May, 2022 - Parry Field Lawyers

Introduction

The Incorporated Societies Act 2022 (the “new Act”) recently received Royal Assent, resulting in significant changes for the 24,000 incorporated societies in New Zealand. The new Act replaces the Incorporated Societies Act 1908 (the “old Act”), which has been long overdue for an upgrade. We have discussed ten key changes for incorporated societies to be aware of in our article here and provided a lot of detailed information in the form of articles and seminars here. Contact us for a copy of our comprehensive handbook.

This article will discuss when all of these changes start to affect your society.

Timing of the new Act

The old Act is still in force, with the new Act coming into force in stages up until the transition date. Clause 3 of schedule 1 of the new Act explains that the transition date is the later of 1 December 2025 and the date that is two and a half years after clause 4 comes into force. Companies Office guidance suggests the transition date will be April 2026.

An application for the incorporation of a society under the old Act may not be made after clause 4 of schedule 1 of the new Act commences. This clause will commence any time between now and 5^th October 2023 per section 2 of the new Act. Under clause 2 of schedule 1 of the new Act, a society which does not register under the new Act by the transition date will cease to exist from that date. Companies Office has also released guidance here.

As part of the changes under the new Act, every society will be required to reregister under the new Act (which we discuss in some detail here). Companies Office has advised that as long as a society’s constitution complies with the old Act, a society can make changes to its constitution that reflect and include references to the new Act. This means that your society can start to think about what changes it will need to incorporate into its constitution now in preparation for the new Act. This is something we can help you with, as we have already helped many societies update their rules to reflect the new Act.

Although the new Act is not yet in force, we encourage you to begin discussions with your society around the changes in the new Act. It will take time to agree to the required changes for your society’s constitution, and you may even find that a society is not the best legal vehicle for you (find out more here).

Summary

We have been helping societies amend their rules for the new Act and would be happy to discuss your situation with you, especially when it comes to amending your society’s constitution so it meets the requirements set out in the new Act. You can contact us any time by email or phone.

We have many more resources at this page dedicated to the Incorporated Societies Act 2022.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Steven Moe, Partner – stevenmoe@parryfield.com
Yang Su, Senior Solicitor – yangsu@parryfield.com
Michael Belay, Solicitor – michaelbelay@parryfield.com
Sophie Tremewan, Solicitor – sophietremewan@parryfield.com

Kia ora all,

Thanks to our speakers last Friday we had a great session which you can listen back to here:

From 4:24, Kate Frykberg shared reflections on her journey: “Missteps and learning: personal experiences of Pākehā organisations wanting to support Māori aspirations and learnings along the way…” This was so powerful, we needed an hour to hear more! Powerpoint attached. More on her work https://kate.frykberg.co.nz/
From 18:53, Sue Barker shared about her report which is now released and available here looking at Charities Law Reform and what a world leading framework would be. Slides attached and note an upcoming workshop on the topic on 22 June – link below.
From 33:24, Justin Stevenson shared about whether governance in Charities is harder than in for profit companies then we had some discussions in breakout rooms – really interesting topic to consider and will share the article he mentioned when it comes out!

Next call? – Well, because of the new Matariki holiday (hooray) which is the last Friday in June – will meet again on Thursday 23rd at noon. If you want a meeting invite, let me know. Lined up to speak is Nicola Nation the CEO of The Ākina Foundation, and another person is being confirmed.

Previous calls are all here: https://www.parryfield.com/aotearoa-impact-sector-updates/ It is a good resource point to hear from others – last time we heard from Kirsten Patterson (KP) the Chief Executive of the Institute of Directors of New Zealand (IOD), Maria English the CEO of Impact Lab and Ros Rice the Executive Officer of Community Networks Aotearoa. The session before that was Sue McCabe the CE of Philanthropy New Zealand | Tōpūtanga Tuku Aroha o Aotearoa, Kaye Maree Dunn sharing about He Kōrero podcasts focus on Te Tiriti o Waitangi and Michelle Berriman the Executive Director of Fundraising Institute of New Zealand.

In June 2012 we posted an article highlighting the importance of employers, who want to rely on a 90 day trial period, ensuring that all new employees sign their employment agreement containing the trial period before their first day of work. The Employment Court has now set out a further requirement, namely that trial periods in employment agreements must be provided to prospective employees at the same time as, and as part of, making an offer of employment to the proposed employee in order for an employer to rely on them.

In Blackmore v Honick, the employee was offered employment in writing and accepted such in writing (by email). The written offer set out a number of the terms of employment and stated that a written contract, containing those terms, would be provided to the employee after he accepted the position. No mention was made of a trial period. He subsequently resigned from his previous employment and commenced work with the employer. At that time (shortly after he started work) he was presented with an employment agreement containing the trial period which he signed. Some time later but before the end of the 90 day trial period, the employer terminated his employment in reliance on the trial period.

