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Inquiry into health inequities for Māori

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The Inquiry

This month the Waitangi Tribunal released a report into Health Services and Outcomes for Māori in Aotearoa. Broadly, the Tribunal inquired into:

  • The Health and Disabilities Act 2000;
  • The primary health sector, including the vision and strategies of health service providers;
  • Funding of primary health care;
  • Whether the provision of health services since 2000, from the Ministry of Health to services provided by District Health Boards, have been consistent with the principles of Te Tiriti o Waitangi.

The Tribunal focused on whether various parts of the health system are working to reduce inequitable health outcomes suffered by Māori.

There was agreement by claimants and the Crown that detriments to health are complex and that the Crown cannot be held totally responsible.  However, the persistent inequities experienced by Māori indicated a breach of Te Tiriti o Waitangi.

Tribunal findings

In its Report, the Waitangi Tribunal made the following key findings:

  • The Health and Disabilities Act 2000 failed to consistently achieve equitable outcomes and does not go far enough to ensure the whole health system is compliant with the principles of Te Tiriti o Waitangi;
  • $220 billion has been invested into the health system since 2000, yet there has been little measurable improvement to Māori health outcomes;
  • Māori primary health organisations were underfunded from the outset and funding is not targeted to where it is needed;
  • Māori do not have adequate decision making and influence for delivery of primary health – for example, Māori do not have a lot of input, if any, in governance arrangements for District Health Boards;
  • The Crown does not collect sufficient data to be fully informed on how primary health care performs in relation to Māori health;
  • Te Puni Kōkiri failed to carry out its statutory duty to monitor the health sector by failing to conduct agency reviews;
  • Overall the Crown has not held the primary health care sector to account.
Tribunal recommendations

The Tribunal recommended that the Crown explore establishing a ‘stand-along’ Māori primary health care authority, and that the Crown urgently review funding for primary health care.

The Tribunal further recommended that the Health and Public Disability Act 2000 be amended to include a new Te Tiriti o Waitangi clause and commit to achieve equitable outcomes for Māori.

A copy of the Waitangi Tribunal Hauora Report can be found at this link.

Update on the Māori Affairs Committee process

The Māori Affairs Committee is now seeking public submissions on health inequities for Māori.  The focus is on cancer care and barriers Māori experience relating to prevention, screening, diagnosis, treatment, cures and palliative care.

The Committee wants to hear from those who have interacted with the health sector on any of those issues and wants to hear of any whānau centric initiatives.

Submissions close 20 September 2019.  If you wish to make a submission follow this link: https://www.parliament.nz/en/pb/sc/make-a-submission/document/52SCMA_SCF_INQ_85113/inquiry-into-health-inequities-for-m%C4%81ori

If you would like further information please contact Renika Siciliano on 07 958 7429.

Rethinking mental health in the workplace and the role of the employer

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The Government recently announced its Wellbeing Budget for 2019 and confirmed the growing mental health crisis in New Zealand.  The importance of this issue and how we can support those affected is an ongoing conversation that has become very relevant in the workplace, and was recently considered in the Employment Court.

An employer has to take all steps reasonably practicable to provide a safe workplace, and a hazard is defined under the Health and Safety at Work Act 2015 as including a person’s behaviour.  Employers can no longer ignore the crisis or say it is none of their business – in fact, it is quite the opposite.  The Court has confirmed that an employer has to take active steps to investigate, identify, and clarify mental health issues and risks in the workplace, and look to provide ways to reduce those issues and risks, in order to satisfy its duty of providing a safe workplace.

The case of FGH v RST

Ms F began working for RST in 2012 and over the years there were some performance concerns with her.  However, in May 2015 she told RST that she was suffering from anxiety, and in July 2015 told them she had been diagnosed with attention deficit disorder.

In October 2015 RST started a performance management plan with Ms F following various issues.  By December, her behaviour had started to drastically change, including having outbursts and behaving aggressively toward RST.  In February 2016 after Ms F had another outburst at work, RST decided to commence a disciplinary process.

