Legal Insights

Covid 19: Can employers require their employees to be vaccinated?

Recently, two major employers in New Zealand have stated that they plan to make Covid-19 vaccinations mandatory at their workplace. In the absence of a Health Order making vaccinations mandatory to all New Zealanders, this position of the employers has led to considerable debate in the business community.

The Employment Relations Authority in their recent determination in GF v New Zealand Customs Service upheld the decision of the employer to dismiss a border worker who refused to be vaccinated. This determination was fact-specific to border workers however the Authority did provide valuable insights for the wider business community. 

Some key considerations that an employer need to take before making vaccinations mandatory at the workplace are:

  • Firstly, the employer must conduct an extensive risk assessment and ascertain whether the risks may be eliminated or if the risk can be minimised in other ways. This risk assessment process must involve workers, unions and other representatives.
  • Before drafting the mandatory vaccination policy, the employer must consult with all the affected employees and explain the need for such policy. 
  • If a particular employee refuses to take the vaccine, then the employer should genuinely consider the employee’s reason and consider other options before deciding to dismiss the employee. 

Therefore, at present it seems unlikely that employers can implement a policy requiring mandatory vaccinations in the workplace without good health and safety reasons. Employers must assess their COVID-19 exposure risk to decide whether certain work warrants a vaccination.  

If you require further specific advice on this issue or have any other employment concerns, please contact one of our lawyers to assist you.

By Saurav Satyal

Saurav Satyal, Solicitor

The advice above is current at the time of writing, 20 September 2021. This article is published for general information purposes only. Legal content in this article is general and should not be relied upon as legal advice.

Legal Insights, News and Events

Brian Phillip Najib Corban

I well remember the first time I heard Brian speak publicly. It was in the late 1990’s. Someone from our firm was leaving, presumably for better pastures. Brian happened to be at our second office on Lincoln Road as the firm gathered for the farewell. He lingered. After some initial routine speeches, Brian stepped forward and spoke.

He talked about the firm and about the set of family values that he and Phillip Revell incorporated into its foundations when they set out to establish “Corban Revell Lawyers” in 1977. There was the immediate command of the room, through his demeanour and his speech. “a statesman”, I thought, as we all stood captivated: He kai a te rangatira, he kōrero. But more than that, his words of good family values in a law firm resonated with me.

I knew Brian was from a big family, but his declaration that good family values were key was not only a fundamental part of our firm, they were a natural part of the way in which he practiced the business of law. Family and business could not only mix, it was expected to be so. The communal could happily co-exist with the individual pursuits, and vice versa. It was a moment when I received confirmation from Brian, a founding father, that I had made the right choice in commencing my law career with Corban Revell Lawyers in 1994. Law firms will more regularly today liken themselves to families, and advocate a work place based on good family values, but I know that through Brian, that kind of thinking has been here since 1977. It is thinking that in relation to the profession was well ahead of its time.

Brian leaves a mark in the law that we are proud to continue. It is a mark of utter professionalism and of ethics and of kindness and of service. They guide us daily in the way in which we serve our clients and our communities. His skill in commercial transactions is not doubted, with many of his more significant deals particularly those involving land, still bearing his reputation after all these years.

We are proud, even privileged, to carry on Brian’s name as the name of our firm. His name is still said by many of our clients who are still with us and who will often remind me, “Brian was my first lawyer, so look after me as he did!”.

There are also the law books comprising our substantial library that Brian acquired for the firm over the years and which have his distinctive signature on the inside cover. One on my desk at the moment is the classic text “Learning the Law” eighth edition, Glanville Williams, and with the words “Brian Corban 5/3/73” inscribed inside. I like to think of Brian every time I pick up one of his books.

