Date: April 12th, 2021, Posted by Steph Bewley
At the First reading of the amendment to the bill on 22 July 2020, Parliament referred the bill to the select committee for submissions and recommendation. Questions for the select committee to consider included: will a demerit points system increase accountability? will it assist getting young people back on the right path? Is a mechanical system the right solution for youth?
“Presenting to the select committee for the first time was an interesting insight into the work that our parliamentarians do, and I would recommend it to everyone to see one of the steps in how our law is made. Everyone would agree, seeking to improve interventions for youth offending is a worthwhile objective.” However, Dale was clear in her presentation to the select committee that the bill as it is drafted will not realise that objective. The bill proposes a significant departure from the current Family Group process, which is an important part of our Youth Justice system and has proven to be effective in addressing the needs of the community and the young people who offend. Dale pointed to there being a lack of evidence to support the suggestion that introducing demerit points will be effective in penalising and deterring those young people from offending.
Posted in: Resources
Date: August 27th, 2020, Posted by Steph Bewley
Lloyd Troon Law encourage and support members of our team in their community involvement, and try to accommodate where possible any aspects of commitment required during work time.
Lloyd Troon Law are proud to be a supporter of the Queenstown Fire Brigade and would like to commend this dedicated group of volunteers for their commitment to the safety of the area. Likewise, Queenstown Volunteer Fire Brigade have acknowledged Lloyd Troon Law’s involvement as part of their supporters network.
Posted in: Resources
Date: July 21st, 2020, Posted by Steph Bewley
We welcome our latest graduate to the fold. Georgie was admitted to the Bar at the Christchurch High Court on the 3rd July 2020!
Dale Lloyd had the privilege of moving Georgie’s admission and the occasion was made even more special with the borrowing of gowns and wigs from peers and mentors. Covid-19 wasn’t going to halt the progress of this young lawyer who is quickly proving herself an asset to Lloyd Troon Law. June 2020 saw Georgie gain experience working on a case in the Auckland High Court one week and being admitted to the bar the following.
Posted in: Resources
Date: April 9th, 2020, Posted by Steph Bewley
The Alert Level 4 lockdown has put financial pressure on many businesses in this uncertain time. Business owners undoubtedly want to preserve their businesses as best they can, and they need to ensure they uphold their obligations as employers. The financial climate in each area of New Zealand and across all industries will be differently effected, accordingly specific approaches are required for every situation. Every business is in a different position and accordingly every approach to moving forward will necessarily differ.
Whether the wage subsidy was applied for before or after 4pm on 27 March 2020 will also effect what options are available to a business. The two schemes for the wage subsidy offer two different pathways for redundancies. If an application had been made for the wage subsidy prior to 4pm on 27 March 2020 (“the old scheme”), an employer can make employees redundant provided the employer has used their best endeavours to avoid making redundancies. The interpretation and application of “best endeavours” is made on a case-by-case basis.
As an employee, you will want to know your employer has meet their obligations to you and taken the correct action. The laws imposing obligations on employers regarding restructuring and redundancy have not changed with the lockdown. The wage subsidies have been specifically introduced by the government to keep employers connected to their employees and minimise the need for redundancies. Accordingly, the obligation on employers for the usual consultation process are greatly heightened.
For employers, redundancy remains that last resort and should only be considered if all other options, such as redeployment and reduced hours, are considered and their best endeavours have been used to avoid the restructuring. If it is determined that restructuring and redundancy is the only option, a fair process must be followed.
Each businesses specific circumstances will effect what action is appropriate to take. As an employer you should consult your lawyer, accountant and banker to ensure you have a clear idea of your business’ financial position now and what it will likely become. Employees may want to ensure they are treated fairly and correctly. For any questions you have regarding your obligations, rights or options moving forward please contact us.
Posted in: Resources
Date: April 7th, 2020, Posted by Steph Bewley
Currently there is no direct Government assistance for Landlords or Tenants affected by the lockdown, apart from wage subsidies and banking support (including Government backed guarantees).
Some leases contain what is known as a “no access in an emergency” clause. This clause provides that if:
the tenant may claim an abatement of a “fair proportion” of the rent and outgoings for as long as the tenant cannot access the premises due to the emergency.
There has been a fair amount of discussion about whether tenants can now make a claim under this clause.