Ms F raised a personal grievance against RST, claiming she had been unjustifiably disadvantaged by RST’s failure to provide a safe work environment.

What did the Employment Court say?

RST argued it had accommodated Ms F’s mental health conditions to quite a degree through the performance and disciplinary processes, including:

  • Giving her additional time to respond to its concerns.
  • Providing her with discussion points for meetings.
  • Rescheduling meetings to suit her.
  • Offering her support through EAP Services Limited (the employee assistance counselling programme provider), coaching support, flexibility to where she worked (change of desk).

The Court agreed that the steps taken were a genuine and reasonable attempt by RST to reduce stress, however, they were not enough to discharge its obligations to provide safe and healthy workplace.

The Court said Ms F’s anxiety had worsened as a result of the performance processes.  RST felt her behaviour was because she did not want to be performance managed, but the Court said it was actually a symptom of her known mental health conditions.

The Court suggested RST should have focused on managing Ms F’s conditions, rather than the performance processes it was running and that if it had it done this, the misconduct may never have arisen.  The Court said:

  • It was foreseeable that continuing with formal performance and disciplinary processes following Ms F’s outbursts would result in negative reactions because of her known mental health conditions.  These processes should not have continued until after a mental health assessment was done; and
  • A fair and reasonable employer should have requested further medical information and assisted the employee in obtaining the requested information.  RST did not take proper steps to try and obtain its own medical evidence to assess and manage the situation or carry out sufficient investigation.

The Court concluded Ms F had been unjustifiably disadvantaged in her employment.

What does this mean for employers?

Where an issue of mental health arises in the workplace, an employer is obliged to investigate, identify and clarify the issues and risks, and look to reduce those in order for an employee to remain safe in the workplace.

The employer in FGH v RST followed a tight process from an employment law perspective, however, the Court was clear that obligations increase where an employer is aware of an employee’s mental health condition, and that was where the focus should have been first.

The findings in FGH v RST set a clear precedent that employers must:

  • Take preventative measures in the workplace to address mental health conditions; and
  • Respond appropriately where employees may be suffering from mental health conditions.

There is no set formula for employers to follow when dealing with mental health in the workplace.  Employers need to be adaptive, open-minded and prepared to spend the time ensuring its workplace is taking a proactive approach to dealing with mental health in the workplace.

Simple first steps could include assessing and adapting current leadership structures and styles, promotion of exercise through work sports teams, introduction of a mental health policy and training in order to start the open kōrero within your business, and continual building of trust and confidence with your employees.  Remember, trust and confidence can rarely be built over emails and phone calls – communicate kanohi ki te kanohi (face to face) wherever possible to ensure you remain in touch and aware of what is going on in your workplace.

Most employers genuinely want to help their employees and do the right thing in these situations, but sometimes just do not know what to do.  A holistic approach underpinned by manaakitanga (caring for others) that focuses on proactive prevention and fair responses will go a long way to improve workplace wellness.

If you would like further information please contact Renika Siciliano on 07 958 7429.

Security over personal property and the importance of getting registration right

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The High Court’s decision in Partners Finance and Lease Limited v Richmond [2019] NZHC 34 serves as a timely reminder to ensure that your registrations on the Personal Property Securities Register are accurate.  Companies and other entities that lease or provide goods and services to customers on consignment or deferred payment arrangements, in particular, should take note.

Background

The case was about a bulldozer, the expensive kind.  Partners Finance and Lease Limited (Partners) loaned money (Westland Hire) for the purchase of the bulldozer.  Partners then registered a financing statement on the Personal Property Securities Register (PPSR).

A few years later Westland Hire agreed to sell the bulldozer to the trustees of the Richmond Business Trust.  The trustees borrowed money from ASB Bank Limited (ASB) to fund the purchase, and ASB took security over the bulldozer.  ASB registered a financing statement on the PPSR.

