Business - Parry Field Lawyers

The term ‘director’ usually refers to people formally appointed to a Board. However, some people who are not formally appointed may operate as ‘deemed directors’ or ‘shadow directors’. They are increasingly likely to be treated by the law in the same way as formally appointed directors.

Justice Millett in a well-known case said a ‘de facto’ director “… is one who claims to act and purports to act as a director, although not validly appointed as such. A shadow director, by contrast, does not claim or purport to act as a director. On the contrary, he claims not to be a director. He lurks in the shadows, sheltering behind others who, he claims are the only directors of the company to the exclusion of himself.”[1]

Justice Millett’s description is perhaps a little cynical. Some shadow directors may be trying to avoid the accountability that attaches overtly to appointed directors, while others may be quite open about the influence they have on directors and boards.

What does the Companies Act say? What matters is that de facto and shadow directors are captured in the Companies Act definition of ‘director’ as a person in accordance with who directors or instructions the board of the company may be required or is accustomed to act. This means that whether or not they regard themselves as directors, these ‘deemed directors’ may be held accountable as though they were directors for any breaches.

Who might this capture? Looking at the definition, whether or not a board is “required or accustomed to act” for a deemed director is a matter of fact. The court will look at any evidence that shows a pattern of behaviour that amounts to directors being “accustomed to acting” on a deemed director’s instruction.

One legal commentator has suggested that the statutory wording of “required to” might extend the accountability net to include people who can be shown to have exercised control over the board even without a pattern of behaviour,[2] although this has not yet been tested in court.

An example in practice could be a large shareholder who is not a director but who behind the scenes is directly what the Board does.

Key points to note:

Parliament implemented this definition intentionally. It makes sense that if deemed directors have been instrumental in action or inaction that breaches directors’ duties, they too should be held accountable; perhaps even more so if they did this to avoid attention and liability.
Boards often rely on the professional advice from lawyers or accountants. It is important that relationships with advisors are purely advisory in nature and that directors or boards are not controlled or directed by the advisors.
If you are a shadow director, or your company has a relationship likely to be deemed a shadow director, be aware of the implications. One question to ask might be whether or not shareholders are aware of the shadow director, and if not, why not. Should the person just be appointed?

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[1] Re Hydrodan (Corby) Ltd [1994] 2 BCLC 180 Ch, at 183.

[2] Taylor Lynn “Expanding the pool of defendant directors in a corporate insolvency: the de facto directors, shadow directors and other categories of deemed directors” New Zealand Business Law Quarterly 16(2) Jun 2010:203.

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If you have any further queries please do not hesitate to contact one of our experts at Parry Field Lawyers- stevenmoe@parryfield.com, yangsu@parryfield.com, sophietremewan@parryfield.com, or annemariemora@parryfield.com

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source.

Most people have heard of resolutions for companies, but at certain times the Companies Act 1993 (the Act) requires companies to issue certificates. We were recently asked what certificates are, when they need to be issued, and how certificates differ from resolutions. These are great questions and we answer them here so more people can have the information.

Both resolutions and certificates are important for appropriate decision-making, due process, and to ensure good governance.

What is a resolution?

In meetings (or via email if a decision is needed outside of a meeting), decision-makers will typically discuss something and make a decision. A resolution is the record of that decision. Resolutions must be recorded in the minutes. Schedule 3 of the Act provides a good overview of what is required for board meetings. It is common for company constitutions to include more detail and process around company meeting obligations.

When are resolutions needed?

It is advisable to record all important director decisions as resolutions. One important situation requiring a resolution or contingent on approval by special resolution is when a company wishes to enter into a major transaction. This might relate to the acquisition or disposition of assets the value of which is more than half the value of the company’s assets before the acquisition or disposition.

Resolutions are also needed in many other situations, including when adopting a constitution, deciding on the consideration for which shares will be issued, or deciding to exercise an option to redeem a share.

What is a certificate?

A certificate is more formal in nature than a resolution and sets out information which directors certify as being true. Certificates are only required in certain situations. Companies will make many more resolutions than they will issue certificates.

Certificates are typically required to be provided to the Companies Register where they will be publicly accessible. Anyone can do a search on an incorporated company. For example, a search of ‘documents’ for a large company will show many examples of certificates the company has provided to the registrar. The register promotes transparency and accountability, which is intended to help encourage good governance and discourage behaviour by directors that may harm shareholders.

When are certificates needed?

