The Accredited Employer Work Visa (“AEWV”) will be introduced on 4 July 2022 to reduce exploitation and encourage employers to train, upskill and hire New Zealand workers before hiring migrants.

It will replace six temporary work visa categories:

  • Essential Skills Work Visa – will close on 3 July 2022;
  • Essential Skills Work Visa – Approval in Principle – will close on 3 July 2022;
  • Talent (Accredited Employer) Work Visa – closed on 31 October 2021;
  • Long Term Skills Shortage List Work Visa – closed on 31 October 2021;
  • Silver Fern Job Search Visa – closed on 7 October 2021; and
  • Silver Fern Practical Experience Visa – closed on 31 October 2021.

Before hiring a migrant on the Accredited Employer Work Visa, an employer will have to:

  1. apply for accreditation under the new system – “the Employer Check”;
  2. apply for a job check to make sure the role they want to fill cannot be done by New Zealanders – “the Job Check”; and
  3. request a migrant worker to apply for a visa – “the Worker Check”.

The Employer Check

Any employers accredited under the current system (i.e. in relation to the Talent (Accredited Employer) Work and Resident Visas) will have to apply and meet the policy requirements of the new accreditation system, if they want to hire migrants on the new AEWV.

There are 3 types of accreditation:

  1. Standard – to hire 5 migrant workers on AEWVs at any one time;
  2. High-volume – to hire 6 or more migrant workers on AEWVs at any one time; and
  3. Other – in relation to Franchisees and Labour Hire Companies.

An employer is able to apply for accreditation now.

The Employer Check – Standard Accreditation

ALL employers who want to hire migrants on AEWVs have to meet the standard accreditation requirements, which are as follows:

  1. Must be a genuinely operating business, i.e.:
  • Must be registered as an employer with IRD; and
  • If the employer is a partnership or sole trader, the business owner(s) must not be bankrupt or subject to a No Asset Procedure;
  • AND
    • have not made a loss (before depreciation and tax) over the last 24 months; OR
    • have a positive cash flow for each of the last 6 months; OR
    • have sufficient capital and/or external investment (for example funding from a founder, parent company or trust) to ensure the employer’s business remains viable and ongoing; OR
    • have a credible, minimum two-year plan (for example by having contracts for work) to ensure the employer’s business remains viable and ongoing.

“Viable and ongoing” includes being able to:

  • meet financial obligations such as paying wages or salaries and all other operating costs and expenses; and
  • purchase inventory (if relevant).
  1. Must not have a non-compliance record, i.e.:
  • Not be included in the Labour Inspectorate stand down list;
  • Must be compliant with immigration law and not be subject to a permanent ban following a conviction for an immigration related offence(s);
  • Not be prohibited from being a director; and
  • Must not be a phoenix company.
  1. Must take steps to minimise worker exploitation, i.e.:
  • Provide migrant workers with time to complete Employment Learning Modules;
  • Everyone who makes recruitment decisions must complete Employment Learning Modules;
  • Pay all recruitment costs inside and outside New Zealand, including advertising, agency fees, employer and job check applications, training and induction, health and safety equipment, and uniforms, BUT excluding airfares;
  • Provide migrant workers with work-related information (i.e. how to get an IRD number) and community assistance (i.e. how to open a bank account, find rental accommodation); and
  • Employer cannot receive a premium for employment, unlawfully bond the employee, nor make any unlawful deductions.

Immigration New Zealand’s fee to process a standard accreditation application is $740.

The Employer Check – High-Volume Accreditation

Employers who want to hire 6 or more migrants on AEWVs have to meet the standard accreditation requirements. Later, there may be a requirement to show that they have a commitment to train and upskill New Zealanders.

Immigration New Zealand’s fee to process a high-volume accreditation application is $1220.

If you have standard accreditation, however later want to hire 5 or more migrants on AEWVs, you can upgrade to high volume accreditation for a fee. That fee is $480.

The Employer Check – Other Accreditation

Franchisees:

  • Must meet the standard accreditation requirements;
  • Must have been operating for at least 12 months; and
  • Must have a history of hiring New Zealanders.

