Cavell Leitch would like to wish you and your family and friends a safe and happy Christmas and holiday season.

We will be closed from 5pm on Friday 21 December 2018 and will re-open on Monday 14 January 2019, with skeleton staff from Monday 7 January 2019. We look forward to catching up with you all in the New Year.

If you require urgent legal advice during our Christmas close down period please refer to our website for individuals contact details www.cavell.co.nz/teams/

This update is for employers enforcing a mandatory close-down period over the Christmas break, and who hire migrant workers on temporary entry visas.

Issue

Immigration New Zealand typically requires employers to pay employees on work visas for a minimum of 30 hours work each week.

Employers may have employees on work visas who do not have sufficient annual leave to take paid holidays over this period. This is particularly the case for new-hires, who have not had time to accumulate the required annual leave.

We have been asked whether it is necessary to pay impacted employees on work visas for a full 30 hour week, despite not having the annual leave to cover this.

Our advice

You do not need to pay these employees for 30 hours weekly, if they do not have the required annual leave.

There are two options for impacted employers:

Allow employees on work visas to take annual leave in advance of their entitlement. If you do so, you should consider a contractual provision allowing you to recover this in the event the employee's employment ends before their annual leave balance is back at zero; or
Pay employees on work visas 8% of their gross earnings, from the date they started working for your business. This is in line with section 34 of the Holidays Act 2003.

Written by Sam Cowan - Associate (Litigation)

We have recently seen a number of cases where builders and other building contractors are withholding producer statements or records of building work in order to obtain leverage in dispute or non-payment situations.

The advantage to a builder or building contractor of withholding these documents is that Council is unlikely to issue a Code of Compliance Certificate for the building work in their absence. This is because Councils rely on these documents, particularly producer statements, to determine whether the building work or building system complies with the Building Code.  This places the building owner in a difficult position.  Despite the obvious advantages, however, withholding these documents comes with its own risks to builders and building contractors.

Read more here.

Written by Jack Brown - Solicitor (Employment)

The recent Employment Court case of Roach v Nazareth Care Charitable Trust Board [2018] NZEmpC 123 provides a timely reminder that caution is required when relying on a 90 day trial period.

The facts:

Mr Roach was offered the job of Business Manager at Nazareth. Mr Roach signed an employment agreement which contained a trial period, and the parties agreed on a start date.

However, before Mr Roach started work as the Business Manager, he was offered the job of General Manager by Nazareth. Mr Roach accepted this offer and signed a new employment agreement, which also contained a trial period. The parties agreed that Mr Roach would start working on the previously agreed date, but as the General Manager.

Mr Roach worked for approximately six weeks before he was called into a meeting where he was told that his employment would be terminated. Nazareth relied on the trial period provision contained in his General Manager employment agreement to justify termination of his employment.

Mr Roach raised a personal grievance for unjustified dismissal in relation to the termination of his employment. He claimed various remedies, including reimbursement for lost wages plus interest and compensation for humiliation, loss of dignity and injury to feelings.

Read more here

Immigration New Zealand (INZ) is currently receiving high volumes of visa applications. As a result, they have signalled delayed processing times, through 2019.

Background

INZ typically experience high numbers of visa applications during the summer months.  This is when visitor visa applications peak and international students are looking to apply for their student visas, for the new academic year.

The recent closure of various INZ processing branches is likely contributing to the temporary backlogs that INZ are experiencing, as new offices become familiar with different applications and risk profiles.

Additionally, INZ will cease processing for approximately two weeks, over the holiday period.

Who will be impacted

• Individuals who have submitted an application recently, or are looking to file their visa application in the coming months.
• Employers looking to support individuals for work visas, intending to start work early in 2019.

Our advice

• File applications early, allowing for the published processing time.
• Do not book non-refundable flights relying on previous processing times.
• Apply online, via the INZ Immigration Online portal.
• Supply all relevant information from the outset, to avoid further requests.

Note: INZ have said that they will not prioritise a visa application just because an applicant has already purchased non-refundable travel.

Written by Andrew Schulte - Partner (Resource Management)

The answer to this question may depend on whether you think you might want to develop your land by dividing it into saleable lots, or just happen to live in the vicinity of a proposed subdivision.

What is a subdivision?

Basically, it involves the division of any allotment (or “parcel of land shown separately on a survey plan”) for the purpose of obtaining a new title (or titles) for the new allotment(s) created.

Other activities that might be less obvious are also considered “subdivisions”. For example, the creation of unit titles, or the creation and separation of cross-leases as was recently confirmed by the Environment Court in Re McKay[1], as being a “subdivision”.  Leasing an allotment (or part of one) for a term, including renewals, that is or could be for more than 35 years. Undertaking a boundary adjustment between two adjoining titles is also a subdivision.

The main reason for subdividing is to improve the value of land.

Having determined that what you are planning is a “subdivision”, then what?

Subdivisions are governed by the Resource Management Act (RMA) and in particular, section 11. This section restricts subdivision unless;

Read more here

As a full-service law firm, we have experts in nearly every area of the law.

For more legal articles written by Cavell Leitch experts click here.

If there is a topic you would like to have more information on or an article that you think needs to be covered by one of our experts, please email rebecca.smith@cavell.co.nz.