There is also for me his work as a Waitangi Tribunal member that maintains his legacy, and one inquiry that has a personal element to it. In 1997 he was a member of the Kaipara Tribunal. It was headed by Dame Augusta Wallace, with the other members being Sir Michael Basset, Dame Areta Koopu, and Sir John Turei. A formidable panel indeed! It was the first Tribunal that I appeared before and somewhat imposing. But Brian put me at ease. Just before I stood to give my address, Brian stood. He announced to the proceeding, again in a very statesman like and eloquent fashion, his connection to me through our firm. I like to think that it was his way of affirming our whanaungatanga, and of acknowledging the good family values that he and I stood for. Nō reira, Ka nui te mihi ki a koe e te Rangatira Brian.

Brian inspired me. He still does. He will be missed. His legacy will live on.

No reira e te Rangatira, hoea to waka ki o tupuna, haere, haere, haere atu ra.

Brian’s funeral is Friday 7 May 2021, 1pm, at St Micheals, 425 Great North Road, Henderson.

Ngā mihi nui, John Kahukiwa, Managing Partner, Corban Revell

Legal Insights, Uncategorized

A new Immigration Bill: What’s in it for work and student visa holders?

On 5 May 2020, the Minister of Immigration presented an urgent Immigration Bill to Parliament to ensure that the Government can respond appropriately and efficiently to the COVID-19 outbreak by providing additional flexibility in the immigration system.

The Immigration (Covid-19) Response Amendment Bill will enable the government to amend visa conditions for groups of people, extend visas for groups of people for varying periods of time (enabling processing to be staggered), stop people overseas from making visa applications while it is not possible to travel to New Zealand due to border restrictions, and provide the ability to refuse entry to people who are deemed to hold a visa.

Work visa holders

As it was already discussed in our last article (Post-lockdown: Impact on migrant workers), we could expect many migrant workers to lose their jobs. In fact, some of our clients have already indicated plans to lay off some staff, the majority of whom are migrant workers.

In order to address the increasing number of job losses, the Bill will be useful to amend employer specific conditions of work visas. This means unemployed migrant workers might be able stay in New Zealand, especially those who are unable to return to their home country due to border closures. If these workers are able to stay in New Zealand, then other industries that rely heavily on migrant labour will be able to find more workers within the country.

Given the number of business permanently shutting down, work visa holders could struggle find a new job suitable to their skills. Even if they are fortunate enough to find a new job, their pathway to residency might be affected unless they re-train and are able to match their qualifications and previous work experience with their new found job.

Student visa holders

There is a possibility that the Bill may affect international student visa holders who were given the right to work part time while studying. With the increasing rate of unemployment in New Zealand, international students might lose their right to work as the government fills vacant jobs with New Zealand residents or citizens.

Conclusion

On the one hand, we understand the significance of this legislation in helping to manage the backlog of visa applications being processed (even before the Covid-19 crisis began). In addition, the Bill will give Immigration New Zealand a way to prevent any foreseeable problems in late September when all the visas that were automatically extended under the Epidemic Management Notice expire.

On the other hand, this new Bill as discussed above could be of concern to working migrants, their employers, and international students.

This Bill is set to become law on Friday, 15 May 2020.

If you require any specific immigration advice that may affect your current visa or future application due to these changes to New Zealand immigration policies, please contact Oneal Mendoza (omendoza@corbanrevell.co.nz) or one of our lawyers to assist you.

The advice above is current at the time of writing, 9 May 2020. This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice

Legal Insights, Uncategorized

Key Changes to Trust Law

The new Trusts Act 2019 will come into force on 30 January 2021. This is the first major reform to trust law in New Zealand which provides greater transparency of trustee activities and increased trust compliance requirements.

If you are a settlor or a trustee of a trust (or family trust), it is important to review your trust in light of any personal, legal and policy changes provided under the new Act.

Here are some of key changes to the new Act.

Formalised roles of Trustee and Beneficiary

The Trusts Act incorporates a new concept by classifying the duties as either ‘mandatory’ or ‘default’.

Mandatory duties

Mandatory duties must be performed by the trustee and may not be modified or excluded by the terms of the trust. Otherwise, it may be evidence that there was no intention to create a trust and will undermine the asset protection strategy if the trust is ever challenged.