Immigration New Zealand’s fee to process a franchisee application is $1980.

Labour hire companies:

  • Must meet the standard accreditation requirements;
  • Must place migrants on AEWVs with “compliant businesses”. A “compliant business” is a business:
    • that has an NZBN;
    • that is not on the stand-down list; and
    • has declared that they do not have immigration-related issues;
  • Must have good systems to monitor employment and safety conditions;
  • Must have a 12 month labour contracting history; and
  • Must have at least 15% of the company’s labour workforce placed with third parties be New Zealanders in full-time employment (i.e. at least 30 hours a week).

Immigration New Zealand’s fee to process a labour hire company application is $3870.

For most employers, accreditation will be a simple and relatively low-touch assessment. However, Immigration New Zealand may request additional information to assess an application and may undertake monitoring during the accreditation period. If Immigration New Zealand is not satisfied an employer has continued to meet the requirements, the employer’s accreditation status may be revoked.

Therefore, we advise that you contact your lawyer to ensure you will meet the requirements and are compliant with immigration law and employment law.

Accreditation Period

When an accreditation application is approved by Immigration New Zealand, an employer will receive accreditation for 12 months.

At renewal, franchisees and employers that want to place migrants on AEWVs with third parties will be granted accreditation for a further 12 months, and all other employers will be granted accreditation for 24 months.

The Job Check

An employer can apply for a job check from 20 June 2022.

A labour market test is a genuine attempt to recruit New Zealand citizen or resident.

The labour market test must be met for all jobs, except where the remuneration for the proposed employment is $55.52 per hour or above, or the equivalent annual salary, or where the role is on the Green List.

A labour market test will be valid for six months from the date that it is approved or until the employer no longer holds accreditation, whichever is earlier.

The Worker Check

The worker must meet:

  • Character requirements, for example, not have been sentenced to a prison term of 5 years or more;
  • Health requirements, for example, be unlikely to impose significant costs or demands on New Zealand’s health services or special education services; and
  • Credential and experience requirements.

Remuneration

The remuneration for the proposed employment must be at or above the median wage, which will be $27.76 per hour, and must not be less than the New Zealand market rate of pay for that occupation.

Where other skills or specifications are needed to perform the job that are not described in the ANZSCO occupation, the remuneration offered must reflect those requirements by being above what would otherwise be the market rate for that job.

However, specific jobs in construction and infrastructure, tourism and hospitality, and care workforce sector are exempt from the median wage threshold

Currency of AEWVs

An AEWV may be granted for the period for which the employment is offered, up to a maximum of:

  • 3 years for employment paid at or above the median wage; or
  • 2 years for employment paid below the median wage, unless a 2 year visa would result in the holder exceeding the maximum period allowed under the stand-down settings (which is 2 years).

Where the grant of a 2 year visa for employment paid below the median wage would result in the holder exceeding the maximum period allowed under the stand-down settings (which is 2 years), the visa may only be granted for the remainder of the maximum period.

Processing Timeframes

The estimated application processing timeframes are:

  • standard and high-volume accreditation – 10 working days
  • job check – 10 working days
  • migrant check/AEWV – 20 working days

Please note that this is not a substitute for legal advice and you should contact your lawyer about your specific situation.

If you would like to start the application process for accreditation and job check process, please feel free to contact us on 03 348 8480 or by email to immigration@parryfield.com.

10 June 2022

When an employer is considering making an employee(s) redundant, there are three key steps they need to get right:

  1. Following the terms of the employee’s employment or collective agreement and, in particular, what it says about making employees redundant.
  2. Making sure that the reasons for the redundancy are “genuine”, rather than, for example, simply a cover to remove an underperforming employee. In other words, being able to demonstrate that any redundancy is genuinely justified on the basis of valid commercial grounds.
  3. Following a fair and reasonable process.

At the centre of this is being clear from the start about why a redundancy may be needed in the first place.

This may seem obvious but not infrequently we see employers coming unstuck at this point.  They are unclear and/or imprecise, sometimes in their own minds but, more frequently, when communicating with the employee, about why exactly they are proposing to remove a role and what evidence they are relying on to back up that proposal.

