Month: September 2024

Workplace Bullying – What it is, and what it isn’t

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Employers must take allegations of workplace bullying seriously, and they need to be investigated promptly and thoroughly.  However, it is important that employers know what constitutes “workplace bullying” and what does not.

How do we define “Workplace Bullying”?

WorkSafe NZ defines workplace bullying as: “repeated and unreasonable behaviour directed towards a worker or a group that can lead to physical or psychological harm”.

Under this definition, bullying is a repeated and unreasonable behaviour, and behaviour may be constituted of physical, verbal, or social behaviours.

The Health and Safety at Work Act 2015 (The Act) requires that employers prevent or mitigating any accidents or incidents in the workplace that may cause injury or harm to employees.  This includes managing any health and safety risk presented by workplace bullying to an employee’s mental health and wellbeing.  Allegations of bullying, when substantiated, are also grounds for personal grievance which can bring risk and expense to the employer.

If you are faced with this situation, check workplace policies and individual employment agreements to see whether specific behaviours are described as workplace bullying there.  Broadly, workplace bullying can include repeated instances of the following:

  • Verbal Abuse: Insults, shouting, or offensive language directed at an individual.
  • Exclusion: Deliberate exclusion from activities or information.
  • Intimidation: Threats of harm or adverse consequences.
  • Undermining Work: Deliberately setting unrealistic deadlines or unachievable tasks.
  • Unwarranted Criticism: Excessive or unjustified criticism of work performance.
  • Physical Abuse: Any form of physical intimidation or harm.

Harassment is differentiated from bullying, as it may be inferred from a single event and tends to be directed towards a specific characteristic of the victim, including religion, ethnicity, or disability.

What doesn’t constitute “Workplace Bullying”?

When things go bad and emotions are heightened, a lot of actions or behaviours can look or feel like bullying to employees on the receiving end.  Those actions do not always amount to bullying and it is important to identify where they fit.  Examples of what doesn’t amount to bullying on its own include:

  • Reasonable Management Action: Actions taken by management to address performance or conduct are not bullying if they are reasonable and conducted in a fair manner.
  • Single Incidents: One-off incidents or occasional disagreements between employees, while not acceptable, may not constitute bullying unless they become part of a pattern of behaviour.
  • Workplace Conflict: Genuine workplace conflict where parties have differing views or disagreements is not bullying unless it involves persistent intimidation or unfair targeting of individuals.
  • Personality Clashes: Differences in personalities or work styles that do not involve targeted harassment or harm.

Next Steps

Understanding the distinction between workplace bullying and other workplace conflicts or issues is crucial for creating a healthy and productive work environment.  Our Workplace Law Team can assist, in drafting a workplace bullying policy, providing tailored advice and assistance if a complaint has been received, or if you are the employee looking to make a complaint alleging workplace bullying.

Chantelle is an Associate in our Workplace Law Team.  Chantelle can be contacted on 021 675 858.

New Guidelines on Trade Marks Containing Māori Elements

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Overview

The updated guidelines focus on ensuring that any use of Māori words, symbols or other cultural elements in trade marks is done with respect and understanding.  Key to this process is the role of the Māori Advisory Committee, which has been given an enhanced role in assessing trade mark applications that involve Māori elements.  The role of the Māori Advisory Committee is to advise on whether a trade mark is likely to be offensive to Māori, or if it constitutes a misappropriation of traditional knowledge or cultural expressions.

The guidelines make it clear that the inclusion of Māori elements in a trade mark is not merely a branding decision but a cultural consideration that requires careful thought and consultation.  An evaluation by the Māori Advisory Committee can significantly impact the outcome of a trade mark application either bolstering or reducing the chances that an application is approved.  Making it essential for businesses to be well-prepared when submitting applications that include Māori elements.