The mandatory duties include that the trustees must:

  1. Know the terms of the trust
  2. Act in accordance with the terms of the trust
  3. Act honestly and in good faith
  4. Act in the interest of the beneficiaries in accordance with the terms of the trust deed
  5. Exercise their powers for a proper purpose 

Default duties

These default duties include a general duty of care, which the trustees must perform unless they have been excluded or modified in the trust deed.

Some of the general duties of care include:

  • Duty to invest prudently
  • Duty not to exercise power for own benefit
  • Duty to consider exercise of power
  • Duty to include to avoid conflict of interest
  • Duty not to profit
  • Duty to act unanimously

If your current trust deeds already excluded some of the default duties, this will continue to be acceptable provided that the exclusions fit within the permitted limits. 

Obligation to give certain information to beneficiaries

The Act creates a presumption that a trustee must make ‘basic trust information’ available to every beneficiary and ‘trust information’ available to beneficiaries who request it.  The purpose of such disclosures is to hold the trustees accountable for their duties and obligations.

“Trust information” is information that it reasonably necessary for the beneficiary to have to enable the trust to be enforced. However, before providing the trust information, the trustees must consider a range of factors and if the trustee reasonably considers that the information should not be disclosed, then it may withhold the information.Those factors, amongst other things, include:

  • The nature and interests of the beneficiary (such as the likelihood of the beneficiary receiving trust property in the future)
  • Whether the information is subject to personal or commercial confidentiality
  • The intentions of the settlor when the trust was established
  • The age and circumstances of the beneficiary in question and the other beneficiaries of the trust
  • The effect on trustees and other beneficiaries of the trust of providing the information; and
  • Other factors a trustee reasonably considers is relevant.

Trustees will have to carefully consider any decision not to disclose information.

Replacement of the Rules Against Perpetuities

Previously the maximum duration was 80 years after which the property had to be vested upon beneficiaries. The Act now establishes a definite, extended maximum duration of 125 years for most trusts. 

Record retention requirements

The Act prescribes what information trustees should keep and for how long. Each trustee will be obliged to keep copies of the trust deed and any variations.

Trustees must keep their own copies of ‘core trust documents’ or at least one of the other trustees holds all of the core trust documents and will make them available on request.

Restrictions on exemption and indemnity clauses

The Act makes it clear that trust deeds must not limit a trustee’s liability or provide an indemnity for dishonesty, wilful misconduct or gross negligence.

Any terms in a trust deed that purport to limit the liability of the trustee or to indemnify them in breach of these provisions is invalid. Trustees should be aware of these restrictions when acting.  

If you are involved in or thinking of establishing a trust, we recommend talking with us about how the new Trusts Act will affect you.

Contact:

This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice.

Legal Insights

Immediate changes to executing a Will during Alert Levels 3 and 4

Immediate changes: Executing a Will during Alert Levels 3 and 4

With many New Zealanders isolating alone or in a bubble that comprises their immediate family, spouse or other relatives, they may not be able to arrange for two other adults to be physically present to witness. The Wills Act provides that any person who witnesses a will or whose spouse/partner witnesses a will cannot benefit from that will.

To overcome that problem on 16 April 2020, the Government passed the Epidemic Preparedness (Wills Act 2007- Signing and Witnessing of Wills) Immediate Modification Order 2020.

The Order allows the will-maker during Alert Levels 3 and 4 to use adults who are not in the will-maker’s physical presence to witness the will-maker’s signature via audio-visual link such as Skype, Zoom, Messenger or Face Time.

We note that the Order requires that the will-maker and witnesses have access to simultaneous audio-visual conferencing capabilities.

It is also important to keep in mind that the video should be positioned so that the camera captures the signature being applied to the document. Parties must also have access to a printer and tools to scan or share a photograph of the executed document immediately after signing.

Should you need any assistance in executing (or preparing) your Will, please contact Tom Allen (TAllen@corbanrevell.co.nz) or Oneal Mendoza (omendoza@corbanrevell.co.nz

This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice.

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