Hon Michael Wood, Minister for Workplace Relations and Safety
The Government introduced the Holidays (Increasing Sick Leave) Amendment Bill to the House on 1 December 2020. The Bill would, if it became law, increase paid sick leave for all employees to 10 days per year.
The Bill is consistent with the Government’s pre-election promise to double employees’ entitlement to sick leave. Under current legislation, employees are entitled to five days’ paid sick leave, once they have worked for the same employer for six months.
As it currently stands, the Bill retains the maximum amount of unused sick leave an employee can carry over at 20 days a year.
Select Committee submissions are now open on the Bill and close on 28 January 2021, and the Bill is expected to pass in mid-2021 with any changes coming into force two months after receiving Royal assent.
If you have any questions relating to the proposed legislation and how it may impact your organisation, please contact Stephens Lawyers.
Season’s Greetings from the Stephens Lawyers team: we wish you well for 2021 and trust you have a happy and relaxing break over the festive season.
The Privacy Act 2020 which was passed earlier this year, comes into effect on 1 December 2020.
The new Act replaces the Privacy Act 1993 and includes a number of significant changes, including:
Mandatory notification of harmful privacy breaches. If organisations or businesses have a privacy breach that poses a risk of serious harm, they are required to notify the Privacy Commissioner and affected parties. This change brings New Zealand in line with international best practice.
Introduction of compliance orders. The Commissioner may issue compliance notices to require compliance with the Privacy Act. Failure to follow a compliance notice could result in a fine of up to $10,000.
Binding access determinations. If an organisation or business refuses to make personal information available upon request, the Commissioner will have the power to demand release.
Controls on the disclosure of information overseas. Before disclosing New Zealanders’ personal information overseas, New Zealand organisations or businesses will need to ensure those overseas entities have similar levels of privacy protection to those in New Zealand.
New criminal offences. It will be an offence to mislead an organisation or business in a way that affects someone’s personal information or to destroy personal information if a request has been made for it. The maximum fine for these offences is $10,000.
Explicit application to businesses whether or not they have a legal or physical presence in New Zealand. If an international digital platform is carrying on business in New Zealand, with the New Zealanders’ personal information, there will be no question that they will be obliged to comply with New Zealand law regardless of where they, or their servers are based.
Further information is available on the Office of the Privacy Commissioner website, see: privacy.org.nz/
If you have any questions relating to the new Privacy Act and how it may impact your Society, please contact Stephens Lawyers.
Stephens Lawyers is a proud supporter of the Urban Art Foundation.
Ten of New Zealand’s foremost sculptors have their works featured in the Urban Art Foundation’s latest exhibition – City of Sculpture. This is Andrew Drummond’s “Tower of Light” created in 2005. Presented in partnership with the Wellington Sculpture Trust, the exhibition is appearing in Mall and street locations in Auckland, Hamilton, Bay of Plenty, Christchurch and Wellington over the next six weeks.
This advisory deals with allocation of responsibility for maintenance (and cost of maintenance) between a body corporate and unit owners.
Body corporate law in this area has been confused for a long time due to overlap and/or conflict between a number of sections in the Unit Titles Act 2010. However, there has now been a Court of Appeal decision, Body Corporate S73368 v Otway  NZCA 612, issued on 19 December 2018, which has provided a reasonably definitive interpretation of the competing sections and their relationship.
Allocation of Responsibility
The key to this issue is the allocation of responsibility. A Body Corporate has responsibility for maintenance of common property, building elements and infrastructure, under section 138 of the Act. A unit owner has responsibility for maintenance of his or her unit – or, possibly more accurately as far as the legislation is concerned, maintenance of the unit per se is not the responsibility of the Body Corporate and, by default, falls to the owner.
Historically, an issue has been responsibility for structural elements of the complex, from which all owners benefit but which may be part of or located within a unit: examples are structural elements such as floors, walls and roofs. Also, elements such as utility reticulation for the complex.
Under the 2010 Act, responsibility for building elements and infrastructure – which includes pipes, water, sewerage drainage, gas electricity and other services or utilities – is the responsibility of the Body Corporate, but only if it serves or relates to more than one unit: section 138 (1).
Allocation of Cost
As more fully explained below, the Body Corporate has the ability to recover any costs incurred that relate to repairs or maintenance of building elements and infrastructure contained in a principal unit, from the owner of that unit: section 138 (4).
