employees both have responsibilities under the Health and Safety at Work Act
2015. Employers are required to take steps to eliminate or otherwise minimise
risks, and employees are expected to follow policies and procedures put in
place in their workplace.
World Health Organisation deemed Covid-19 a worldwide pandemic in March of
2020. All countries are expected to take as many precautions possible to
eliminate or minimise its spread. One way New Zealand is doing this is to
offer the Pfizer vaccine free to all.
While an employer cannot require any individual to be vaccinated, they can
require that certain roles must only by undertaken by vaccinated workers where
there is a high risk of contracting and transmitting Covid-19 to others, or if
their work is covered by the Covid-19 Public Health Response (Vaccinations)
To decide if a role/position is high risk and therefore needs vaccination for
Health and Safety reasons, an employer must first assess their Covid-19
exposure risk. Typical situations to consider are:
* How many people does the employee come into contact with whilst conducting
* How easy will it be to identify the people who the employee comes into
* How close is the employee in proximity to other people whilst conducting
their duties, and how long does the work require the employee to be in that
proximity to other people?
* Does the work involve regular interaction with people at high risk of severe
illness from Covid-19?
* What is the risk of Covid-19 infection and transmission in the work
environment compared to the risk outside of work?
* Will the work environment continue to involve regular interaction with
unknown people if the region is at a higher alert level?
include their employees in the risk assessment process. During this process it
may be determined that work arrangements or duties can be changed such that a
role/position is no longer high risk. Employers and employees should work
together to reach a mutually agreed outcome.
If, as a result of the Health and Safety Exposure Risk Assessment process
("the assessment"), it is deemed that a role/position can only be undertaken
by vaccinated staff, employers should set a reasonable timeframe for employees
to decide if they will be vaccinated. If during this time an employee cannot
work, special paid leave should be considered; especially in the short term
while employers and employees discuss what happens next.
Inside this edition
Covid-19 vaccine/regulations - employer and
Taxes on utes rules
Overview of the Wills Act
Trusts: when is a loan really a
Trial vs. probationary periods - what is the
in common: when one wants to sell
Protection Act - claims and dates
124 Queen Street, Hastings
126 Queen Street, Hastings
An employee does not need to disclose or prove their
vaccination status to an employer; and they cannot be redeployed or
disadvantaged for refusing to disclose their vaccination status, unless it is
determined under the assessment that their role cannot be completed by
If a role is determined under the assessment to be high risk
that requires an employee to be vaccinated, an employer can ask an employee if
they are vaccinated. If the employee does not disclose or provide evidence of
their vaccination status, the employer has the right to assume they have not
been vaccinated. However, employers will need to ensure they have previously
informed their staff of this assumption and what will happen if an employee is
not vaccinated or does not disclose their vaccination status.
Collecting, storing and sharing information about employees' vaccination
status must be done in accordance with the Privacy Act 2020.
On 26th of October 2021, the Government announced new legislation around what
type of roles vaccination will be mandated. This is to align with the recently
announced Covid-19 Protection Framework. The Government is currently in the
process of working with businesses and unions on when this mandate will come
into effect and further guidance will be available.
The Government is
taking action in line with the advice of the Climate Change Commission to
increase uptake of low emission vehicles by introducing a range of measures
that will help meet New Zealand's 2050 carbon neutral target.
The Land Transport (Clean Vehicles) Amendment Bill 2021 is one such measure,
which is intended to achieve a rapid reduction in carbon dioxide emissions
from light vehicles imported into New Zealand. Clause 4 of the bill introduces
a new definition into the Land Transport Act 1998 (LTA), defining a Light
Vehicle as a motor vehicle that has a gross vehicle mass of not more than
Clause 5 of the bill inserts new sections 167A to 167C into the LTA. The
proposed new section 167A provides regulations imposing fees and charges for
the purposes of a Clean Vehicle Discount. The Clean Vehicle Discount is
proposed to make electric and low emission light vehicles more affordable by
offering a discount, in the form of a rebate, for eligible imported electric
and low emission vehicles first registered in New Zealand from 1 July 2021
through to 31 March 2022. Petrol hybrids (hybrids whose motive power is not
derived, wholly or partly, from electricity) do not currently qualify for a
Subject to legislation being passed, it is proposed that from 1 April 2022,
fees and rebates will be applied according to the emission level of vehicles.