Our view is yes, they can. Since the Government COVID-19 response escalated to Level 4 from 25th March 2020, with all non-essential business directed to close their places of work, most tenants should be able to claim a rent and outgoings abatement if:
The ability to abate rent and outgoings (for non-essential business) could provide some significant relief to those businesses.
Clause 27 and You
Typically, the optimal situation is for a Landlord and Tenant to negotiate early on. But there are also fallacious interpretations of clause 27 circulating, based on an incorrect reading of clause 27. The message that Tenants can simply avoid paying rent arises from a misinterpretation; it is also unreasonable as Landlords have fixed costs that must be met. Fairness is a two way street.
The specific fine print in clause 27.5 states “a fair proportion of the rent and outgoings shall cease to be payable”. As with most contractual disputes, the outcome depends on a few key words, adopting a plain reading and having regard to context. The obvious issue is the meaning of “fair proportion”.
What is Fair?
“Fairness” is unlikely to mean zero. The same ADLS lease includes an arbitration clause. So if negotiations have failed and if this clause hasn’t been removed then the parties have agreed to refer all disputes to an arbitrator and not the Court. It could then be open for a Tenant to argue that in contractually providing for an arbitrator, the parties have implicitly included the following wording into clause 27:
“The parties agree that if they cannot agree on what constitutes a fair proportion of rent and outgoings for this clause then they shall appoint an arbitrator who shall determine what a fair proportion is, acting reasonably.”
So, what is a fair proportion in this context? We would argue that this would be produced by a suitable valuer adopting the overriding economic arguments relating to the business and its use of the premises. In essence, an economic analysis of the nexus between the use – or loss of tenant’s use – and the tenant’s business.
Different Tenants Are affected Differently
The economic impact of COVID-19 has been uneven across industries. For example, if the tenant was a restaurant, then you would expect the use and business would be completely linked. Many such businesses have ended with the lockdown, so it would be fair for the tenant to have a substantial rent reduction – even as high as 100%. However, it may require an assessment of the business once all of the available subsidies and government supported banking facilities have been quantified.
However, if the tenant was a professional services firm, that had all its staff working remotely and the premises had little or no nexus with their business then the fair proportion could be nil. Any loss in business could be attributed to normal business factors outside of the premises, which do not necessarily fall under the Landlord’s purview.
Where Do My Rights Stand as a Landlord?
Ultimately, without amendment, the ADLS lease does not allow the Tenant to unilaterally stop paying the entirety or part of the rent. It can only do this by agreement, with a Court Order; or as determined by an arbitration. Working through such situations in these times is at the Landlord’s discretion, and any agreement with Tenants should be recorded in writing – deeds are preferable but may not be practical under the current climate.
For consultation around your individual circumstances, don’t hesitate to contact us.
Posted in: Resources
Date: April 3rd, 2020, Posted by Steph Bewley
Is my business ‘considered’ an Essential Service?
There is a list of Essential Services – these are any business that provides for the necessities of life. Only businesses that are included in this list of Essential Services are allowed to operate during Alert Level 4 Lockdown.
This list is updated regularly at https://covid19.govt.nz/government-actions/current-covid-19-alert-level/essential-businesses/.
The Government has released a statement that if New Zealand remains at this Alert Level for a greater period than the initial 4 weeks, more businesses will be listed as Essential Services in order to facilitate the self-isolation of the majority of the population.
What does this mean for employers and employees?
Employers are not released from their obligations under the Health and Safety at Work Act 2015. They must continue to protect their workers against harm to their health, safety, and welfare by eliminating and minimising risks arising from work. This includes initiating and applying specific Covid-19 protocols to ensure the safety and protection of their Employees. If an Employer does not do this, they could suffer prosecution under the Health and Safety at Work Act 2015 for exposing their Employees to danger.
Essential Services will continue to operate during Alert Level 4 but if alternative ways of working are possible then they should be considered and used. Protocols that should be implemented by Employers include:
Posted in: Resources
Date: April 1st, 2020, Posted by Steph Bewley
In response to the global Covid-19 Pandemic, the New Zealand Government introduced a $12.1 billion support package for the people and the economy of New Zealand. New Zealand Alert Level 4 lockdown means all those working in non-essential businesses to self-isolate at home for a minimum of 4 weeks. Fortunately, the vast array of technology available may provide some Employers with the ability to have their Employees work from home, as we are. However, it is inevitable that businesses will be impacted by Covid-19, which is why Wage Subsidies and Leave Payments were included as part of the support package.