When certificates are required by the Act it is common that a resolution is needed first. For example, when directors are determining the consideration for the issue of shares they will vote and there will be a resolution. Only then are they able to sign a certificate and provide that to the Registrar.

Some other examples of when certificates are typically needed include:

When the board passes a resolution for the issue of options or convertible financial products, an offer to acquire shares, or for distributions to shareholders
When the company is amalgamating with another company
If the company has a listing agreement with a stock exchange, after the registration or a transfer of company shares
When a director is appointed or removed
If authorising a payment, benefit, loan, guarantee or contract to a director
If authorising liability insurance for directors or employees.

Consequences of not issuing certificates:

Fines of up to $5,000 apply for failure to comply with the obligations to provide certificates for shares or failure to sign a certificate of solvency when necessary
The company must keep a copy of all certificates for the last 7 years at its registered office
Shareholders and any authorised person are able to give notice in writing to view certificates.

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If you have any further queries please do not hesitate to contact one of our experts at Parry Field Lawyers.

The Limited Partnership regime was introduced fairly recently in New Zealand through the Limited Partnership Act 2008. As such, limited partnerships may not be as familiar to Kiwi entrepreneurs and founders. In this article, we highlight a few of the advantages and disadvantages of choosing a limited partnership for your business structure. In our view, they represent a relatively simple structure which can really be useful in the right situation.

What is a Limited Partnership?

Limited partnerships are a corporate structure that combine some key features of companies (such as separate legal personality) and partnerships (such as tax pass-through treatment). In a limited partnership, on entity is the general partner(s) who manage(s) the limited partnership (day to day running) while other investors are limited partners who act as silent partners (see diagram below).

This structure is often used by venture capitalists or fund managers as the corporate vehicle for investor partners to invest their funds. For more information on the basic requirements of a limited partnership, along with a comparison of other structures, please see here.

Why choose a Limited Partnership?

Positive	Comment
Liability is ring-fenced	A limited partnership is a separate legal entity, and limited partners’ liability is restricted to contributed capital
Effective practical and legal control	Only general partners may manage the affairs of the limited partnership
Tax pass-through treatment	Tax consequences of the limited partnership pass directly to the partners
Privacy	Identity of limited partners and contents of partnership agreement do not have to be publicised

Why wouldn’t I choose a Limited Partnership?

Drawback	Comment
General partner is jointly liable with the limited partnership for the liabilities of the limited partnership	Often addressed by choosing a limited liability company to act as general partner, providing liability ring-fencing
More involved set-up	All limited partnerships require a written partnership agreement
Investors negotiate their rights and obligations	E.g. Right to remove/appoint general partner(s), exit rights, pre-emptive rights
Financial Markets and Conducts Act 2013	A partnership interest in a limited partnership may be a financial product requiring FMCA compliance

We have helped many founders and companies structure their business and each situation is unique. If you think a limited partnership may be a suitable option for your business, feel free to reach out if you would like specific input on your context.

If you enjoyed this content then we also have a guide for people doing business in New Zealand which you can download for free here.

There are many business structure options in New Zealand, including companies, partnerships and Trusts, and you want to be sure you are picking the right one. We frequently assist clients who are considering starting a business navigate the different business structure options to find what best suits their needs. The various business structure options each have their own pros and cons. What the best structure is for you will depend on your particular circumstance, desire and purpose.

The simple and easy structure which are well understood, such as a Company or Sole Trader, will work best for most businesses. If you are purpose driven, a Charitable Trust or Incorporated Society may be more appropriate. Increasingly we are also working with clients who want to merge both purpose and profits and for these clients we assist by creating unique dual structure approaches. In this article we have summarised the key points for the most common structures that are used in New Zealand. We are happy to meet and discuss options with you.

Two other critical points before we look at the options:

Get your strategy and purpose right before you decide on a legal entity type to use. Each one has positives and negatives so know what your end goal and the impact you want to see is first – after that look at which will help you get there. They are each just tools for empowering you to have impact.
Second, we are offering legal thoughts on key elements of these structures but there are other considerations too – in particular always ensure you get great accounting and tax input on the financial side of these alternatives.

Now turning to the options:

Company
Who	Owner = Shareholder Manager = DirectorThe owners may also be the manager
Liability	Is a separate legally recognised entity
Laws	The Companies Act 1993 governs companies
Who signs	The Director
If things go wrong	Companies limit liability for the owner*
Key documents	None required. Can choose to adopt a constitution or shareholders agreement
Visibility	Ownership and management is publicly visible on Companies Register
Difficulty to start	Moderate

* There are certain limited circumstances when the owners of the company may be liable. If the owners are also managing the company as directors, they are exposed to certain liability as managers.