Vehicles with a purchase price of $80,000 or more (including GST and on-road
costs) and those with less than a 3-star safety rating (as published on the
Rightcar website) will not be eligible for the rebate.
fees for high emission vehicles were meant to come into effect from 1 January
2022, however this has been delayed until 1 April 2022 due to the current
Delta outbreak. Buyers purchasing high carbon emission vehicles will pay a
higher price in recognition of the increased environmental and economic costs
they are imposing. The fee on new imported high emission vehicles could be up
to $5,175, and $2,875 on used imports. This fee would then be used to
subsidise discounts of up to $8,625 for people buying new electric or low
emission vehicles, and up to $3,450 for people buying used electric or low
emission vehicles.The Bill has received some criticism from industries such as
farming and building regarding a lack of suitable vehicles to replace current
high emission vehicles such as utes. It was confirmed by Prime Minister
Jacinda Ardern that the Government had considered an exemption due to the lag
in technology for electric or low emission vehicles in those industries,
however, this exemption was no longer in the pipeline due to the difficulties
filtering out those who did not require a ute for work purposes.
The Bill was introduced in September and has passed its first reading. The
Select Committee will report back in early February 2022 when the remaining
stages of the Bill will be progressed.
The Wills Act 2007 ("Act") governs how wills should be prepared, executed,
amended and administered. The Act was introduced to make the law around wills
easier to understand, with a single reference point rather than spread over
different statutes. An overview of the Act is outlined below.
* The Act applies to the wills of people who die on or after 1 November 2007
regardless of when the will was executed. However, s 40 of the Act provides
guidance on which sections of the Act are modified to apply to wills made
before November 2007. For example, some provisions of the Act for wills made
before 26 April 2005 (the date civil union was made legal in NZ), must be read
as if the words 'civil union' are not included.
* Section 8 of the Act defines a will as a document that is made by a natural
person which disposes of property and/or appoints a testamentary guardian.
* Section 9 of the Act states that anyone 18 years or over may make a will,
however, minors below the age of 18 may make a will if they are married, in a
civil union, de facto relationship or are a military, seagoing person or with
the approval from the Family Court.
Section 10 of the
Act goes further and allows those under 18 to make a will who have agreed to
marry or enter a civil union, which will only be effective if the marriage or
civil union occurs. The will does not have effect if the will-maker dies
before marrying or entering the civil union.
* Section 11
states, for a will to be valid, it must be in writing, signed by the
will-maker (or another at their direction), witnessed by two people together
and signed by the witnesses in the will-maker's presence.
previous legislation, the Act does not stipulate where the will-maker's
signature must be on the document, however, it is advised to sign at the
bottom of the will. Given the Covid-19 lockdowns, the Epidemic Preparedness
(Wills Act 2007-Signing and Witnessing of Wills) Immediate Modification Order
2020 is in force which modifies the attestation requirements and allows
signing of wills via audio visual link. Section 14 allows the High Court to
declare a will as valid notwithstanding compliance with s 11 or if the
document was made overseas.
* Section 12 provides that appointed executors may witness the
will, however, if they are also a beneficiary, their benefit may be forfeited
under s 13 of the Act. Accordingly, it is suggested that witnesses are
independent. Witnesses do not need to know that the document they sign is a
* Sections 15-17 of the Act provides how will-makers may change, revoke or
revive their wills. A will is also revoked if the will-maker subsequently
marries or enters into a civil union, unless the will was made in
contemplation of marriage. An annulment of a marriage or civil union, or a
separation order invalidates provision made in a will to a former
spouse/partner; and the will must be read as if the former spouse/partner died
immediately before the deceased.
