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.

Uncategorized

Do new migrants need a Will?

Many newly settled migrants, particularly those who were recently granted a permanent residency, often overlook the importance of having a Will. For some of them, the concept of making a Will is unheard of, and to some extent not a common practice back in their home country.

A Will is a legal document that outlines how personal assets are to be distributed after death. Wills can also identify the persons who the deceased wishes to look after the deceased’s children.

Migrants often spend their lifetime building up their estate and preparing a new life in a new country and yet sadly when they die they unknowingly leaving their assets in the hands of the state.

If a person dies without a Will, the Administration Act 1969 dictates who will receive the assets (also known as the deceased’s estate), unless that person did not have significant assets or held those assets jointly with another person such as a married couple owning their home.

When a person has any asset worth over $15,000 or real estate of any value in his or her own individual name, then this is an asset that requires a Grant of Administration for transfer of ownership when that person dies. This is issued by the High Court of New Zealand.

Assets may include bank or savings accounts, KiwiSaver, a life insurance policy, shares, or any property.

This means anyone (even those who hold work or student visa and have significant savings account in New Zealand) will be in the same position as everyone else if they do not have a Will.

KiwiSaver funds for first home property

Many, if not all, new migrants dream of owning their first home in New Zealand. For first home buyers a KiwiSaver scheme helps them to buy a house (or land). The annual contribution of the government plus their employer’s contribution makes this scheme a great way to kick start saving money for a mortgage deposit.

By the time these first home buyers are eligible to purchase their first home, the KiwiSaver funds are normally their most significant asset. And since Kiwisaver accounts are always held in a person’s individual name, if they have $15,000 or more in KiwiSaver accounts that person will be required to apply for a Letter of Administration (if you don’t have a Will) or Probate (if you have a Will) in order to access the KiwiSaver funds.

What happens when you don’t have a Will?

If the estate has assets more than $15,000 and you don’t have a Will, someone needs to apply to the Court to be the administrator of the estate.

The procedure for obtaining a grant of administration (Letters of Administration) is more complicated and expensive and takes longer if the deceased did not have a Will. The person entitled to apply to administer the estate is decided by the Administration Act 1969 and may not be the person who the deceased wanted to deal with the estate. This can be a significant problem, particularly when the deceased has a family from more than one relationship.

When the Letter of Administration has been granted, only then the administrator will be able to request the bank or KiwiSaver provider to have deceased’s money/funds released.

Also bear in mind that all the assets do not automatically go to the surviving spouse or partner unless held jointly. There is a limit on what a partner or spouse may receive. In some instances, people are surprised when they find out that part of the estate goes to their in-laws. The Administration Act 1969 provides the formula on who gets what, and how much.

Are Will kits in the shops effective?

Nowadays, anyone can find a ready-made form for drawing up their own Will, either online or in major stationery shops. These Will kits appear to be a cost effective option instead of asking a lawyer to prepare the Will. However, the cost of getting a lawyer to draw up the Will is relatively small, especially compared with what can go wrong if a Will is drafted poorly.

If the Will is unclear or ambiguous in nature, or if it hasn’t been signed and witnessed properly there could be a lot of headaches for family and friends. It often ends up costing thousands of dollars if the High Court has to interpret or rectify the Will when the estate needs to be administered.

If you’re uncertain on how to make your Will, you may contact Oneal Mendoza or one of our lawyers to assist you.

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

Recruiting Overseas Workers.

Options for Employers recruiting overseas workers:

Becoming an Accredited Employer 

There are a range of options for those wishing to employ skilled workers from overseas.

If your business has an ongoing need for skilled workers, you could either obtain an Accredited Employer status from Immigration New Zealand (INZ) or request for an Approval in Principle to streamline a seemingly complicated and stressful application process to get work visas for your potential employees.

  1. Employer Accreditation

An employer holding Employer Accreditation status is able to employ skilled migrant workers without first having to check if any New Zealanders can do the work.

The accreditation enables you to employ overseas workers for an initial period of up to 30 months. You must take direct responsibility for the workers you employ, for their work and you must pay a minimum base salary of $55,000.

Once you obtain the accreditation and it has been held by an employee for at least 24 months, the employee can be eligible to apply for residence provided other criteria are met.

This pathway to residency will attract many migrants workers to work for you as most of the migrants are not normally eligible to apply for residence under the ‘Skilled Migrant’ category.

Employer Accreditation will be granted initially for 2 years but you can apply to renew your accreditation status for further 2-year periods or in some cases for 5 years.

Application requirements

You must show that you need to recruit migrant workers and you will have direct responsibility for those employees and their work output.