Partners applied for summary judgment against the trustees and ASB, claiming that Partners was the rightful owner of the bulldozer and requiring ASB to discharge its security interest over the bulldozer.  ASB also applied for summary judgment on Partners’ claim.

Who has priority?

The central issue to be determined by the High Court was whether Partners’ or ASB’s financing statement had priority.  ASB claimed that its registration had priority as Partners’ financing statement was incorrectly registered such that it was ‘seriously misleading’.

‘Seriously misleading’ financing statements

Sections 149 to 152 of the Personal Property Securities Act (1999) (the Act) deal with the validity of registration of financing statements.  The key, in section 149, is that a PPSR registration will be invalid only if it is ‘seriously misleading’.  This is to be objectively determined.

The High Court provided the following guidance:

  • The registration must specify the correct collateral type.  In this case, Partners’ registration was made against ‘goods – other’ on the basis that the bulldozer had no VIN or chassis number, which is required for a registration against motor vehicles.  The Court looked to the expert evidence and the definitions of ‘motor vehicle’ and ‘chassis number’ in the Act.  It decided that the bulldozer was a motor vehicle and therefore Partners’ registration was made against the wrong collateral type.  It is also worth noting that ASB was not aware of the Partners’ registration, as it had conducted a search of the PPSR under the motor vehicle category only.
  • Every ‘yellow goods item’ will have a unique identification number stamped on it or an attached plate, and it is industry practice to use that as the ‘chassis number’.
Final decision and thoughts

The High Court granted ASB summary judgment.

The obvious learning from this case is to ensure that registrations correctly record the asset or collateral that is secured.  Too often we come across incorrect registrations.  Small to medium enterprises often have terms of trade which allow them to register against goods or services supplied by them and which they are yet to receive payment for.  Those rights are worthless unless the registration is correct.  The difficulty is that the responsibility for making the registrations often falls to a person who does not have access to or knowledge of the requirements.  There is a need for wider education on the PPSR.

Interestingly, the High Court did not make mention of the fact that Partners’ registration was out of time to be considered a Purchase Money Security Interest (PMSI).  PMSI registrations apply to goods leased for a term greater than 1 year and have a ‘super priority’ over other registrations.  In this case Partners leased the bulldozer to Westland for a term of 6 years commencing in July 2015, but did not register its financing statement until November 2015.  Presumably the issue was not mentioned as there were no prior registrations made against Westland that would have affected priority.

Amanda is an Associate in our Commercial Team and can be contacted on 07 958 7451.

Investing in whānau and whenua

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Earlier this year, Minister Nanaia Mahuta announced the Government’s Whenua Māori Programme to address the complex and challenging regulatory environment that Māori freehold landowners deal with.  The Government has committed $56.1 million over four years to address this.

Minister Nanaia Mahuta says that the “focus is on stimulating social and economic development through the 1.4 million hectares of whenua Māori that remains in Māori freehold title”.

The Whenua Māori Programme is a strategic investment into Māori freehold landowners and their whānau and the development of whenua Māori.  It recognises the need for a range of support to assist Māori landowners achieving their aspirations for their Whenua.

The Whenua Māori Programme will support owners who are establishing ownership interests and governance structures, through to owners who are ready to expand their operations and seek opportunities.  This includes those landowners who are ready to apply to the Provincial Growth Fund.

Other key initiatives are:

  • Regional Whenua Advisory Services in Te Tai Tokerau, Waiariki, and Te Tairāwhiti to provide specialised support that assists Māori landowners to progress their development goals
  • A Whenua Knowledge Hub & Website that provides up-to-date land information to support whenua investment, planning and landowner aspirations
  • New, modernised and enhanced Māori Land Court technology that will support future legislative changes and greater online functionality
  • Amendments to Te Ture Whenua Māori Act 1993
  • New and improved Court Services

The Government will introduce amendments to Te Ture Whenua Māori Act 1993 into Parliament later this year.  The amendments will focus on improving services in the Māori Land Court, simplifying the succession process and establishing a dispute resolution mechanism.