Business Considerations

Cultural Appropriateness and Sensitivity

The guidelines encourage businesses to consider the potential impact of their trade marks on Māori communities and to take steps to ensure that their use of Māori elements is respectful and culturally appropriate.   This requires a deep understanding of the cultural significance of the Māori elements being used and a careful assessment of whether their use might be perceived as offensive or disrespectful.  Businesses need to approach the use of Māori elements with a genuine respect for Māori culture and avoid any forms of cultural appropriation that might exploit or misrepresent Māori heritage.

Engagement with Māori Communities

The primary recommendation of the guidelines is that businesses engage with relevant Māori communities when developing trade marks that include Māori elements.  This engagement is not only a way to ensure that the trade marks are culturally appropriate but also a demonstration of the business’s commitment to upholding the principles of Te Tiriti o Waitangi.  Engaging with Māori communities can involve consulting with iwi or hapū, discussing with Māori artists or engaging cultural experts. The type of activity and who to consult depends on the specific cultural elements involved in the trade mark.  These consultations can provide valuable insights and help build trust and positive relationships with Māori communities.  By obtaining the support or endorsement of Māori communities for the use of certain cultural elements, an applicant can strengthen its trade mark application and reduce the risk of objections by the Māori Advisory Committee during the registration process.

Navigating the Guidelines

Before applying for a trade mark, businesses should conduct a comprehensive cultural audit of the Māori elements they intend to use.  This will involve evaluating the cultural significance of the elements and ensuring that their use aligns with Māori values and traditions.  Seeking advice from experts in Māori culture or intellectual property law is crucial and is emphasised repeatedly throughout the guidance.  Early and meaningful engagement with Māori communities can help identify potential cultural concerns and build a foundation of mutual respect and understanding.  This engagement should be approached with sincerity and a willingness to listen to the perspectives of Māori community members.

Final Thoughts

The updated guidelines on trade marks containing Māori elements represent a next step in recognising and respecting Māori culture within Aotearoa, and more specifically within the realm of intellectual property which can extend globally.  By adhering to these guidelines and engaging in respectful consultation with Māori communities, businesses can ensure that their trade mark applications are both legally compliant and culturally appropriate.  These guidelines not only seek to help protect the cultural heritage of Māori but also offer businesses an opportunity to contribute positively to the broader recognition and preservation of Māori culture.

For more detailed information, the official guidance on the updated guidelines can be found on the Ministry of Business and Innovation and Employment website together with the Intellectual Property Office NZ guidelines.

If you need assistance with navigating these new guidelines, our Commercial and Kahurangi Teams are well-equipped to assist you to ensure your trade mark application is both compliant and culturally appropriate.

Ezrom Waka is a Solicitor in our Commercial Team and can be contacted on 07 959 2313.

Proposed Treaty Principles Bill

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Background

When the Treaty of Waitangi Act 1975 was enacted, it affirmed the existence of certain Treaty principles derived from Te Tiriti o Waitangi/the Treaty of Waitangi.  These include the core principles of active protection and partnership.  To date, it has been the role of the Waitangi Tribunal to determine claims through the practical application of these principles.  The Coalition Government now seeks to define the Treaty principles through legislation and has taken steps to progress the introduction of the proposed Treaty Principles Bill, which has been approved by Cabinet.

Cabinet has asserted that the intention of the proposed Bill is to create certainty about what the Treaty principles are and how they apply in New Zealand.  However, the Treaty principles have been dealt with before the Waitangi Tribunal for over 35 years, already giving clarity and certainty about what the existing principles are and how they operate.

Waitangi Tribunal Report

On 16 August 2024 – prior to the specific wording of the proposed “Treaty principles” being published – the Waitangi Tribunal issued an urgent report into the proposed Treaty principles Bill and Treaty clause review policies.  The Tribunal found that the Crown’s policies and actions have breached the Treaty principles of partnership and reciprocity, active protection, good government, equity, redress, and the Article 2 guarantee of tino rangatiratanga.  The Crown failed to engage with Māori, and the proposed Bill:

  • lacked a policy imperative justifying its development;
  • was based on flawed policy rationales;
  • was ‘novel’ in its Treaty interpretations;
  • was fashioned on a disingenuous historical narrative; and
  • distorted the text of te Tiriti o Waitangi.

