Potpourri of employment law changes ahead

Monday, 6 May 2019 is D-day

Last year saw many changes in the employment law sphere, with the Labour-led government delivering on promises of reform in this area. Of particular significance are the changes incorporated into the Employment Relations Amendment Act 2018 that was passed late last year. These changes will affect both employers and employees. We summarise some of these below.

rest breaks

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Agri-tourism and food

The legal implications of diversifying your farming operation

Agri-tourism and food are growing sectors in New Zealand. We have farm tourism where tourists are shown working farms with activities such as sheep dog and shearing exhibitions. Artisan producers are growing their own products and then processing them into, say, cheese, and free-range pigs are becoming salami, bacon and ham.

Often farm and food tourism begins as a way of diversifying a farm’s income stream. Sometimes it starts off as a relatively small hobby or sideline activity but then grows into something much larger in scale.

agritourism

There are legal implications to consider when you diversify your farming operation in these ways, particularly with regard to health and safety in the workplace and food safety.

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Postscript

Inform your customers properly about extended warranties

In October, local computer retailer, PB Technologies, was fined $77,000 in the District Court for not informing its customers of their rights under its extended warranties scheme. PB Technologies (PB Tech) had pleaded guilty to 14 charges brought by the Commerce Commission.

Over eight months in 2017, PB Tech sold more than 4,000 extended warranties but did not provide enough information for purchasers to properly understand the worth of these warranties. The extended warranties were sold in PB Tech’s retail stores and online.

If you are a retailer offering extended warranties on your goods, we remind you that under the Fair Trading Act 1986, you should provide a comparison of the cover provided relative to that available under the Consumer Guarantees Act 1993.

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Enforceable undertakings

An alternative to prosecution under health and safety legislation

Enforceable undertakings were introduced in the Health and Safety at Work Act 2015 (HSWA) as an alternative to prosecution. An organisation that has breached its health and safety obligations, and is under investigation by WorkSafe, can enter into a binding agreement with WorkSafe to remedy their breaches, rather than going through prosecution and sentencing. In this article we discuss the features of this alternative and the potential benefits of taking this path.

enforceable

Enforceable undertakings are not an easier or lower cost alternative to prosecution, but there are other benefits to a business.

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Over the fence

The Animal Welfare (Care and Procedures) Regulations 2018

The Animal Welfare Act 1999 provides for offences and penalties for serious animal abuse or neglect.

In May 2015 the government amended the Animal Welfare Act enabling regulations to be made on matters such as animal care and procedures performed on animals.

The Animal Welfare (Care and Procedures) Regulations 2018 are the latest set of regulations to be issued; they were issued in March 2018. Most of these regulations will come into force in October this year. Examples include the prohibition of the use of traction in calving cows and the requirement to ensure that dogs transported on an open deck or trailer of a moving motor vehicle are secured to prevent the dog falling off or hanging off.

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How old do you have to be?

As lawyers, we’re often asked the legal age for a variety of things such as agreeing to medical treatment, making a will and so on. We thought it would be useful to pull together some of this information as a guide for the required ages in these situations.

The younger years

At the age of five, you can be enrolled in a state school, although, under a recent law change, a child can start school at the beginning of the term closest to their fifth birthday, if their school has a ‘cohort entry’ policy. Youngsters don’t actually have to start school until they’re six years old.

At just 10, you can be charged with murder or manslaughter and, at 12 years old, you can be charged with a number of other serious criminal offences.

Teen times

When you’re 14 years old, you can be left at home alone. You can also babysit a child, as long as you’re capable of providing reasonable supervision and care. You can now also be prosecuted for any criminal offence.

When you turn 15, you can wave goodbye to school, but you will need approval from the Ministry of Education.

On reaching your 16th birthday, you can sit a driving test and get your learner driver licence. Generally, you can leave home without your parents’ agreement (unless there are serious concerns about your welfare). You can agree to, or refuse, medical treatment.

At 16, you can get married or enter into a civil union for which you will need your parents’ consent – even though you don’t have to live in the same house as them. Once you marry, however, your parents will no longer be your guardians.

You can leave school of your own volition at 16, and you’re also eligible to work full-time. You can legally consent to have sex, apply for an adult passport, fly a plane solo, apply for a firearms licence and you’re eligible for various state benefits. Your parents cannot change your name, unless you agree to it.

There’s more . . .

When you’re 17 years old, you can join the armed forces if you have your parents’ consent. You can apply to join the New Zealand Police, but you can’t start training at Police College until you’re 18.

In the criminal court system, after you turn 17 you will be treated as an adult and must appear in the District Court or High Court; you no longer appear in the Youth Court.