Justice Minister Andrew Little says the changes proposed to the Māori Land Court will better support landowners to Access-to-Justice Services.  He says that “the introduction of a tikanga-focussed dispute resolution service offers Māori landowners a way to settle matters outside of a formal court hearing.”

Minister Nanaia Mahuta says that “this is an exciting and ambitious programme that I expect will significantly lift the intergenerational wellbeing of Māori landowners, their descendants and their regions for many years to come.”

For more information about the Whenua Māori Programme, click here.

Kuru is a Solicitor in our Māori Legal Team and can be contacted on 07 958 7574.

Public Interest vs Private Interest – What is the core nature of your dispute?

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A recent costs judgment in the High Court, Ngāti Te Ata v The Minister For Treaty of Waitangi Negotiations & Ors [2018] NZHC 915, undertook an analysis of Rule 14.7(e) of the High Court Rules 2016 which empowers the Court to refuse to make an order for costs if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably during the proceedings.

Ngāti Te Ata made an application for judicial review on the basis that the Minister for Treaty Negotiations had acted unreasonably in his decision to require the early transfer of two properties classified as right of first refusal land by the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 for an individual Treaty Settlement with Ngāti Tamaoho.  The Minister’s decision was deemed to be reasonable and the application for judicial review was dismissed.  Costs were accordingly sought against Ngāti Te Ata.

Undertaking a review of Rule 14.7(e) Justice Whata in the High Court identified that the current legal position is that a claim involving public law issues will not justify a departure from the usual rule of awarding costs.  While the litigation did not need to be motivated by pure public interest, a significant private interest in the outcome will strongly influence the Court’s decision to not depart from the usual rule.

Justice Whata accepted that there are cases involving the interpretation and application of Treaty settlement legislation where the ordinary costs principles have not been applied.

Further, it was accepted by the High Court that the discharge of the Crown’s duties to Māori serves the public interest.  However, Justice Whata was satisfied that on the facts of the present case, the usual rule should apply.  Whilst there were elements of public interest within the proceedings, at its core, the proceedings were based upon competing claims by two iwi to the same land.

The key elements highlighted by the Judge suggested that this was merely an inter-iwi dispute rather than a public interest proceeding where:

  • No other iwi joined the proceeding.  Further iwi involvement is expected if the litigation is genuinely considered to raise a matter of wider importance to the potentially affected iwi; and
  • The nature and content of the affidavit evidence filed in this matter highlighted the private interests of the litigation.  In particular, strong allegations were made supporting Ngāti Te Ata’s claim and depreciating Ngāti Tamaoho’s claim to the lands subject to the litigation.  This reinforced the impression that, at its heart, this is an inter-iwi dispute.

When an iwi is deciding whether to challenge the decision of the Crown relating to Treaty Settlements it is important to consider the nature of the proceedings in light of the above discussion provided by Justice Whata.  Litigation is an expensive process therefore we suggest that before proceeding with an application for judicial review, consider carefully whether the dispute is in the public interest or if it is, at its core, an inter-iwi dispute.

If you would like further information please contact Kylee Katipo on 07 958 7424.

Employment law pānui – Further changes to the Employment Relations Act 2000

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Further to our earlier pānui in March, a raft of further changes to the Employment Relations Act 2000 (“the Act”) come into effect from 6 May 2019.  Our advice is to get on top of these changes early, assessing how they may affect the day-to-day operational running of your business or policies you have in place.  We summarise some of the key changes below.

90 day trial periods

The days of relying on a valid 90 day trial period to dismiss an employee with full immunity from a personal grievance for unjustified dismissal are over for many employers.  Only those who employ fewer than 20 employees at the time of hiring them (referred to through the Act as a “small-to-medium-sized employer”) will be able to use a 90 day trial period from 6 May.