Given the findings of significant breaches by the Crown summarised above, the Tribunal recommended that:

  • The Treaty Principles Bill policy should be abandoned.
  • The Crown should constitute a Cabinet Māori-Crown relations committee that has oversight of the Crown’s Treaty/te Tiriti policies.
  • The Treaty clause review policy be put on hold while it is re-conceptualised through collaboration and co-design engagement with Māori.
  • The Crown consider a process in partnership with Māori to undo the damage to the Māori–Crown relationship and restore confidence in the honour of the Crown.

The recommendations are made in light of the significant effects that the introduction of such a Bill is likely to have on Māori.  If the Crown proceeds with the introduction and progression of the Bill through the House, further significant damage will be caused to the Māori-Crown relationship and the Treaty partnership.  The Tribunal has also noted significant impacts that the policy will have on the social cohesion of Aotearoa as well as significant practical issues that will be created for the future Treaty settlements.

What are the proposed principles

In place of the existing well-established Treaty principles – and seemingly in place of the wording of te Tiriti/the Treaty itself – Cabinet has agreed that the following principles be included in the Bill:

  1. Civil Government: The Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and in accordance with the rule of law and the maintenance of a free and democratic society.
  2. Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown.
  3. Right to Equality: Everyone is equal before the law and is entitled to the equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.

While the Waitangi Tribunal has not yet commented on the above text, comments from the Tribunal on its origins and its distortion of te Tiriti demonstrate clear flaws with what is proposed.  From a legal perspective, this is of huge concern as it has the potential to rewrite historical agreements and arrangements through the misinterpretation of a legally binding treaty.

The proposed Bill is currently being drafted and is set to be introduced to Parliament by the end of 2024.  Submissions can be made to Select Committee once the Bill has been introduced.

If you have any questions about the proposed Treaty Principles Bill or any te Tiriti-based kaupapa, you can contact Senior Solicitor, Carmen Mataira, or Law Clerk, Hakaraia Richards-Coxhead who are both part of our Kahurangi Team.

Important Updates in the World of Business

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The Government is taking further steps to modernise the (somewhat archaic) Companies Act 1993 (the Act), with Hon Andrew Bayly, Minister of Commerce and Consumer Affairs, recently announcing the Government’s backing for a comprehensive reform package.

The broad purpose of these reforms is to simplify business in New Zealand, including by reducing business compliance costs – all of which is good news and potentially long overdue.

The reforms are set to roll out in two phases starting in 2025:

  • Phase 1: The focus here will be on updating and modernising the Act, simplifying compliance for businesses, and strengthening measures to prevent unethical and illegal business practices.
  • Phase 2: This second phase will involve the Law Commission reviewing the directors’ duties set out in the Act, giving particular attention directors’ liability, sanctions, and enforcement.  Some of this review has come off the back of the Mainzeal case – see our article on that here.

What Will Happen in Phase 1?

Time to bring the Act into the 21st century

The Act is some 30 years old, and is still a key piece of legislation for businesses operating in New Zealand.  Time has obviously moved on, and the amendments to the Act seek to bring it into the present, by:

  • simplifying the process for share capital reduction, reducing the need for expensive and time-consuming court approvals;
  • similarly, enabling more broad use of unanimous shareholder consent processes (e.g. for share issues or conversions, and the company acquiring its own shares to be held as treasury stock);
  • updating the definition of “major transaction” to exclude those transactions that solely a company’s capital structure (e.g. share issues, buy-backs, declaring dividends and redeeming shares), but also to provide that a series of transactions that are related to each other can also be caught by the definition;
  • enabling certain company documents to be accessed online rather than manually; and
  • introducing procedures for managing unclaimed dividends where a shareholder cannot be contacted.