Your 18th birthday signals the end of your parents (or legal guardians) having any legal responsibility for you. You can make a will; although in some circumstances younger people can do this. You can get married or enter into a civil union without your parents’ consent. You can go off to the bank to apply for your own account, credit card and a loan. (You may have a bank account when you’re under 18 years old, but it must be in the joint name of a parent or guardian.) You can be called upon to do jury service. You may place bets at the TAB or racecourse, buy Instant Kiwi tickets, vote in national and local body elections and you may stand as a political candidate. You can legally buy alcohol, cigarettes, tobacco or fireworks and can change your name, all without needing anyone’s agreement.

That’s not everything

At the age of 19, if you’re adopted, you can place a veto that will last a decade on information about you so that your birth parents cannot contact you; this veto can later be removed or renewed.

After you turn 20, your birth parents can ask Oranga Tamariki (Ministry for Children) for information about you. If you don’t want them to do that you must apply for a veto; you need to write to the Registrar of Births, Deaths and Marriages saying that you don’t want information to be released that could identify you. In the letter, you must say if you’d like counselling about your choice.

By the time you’re 20 years old, you have the vast majority of adult rights and responsibilities. If you’re adopted, you can apply to the Registrar of Births, Deaths and Marriages to obtain a copy of your birth certificate to find out the names of your birth parents. You can apply to adopt a child who is related to you. You can gamble or work in a casino, and you may drive with a small amount of alcohol in your system.

When you are 25, you can apply to adopt a child who is not related to you, as long as that child is at least 20 years younger than you.

There are, however, a number of things you can do with no minimum age. You can buy contraceptives, own land, purchase a lotto ticket, obtain a passport, have a tattoo and join a trade union.

We hope this helps with some age-related queries, and that the answers haven’t come as too much of a shock – particularly to parents! Please contact us if you have any questions we haven’t answered here.

Business Briefs

Website privacy falling short

Your business website is a powerful tool for engaging potential and existing customers, and for collecting useful data. Where information collected is personal information, however, you have obligations under the Privacy Act 1993. The legislation contains
12 Privacy Principles which regulate how you collect, use, disclose and store personal information.

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Recent Workplace Health and Safety Sentencing

Legislation is showing its teeth

The hefty sentencing in the recent Budget Plastics workplace health and safety case confirms the strict attitude now taken by WorkSafe and the courts. With the Health and Safety at Work Act 2015 having been in place 18 months or so, this case reinforces the need for all businesses to ensure they comply with their obligations under the new regime.

Worksafe New Zealand v Budget Plastics (New Zealand) Ltd[1] involved a worker who had his hand amputated after it was caught in the auger of a plastic extrusion machine. His employer, Budget Plastics, pleaded guilty for failing to ensure the safety of its employee while at work, so far as was reasonably practicable, which led to serious injury. The maximum penalty was a fine of up to $1.5 million.

Health & Safety Law

Budget Plastics was found to have failed to comply with a number of industry standards and WorkSafe guidelines. It had also not implemented all the recommendations which arose from a health and safety audit six weeks before the accident.

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Over the Fence

New government-endorsed health and safety toolkit now available

SafePlus, a new government-developed and endorsed health and safety toolkit, is now available to all New Zealand businesses, including those in the rural sector.

SafePlus currently consists of three products:

  1. Resources and guidance
  2. Independent onsite assessment and advisory service, and
  3. Online self-assessment tool (available mid-2018).

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Over the Fence

Health and safety legislation sentencings expected

There are a number of developments in health and safety expected later this year. These include the first sentencings under the new Health and Safety at Work Act 2015 that are due to be released. As well, WorkSafe is expected to launch its Health and Safety Improvement Performance Toolkit. We will continue to monitor this and update you in the next edition of Rural eSpeaking due in summer.

 

Judgements of rural interest

Farmers unsuccessful in their claim against rural contractor

In May this year the High Court released its judgement in the case of A P and A W Hughes Limited v Lyall.[1] In 2014 Allan Lyall was contracted by A P and A W Hughes Limited to harvest a pea and barley crop for silage. When the silage was opened for feeding, which was three months after harvest, it was found to be in poor condition. The farmers attempted to sue the contractor for $300,000 worth of damage to the silage crop seeking compensation for the loss of winter feed.

The High Court found that the contractor used the skills expected of a reasonably competent silage contractor to implement the fall-back option of cut rake and chop that was agreed to by the farmers at the time of harvest. Despite this, soil was still incorporated in the silage by this process resulting in a loss of silage quality. The judge found the silage was poor quality because the crop was over-matured when it was harvested and this was not the contractor’s fault; it was simply the consequence of adopting an option agreed to by the parties to address the circumstances.

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