Employers who employ 20 or more staff will no longer be able to include 90 day trial period clauses in employment agreements, and will be required to follow proper processes should they wish to dismiss the employee in those early stages of employment.  This exposes them to the risk of a personal grievance for unjustified dismissal which they will no longer be protected against.

For those unable to use 90 day trial periods moving forward we recommend upskilling management in how to handle performance management, as well as reviewing your current hiring procedures.  These employers may wish to include a “Probationary Period” in employment agreements for new staff as a way of managing performance from the outset and allowing a proper review at the end of the first three months of employment.  However, employers should proceed with caution as probationary periods can be particularly onerous on management and leave a lot of room for error, so may be better used on a case by case basis.

“Set” rest and meal breaks

Rather than allowing for rest and meal breaks that are “reasonable” for rest and recovery, an employer will have a duty to provide specific and set rest and meal breaks in accordance with the new laws.

The Act sets out how many breaks, as well as their duration, that an employee will be entitled to in any given work period.  For example, if an employee works more than 6 hours, but not more than 8 hours in any given day, they must be provided with at least two 10 minute rest breaks (paid) and one 30 minute meal break (unpaid).

The changes encourage agreement between the parties as to exactly when those breaks are taken, but failing agreement, indicates at what stage in the day those breaks should be taken “as far as is reasonable and practicable”.  This suggests that some flexibility in when the breaks occur will be allowed.  Employers may want to cover any flexibility that could occur in rest and meal breaks in the employee’s individual employment agreement so that expectations are clear from the outset.

Collective bargaining and unions

Changes have also been made in regards to Collective Bargaining and Union involvement in the workplace.

Among those changes, the Act sets out processes to be followed when a Union requests the employer provide information about the Union roles and functions to prospective new employees, and only allows limited reasons for such a request to be declined.  It also sets out rules about what terms new employees can be hired on where there is an operative collective agreement, but the employee opts for an individual employment agreement.

The Act then looks to provide some clarity around the already quite rigid process of collective bargaining, such as when the parties may initiate bargaining, how the parties should proceed when a matter is at deadlock in negotiations and reiteration of the expectations for the parties to act in good faith and conclude a collective agreement at the end of bargaining.

Restructuring in the workplace and vulnerable employees

The changes see additional definitions for terms used in relation to a restructure as well as clear examples of what constitutes contracting in, contracting out and subsequent contracting.

Employers need to be aware that when dealing with “vulnerable employees” under the Act, they must give clear notice to the employee of their right to make an election to transfer to the new employer, or not.  This new requirement provides that at least 20 days before a restructure takes effect, an employer must provide employees with the relevant information and inform them of their right of election.

Before making any structural changes in the workplace which may adversely affect employees, employers should make sure they are familiar with all of their obligations under the Act.

Next steps for employers

Employers are going to need to take a deeper look into how they are operating in order to incorporate these changes into their workplace.  Reviewing current employment agreements and policies are the first step for employers to ensure they are in line with the law.  To compliment updated documentation, however, we suggest a second step for employers as taking a more proactive approach in the day-to-day running of their workplace to give effect to the changes that continue to arise in the employment realm.

If you would like further information please contact Renika Siciliano on 07 958 7429.

Common applications under the Protection of Personal and Property Rights Act 1988

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Do you have Enduring Powers of Attorney in place?  If you do not and you lose your mental capacity, someone would need to make an application under the Protection of Personal and Property Rights Act 1988 to the Family Court in order to make certain decisions for you.  Applications are most commonly made by a relative, however the Act does provide for others (such as social workers, medical practitioners, friends etc) to apply.