The law is clear that it is not enough for an employer to say or show that it genuinely believes a redundancy is required.  While an employer is entitled to make their business more efficient, whether or not the business is in financial dire straits or not, an employer must still:

  1. Be able to clearly advise the employee, and with sufficient detail, about what the relevant issues are, giving rise to a possible redundancy;
  2. Provide the employee with accurate evidence substantiating those issues; and
  3. Give employees a real opportunity to be able to comment on those issues and, in particular, put forward alternative proposals if they are able to.

This means that, in general, it is not enough to simply advise the employee in broad, imprecise terms, as to why a redundancy is proposed.  For example, to simply say that the employer has reviewed the business and redundancies are necessary to “streamline” the business, improve efficiencies or to save costs.

While those – making a business more efficient or saving costs – can be valid reasons for a restructure, the employee is entitled to know more on the how and why.  The courts have been clear that:

“there must be made available to the other party sufficient information to enable it to be adequately informed so as to be able to make intelligent and useful responses” or, put another way, there must be “the provision of sufficient information to fully appreciate the proposal being made and the consequences of it and, secondly, an opportunity to consider that information and, thirdly, a real opportunity to have input into the process before a final decision is made.”

Consequently, in the example given, this may include providing information on:

  • What the employer’s review of the business showed? What issues were revealed?  For example, “over the past 6 months, we have experienced an X% downturn in work in these areas.  This is as a result of the loss of the X and Y contracts, which, on re-application, were re-tendered to Z Group.  The effect of this on the company is that revenue has dropped over the same period by an average of by X% and productivity by X%.  We are anticipating that these figures will continue over the next Y months because ….” 
  • The evidence the employer has that demonstrate those issues, such as current and projected revenue or productivity figures?
  • What does the old and new employee structure look like under the restructuring proposal? For example, are other roles proposed to be removed? Who will undertake the employee’s existing role (if the duties under it are still required by the employer)?
  • How would removing the employee’s role help address the issues identified by the employer?
  • Have any options, other than removing the employee’s role, already been considered?
  • Could the employee be redeployed?

In our experience, where employers get this right, it reduces an employee’s disquiet and, consequently, the likelihood of an employment relationship issue arising.  It also helps employers make better decisions, more accurately identifying what changes are actually needed and how best to implement them.

Finally, there are some limits on the information employers are required to provide employees.  For example, information which would breach the Privacy Act 2020 or commercially sensitive material, the disclosure of which would unreasonably prejudice the employer’s commercial position.

In these cases, certain information may need to be redacted, before being provided to the employee or, in some circumstances, there may be grounds to withhold particular information altogether.  We recommend however that employer gets advice before doing so.  It is not enough for an employer to simply say they believe withholding information is necessary.  That decision can also be scrutinised and will need to “stack up”.

This article is not a substitute for legal advice and you should contact your lawyer about your specific situation. We would be happy to assist you with your employment matters.

Please feel free to contact Mike Henderson-Rauter at mikehenderson-rauter@parryfield.com or Hannah Carey at hannahcarey@parryfield.com.

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:

* 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:

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

Are you an employee looking to take a period of parental leave or, alternatively, an employer who has an employee intending to do so? You may be wondering what your entitlement or obligations are.

In this article we consider an employer’s obligation to keep open an employee’s usual job until the end of the employee’s parental leave unless certain circumstances apply.

 

The Law

Under section 41 of the Parental Leave and Employment Protection Act 1987 (‘the Act’), when an employee takes a period of parental leave in excess of 4 weeks, the Employer is presumed to be able to keep open the employee’s usual job until the end of the employee’s parental leave.

This is unless the employer “proves” that the employee’s position cannot be kept open because:

  • a temporary replacement is not reasonably practicable due to the “key position” occupied by the employee within the employer’s enterprise; or
  • of the occurrence of a redundancy situation.

This article considers what is meant by a “key position” and not “reasonably practicable”.

