August 2015

HEALTH AND SAFETY

Health and Safety Reform Bill – Duty of Care

The Bill will replace the Health and Safety in Employment Act 1992 and it is part of “Working Safer: a blueprint for health and safety at work”.  It will introduce major changes including placing the primary duty of care towards workers on persons conducting a business or undertaking (“PCBU”), imposing a positive duty of due diligence on directors and certain others in senior management, and a penalty regime with significantly increased penalties.  Working Safer’s aim is to reduce workplace injury and the death toll by 25 per cent by 2020.

PCBU duties may overlap with the duties of other PCBUs in shared workplaces or where workers work for more than one PCBU.  The Bill requires PCBUs to consult, co-operate and co-ordinate with each other.  The changes clarify how PCBUs must work together to discharge their overlapping duties to the extent that they have the ability to influence and control the matter.  A duty holder’s obligations to manage risk are limited to doing what is in their ability to control and manage, along with what is reasonably practicable for them to do to manage the risk.  Courts are required to consider death or harm (both actual and potential) caused by a breach of duty.  An officer of a PCBU has a duty to exercise due diligence to ensure that the PCBU complies with its duties, placing a positive duty on people at the governance level of an organisation to actively engage in health and safety matters.

TAX

Taxation (Land Information and Offshore Persons Information) Bill – Property Tax Rules

The Bill aims to assist Inland Revenue to enforce property tax rules by amending the Land Transfer Act 1952 and the Tax Administration Act 1994.  If the Bill is passed into law it will require buyers and sellers of residential property to provide their IRD number and other details when transferring property.  People with tax residency in another jurisdiction will also be required to provide the equivalent of their IRD number in that country.  People situated offshore are required to provide evidence of a New Zealand bank account in order to obtain an IRD number.  It is likely that Trusts will need a Trust IRD number for property transfers rather than individual trustee’s IRD numbers. 

The Bill will likely pass into law by 30 September 2015 and Landonline changes will be implemented from 1 October 2015 at which time the necessary tax information will need to be supplied in order to submit a new dealing through Landonline.  The new bright-line test removes any doubt about a seller’s intention and makes it clear that all property buyers, including overseas buyers, who buy and sell a residential property within two years will be taxed on their gains.  The only exemptions are a person’s main home (including a home held in trust), property that is transferred under a relationship property settlement, and inherited property.  The bright-line test together with the Bill will help Inland Revenue to identify investors in residential property, and ensure that they pay their fair share of tax, whether they reside in New Zealand or offshore.

EMPLOYMENT

Amendments to the Employment Relations Act 2000

The Employment Relations Amendment Act 2014 came into effect in March 2015.  The changes concern flexible working arrangements, rest and meal break rules, continuity of employment for specified employees (Part 6A), good faith, collective bargaining framework including strikes and lockouts and the Employment Relations Authority.  The revised Code of Good Faith in Collective Bargaining aligns with the new law and gives guidance to employers and unions on their duty to act in good faith when bargaining for a collective agreement or variation to a collective agreement under the Employment Relations Act 2000.

The key changes include extending the statutory right that caregivers currently have to request flexible working arrangements to all employees.  There is no limit on the number of requests that can be made in a year and an employer must respond to a request within 1 month in writing including an explanation for a refusal.  Changes to rest and meal break provisions include when employers can make reasonable restrictions on rest and meal breaks, when breaks can be taken and how long breaks should be.  The right to rest and meal breaks cannot be contracted out of.  An employer is required to give relevant information to an employee where it is proposing to make a decision that may have an adverse effect on the continuation of that employee’s employment. 

There are consequential changes to the Employment Relations Authority which introduces requirements for when and how the Authority must give determinations.  At the conclusion of an investigation meeting, the Authority must give an oral determination and a written record of it within 1 month.  Alternatively, the Authority must give an oral indication of its preliminary findings to the parties and deliver a written determination within 3 months of the investigation meeting or when extra evidence is provided.  The Authority can also decide matters without holding an investigation meeting where a written determination must be given within 3 months of receiving evidence from the parties. 

 

If you have any questions on the matters discussed in this update please contact the New Zealand Mackrell Partner, Brian Joyce at Clendons North Shore by email to brian.joyce@clendons-ns.co.nz or phone +64 9 377 8419.

 

Disclaimer

This publication is necessarily brief and general in nature. You should seek further information before taking any action in relation to the matters dealt with in this publication.