This article outlines three of the most common applications that are required when a person loses their capacity without Enduring Powers of Attorney in place.  The common applications are for the appointment of the following:

  • Welfare Guardian (personal order);
  • Property Administrator (personal order);
  • Property Manager (property order).
Welfare Guardian

The starting point for most families is an application to the Family Court to have a Welfare Guardian appointed.  A Welfare Guardian is someone appointed by the Family Court under the PPPR Act to make decisions on behalf of a person in relation to all aspects of that person’s personal care and welfare (such as decisions relating to the person’s health, care and living arrangements).  Welfare Guardians are responsible for support and protection as well as acting in the best interests of the person they are acting for.  A person in respect of whom the application is made is referred to as the “subject person”.

A Welfare Guardian order has an expiry date and, at the end of the term, another Court application will be required to either extend the current Welfare Guardian’s term or appoint a new Welfare Guardian (all at an additional cost).

Before a Welfare Guardian application will be granted by the Court, the following criteria must be met:

  • The subject person either wholly or partially lacks the capacity to understand the nature and to foresee the consequences of decisions in respect of matters relating to their personal care and welfare; or
  • The subject person has the capacity to understand the nature and foresee the consequences of those decisions, but wholly lacks the ability to communicate these decisions.

The Court will then assess the application and will only grant an order if they can be satisfied that the following requirements are met:

  • Appointing a Welfare Guardian is the only satisfactory way to ensure that the appropriate decisions are made about the subject person’s personal care and welfare;
  • Appointment of a Welfare Guardian is the least restrictive intervention possible by the Court in the subject person’s life;
  • The Welfare Guardian will enable and encourage the subject person to exercise and develop such capacity to the extent that is reasonably possible;
  • The subject person ordinarily lives in New Zealand and is at least 18 years of age.

The paramount consideration of the Welfare Guardian must be the promotion and protection of the welfare and best interests of the subject person.

Property Administrator

A Property Administrator is someone appointed by the Family Court to administer any one or more items of property outlined in the order on behalf of the subject person.

A Property Administrator will only be appointed where the item of property in question is worth less than $5,000 or the total income/benefit received is less than $20,000.

An example of when this may be used is when the subject person receives a benefit of less than $20,000 a year and the subject person does not hold any assets (like vehicles, bikes, mobility scooters etc) over the value of $5,000.

There are limitations to Property Administration orders, these are as follows:

  • Value restrictions (property of less than $5,000 and income of less than $20,000);
  • Only one person can be appointed as the Property Administrator at a time;
  • You cannot have a Property Administrator where there is already a Property Manager appointed.
Property Manager

A Property Manager is appointed to manage the property of the subject person.  The particular application can be for the entirety of the subject person’s property, or for certain aspects of the subject person’s property.

A Property Manager may be a person or a trustee company (such as Public Trust), and there is no limit to the number of Property Managers that can be appointed at one time (although this should be thought through when making an application as co-ordinating too many Property Managers may be a logistical nightmare).  If there are multiple Property Managers appointed, they will need to act and make decisions jointly.

Like with the Welfare Guardian application, there is an expiry date on Property Manager orders.  A Property Manager’s appointment will be up to three years from the grant (the Court will determine this date when making the grant).

The Court will only grant an application for a Property Manager when:

  • The subject person either wholly or partially lacks the capacity to understand the nature and to foresee the consequences of decisions in respect of matters relating to property; or
  • The subject person has the capacity to understand the nature and foresee the consequences of those decisions, but wholly lacks the ability to communicate these decisions.

The Court will not grant an order for a Property Manager if the person applying simply thinks the subject person is not managing their money the way the applicant thinks is the “correct” way.  The Court will also ensure there is no undue influence in the management of the subject person’s property affairs.

Responsibilities of a Property Manager:

  • The paramount consideration of a Property Manager must be to use the property in the “promotion and protection of the best interests” of the subject person.
  • Property Manager must, where possible, encourage the subject person to manage their own property affairs.
  • Consult with the subject person regarding property matters.
  • If a Welfare Guardian has been appointed, the Property Manager must consult with the Welfare Guardian on a regular basis to ensure the interests of the subject person are not prejudiced.
  • As far as practicable, Property Managers must also consult with:
    • Other persons who, in the Property Manager’s opinion, are interested in the welfare of the subject person and are competent to advise in relation to the management of the subject person’s property; and
    • A representative from a not-for-profit group that provides services and/or facilities for people such as the subject person who, in the Property Manager’s opinion, would be competent to advise the Property Manager in relation to the subject person’s property.