The Employment Court subsequently held the employer could not rely on the trial period when dismissing the employee as the employee was already an employee when he signed the agreement.* The Court stated that, in the context of a trial period, an employment relationship begins as soon as an employee is offered and accepts employment. As the employee had accepted the job offer prior to signing the employment agreement, he was not bound by the trial period contained in it.

The Court held further that, in general, in order for employees to be regarded as not having been previously employed by an employer, the trial period must be agreed in writing before the employee begins work. More particularly, trial periods in employment agreements must be provided to prospective employees at the same time as, and as part of, making an offer of employment to the proposed employee in order for an employer to rely on them.

The further moral of the story therefore is if you, as an employer, want to safeguard your ability to rely on a 90 day trial period, make sure that any offer of employment to a new employee is accompanied by something in writing (preferably the employment agreement) setting out the inclusion in the offer of a 90 day trial period, and its scope/terms.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Hannah Carey, Senior Counsel – hannahcarey@parryfield.com

* The Employment Relations Act provides that a 90 day trial period can only apply in respect to new employees.

The law around 90 day trial periods continues to develop. We have previously posted articles on the importance of having an employee sign their employment agreement before their first day of work and also agreeing to a trial period before accepting an actual offer of employment.

A recent case – Allan v Mobile Shop Limited & Anor [[2012] NZERA Auckland 430; 30/11/2012; R Larmer] – has now confirmed the importance of also ensuring a prospective employee is given a real and reasonable opportunity to obtain legal advice on their employment agreement, including the trial period, prior to signing the agreement. If an employer does not, they may not be able to rely on the trial period, even if they have met all other pre-requisites.

The Facts

In the case, the employee claimed he was unjustifiably dismissed from his employment. One of the employer’s arguments was that the employee was prevented from raising a personal grievance due to the 90 day trial period in his employment agreement.

The employee was offered employment but it was not until approximately 2 week’s later that an employment agreement was signed. He then signed the agreement within 20 minutes of receiving it from the employer and was not advised of his right to seek independent legal advice. He started work the next day. His employment was later terminated on the grounds of poor performance.

The Outcome

The Employment Relations Authority considered that the dismissal was procedurally and substantively unjustified for a variety of reasons. Despite there being a trial period in the employment agreement that complied with the Employment Relations Act 2000, the Authority decided that the lack of time given to the employee to seek independent legal advice on the terms of the agreement prior to signing it meant that the trial period clause should be struck out of the agreement.

The Authority confirmed that there is an obligation on an employer to provide a reasonable opportunity for an employee to take independent advice, even if the employee freely wants to sign the agreement immediately and without taking advice. In addition, starting work the day after signing an agreement suggested that there had not been a “real” opportunity to take independent advice/negotiate any terms.

The lessons to take away

If you want to protect your right to rely on a 90 day trial period when employing a new employee make sure:

• You give them a copy of their employment agreement containing the trial period at the time they are offered employment.

• They have a sufficient amount of time after that to take independent advice on the agreement/negotiate its terms with you, if they so choose. In other words, make sure the agreement is not given to them just before they are due to start work!

• They don’t just sign the agreement immediately, even if they want to. You may need to insist that they take the agreement away, unsigned, to be returned at a later date.

This article is not a substitute for legal advice and you should consult your lawyer about your specific situation. Please feel free to contact us at Parry Field Lawyers:

Hannah Carey, Senior Counsel – hannahcarey@parryfield.com

Stress claims at work arise in a variety of situations. Read more

We had a great call at the end of April 2022 and here is the video and the index of each of our speakers.

00:00 – Introduction to call and a few updates

05:09 – Kirsten Patterson (KP) is the Chief Executive of the Institute of Directors of New Zealand (IOD) – was great to hear more about this organisation that has 10,000 members and some of the resources available on their site and the initiatives and training and conferences they run. https://www.iod.org.nz/#

15:52 – Maria English the CEO of Impact Lab – was good to learn background to the work they do in helping organisations measure impact and how they go about doing that https://impactlab.co.nz/

27:22 – Ros Rice the Executive Officer of Community Networks Aotearoa sharing about their recent initiative to provide governance training “Tick for Governance” in the form of a series of 10 modules at a reasonable price – including the first one being free – and loved hearing about the whimsy in the videos https://www.communitynetworksaotearoa…

44:38 – Final thoughts

Christchurch CBD

Christchurch

Rolleston

Hokitika