant to be in the ERA hearing today.

■ Catch up on emails that came in while I was preparing for the hearing.

reach a stalemate, the ERA can set the FPA’s final terms. The ERA’s power to fix the terms of FPAs is likely to be one of the most contentious powers under the bill, and various considerations and limitations will apply where it considers such an application.

In addition, when fixing terms, the ERA must consist of a panel of three members (as opposed to the default of a single member that runs its other investigation processes).

The bill includes a penalty regime for noncompliance or breach of the legislation. The labour inspectorate will have powers to enforce certain terms of finalised FPAs.

■ brought into force by the chief executive of MBIE through secondary legislation.

Ratification will require a majority of employees and employers to respectively vote in favour of the proposed FPA. Employers will have one vote per employee in coverage, with a slightly higher vote weighting for employers with fewer than 20 employees in coverage.

Parties can return to bargaining if the first ratification vote fails, but the FPA must go to the ERA for determination if a second vote fails.

A finalised FPA will apply to all employers within its coverage, regardless of whether that employer participated in the bargaining or ratification process.

Finalising an FPA For a FPA to be finalised, it must be: ■ assessed and approved by the ERA (through a vetting process to ensure compliance with the FPA requirements); ■ ratified through a voting process by the covered employees and covered employers, which is verified by MBIE; and then

Next steps

■ Respond to an email from a client asking about

■ Attend lunch with a partner in my team and a new

implementing a flexible working policy. Draft policy and send to client for review.

■ Receive an email from a partner in my team asking me to assist by preparing a mediation position statement which takes the rest of the day.

Friday ■ Busy start to the day as I was able to move a meeting with a client next week forward to Friday.

The client wants to restructure. Talk them through the process and discuss preparing a restructure proposal.

■ Draft restructure proposal and send to client for review.

McVeagh Fleming Summer Clerkship Programme 2022/2023 Our programme provides students in their penultimate year of Law School with an exceptional opportunity to learn what it’s like to be part of a clientcentric law firm. Over three months, McVeagh Fleming clerks are immersed in the dynamic range of legal issues within their preferred practice area.

Offices are located in Auckland CBD, Albany and Manukau.

Please send your C.V. and cover letter, including your preferred area of law and office location to: University of Auckland – lawstudentengagement@auckland.ac.nz AUT – president.autlss@gmail.com Applications close 18 April 2022.

The bill must now go through the full parliamentary process before being finalised and passed into law. The public will have an opportunity to have their say during the select committee process. ■ Liz Coats is a partner and Katherine Pigou a lawyer at Bell Gully ■

client we are working with.

■ Head back to the office and check my emails. An email has come in asking me to draft a letter to an employee who has been falling asleep at work.

Draft letter and send to client for review.

■ Respond to an email from a client asking questions about medical incapacity.

■ Check my calendar for next week and prepare for upcoming client meetings.

■ Catch up with my team over a glass of wine and head home to enjoy the weekend. ■ Alexandra Sims is a solicitor at Buddle Finlay ■

Paul Cogswell is pleased to announce that he has commenced practice at the bar at FortyEight Shortland barristers chambers. He provides advice on most aspects of civil and commercial litigation, with a focus on building and construction law, contract disputes and property and land law.

Paul also provides experienced, pragmatic mediation advice as mediator to disputing parties.

T: 021 941 571 E: paulcogswell@fortyeightshortland.co.nz

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Merger, Acquisition, Partnership Opportunity

WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140

Well-established medium-size Auckland law firm has experienced significant growth and is looking to expand further. This may be an opportunity for a sole practitioner or smaller firm in need of support or a succession plan.

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

(09) 303 5270

Alternatively, it may suit a lawyer or group of lawyers at partnership or senior level with an established client base looking to re-locate.

KUHN Daniel Rudolf

NII Yoshiaki

The firm offers modern premises, latest technology and support systems, an excellent work/lifestyle balance and market remuneration.

• Late of Paradise Village, Hua Hin Soi 88, Hua Hin, Prachapu Khiri Khan, Thailand • Aged 77 / Died 05’03’20

• Late of Tokushima, Japan • Married • Self-employed • Aged 60 / Died 15’11’19

All enquiries will be treated in the strictest confidence.

Please reply to advertiser@adls.org.nz quoting ref: MAP03

Youth Advocates Conference 2022 Friday 13 May | 10.00am - 2.30pm Live Stream | In Person This year’s Youth Advocates Half-Day Conference will provide practically focused sessions on a range of pertinent topics presented by youth justice professionals.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd

Apr 8 2022 Issue 10

RCCC Reporting due 31 March 2022 are you ready?

0800 546 528 LINKBUSINESS.CO.NZ

The new conduct and client care rules (RCCC) governing the behaviour of lawyers around bullying and harassment and health and safety management require compliance reporting by 31 March 2022.

Having been told that a Law Firm would be very difficult to sell, I decided to use the services of JD, Nick and the team at LINK...

“

Compliance requires lawyers (including sole practitioners and barristers) to: 1. Implement policies and definitions to negate the occurrence of bullying, discrimination, harassment or violence.

The results were excellent with a smooth and timely sale, while achieving the best possible price. They were extremely professional and it was a pleasure doing business with them.

I would not hesitate to recommend them to a prospective Vendor.”

2. Nominate a lawyer to certify (annually) you have: a. Complied with mandatory reporting obligations; b. Procedures addressing the above; and c. Complied with Health and Safety at Work Act 2015 obligations.

Need Help with this? See our fixed prices: 1. Review your health and safety plan for compliance with RCCC – $1,500.

2. Health and Safety Management Plan and Risk Register template (NB: our risks aren’t just “paper cuts”) – $2,500.

4. Mental Health and Wellbeing Toolkit – $1,500: a. Risk Assessment Template and Guidance for Psychosocial Hazards; b. Mental Health and Wellbeing Policy, covering stress management, fatigue and controls to mitigate these; and c. Anti-Bullying, Harassment and Discrimination Policy, with definitions in accordance with RCCC.

Are you considering selling your Law Firm in 2022?

If you are looking for a fresh start and are curious about the value of your business call us today for a confidential discussion.

For more information Email: admin@copelandashcroft.co.nz (All prices excl GST)

JD Hyslop 021 377 569

Nick Stevens 021 641 978

jd.hyslop@linkbusiness.co.nz

nick.stevens@linkbusiness.co.nz

All LINK Offices Are Licenced REA08

3. One-hour training on best practice – $1,000.

Cradle to Grave™ Conference 2022 Thursday 5 May, 8.45am - 5.05pm In Person (Auckland venue) | Live Stream For those lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ Conference is coming soon.

Early bird offer ends 20 April

T 09 303 5278

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W adls.org.nz/cpd

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