August 2020 - McCaw Lewis

Recent developments in Taupō have shown how governance functions might be shared between the Crown and Māori governance entities under the provisions of the Resource Management Act 1991 (RMA). Section 33 of the RMA provides that a local authority may transfer one or more of its RMA functions to other public authorities, including iwi authorities, and it is under this section that the Waikato Regional Council and Ngāti Tūwharetoa are working together.

The Ngāti Tūwharetoa rohe extends across the central plateau of the North Island to the lands around Mount Tongariro and Lake Taupō. Waikato Regional Council has agreed to transfer some of its functions to the Tūwharetoa Māori Trust Board (the Board), which will take effect in September 2020. The Board will be responsible for assessment of water quality in Lake Taupō and its feeding rivers, and will monitor groundwater and rainfall activity across a variety of Lake sites. The move towards this role has been gradual, as the Board has carried out some of this monitoring in the last two years.

The Board is hopeful that this role will open doors for employment to local people in the environmental and scientific fields.

The Waikato Regional Council will still play a role in the wellbeing of Lake Taupō. For instance, the Council will continue to fund the monitoring of the water quality of the Lake, with details of that monitoring still being available to the public via the Council.

This recognises and formalises the longstanding role of Ngāti Tūwharetoa as the kaitiaki of the whenua and waters of Lake Taupō. Further, this relationship sets a precedent for the ways that Crown entities can share stewardship of the land with Māori governance bodies and in continuing discussions as to what indigenous governance can look like.

For more information, please see the media statement released by the Board.

If you would like further information please contact Dale Thomas on 07-958 7428.

The Employment Relations Authority has released a pivotal decision in the first employment law case in the COVID-19 era. In Raggett & Ors v Eastern Bays Hospice Trust [2020] NZERA 266, the Authority reminded employers that despite the Alert Level 4 lockdown and government restrictions, employment law continues to apply to all employment relationships, especially regarding employment agreements. Variations to the terms of employment agreements must be agreed to by employees, to avoid unilateral changes being considered unlawful and employers being liable for breach.

The Facts

Eastern Bays Hospice Trust (the Employer) closed over the COVID-19 Alert Level 4 lockdown, applied for the Wage Subsidy and subsequently made its Employees redundant. The Employer stated it would pay the Employees 80% of their usual pay for their notice period.

The issue at hand was whether in accepting the Wage Subsidy, the Employer was somehow released from its obligations to pay wages in the manner required under the employment agreements and the Wages Protection Act 1983. In applying for the Wage Subsidy, the Employer declared that they would use their best endeavours to pay employees at least 80% of their wages, which can only be imposed with employees’ agreement.

In this case the main concern raised was that the Employer had unilaterally decreased Employees’ pay without consultation and agreement from them. The Employer had effectively altered the terms of the employment agreement, and as no agreement for the variation was sought or given, the Employment Relations Authority ruled that the Employer unlawfully varied the employment agreements.

The Argument

In their defence, the Employer argued they were discharged of their obligations under the Wages Protection Act 1983 as the Employees were not “working”, New Zealand was in lockdown and the Employees could not work from home. The Authority found that the Employer’s argument was invalid, as the Employees were “ready willing and able to work” but were unable to because of the COVID-19 restrictions. Therefore, the Employees were still owed wages and the Employer was liable.

Going Forward

The main learning from this case is that to vary terms of an employment agreement (e.g. reducing hours, pay, and/or notice period) the explicit written consent of an employee is required. Without that consent, any deduction could be unlawful and the employer (as in this case) could be liable to pay wage arrears.

Employment Law Assistance

Renika Siciliano and Jerome Burgess are able to assist with employment matters relating to COVID-19, and provide guidance on crafting policies in relation to your business’ response to COVID-19, or any future pandemic event.

Renika is a Director and leads our Workplace Law Team. She can be contacted on 07 958 7429.

Jerome is an Associate in our Workplace Law Team and can be contacted on 07 958 7427.

Month: August 2020

Resource Management: Partnership with Iwi Governance

COVID-19 – First Employment Law Case in the COVID-19 Era

The Facts

The Argument

Going Forward

Employment Law Assistance

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