Key Position

The Act provides that, in determining whether a position is “key” or not, regard may be had to, amongst other things:

  • the size of the employer’s enterprise; and
  • the training period or skills required in the job.

Cases which have considered this section provide further clarification:

1. The words unless the employer “proves” that the employee’s position cannot be kept open places a heavy onus on the employer (to establish this fact).

2. The rights of the employee are intended by the Act to outweigh the rights of the employer unless the employer can meet the required onus.

3. A key position is one which is of such a crucial and pivotal nature to the efficient operation of the   employer’s business that it is required to be filled on a permanent basis.

It has been suggested that, where a person with elementary skills is employed in a large organization, it will be more difficult to prove that they occupy a “key position”.

However, the position may be different where the organisation is a small one or where the employee possesses specialist skills or training.  However, even in either of those cases, the employer must still demonstrate that the position can only be filled on a permanent basis due to the nature of the position itself.

In one case, a mid tier bank employee in a small New Zealand town was held to occupy a “key position” as she was a skilled employee whose role required a lengthy period of training, such skills and training being required for her position.

However, in a number of other cases, employees have not been found to occupy “key positions”, including a librarian, legal adviser and personal assistant to a Chief Executive.

4. A position can qualify as “key” but it may still be “reasonably practicable” to temporary replace that employee.

For example, where an employee within an organization could be temporarily transferred to cover the period of leave, the employer could not establish that a temporary replacement was “not reasonably practical”.  This was even though the employee taking leave occupied a “key position”.

Not reasonably practical to replace

1. When considering whether it is “reasonably practicable” to replace the employee temporarily, the question is not a subjective one (i.e. what the employer believes is practicable).

Instead, the test is an objective one – what a reasonable person, standing in the shoes of the employer, would conclude.

2. The test is not whether it would be impracticable or inconvenient to temporarily replace the employee with another employee for the period of leave.

Instead, the focus is on the level of skill required for the position and the size of the employer [that makes it necessary that the position only be filled on a permanent basis].  Any difficulties with replacing the employee, including operational inefficiencies, costs, or finding a temporary replacement, are not relevant unless they are due to the nature of the position itself.

In one case, for example, the fact that the employer was losing several of its staff at the same time, thereby putting remaining staff under pressure while new staff underwent training, was not held to be sufficient to demonstrate that the employee held a “key position”.

Likewise, difficulties in finding a person willing and able to replace an employee on a temporary basis did not suffice as it would have still been reasonably practical to fill the position if a temporary replacement had been available.

Further, in another, the fact that a temporary employee had previously provided leave cover precluded the employer successfully arguing subsequently that it was not practical to fill the position temporarily.

In summary therefore, the wording of the Act, together with subsequent case law, makes it clear that in many cases it is likely to be difficult for an employer to establish that they cannot keep an employee’s position open for a period of parental leave.

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:

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.

All incorporated societies will be required to reregister under the new Act, so it is a chance to revisit all aspects of these organisations. Section 26 of the new Act sets out what a society’s constitution must contain. This is important as the society’s constitution must comply with the new Act in order to reregister. We have detailed notes on the reregistration process here and are helping many comply with the requirements.

In a series of six articles we have set out the key requirements for your society’s updated constitution, as prescribed by section 26 of the new Act. This article will discuss what your constitution needs to provide in relation to general meetings.

General meetings

The new Act expands on the old Act in setting out several requirements for general meetings, which must be included in the society’s constitution. The requirements for general meetings are in sections 84 to 93 of the new Act. We have canvassed below the key elements of the new Act to be included in a society’s constitution.

Timing of annual general meetings

The intervals between annual general meetings (“AGMs”) must be set out in the society’s constitution. Under section 84 of the new Act, a society must call an AGM no later than 6 months after the society’s balance date and no later than 15 months after the previous AGM. There is an exception to this rule for a society which is newly incorporated – a society does not have to hold its first annual general meeting in the calendar year of its incorporation but must hold that meeting within 18 months after its incorporation. Logically this would only apply to a newly incorporated society, not a society who is reregistering under the new Act.