Sole Trader
Who	Owned and managed by ‘sole’ owner
Liability	Not separate from entity
Laws	No specific law governs sole traders
Who signs	The owner
If things go wrong	The owner is personally liable
Key documents	None required
Visibility	Private and not registered
Difficulty to start	Easy

Partnerships
Who	Owner = the Partners Manager = the Partners manage
Liability	Not separate from entity
Laws	Partnership Law Act 2019
Who signs	Partners
If things go wrong	Owners are personally and jointly liable
Key documents	None required Can choose to have a Partnership Agreement
Visibility	Private and not registered
Difficulty to start	Moderate

* One owner can bind all owners.

Limited Partnership
Who	Owner = Limited Partner Manager = General Partner
Liability	Is a separate legally recognised entity
Laws	Limited Partnership Act 2008
Who signs	The General Partner
If things go wrong	The General Partner Limit liability for the owner**
Key documents	Requires a Limited Partnership Agreement
Visibility	Private for the Limited Partners, public for General Partner
Difficulty to start	High

* Each Limited Partner will account for tax in accordance with its individual tax position.

** If the owner participates in the management of the business, they will be liable.

Unincorporated Joint Venture
Who	Owners = Partners Management determined by the Joint Venture Agreement
Liability	Not separate from entity
Laws	Contract law, but no specific law governs Unincorporated Join Venture
Who signs	Each partner
If things go wrong	Partners separately liable or as decided by the Joint Venture Agreement*
Key documents	None required Can choose to have a Joint Venture Agreement
Visibility	Private and not registered
Difficulty to start	High

* Owner will account for tax in accordance with its individual tax position.

Trading Trust
Who	Owner = settlor/donor gives assets (trust fund) to the Trading Trust on trust for the benefit of the beneficiary Management = the Trustee Company, manages the trust fund and pass on benefits to the beneficiary
Liability	Not separate from entity, creates an equitable relationship
Laws	Trusts Act 2019 and Companies Act 1993
Who signs	The Trustee Company
If things go wrong	The Trustee Company
Key documents	Trust Deed
Visibility	Private and not registered
Difficulty to start	High

Charitable Trust
Who	Owners = settlor/donor gives property (trust fund) to the Charitable Trust to benefit the community through charitable purposes Management = Trustees manage the trust fund to advance the charitable purposes
Liability	Is a separate legally recognised entity
Laws	Trusts Act 2019 and Charitable Trust Act 1957
Who signs	The Trustees
If things go wrong	The Trustees
Key documents	Trust Deed
Visibility	Registered on Charitable Trust Register and if a registered charity on Charities Services
Difficulty to start	Moderate

Incorporated Society
Who	Management = the Committee manages the funds to advance the purpose
Liability	Is a separate legally recognised entity
Laws	Incorporated Society Act 2022*
Who signs	The Committee, but this depends on the Constitution
If things go wrong	The Committee
Key documents	Constitution
Visibility	Registered on Incorporated Societies Register and if a registered charity on Charities Services
Difficulty to start	Moderate

* This is a new Act which has recently come into force, for more information on the new Act and requirements see our Incorporated Societies Act 2022: Information Hub.

Co-operatives Companies
Who	Owner = Members/shareholders Governance = Directors
Liability	Is a separate legally recognised entity
Laws	Co-operative Companies Act 1996 and Companies Act 1993
Who signs	The Directors
If things go wrong	Companies limit liability for the owners
Key documents	Constitution
Visibility	Registered on Companies
Difficulty to start	Moderate

For lots more information on co-operatives visit Cooperative Business New Zealand – https://nz.coop/

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What is a Wholesale Investor?

Companies need money, it is the fuel for the engine of their growth. Very often they will get that money through issuing equity (shares to people who invest) or issuing debt (loans to people who provide finance). If you do either of these activities you are offering a financial product and captured by the Financial Markets Authority and their rules which state you need to provide extensive disclosure documentation to those investing – unless an exemption applies.

In this article we want to talk about two critical exemptions which we see are commonly used.