It also has the ability to recover costs which it occurs where it carries out work which a unit owner has wilfully or negligently failed to do: section 127.
In addition, it has the ability to recover expenses on other than a utility interest basis where a unit, or more than one unit, benefits substantially more from work than other units: section 126.
Building Element or Infrastructure?
Otway dealt with the relationship of these sections. Fundamental to this is the question what is a building element or infrastructure? The issue in this respect is that there is a point at which infrastructure (or building elements) become cables or pipes (or other items) which solely serve a particular unit – and responsibility changes – and finding that point has been the issue.
The cause of an issue is often not easily identified and, typically, it is claimed that responsibility lies with the body corporate. The body corporate investigates and incurs costs and it then becomes an issue as to who will meet those costs. The unit owner will be liable for those costs if work carried out by the body corporate is work on building elements or infrastructure “contained in a unit”.
The interpretation of the Court of Appeal is that there may be items which appear to meet the definition of elements or infrastructure, but they are not building elements or infrastructure for which the body corporate has financial responsibility because they do not relate to or serve more than one unit. In that case the body corporate may apply the cost recovery mechanism under section 138 (4).
It gave an example –
“A building element is something that is necessary to the structural integrity or external aesthetics of the building or the health and safety of occupiers and users of the building. The deck membrane here is only part of the overall storm water and weathertightness system necessary for the structural integrity of the building and the health and safety of owners and users. The building element here is the entire storm water system which has gone on to cause weathertightness issues. First, that system cannot be said to be “contained” only in the appellants’ units here as we outline above. And secondly and importantly, the storm water system repairs, being crucial to the integrity and value of the entire development, benefit all owners. For these reasons, s.138 (4) [allocation of cost to an individual owner/unit] does not apply here.”
Where a body corporate carries out work which it is its responsibility to carry out, the usual rule is that cost is shared among owners in accordance with utility interest. Section 126 allows the body corporate to depart from that approach where there is disproportionate benefit to one or more owners. Again there has been some confusion as to the proper approach and different approaches adopted by the courts.
According to the Court of Appeal, section 126 will apply where there is “a substantial benefit” to one or more units, or one or more units benefits substantially more than others. This is described as “the gateway test”.
At that point, if the work benefits a unit “by a distinct and ascertainable amount”, the owner of the unit is liable for the cost. If that cannot be established, then cost can be apportioned among units that derive a substantial benefit from the work rateably according to the utility interest of those units, but a court has a discretion in that case to apportion as it thinks fit, having regard to relative benefit to those units.
What is important to note at this point is the attitude of the Court of Appeal. Consistent with the view expressed above, it has taken the view that anything necessary to the structural integrity or external aesthetics of the building or the health and safety of occupiers and users of the building benefits all – or does not benefit the units on which work is carried out substantially more than it benefits others. In that case the gateway test is not satisfied, and it is not appropriate for a body corporate to consider whether a unit has benefited by a distinct and ascertainable amount or whether some units have benefited substantially more than others.
Default by Owner
Where a body corporate carries out work that it is required or authorised to do and the work was rendered necessary by reason of any wilful or negligent act or omission on the part of, or any breach of the Act, the operational rules or any regulations by, a unit owner, section 127 authorises the body corporate to recover the cost from the owner concerned.
Where issues tend to arise in this respect is that section 80(1)(g) of the Act places responsibility on the owner of a unit to repair and maintain the unit and keep it in good order to ensure that no damage or harm, physical, economic, or otherwise is or has the potential to be caused to the common property, any building element, any infrastructure, or any other unit in the building. Where want of repair is identified in relation to a unit, it is common to hear argument that the responsibility for repair falls on the owner. Where the owner fails to do so, the body corporate carries out the work and relies on section 127 to recover the cost.
Once again, the position adopted by the Court is that where the requirement for repair can fairly be said to lie within the responsibilities of the body corporate (structural integrity, etc) – or is due to design or construction defect – then costs are not recoverable under section 127.