Both the Wage Subsidy and Leave Payments have the same flat rate:
It is important to note that these are considered wages, which means that they are subject to standard deductions i.e. PAYE, Child Support, Kiwisaver etc.
When the package was first announced, Leave Payments were specifically introduced for the purpose of promoting self-isolation and to help slow down the spread of Covid-19 throughout New Zealand. An Employer could submit an application to offer financial support to an Employee who was required to self-isolate because:
Important – From 27 March 2020, Employers are no longer able to submit an application for Leave Payments. If an application had been submitted prior to this date, then the original procedure will be adhered to.
Wage Subsidies were specifically introduced to keep Employees connected to their Employers and vice versa. Covid-19 has resulted in a great risk of uncertainty for the future. Some Employers are faced with reducing their Employees’ hours or even start making redundancies within their company.
Does my business qualify for the Wage Subsidy?
For a business to qualify for the Wage Subsidy, they must meet the following requirements:
Non-Essential Employer or Employee – How does the package affect you?
What does the Wage Subsidy offer?
The Wage Subsidy provides an Employer with a lump sum payment for each Employee whom they claimed on behalf. This lump sum payment is for 12 weeks of work for the Employee, at either the full-time ($585.80) or part-time rate ($350.00). This Wage Subsidy is granted on the basis that an Employer must try their hardest to pay the Employee at least 80% of their usual wages. However, if the Employer believes on reasonable grounds that this is not possible, then the Employer only needs to pay that Employee the Wage Subsidy.
If an Employer has an Employee whose usual wages are less than the Wage Subsidy received, then only the usual wages are required to be paid to that Employee. In these situations, the Employer may use the difference between usual wages and the Wage Subsidy on another Employee who is affected from this situation.
The Business Government NZ Website has some useful case study at the bottom of the page, which explores different scenarios of Employees who either cannot work or can work during this period. See https://www.business.govt.nz/news/covid-19-latest-news-and-updates/
Didn’t the Wage Subsidy Scheme change?
Yes, the Wage Subsidy Scheme did change. The Wage Subsidy has two schemes – the original scheme and the new scheme. The original scheme was introduced when the support package was announced. This scheme had a cap of $150,000 per business for any application made. For larger businesses, the cap meant Employers could not claim a Wage Subsidy for all of their Employees.
The new scheme applies to any application submitted on or after 4pm on 27 March 2020. The new scheme removed the cap of $150,000 per business, allowing for businesses to adequately cover all of their Employees during this time. This updated scheme also provided for any Employer who applied under the original scheme, to make another application to include any Employees who were not claimed for initially because of the $150,000 cap.
Am I going to have to use up my Annual Leave or any other leave entitlement?
Annual leave is an entitlement that is granted to an Employee after 12 months of continuous employment. An Employer and Employee may agree that the Employee can use their Annual Leave entitlement. However, if an Employer proposed to an Employee that Annual Leave was to be used during this period, and an agreement cannot be reached, the Employer can give the Employee 14 days written notice and require that Employee to take their annual leave.
If an Employee has not worked for 12 continuous months, they will not have an entitlement to annual leave. An Employer can agree to an Employee taking annual leave in advance, however in this current climate this could pose a problem if the employment relationship ended.
Can my Employer change my wages and/or my hours?
The short answer is not without agreement from that Employee. However, many Employment Agreements will include a clause that covers for situations described as a business interruption or a force majeure. This applies when circumstances that are outside of the Employer’s control start arising and as a result the business cannot operate normally. In Queenstown, many employment agreements include this clause specifically for “snow days”. This type of clause in the contract, provides an Employer with the ability to require the Employee to take leave (annual or unpaid), vary the hours of work or even modify the duties of that Employee’s position.
As New Zealand is in Alert Level 4 with all non-essential businesses in lockdown, some businesses may not have the ability to work from home. This raises the question of whether the performance of the employment agreement, the terms and obligations of the contract, can no longer be fulfilled because of events unfolding that were not foreseen or contributed to by either party. If a contract has become frustrated, the relationship and the contract may be terminated.