Wholesale Investors

A wholesale investor is essentially a person or an organisation with enough previous investing experience that they do not require disclosure documentation. Their experience is often shown by their investment activity, wealth and/or income. Wholesale investors can be exempted for all offers of financial products or only for some offers of financial products and the critical points to consider if you want to rely on this exemption are:

Is the investor an investment business, such as a financial adviser or a licensed insurer
Has the investor recently held or acquired financial products of aggregate value of over $1 million
What is the investor’s wealth – do their net assets exceed $5 million
Is the investor able and willing to certify that they are sufficiently experienced with the particular financial product you are offering
Is the investor subscribing for at least $750,000 worth of financial product

Crowdfunding

Another option is crowdfunding – using this exemption, you will have to work with an FMA licenced intermediary to raise the funds. The licenced intermediary will offer your equity, debt or other financial products to investors for you. You can use the crowdfunding exception in combination with other exclusions (such as the wholesale investor exclusion above and others which we touch on here), but there is a limit of $2 million in any 12-month period (which includes any ‘small offers’ in that time period).

The FMA has provided a helpful overview of various options and exemptions which you can access here.

We have helped many companies with their capital raising and each situation is unique so feel free to reach out if you would like specific input on your context.

雇主认证工作签证（“AEWV”）将于2022年7月4日推出，以减少剥削，鼓励雇主在雇用移民之前培训、雇用和提高技新西兰本地人的技能。

它将取代六类临时工作签证：

基本技能工作签证——将于2022年7月3日关闭；
基本技能工作签证——原则上批准——将于2022年7月3日关闭；
人才（认证雇主）工作签证——已于2021 10月31日关闭；
长期技能短缺清单工作签证——已于2021 10月31日关闭；
Silver Fern求职签证——已于2021 10月7日关闭；和
Silver Fern实践经验签证——已于2021 10月31日关闭。

在使用经认可的雇主工作签证雇用移民之前，雇主必须：

1、在新体系下申请认证——即“雇主审查”；

2、申请工作检查，以确保他们想要填补的职位不能由新西兰人担任——即“工作审查”；和

3、要求移民工人申请签证——即“员工审查”。

雇主审查

任何在当前体系下的认证雇主（即与人才（雇主认证）工作和居留签证相关的雇主）如果想在新的AEWV体系下雇用移民，必须申请并满足新认证体系的政策要求。

认证有三种类型：

1、标准型 – 在任何时段能雇佣不多于5名AEWV上的移民员工；

2、批量型 – 在任何时段能雇佣6名或6名以上的AEWV移民员工；和

3、其他 – 与特许经营人和劳务公司相关。

雇主现在就可以申请认证。

雇主审查 – 标准型认证

所有希望在AEWV上雇用移民的雇主必须满足标准型认证的如下要求：

1、必须是真正在经营的生意，即：

必须在IRD上注册为雇主；和
如果是以合伙形式或个体户在经营，则企业所有人不得破产或处于无资产程序中；
并且：
在过去24个月内未发生亏损（折旧和税前）；或
过去6个月内的每个月都有正现金流；或
有足够的资本和/或外部投资（例如创始人、母公司或信托公司的资金），以确保该雇主的业务保持可行和持续性；或
有一个可靠的、不少于两年的计划（例如有已签订的业务合约）的，以确保该雇主的业务保持可行和持续性。

“可行且持续”包括能够：

履行财务义务，如支付工资或薪金以及所有其他运营成本和费用；和
购买库存（如相关）。

2、不得有违规的记录，例如：

不能在劳动监察局的雇主黑名单中；
必须遵守移民法，且不能受到因移民相关罪行被定罪而产生的永久禁令的限制；
不能被禁止担任公司负责人；和
不能是破产后重组的公司。

3、必须采取措施以尽量减少对员工的剥削，例如：

为移民员工提供完成就业学习模块的时间；
做出招聘决策的每个人都必须完成就业学习模块；
支付新西兰境内外的所有相关的招聘费用，包括广告费、中介代理费、雇主和工作审查申请费、培训和入职培训、健康和设备安全以及制服，但不包括机票；
向移民员工提供与工作相关的信息（即如何申请IRD号码）和社区援助（例如：如何开立银行账户、寻找出租房）；和
雇主不得向移民员工收取就业附加费，不得非法担保员工，也不得进行任何非法扣费。