A will only comes into effect once you die and is arguably the most important
document you will ever sign. Accordingly, it's strongly recommended to seek
legal advice when creating a will in accordance with the Act.
beneficiaries are often made without proper consideration as to whether the
powers being exercised will affect the preservation of trust assets or how
these will affect any benefits to beneficiaries.
Recording a payment to a beneficiary as a loan does not conclusively make it
so, and such a misrepresentation could put the trustees in breach of their
duties as a trustee.
Under the Trusts Act 2019, trustees have a mandatory duty to act honestly and
in good faith (s 25). They also have the following default duties that apply
unless the Trust Deed in question modifies or excludes:
1. a general duty of care (s 29);
2. a duty to avoid a conflict between the interests of the trustee and the
interests of the beneficiaries (s 34); and
3. a duty not to make a profit from the trusteeship of a trust (s 36).
The above duties mentioned are not the complete list of mandatory and default
duties under the Act but are the ones that could be considered relevant to
this situation. If a trustee does not exercise their powers properly or they
breach the above mentioned duties, a trustee is not entitled to be indemnified
out of the trust's assets. A trustee could also find themselves liable to
Factors to consider include:
* Is the loan of a significant sum in terms of the trust's overall assets?
* Is the beneficiary in a financial position to pay this loan back?
* Will there be a provision for security?
* Will interest be charged?
* Is there a clear and expected repayment date?
* Could this loan be considered contrary to the interests of other
a loan is made where the prospects of it being repaid is low, there is no
security, no interest being charged and no clear repayment date, the loan
could easily be characterised as a distribution instead. At the very least
trustees should consider the insertion of a Marshall Clause into the terms of
the loan to offer some form of asset protection. The trustees should also
ensure that detailed Trust Minutes/Resolutions be completed contemporaneously
with any such loan document outlining the considerations the trustees have
taken before entering into the loan. A comprehensive paper trail will
significantly improve the trustees' position in the face of potential future
allegations of dishonesty and/or breach of trustee duties.
Trial and probationary periods look very similar and are used
for similar reasons but they are fundamentally different. The main differences
are set out in this article.
Probationary periods - Section 67 of the Employment Relations Act 2000 ("the
Act") provides that a probationary period must be specified in writing in the
employment agreement and that the application of the law of unjustified
the situation where an employee is dismissed under the probationary period. In
other words, the effect of a probationary period clause is limited and an
employee under probation generally has the same legal rights and protections
as a permanent employee.
The probationary clause does, however, provide employers with some degree of
flexibility when hiring a new employee and can also be useful to assess
someone's performance, for example, if you would like to offer an existing
employee a new role but you are not sure whether they have the skills to
succeed in that role.
The employer is obligated to put an employee on notice, if for example, they
have concerns about their performance. The employee should be given the
opportunity to respond and to improve their performance over a period of time.
The employer is further obligated to supervise and review the performance of
the employee accordingly.
The employer also needs to follow a fair process and act in good faith before
making a decision to dismiss an employee under a probationary period.
Probationary periods do not prevent an employee from raising a personal
grievance for unjustified dismissal, which is one of the key differences
compared to a trial period clause.
There's no maximum length for probation periods. This will depend on what is
reasonable in your particular situation. A probationary period can be extended
Trial periods - Section 67(A) of the Act provides that an employment agreement
containing a trial period may be entered into by a small-to-medium sized
employer, with a person who has not previously been employed by the employer.
A small-to-medium sized employer is defined as an employer who employees fewer
than 20 employees.
A trial period clause needs to be agreed on before the employee
starts work, be in writing in the employment agreement and can only be used
for new employees. It is further important to note that trial periods can only
be used for up to 90 days, and if there is a collective agreement that covers
the work to be done by the employee, that the collective agreement would
prevail. Trial periods can't be extended beyond 90 days.