Know who you’re dealing with

One of the key aims of the reforms is to strengthen the processes for identifying and preventing unethical/illegal business practices; this involves being able to more easily identify persons in control, while still protecting their privacy.  This will include:

  • introducing unique identifiers for directors and general partners of limited partnerships; and
  • allowing directors to use services addresses in the company’s public records, rather than their private residential addresses.

Protection for creditors if it all goes wrong

These proposed amendments will seek to incorporate the recommendations of the Insolvency Working Group set up in 2015, and importantly will extend the “claw back period”, within which related party transactions undertaken prior to liquidation can be voided, to four years.

NZBN? What’s that?

Most of us are familiar with the concept of an NZBN, but more commonly use the more traditional Companies Office number when referring to companies.  The proposed amendment would seek to increase the use of the NZBN, potentially improving business efficacy and identification.

What next?

All going well, the bill to introduce Phase One will be introduced in 2025 at which stage submissions will be open to the public.

But I’m not happy with this?

If you are keen to find out more, including what you need to do to make a submission, please get in touch.

A loved one has died, what next?

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During our lifetime, we are almost certain to experience the death of a loved one.  It can be an overwhelming and challenging time, even more so if you are tasked with sorting their personal affairs.  Understanding what to expect when a loved one dies can help ease the stress you may feel and allow you to take the time to grieve.

Before the Funeral/Tangi/Burial or Cremation

It is common to want to deal with your loved one’s affairs immediately after their death.  We can understand that it can be a little unnerving, especially if your loved one died with debts.  However, take this time to farewell your loved one and spend time with those that were close to them.

A more practical first step is to locate your loved one’s will, as it may contain important information about their funeral, tangi, burial, or cremation wishes.  If you know which law firm holds the will, the executors may contact them directly to access a copy.  Only the named executor/s have the legal right to access the will and it is at their sole discretion as to whether they share the contents of the will with family or beneficiaries.  Not all wills outline directions for the body or the funeral.  We also note that if there are directions outlined, they are not binding on the executor/s and the executor/s have the ultimate legal responsibility to deal with the body.

Often the deceased’s bank can pay the funeral invoice direct out of funds held in the deceased’s bank accounts, however, each bank will have its own requirements.

After the Funeral/Tangi/Burial or Cremation

Once you have had the opportunity to farewell your loved one, and are ready to deal with their affairs, we recommend that the named executor/s contact the law firm that holds the original will.  This initial conversation with the lawyer will be an information gathering exercise in order for the lawyer to determine whether a grant of probate is necessary.  If your loved one died leaving assets worth $15,000.00 or more in their personal name (not jointly owned), a grant of probate will be required.  Probate is the process of the High Court proving the will as authentic and approving the appointment of the executors for the purposes of administering your loved one’s estate.

Once probate is granted, the administration of an estate can be relatively straightforward (although the ease of the estate administration will vary from estate to estate). The executor’s role is to uplift/gather in the assets of the estate, pay all debts, and attend to the distribution of the remaining assets to the beneficiaries outlined in the will.   Only executors named the will are able to administer the estate, with the assistance of the estate’s lawyer.

What if my loved one died without a will?

If your loved one dies without a will (intestate), the rules of intestacy outlined the Administration Act 1969 apply.  These rules set out who is/are entitled to administer their estate and who has a beneficial interest.  If your loved one owned assets worth $15,000.00 or more, the entitled persons would be required to apply for letters of administration.

The Asset Planning Team at McCaw Lewis are here to guide you through the process and assist in minimising the legal burden for you during this time.  We encourage you to contact our team, so we can assist as much as possible.

Contact us

HAMILTON OFFICE

P. 07 838 2079

E. reception@mccawlewis.co.nz

Level 6, 586 Victoria Street
Hamilton 3204
New Zealand

TE KŪITI OFFICE

P. 07 878 8036

E. reception@mccawlewis.co.nz

36 Taupiri Street
Te Kūiti 3910
New Zealand