In the assessment of an application for accreditation INZ must be satisfied that you:

  • Are in sound financial position;
  • Have high-quality HR policies and practices;
  • Have work place practices and history of legal compliance; and
  • Are committed to training and employing New Zealanders (including the number of local people already employed; evidence of training local workers; extent and nature of past advertising; engagement with Industry Training Organisations and union).

The documentation required to satisfy these elements is relatively extensive, but we can provide you with advice on exactly what is needed, and how to structure an application.

As part of its assessment, INZ may carry out an interview with an employer or a site visit of the employer’s premises.

It is important that you are prepared to provide extensive documentation to satisfy the above criteria. To avoid delays and possibility of being declined, you have to make sure that such materials are thoroughly gathered and assessed prior to submitting your application.

If you wish to discuss the possibility of your business becoming an accredited employer or assist you with your application in the form required by INZ, please contact me.

 

O'neal Mendoza
O’neal Mendoza, Solicitor

O’neal Mendoza

Contact Details

DDI: 09 837 5745

Email: omendoza@corbanrevell.co.nz

 

PLEASE NOTE:

  1. Any policy statements mentioned in this article do not replace the policy of Immigration New Zealand.
  2. Assessment requirements are subject to change.
Legal Insights, Uncategorized

Employment Relations Amendment Act: What You Need to Know

The Employment Relations Amendment Act 2018 (“the Act”) was passed into law on 6 December 2018 and received Royal Assent on 11 December 2018. The Act prescribes that the changes will come into effect in two parts. The first set of changes came into effect on 12 December 2018. The second set of changes will come into effect on 6 May 2019. Here is what you need to know:

Changes that came into effect on 12 December 2018:

Union Access and Collective Bargaining:

  1. Union representatives can now enter workplaces without consent where the employees are covered under, or bargaining towards, a collective agreement. This right does not extend to workplaces that are also places of residence.
  2. Pay deductions can no longer be made for partial strikes.
  3. Businesses must now enter into bargaining for multi-employer collective agreements if asked to join by a union. They will not have to settle a multi-employer collective agreement if their reason for not wanting to settle is based on reasonable grounds.
  4. An employee’s ability to complain of discrimination on the basis of their union membership status is enhanced. Employees now have 18 months, an extension of 6 months, to complain of the behaviour.
  5. Earlier initiation timeframes have been restored for unions in collective bargaining, enabling a union to initiate bargaining 20 days ahead of an employer.

Remedies:

  1. Reinstatement will be the first course of action considered by the Employment Relations Authority. The employee must be successful in their personal grievance for an unjustified dismissal and have requested reinstatement for this to be the primary remedy.

Changes that will come into effect on 6 May 2019:

Rest and Meal Breaks:

  1. The right to set rest and meal breaks will be restored, the number and duration of which depends on the hours worked.
  2. Employers must pay for rest breaks but don’t have to pay for meal breaks. Employers and employees will agree when to take their breaks. If they cannot agree, the law will require the breaks to be in the middle of the work period, so long as it’s reasonable and practicable to do so.

90 Day Trial:

  1. 90-day trial periods will be restricted to businesses with less than 20 employees. Businesses with 20 or more employees can continue to use probationary periods to assess an employee’s skills.

Vulnerable Employees:

  1. Employees in specified ‘vulnerable industries’ will be able to transfer on their current terms and conditions in their employment agreement if their work is restructured.
  2. The exemption allowing employers with 19 or fewer employees to choose not to take on existing employees if they win a contract has been removed. All businesses that take over a contract that involves “vulnerable” employees will have to employ the people currently doing the work on the same terms and conditions.
  3. An employer must provide notice to vulnerable employees of the right to transfer no later than 25 days before the restructuring will take effect. The employer must also advise the employee’s that they have 10 days to make the election to transfer.

Union Issues and Collective Bargaining.

  1. The duty to conclude bargaining will be restored for single-employer collective bargaining, unless there are genuine reasons based on reasonable grounds not to.
  2. The 30-day rule will be restored. Any new non-union employees must be employed on the same terms and conditions of employment for the first 30 days of employment.
  3. Pay rates will need to be included in collective agreements, along with an indication of how the rate of wages or salary payable may increase over the agreement’s term.
  4. Employers will need to provide new employees with an approved active choice form within the first 10 days of employment and return forms to the applicable union, unless the employee objects. The form gives employees time to talk to their union representatives before considering and making a choice about whether to join a union or remain on the individual employment agreement.
  5. Employers will need to allow for reasonable paid time for union delegates to undertake their union activities.
  6. Employees will need to pass on information about the role and function of unions to prospective employees. Unions must bear the costs if they want printed materials to be passed on.

If you have any questions or need assistance with any employment issues, please contact: Rachel Nightingale on 09 837 5734

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Rachel Nightingale,