新西兰移民局处理标准型认证申请的费用是$740.00。

雇主审查 – 批量型的认证

想要在AEWV上雇佣6名或更多移民员工的雇主必须满足标准型认证的要求。之后，可能会有一项要求，即表明他们致力于培训和提高新西兰人的技能。

新西兰移民局处理大批量型的认证申请费是$1220.00。

如果您有标准型认证，但以后想要在AEWV上雇用6名或更多移民员工，您可以升级到批量型的认证，需要支付给移民局的费用是$480.00。

雇主审查 – 其他认证

对于特许经营人：

必须满足标准型认证要求；
必须已经营至少12个月；和
必须有雇用新西兰人的历史。

新西兰移民局处理特许经营人申请的费用为$1980.00。

对于劳动力雇佣公司：

必须满足标准型认证要求；
必须将移民员工放置在具有AEWV的“合规公司”上。“合规公司”是指：
是新西兰的注册公司；
不在雇主黑名单上；和
已声明他们没有移民法相关的争议；
必须有良好的系统来监控就业和安全条件；
必须有12个月的劳动合同历史；和
公司第三方劳动力必须有至少15%是全职的新西兰人（即每周至少30小时）。

新西兰移民局处理劳工雇佣公司申请的费用是$3870.00。

对于大多数雇主来说，申请认证将是一个简单且相对较低接触度的评估。然而，新西兰移民局可能要求提供额外信息以评估申请，并可能在认证有效期间进行监控。如果新西兰移民局对雇主继续满足认证要求感到不满意，则可能撤销该雇主认证。

因此，我们建议您联系您的律师，以确保您符合要求并且遵守移民法和雇佣法的相关要求。

认证期限

在新西兰移民局批准认证申请后，雇主将获得为期12个月的认证。

延期时，将移民员工放置在第三方公司AEWV上的特许经营人和雇主将获得为期12个月的认证，所有其他雇主将获得为期24个月的认证。

工作审查

从2022年6月20日起雇主可以开始申请工作审查。

劳动力市场测试是指真诚地尝试招募新西兰公民或居民。

除非拟定工作的薪酬为每小时$55.52或以上，或同等年薪，或该职位在绿色名单上，否则所有工作都必须通过劳动力市场测试。

劳动力市场测试的有效期为六个月，自批准之日起，或直至雇主不再持有认证，以较早者为准。

员工审查

移民员工必须满足：

品行要求，例如：从未被判处5年或5年以上有期徒刑；
健康要求，例如：不太可能对新西兰的卫生服务或特殊教育服务造成重大支出或需求；和
证书和工作经验要求。

薪酬

拟议的工作合同的薪酬必须等于或高于工资中位数，即每小时$27.76，且不能低于该职业在新西兰的市场工资率。

如果工作需要有其他没有在ANZSCO职业中描述的技能来完成，则雇主提供的薪酬必须高于该工作的市场工资率。

但是，建筑和基础设施、旅游和酒店业以及护理劳动力部门的特定工作不受工资中位数的限制。

AEWV的货币

AEWV签证可在提供就业的期限内授予，最多可以是：

3年，如果时薪达到中位数；或
2年，如果工资低于工资中位数，除非这2年的签证会导致签证持有人超过停工条件下允许的最长期限（即2年）。

如果工资低于工资中位数的2年工作签证会导致签证持有人超过停工设置允许的最长期限（即2年），则该签证只能在最长期限的剩余时间内发放。

审批时间

预计的审批时间范围是：

标准型和批量型认证 – 10个工作日
工作审查 – 10个工作日
员工审查/AEWV – 20个工作日

请注意，以上并不能替代法律建议，您应该联系您的律师了解您的具体情况。

如果您想开始认证申请流程和工作审查流程，请电话联系我们， 03 348 8480，或通过电子邮件发送至我们的邮箱immigration@parryfield.com

2022年6月8十

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:

apply for accreditation under the new system – “the Employer Check”;
apply for a job check to make sure the role they want to fill cannot be done by New Zealanders – “the Job Check”; and
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:

Standard – to hire 5 migrant workers on AEWVs at any one time;
High-volume – to hire 6 or more migrant workers on AEWVs at any one time; and
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:

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).

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.

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

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

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 Foundation, JR McKenzie Trust, Todd Foundation, NEXT 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 Foundation, Auckland Foundation, the Gift Trust, Perpetual 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 North, Rata 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 Trust, TECT. 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 Foundation, NZ Community Trust, Pub 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 Board, Community 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 Foundation, MAS 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:

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.
Try to have a conversation before applying. Often funders are willing to provide informal advice about potential applications.
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.
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.
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 at Parry Field Lawyers.

Download it here.

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