Procedure at annual general meetings

Unlike the old Act, the new Act is prescriptive and requires the constitution to provide for the information that must be presented at general meetings. As set out in section 86 of the new Act, the required information is:

  • an annual report on the operations and affairs of the society during the most recently completed accounting period;
  • the society’s financial statements for that period; and
  • notice of the disclosures and types of disclosures made under the duty of officers to disclose when they are interested in a matter under section 63 during that period, including a brief summary of the matters or types of matters disclosed. We have more information on the conflict of interest disclosure procedure here.

Under section 84 of the new Act, minutes are required to be kept for AGMs. This requirement must be included in the society’s constitution.

Passing of resolutions

Under the new Act, a society’s constitution should include whether, and if so, how resolutions may be passed in lieu of a general meeting. If the constitution allows for a resolution to be passed in lieu of a meeting, then sections 89 to 92 of the new Act will apply.

How meetings are called

Similar to the old Act, the new Act requires the society’s constitution to provide for the manner of calling general meetings. The new Act also requires the society’s constitution to include the time within which, and the manner by which, notices of general meetings and notices of motion must be notified. The society’s constitution must also provide for the quorum and procedure for general meetings (including for example whether votes may be cast by electronic means), including voting procedures, procedures for proxies (if any), and whether the quorum takes into account the members present by proxy or casting postal votes or votes by electronic means.

The society’s constitution must also include the arrangements and requirements for special general meetings under section 64(3), unless that provision has been negated under section 67. Section 64(3) requires a special general meeting of the society to be called to consider and determine a matter which half or more of the officers are prevented from voting on. You can find a full discussion of these sections and the conflict of interests procedure in our article here.

AGMs and meetings are important for an incorporated society – they are one of the key differences from other entities, so it makes sense that there are rules about them which had been lacking before.

Summary

With the new Act comes a lot of changes to the requirements for an incorporated society’s constitution. We have helped many incorporated societies over the years 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 a lot 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:

More from this series

The new Incorporated Societies Act 2022 and your constitution: What has changed for membership?

The new Incorporated Societies Act 2022 and your constitution: What has changed for governance?

The new Incorporated Societies Act 2022 and your constitution: Amendment procedures

The new Incorporated Societies Act 2022 and your constitution: Dispute resolution procedures

The new Incorporated Societies Act 2022 and your constitution: Name, purposes and winding up

Welcome to the White Paper that you can download here: The Decentralised Revolution: Understanding the potential of Blockchain, DeFi, Crypto, DAOs, NFTs and the Metaverse to drive innovation, creativity and new paradigms“.

Sparked by the Reserve Bank of New Zealand issues papers about the future of money it uses that as a launching point to take a higher level perspective of what the future might look like. The paper is divided as follows:

  • Introduction
  • Part I: Getting Definitions Right
  • Part II: So what are we really talking about?
  • Part III: What is the Potential?
  • Conclusion: What should we be talking about?

Download it here.

Or the audio of this is here:

If you have thoughts feel free to email me steven@theseeds.nz

Steven Moe

Covid has caused many to question where they work, and why.

Some of you reading this are thinking of finally launching into that dream you’ve long buried, either as side hustle or full time.

In our experience, many times people don’t get things right at the start.  But they could – easily…

Here are the top 5 things you should do before you get too far down the road.