We understand these types of orders can be somewhat confusing.  We recommend that you make contact with a lawyer to assist you through the process of making any of these applications.

If you would like further information please contact Amanda Hockley on 07 958 7451.

Employment law pānui

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As of 1 April 2019 employers need to be aware of several changes to minimum employment standards.

Minimum wage

The minimum wage will increase to $17.70.  Employers can expect to see further rises in the minimum wage rates following the Government’s commitment to increasing the minimum wage to $20 by 2021.

Training and starting-out minimum wage rates have increased to $14.16 per hour, but can only be used in specific situations based on an employee’s age and whether they have worked six continuous months with the employer.

Domestic violence leave

The Domestic Violence – Victims’ Protection Bill will come into effect creating a new form of leave for employees affected by domestice violence and the ability to negotiate flexible working arrangements.

Employees affected by domestic violence will be entitled to up to 10 days of paid leave per year.  Entitlement will arise and the leave can be taken similar to the existing sick and bereavement leave provisions.

Employees affected by domestic leave will be able to request short-term variations to their working arrangements, for example hours of work, location and/or duties.  Employers will be required to respond urgently to the request (within 10 working days) and are allowed to ask for proof the employee is affected by domestic violence (though we envisage this will be a tricky area to navigate given the sensitivity of the issues).

An employer will only be entitled to refuse the request if the employee fails to provide the proof on request, or if the request cannot be reasonably accommodated.  A non-exhaustive list of reasons the request cannot be accommodated is set out in the legislation which includes the employer’s inability to reorganise work among existing staff or to recruit additional staff, the change having detrimental impacts of quality and performance of work, or the cost being too burdensome on the employer.

More changes to come in May

From 6 May 2019 more changes will come into effect, including:

  • Changes to the 90 day trial periods and who can use them.
  • The ability to have set rest and meal breaks will be restored.
  • Employer obligations will increase in respect of Collective Employment Agreements and how they employ new staff.
  • Employers will be required to allow union representatives reasonable time to perform their union duties and pay them on the same as their ordinary working rate.

These changes will impact on and affect the way employers are operating their business.  This serves as a timely reminder for employers to check their employment agreements are up to date as a good starting point to accommodate these changes.

If you would like further information please contact Renika Siciliano on 07 958 7429.

Housing Accords and Special Housing Areas Act update

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The recent Enterprise Miramar Peninsula Incorporated v Wellington City Council [2018] NZCA 541 (“the Case”) provides important commentary on the interpretation of section 34 of the Housing Accords and Special Housing Areas Act 2013 (“the Act”) and on apparent bias in relation to local authority decisions.

Section 34 considerations

Section 34 of the Act outlines the factors that must be taken into account when considering an application for a qualifying development resource consent under the Act.  The Act states that the following factors must be given weight in the order listed as follows:

  • The purpose of the Act, which is stated at section 4 as being to “enhance housing affordability by facilitating an increase in land and housing supply in certain regions… identified as having housing supply and affordability issues”;
  • The matters in Part 2 of the Resource Management Act 1991 (“RMA”) which relate to the sustainable use, development, and protection of natural and physical resources;
  • Any relevant proposed plan;
  • Other matters that would arise under sections 104-104F of the RMA or other enactment as applicable;
  • The key urban design qualities expressed by the Ministry for the Environment.
The case

The Court of Appeal found that the Wellington City Council (“the Council”) failed to correctly consider the section 34 matters.  The key issues on appeal were:

  • Error of law, in the Council’s approach that the purpose of the Act trumped other considerations;
  • Error of law, around the adequacy of infrastructure under section 34(2);
  • Apparent bias.
Weight of the purpose of the Act

While the purpose of the Act is to be given the most weight, the Council was found to have used the relative weight given to this factor in order to neutralise the other considerations.  The factors outlined in sections 34(b)-(e) were held to have ‘no more than a minor effect’ in comparison to the purpose, so the Council did not consider the true adverse effects on the application.