A probationary period could also be added on to a trial period so that when
the trial period has expired there will be a further probationary period. But
it would have to be fair and reasonable to do so.
A trial period clause effect is far greater and places restrictions on the
employee's rights. This clause, if applied correctly can prevent an employee
bringing a personal grievance for unjustified dismissal at the end of a trial
period. Notice of termination under a trial period must also be in accordance
with the terms of the employment agreement.
If the above requirements are not met, the trial period will not be effective,
meaning the dismissed employee will have grounds for a valid personal
common: when one wants to sell
Property sharing agreements are
becoming more prevalent as individuals seek certainty of outcomes, where
unforeseen circumstances intervene after property purchases. The form of
property ownership known as
is becoming more popular due to this. This form of ownership enables an
individual to have control over the share of the property they are a part
owner of, to the extent that they can decide who they wish to take over their
share in the event they die or for any other reason they choose.
If the owners of a property are tenants in common that wish to go their
separate ways, the party wishing to remain as the property owner, on the face
of it does not have to agree to sell, thereby thwarting the wish of the other
owner(s) to sell. This is where a Property Sharing Agreement ("PSA")
is useful. Signed
and agreed before the purchase of the property, the PSA
provides paths and processes to allow an exit strategy to exist for any of the
owners, in the event they wish to exit the property as owner.
The PSA includes details such as what each of the parties contributed, agree
what each of them contributed to the purchase price, how much lending was
obtained and if the undivided shares are unequal. It also includes who may
give notice of wanting to sell, how a price value may be determined, what
timeframes are deemed reasonable and what constitutes a net share of the
profit to be paid out in the proportions agreed upon.
Your lawyer can talk you through a PSA and have one drawn up to ensure your
future planning is safeguarded in the event that property owners decide to go
their separate ways.
124 Queen Street East, Hastings
124 Queen Street, Hastings the top floor has been converted to a
self-contained apartment which is now available on Airbnb for inner city
Airbnb link to 124 Queen Street
Family Protection Act - claims and dates
The Family Protection Act 1955 ("FPA")
becomes relevant under either a will or intestacy (where a deceased dies
without a will in place) in circumstances where a claimant does not consider
that they have been appropriately provided for under the deceased's
estate. Proper maintenance and support is the test, which is a wide and
So, who can make a claim under the FPA? A spouse or civil union partner of the
deceased is at the top of the list. Children (includes stepchildren),
grandchildren and parents in certain circumstances are also on the list. Your
lawyer will be able to access your status should you wish to check that issue
Where a claimant wishes to ask the court to enforce the moral duty of the
deceased, notice must be given to the executors of the relevant will via the
estate’s lawyer within a twelve-month period from the date the probate is
granted by the court in respect of that will. The required period may be
longer should the applicant either be a minor or not have full mental
The court has the power to extend the timeline at their discretion based on
the circumstances. It is prudent, however, to give written notice of your
claim within six months from the grant of probate. Executors will have been
told by the estate's
lawyer that if they move to distribute the estate to the beneficiaries inside
the six-month period, then an executor may be personally liable should a
subsequent claim surface.
126 Queen Street
Massive Music School's tutors are the best in Hawke's Bay. Providing a great
service at a great location with an incredibly easy to use booking system
Link to .massivemusic.school
If you have any questions about the newsletter items,
please contact me, I am here to help.
Scannell & Co - 122
Queen Street East, Hastings
(06) 876 6699 Mobile: (021) 439 567 Email:
information in this newsletter is to the best of the authors' knowledge true
and accurate. No
liability is assumed by the authors, or publishers, for any losses suffered
by any person relying directly or indirectly upon this newsletter. It
is recommended that clients should consult S J Scannell & Co before
acting upon this information.
S J Scannell & Co
Would like to wish
you and your family a Merry Christmas and prosperous New Year
We advise our offices will be closing on Wednesday, 22nd
December 2021 and re-opening on
Thursday, 13th January 2022 at
Click here to subscribe to this newsletter