  1. Check that name – your name will be valuable but often we see people not checking if someone else already is using it.  This can be most demoralising if you spend 6 months working on a project only to find that domain name is taken, a trademark exists or a large company is using the same name (and would likely sue you if you try to as well).  The roadmap advice?:  Spend only 20 minutes and you can accomplish a lot by searching onecheck, a government website that will look through the most important databases – try it here.
  2. Structure yourself – think early about what structure is going to match the impact you want to have.  Is it best to be a sole trader, a company, a partnership, a charity … just like buying a car there are lots of ‘legal vehicles’ to choose – upskill yourself on whether you need a 4×4 or a 7 seater so that you can best accomplish your mission.  The roadmap advice: Read through guides on options for start-ups like this one.
  3. Co-founder blues: Everything will be fine with your co-founder at the start.  Pop that champagne!  But how about 6 months in?  How about 2 years in?  How well do you really know these people … and what if you are working 80 hour weeks on your dream and they have a full time job and are clearly only putting in 4 hours a week – what then?  The roadmap advice: Document how you will relate to each other, this is most often done in a Founder Agreement / Shareholders’ Agreement.  Incentivising each other can be done via share vesting agreements that require contribution.
  4. Protect your IP: Intellectual Property is going to be key to your venture – so how will you protect it?  It is pretty cheap to trademark your name but what about that innovation sitting in your head?  Sometimes it is worth trying to patent – often it is not.  Some of the most successful companies just keep things as a trade secret.  If you do that then how will you ensure when you talk to future customers or suppliers that they don’t take your brilliant idea?  The roadmap advice: Keep things secret, keep them safe – develop a non-disclosure agreement to use when you do go out (a free one is here).
  5. Raise that cash: Money is like the oil in the machine of a new start-up.  You’re gonna need it!  So where will you source it from?  There are rules about raising money from others and so you need to make sure that you comply with the Financial Markets Authority.  The key is to come within exemptions wherever possible that mean you will not need to disclose as much information to investors as you will otherwise.  The roadmap advice: Understand the ins and outs of raising funds, to start with have a read of this guidance.

We hope this list of key things to consider will help lay the foundation for you to build a successful new start-up on.  We have seen too many times where entrepreneurs do NOT do some of these things and a few months or years in they have quite a few regrets as a lot of this is fairly simple to just get right from the start.

For more information, please feel free to contact Steven Moe stevenmoe@parryfield.com or 021 761 292 or Aislinn Molloy  aislinnmolloy@parryfield.com .  We also have free resources for start-ups, boards and companies including a “Start-ups Legal Toolkit” which covers the key issues we see people face when starting out.

Our thanks to Kate Frykberg who has written this Guest Blog post for us – you can find out more about the work she does here. https://kate.frykberg.co.nz/=

If you are unsure how the philanthropic sector in Aotearoa NZ is organised and works, you are in good company.  It is a bit confusing, even for those of us who work in it.

Here is my take on the different kinds of philanthropic giving, including where the money comes from and how it operates, as well as some considerations and tips for grant seekers.

The different kinds of philanthropic funders

Overall, philanthropic funding tends to fall into the following categories:

  • Personal Giving: Most of us give money to good causes, perhaps on a small scale like a donation to an online appeal, or perhaps on a large scale, like supporting the redevelopment of a children’s hospital.  And it is something that we can do any time – even, through making a bequest in our will, after we are dead.  Individual giving has historically been the largest single source of community funding.
  • Private trusts and foundations: eg Tindall FoundationJR McKenzie TrustTodd FoundationNEXT Foundation. Essentially this is a larger scale and more intentional, organised, transparent and accessible version of individual giving, where wealthy families or individuals set up a charitable organisation specifically to provide funding for good causes.  Often the money is given out in the form of grants, which are financed through the income earned from an endowment fund that is invested and designed to last for generations.  Some foundations operate on a “spend-down” model where a large sum of money is progressively given to the community until none remains, and sometimes the money may come from annual donations from family members.  Some family foundations operate nationally and some regionally.
  • Community Foundations, Donor Advised Funds and Trust companies eg Acorn FoundationAuckland Foundation, the Gift TrustPerpetual Guardian and Public Trust.  These organisations provide a shared infrastructure both for managing giving from estates after the donor has passed on, and for people with some wealth who don’t want to set up their own foundation.  Services usually include both managing the investments and supporting grant making.  The seventeen Community Foundations  and the Gift Trust are non-profit models, while Trust Companies like Perpetual Guardian and Public Trust are commercial organisations.
  • Statutory Trusts:   These are grant-giving organisations which are set up via various acts of parliament and/or are administered by government agencies.  Aotearoa NZ is unusual internationally in that we have a significant number of statutory trusts, which are in turn responsible for a significant portion of philanthropic funding. They include:
    • Community Trusts: like Foundation NorthRata Foundation and Wellington Community Trust.  These trusts were set up when the regional Savings Banks were sold in the 1980s and 1990s.  The proceeds of these sales were invested, and the annual income generated is given as grants to communities, with each Community Trust focusing on the region in which their Trust bank operated.  Here are twelve community trusts operating across Aotearoa.
    • Energy Trusts: like Rotorua Energy Charitable TrustTECT.  These trusts were set up in the 1990s, when the electricity supply authorities (e.g., local power boards) were restructured. There are 24 Energy Trusts in Aotearoa, although some support their communities through energy rebates rather than grants.  Like Community Trusts, they also operate on a regional basis.
    • Gaming Trusts: eg Lion FoundationNZ Community TrustPub Charity.  These are technically statutory trusts however their funds come from the proceeds of gaming machines (pokies).  Gaming Trusts are required by law to distribute at least 40% of gaming machine proceeds to the community.
    • Government-administered grant schemes: eg Lottery Grants BoardCommunity Organisation Grants Scheme (COGS).   Some grantmaking is administered directly by government agencies, and in particular the Department of Internal Affairs is responsible for a considerable number of funds, including the Lottery Grants, which distributes funds from the sale of lotto tickets.  Many other government departments also provide grant schemes alongside funding provided through contracted services.
  • Corporate Foundations and Business Giving:  e.g., Vodafone FoundationMAS Foundation.    Unlike business sponsorship, where there is usually an expectation of direct benefit to the business from funding provided, some businesses set up corporate foundations which manage their giving in much the same way that a family foundation might.  Other simply give directly to community causes.  The benefit to the business is indirect, through demonstrating commitment to the community and through being a good corporate citizen.