This meant that Council had not properly considered all five factors properly.  It had considered one factor in detail (the purpose of the Act), and had used this to give less attention to the other factors.

Decision-makers are required to assess the matters listed under section 34 uninfluenced by the purpose of the Act, before standing back and looking at the overall balance.

In other words, a council should independently assess each matter first and then weigh them in that order to reach a decision.  The matters cannot have been weighed appropriately if section 34(1)(a) was used to neutralise the matters in sections 34(1)(b)-(e).

Failing to sufficiently consider the required factors before weighing themwas a significant error as the correct application of section 34 could have resulted in a different outcome to the application.

Apparent bias

The Court ordered the Council to reconsider the application. The Court did not believe that it was necessary to appoint independent commissioners to conduct the review, but Council was encouraged to consider councillors’ ability to bring an open mind to the decision due to the possibility of apparent bias following the proceedings.

In terms of bias, the Court held that in many local authority regulatory decisions it is inappropriate to require a standard of complete impartiality.  Due to the dual functions of local authorities, there are limits to the application of apparent bias, as councils will often be required to make regulatory decisions about a matter in which a council has an interest.

For this reason, the Court clarified the legal test for local authority bias as being whether the ultimate decision was made by open minds, in which case a predisposition to a particular result will not render the decision invalid.

Conclusion

The Enterprise Miramar case clarifies the way in which section 34 of the Act should be applied, finding that each factor must be assessed individually before being weighed against the purpose of the Act.

Further, the Court clarified the test for apparent bias in local authority decisions, requiring only an open mind to be brought to the matter.

The firm acknowledges the assistance of Kaylee Bird in preparing this article.

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

Funding package for Māori development and infrastructure

Posted on by au_common_admin

Prime Minister Jacinda Ardern and Regional Economic Development Minister Shane Jones have announced that the Provincial Growth Fund (PGF) will invest up to $100 million to help unlock the economic potential of whenua Māori and build prosperity in the regions.

The announcement was made on 4 February 2019 at Otamatea Marae, in Kaipara.  The portion allocated to supporting Māori economic development constitutes ten per cent (10%) of the PGF’s $1 billion-a-year allocation.

The Prime Minister says that “funding will enable Māori to access the capital required to progress projects which are investment-ready and will ultimately support moves towards higher-value land use.”

The funding is intended to overcome barriers to whenua Māori development including accessing financial capital to support the utilisation of whenua Māori and is aimed at increasing economic benefits to the regions including providing employment opportunities.

Regional Economic Development Minister Shane Jones says that “lifting the productivity of Māori land will have enormous benefits for regional economies” and supporting Māori economic development is a key focus of the PGF.

This funding is part of significant work across government to support Māori landowners to build governance and management capability within trusts, and completing initial feasibility studies for the development of Māori land.

Māori Development Minister Nanaia Mahuta has welcomed the funding to help unlock the potential of whenua Māori.  She says this is the first practical step to reform whenua which will provide economic benefits of up to $650 million for whānau in the future.

Minister Mahuta has also announced a new cross-government Whenua Māori Programme to stimulate opportunities for whānau.  The Programme will include legislative amendments, new on-the-ground services for Māori land owners and technology improvements to assist Māori towards realising their goals for their whenua whether they be economic, social, environmental or cultural.

For more information about the PGF please see website: https://www.growregions.govt.nz/get-funding/how-to-apply/

Kylee is a Senior Solicitor in our Māori Legal Team and can be contacted on 07 958 7424.

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