A requirement that is often overlooked is that the work must be work which the body corporate is required or authorised to do. If the only consequence of an owner failing to carry out work is that his or her unit becomes dilapidated, then the body corporate has no authority to act. As both section 127 and section 80(1)(g) make clear, there must be impact on the elements for which the body corporate has responsibility or on other units before the body corporate is authorised to step in. But, as the case law is also tending to make clear, there are likely to be few occasions where it cannot be argued that such impact does not exist. Examples might be –
want of repair that creates a fire hazard;
impact on infrastructure/services;
want of repair that impacts on the aesthetics of the complex;
want of repair that places the complex in breach of a resource consent or the Building Code.
Which Section Applies?
A final question is the hierarchy of these sections. As the Court sees it, section 138(4) is subsidiary to sections 126 and 127, and not an alternative as other courts have previously suggested. It only applies to repair work done by the body corporate on elements within a unit that are not building elements or infrastructure or building elements where sections 126 or 127 do not apply, such as where the need for repair arises from default by the owner or the repair does not benefit any other owner. The view of the Court seems to be that where there is any suggestion of benefit to other owners, then section 138 (4) does not apply.
Korean Ambassador to New Zealand, HE Mr Seung-bae Yeo, presenting the Presidential Citation to NZ Korea Veterans’ Memorial Trust trustees, Michael Stephens and Chris Griggs.
The Korean Ambassador to New Zealand, HE Mr Seung-bae Yeo, on behalf of the President of the Republic of Korea, presented the New Zealand Korea Veterans’ Memorial Trust with a Presidential Citation on Monday, 29 July at a Concert for Peace held at the Wellington Cathedral. The Presidential Citation is in recognition of and appreciation for the outstanding contribution the Memorial Trust has made to commemorate the sacrifice and dedication of the Korean War veterans.
HE Mr Seung-bae Yeo said, “I am pleased to announce that the Korean Government has decided to present the Presidential Citation to the Memorial Trust on the occasion of the 66th Anniversary of the Korean Armistice Agreement. I hope the Trust will keep working to memorialize the services of the veterans and to strengthen the friendship between Korea and New Zealand.”
The Trust, which was established by the New Zealand Korea Veterans’ Association (NZKVA), has for the past 16 years provided scholarships to students at Gapyeong Buk Middle School in the Republic of Korea and contributed to the education of young Koreans. Gapyeong Buk Middle School is in a part of South Korea which served as a base of operations for Kayforce during the Korean War. The Trust also provides scholarships to young Koreans living on the island of Baengyeong Do Island, which was a regular port call for frigates of the Royal New Zealand Navy during the War.
Trustee Chris Griggs said, “The Trust is also a lasting memorial to the New Zealand veterans who served in the Korean War and who originally established the Trust to provide support for the education of young Koreans.”
Chris Griggs will visit the high school on Baengyeong Do Island on 20 September 2019 to present scholarships to the students there.
Trustees of the New Zealand Korea Veterans’ Memorial Trust include Colonel (Retired) Harry Cockburn, a former New Zealand Army Officer who served as New Zealand Defence Attaché in Seoul; Commander Chris Griggs, Royal New Zealand Naval Reserve who previously served in the regular Navy for 25 years; and Wellington Lawyer Michael Stephens, who has close business links to the Republic of Korea.
The Foundation, operating as The Urban Art Agency is a not-for-profit company committed to making art accessible on streets and in public gateways to enrich New Zealander’s experience of their urban environment.
The Urban Art Agency takes art created by New Zealand artists out of archives and displays it in contemporary easily accessible, outdoor digital media sites – street furniture – for people to view as a source of enjoyment and education.
Michael Stephens said, “The Urban Art Agency is well-known to Wellingtonians through three sites that showcase the best of New Zealand art on Lambton Quay and has more recently begun to extend its presence to other cities.
“I look forward to working with the directors and Urban Art team, to assist them to expand the reach of their exhibitions through additional sites in new centres and to create more public engagement opportunities.
The Urban Art Agency was created in 2016 by Andrew Hagen with assistance from the Wellington City Council, the Ministry for Culture and Heritage and oOH!Media, an Australian outdoor media company. It works in conjunction with artists, art and education experts, government and commercial gallery curators, outdoor media companies and Government departments.
“New Zealand is the only country to present its cultural heritage in this manner on a permanent basis. We are a world leader and it’s estimated that more than one million pedestrians have had the opportunity to view these screenings since Urban Art’s inception,” Michael Stephens said.
Michael joins directors Andrew Hagen (Board Chair) Roland (Rocky) Douché and Sam Jackman on the Urban Art Foundation Limited board.