The above is not a definitive list but it covers most of the different kinds of philanthropic organisations in Aotearoa NZ.  My acknowledgements to BERL, as the categorisation above is based on their research released in 2015 into the Philanthropic sector.

Other considerations

Here are two additional considerations:

  • The terms used are often not very helpful. Take for example the word “foundation.”  As Wikipedia notes, a “foundation is category of nonprofit organization or charitable trust that typically provides funding and support for other charitable organizations through grants….However, the term “foundation” may also be used by organizations that are not involved in public grantmaking”.  So, if an organisation calls itself a foundation, the chances are that they provide grants to the community, but there are many examples, e.g., university and hospital foundations, which are endowment funds designed to specifically benefit the organisation which set them up.  Similarly, a public grantmaking organisation may choose to call themselves a Trust rather than a Foundation.
  • There is a joke which goes “If you have seen one funder…. you’ve seen one funder”.  In other words, it is difficult to make generalisations about what funders want or how they think, because every funder works differently.  Some are transparent (see my previous blog on funder transparency) and community focussed, some less so.  But, thanks largely to the good work of peak body Philanthropy NZ, more funders are actively exploring their role to support communities well, particularly those who choose to be members of Philanthropy NZ.

Top tips for grant-seekers

So yes, the philanthropic sector is a confusing one.  What does this mean for community sector organisations looking for funding?  Here are my top tips:

  1. Look for a good fit between what you do and what the funder focuses on.  It is a waste of everyone’s time to apply for funding when there is no alignment in what you are both trying to achieve.
  2.  Try to have a conversation before applying.  Often funders are willing to provide informal advice about potential applications.
  3.  Look at who they have funded & how much they gave.  If a funder only supports  arts organisations and you are working on environmental projects, it is probably not worth applying.  Similarly, if their average grant size is 10k and you are looking for 250k, again it is probably not worth applying.
  4.  When writing grant applications, try to pitch them to an audience who:
    •  Don’t have much time – in other words, keep in succinct
    •  Are not experts in your field – in other words, keep it simple and clear.
  5.  Try to build honest, reciprocal relationships with funders.  The best funding relationships are those where we both give and receive feedback and where we can be honest about both our challenges and triumphs.

If you would like to discuss this you can contact Steven Moe stevenmoe@parryfield.com,  Aislinn Molloy aislinnmolloy@parryfield.com or Michael Belay michaelbelay@parryfield.com at Parry Field Lawyers.