As at April 2020 it would be difficult for an Employer to show that Covid-19 Pandemic gives rise to frustration of the employment agreement. This is because we know that the lockdown currently is to run for a duration of 4 weeks and the Government has introduced a support package. These factors have an important place as they attempt to give an indication that this situation is temporary, and that frustration may not apply. The opportunity of Wage Subsidies have been introduced to keep Employers and Employees connected during this period, with the purpose of continuing to uphold these contracts.
Can I be made redundant?
The law does not change during challenging times, which means that the normal procedure applies for redundancies during the Covid-19 Pandemic. Employers continue to have to meet the same obligations under the Employment Relations Act 2000 that they had prior to Covid-19.
Section 103A of the Employment Relations Act 2000 states that a dismissal will be justifiable if the actions taken by the Employer, are what a fair and reasonable employer could have done in all the circumstances at the time of the dismissal.
The impact of Covid-19 has left many Employers expecting business to slow down, which will then have a flow-on effect to their ability to pay their Employees. Genuine business decline is an acceptable reason for dismissal, however, a dismissal of an Employee at this point of time would not be considered a genuine reason with the Wage Subsidy support being provided to Employers.
Section 103A requires Employers to engage in conversations with any Employee to raise concerns of dismissal and provide the Employee with an opportunity to respond before the Employer takes action. This conversation could provide a solution for both parties if you are willing to be flexible. Some options to consider are:
Posted in: Resources
Date: March 24th, 2020, Posted by Steph Bewley
In accordance with the Government announcement, Lloyd Troon Law are now all working remotely. We have systems in place to ensure we provide you with the same level of service in a professional and timely manner. If we can assist you in any way, please do not hesitate to contact us on the cell numbers provided on the website – we are available.
Client meetings can proceed as normal using a Zoom conferencing facility. To maintain a more personal approach we can customise a solution to have virtual face to face contact with our Team using the technology that you have available. We reassure you that we are committed to advising and finding solutions for your problems, and continue to offer you choices.
For the safety of our staff, clients, the wider community and New Zealand, we are committed to doing our part in ‘flattening the curve’ and returning New Zealand to a pandemic free society.
Posted in: Resources
Date: March 5th, 2020, Posted by Steph Bewley
Design starts for Hanley’s Farm School
An establishment Board of Trustees for Queenstown’s new Hanley’s Farm Primary School is starting work on early designs for construction.
Former Mayor Vanessa van Uden is one of the five members appointed by Education Minister Chris Hipkins recently to the first Board for the new school, due to open 2022.
Mr Hipkins says he’s delighted to confirm that Board chairperson Genevieve Hollyer is joined by Ms van Uden, Dale Lloyd, Amanda Robinson and Judith Soper.
“This very experienced group has already met several times, and is considering how the school should be designed, and its vision.
“I know they’re keen to get out and about and discuss with the community what is needed for this new school, and how to best reflect this in the vision and values.”
The school is being planned initially for 600 students, and with the capacity to expand.
Mr Hipkins says “we know that the Wakatipu Basin is an area of high population growth. This new school is part of our long term plan to accommodate this growth, and was signalled in the recently released National Education Growth Plan.”
The Board can be contacted at email@example.com
The Board of Trustee members:
Vanessa van Uden
Vanesa is a former chairperson for Remarkables Primary School, and has also held governance roles on range of community organisations. Vanessa was a member of the Queenstown Lakes District Council for 11 years, including six years as Mayor. She is currently on the Board of the New Zealand Transport Agency.
Genevieve Hollyer (Gigi)
Gigi has experience as a governance trainer and facilitator for New Zealand School Trustees Association (NZSTA). She also has also been the Board chairperson for St Joseph’s School (Queenstown), and is currently on the Board of Wakatipu High School. Gigi has also held governance roles with the New Zealand Kindergartens Association and other community organisations.
Dale has 12 years’ experience as a Board member at primary and secondary schools in Queenstown. She is a member of the New Zealand Law Society Youth Justice Committee and is the Central Otago representative for the Otago Branch of the New Zealand Law Society, as well as the regional representative for the society’s Family Law Section.
Amanda has been involved with the New Zealand Plunket Society National Advisory Group member. She was a staff representative on the project team for the relocation of Wakatipu High School.
Judith Soper (Jude)
Jude was Principal of ACG International School in Jakarta and an early childhood consultant in New York City. She is currently the South Island regional services manager for Beststart Educare. Jude has had previous experience as a Board of Trustees Chairperson at a secondary school.
Posted in: Resources