Aly joined Franks Ogilvie in 2024 as a Senior Solicitor. After graduating from Victoria University and completing her professional studies, she worked in general private practice gaining experience across a wide range of matters.
In her first two years of practice Aly appeared in the Employment Relations Authority, District Court, High Court, Court of Appeal and the Court Martial of New Zealand. She was involved in numerous mediations and negotiations, and in multiple successful judicial review challenges to Government decisions.
Aly is particularly interested in Government decision making processes and the evolution of New Zealand’s uncodified constitution. She takes satisfaction in problem solving and in providing both legal and practical advice that is comprehensive, concise and easy to understand.
In her personal time she enjoys being out in nature, going tothe driving range or tennis court, and being creative.
The Health and Safety at Work Amendment Bill is the most significant reform to New Zealand's health and safety regulatory framework since the Health and Safety at Work Act 2015 (“the Act”) came into force.
The Bill aims to reduce compliance costs, increase certainty for businesses, and support continued reductions in workplace fatalities, injuries, and illnesses, through:
Refocusing the Act's Purpose on Critical Risk
The Bill replaces the Act’s purpose provision with a new framework. The new "main purpose" explicitly prioritises critical risks arising from work, representing a shift from treating all risks equally to focusing resources on the most serious hazards.
Additionally, a new purpose has been added: “to give PCBUs certainty about the scope of their obligations”. This reflects a key objective of the Bill to “increase certainty for businesses and organisations about what they need to do”. Other changes to the section are modifications or extensions of existing purposes.
Defining and Prioritising Critical Risk
Central to the reforms is the introduction of a new defined term "critical risk", which is defined as a risk associated with either:
For the purposes of the above assessment, “risk” in relation to a hazard, includes harm to mental health associated with that hazard.
The hazards listed in Schedule 1A are able to be amended by Order in Council on the recommendation of the Minister. Such a recommendation cannot be made unless the Minister is satisfied the order is appropriate, and the reasons for the amendment must be published.
When determining if a risk is critical, a PCBU must assess what it knows, or ought reasonably to know, about its business or undertaking, the hazard, and whether it is likely to result in specified serious consequences.
A PCBU's failure to prioritise critical risks is not a standalone offence. However, a failure to prioritise critical risks might still form part of a prosecution case against a PCBU charged with breaching general duties under the Act.
Safe Harbours for Small Businesses
The Bill creates a new category of "small PCBU", defined as a PCBU with fewer than 20 workers (or reasonably expected to have fewer than 20 workers for 9 of 12 months).
Except in respect of the duty to provide adequate facilities for the welfare of workers, small PCBUs will be required to discharge certain duties only for critical risks. This applies to duties including (among others): the primary duty of care, the duty of PCBUs to ensure “so far as is reasonably practicable” that the workplace is without health and safety risks, and certain duties under regulations such as ensuring personal protective equipment is worn or used. This means for instance, that a small PCBU will only be required to ensure (so far as is reasonably practicable) that the workplace is without critical risks to health and safety, and that personal protective equipment is used to minimise critical risks.
While small PCBUs focus only on critical risks for the majority of duties, all other PCBUs (“Large PCBUs”) manage all risks but must prioritise critical risks. This aims to reduce the compliance burden for smaller entities.
“Prioritise” is defined in the Bill as managing critical risks before managing other risks, monitoring, reviewing and revising controls relating to critical risks more often than controls relating to other risks, and applying a higher proportion of risk management resources to the manage of critical risks compared with other risks.
Cooperation between PCBUs with same duty
At the select committee stage, provisions requiring cooperation between PCBUs who have a duty in relation to the same matter were inserted. For small PCBUs they must cooperate in relation to any critical risk, and “may” cooperate in relation to all other risks. Large PCBUs must cooperate in relation to all risks (so far as is reasonably practicable). “Co-operate” means consulting, and co-ordinating activities. It is an offence to contravene these requirements with penalties of up to $20,000 for an individual, and $100,000 for any other person.
Deemed Compliance with Other Enactments
The Bill addresses duplication between the Act and other regulatory systems. Where a person is subject to both a duty under the Act to manage a specified risk and requirements under another enactment for the same subject matter, compliance with the other enactment's requirements is deemed compliance with the corresponding duty under the Act. The exception is if there are specific regulations that impose additional duties for that risk. In such circumstances, those additional duties will need to be complied with.
This confirms that the Act is focused on work-related health and safety and not on public health or public safety generally. While questions may arise about what constitutes "the same subject matter," this proposal will be welcomed by PCBUs with sector-specific regulatory requirements.
Clarifying Duties for Landowners and Seismic Risk
The Bill attempts to address past confusion about landowner liability for persons injured on their land during recreational activities. It amends Section 37 so that PCBUs (such as landowners) who manage or control a workplace will not owe a duty to people lawfully entering and using open outdoor spaces (which includes cleared land, water and uncleared land such as forests) for recreational purposes (including crossing the land to reach other recreational areas). This exemption applies unless:
The Bill clarifies that a PCBU charging an “access fee” does not, on its own, make the recreational use part of the PCBU’s business. An access fee is specifically defined as a fee that allows entry but does not provide the PCBU with a profit or allow for the recovery of costs.
While this change applies to open outdoor spaces on public and private land (e.g., farms, school grounds, and parks), the exact scope of the exception remains a point of discussion. Notably, the recreational exemption has not been applied to the Section 36 primary duty of care, which involves managing risks to “other persons.”
The Bill also adds a seismic risk exception to Section 37. Where a PCBU manages a work place in a building, if the owner complies with the Building Act 2004 regarding earthquake-prone status and seismic work, the PCBU is not required to take further action regarding seismic risk (such as directing an evacuation) unless an emergency affecting the building is actually occurring. This is intended to resolve uncertainty for landlords and tenants regarding the interaction between the Health and Safety at Work Act and the Building Act.
Strengthening Governance: Due Diligence for Officers
Section 44 of the Act requires an officer of a PCBU to exercise due diligence to ensure the PCBU complies with its duties or obligations. The Bill makes key changes to section 44. The Bill clarifies that if an individual holds both an officer role and a separate worker role, their duty under section 44 applies only to their officer role. Actions in other capacities are subject to the less onerous worker duty under section 45.
The Bill also replaces the current definition of due diligence in section 44, with an exhaustive list of required “reasonable steps” to:
Officers must take these reasonable steps to ensure the PCBU prioritises critical risks. This aims to remove ambiguity, as the current list of steps in the Act is not exhaustive.
Notification Requirements
Under the Act, PCBUs must notify the regulator of serious workplace events. The Bill expands definitions and adds clear examples (e.g. serious head, burn, and spinal injuries) to clarify when notification thresholds are met.
Increased Focus on Approved Codes of Practice (“ACOP”)
ACOPs are guidance documents that provide practical advice on how to comply with health and safety requirements. ACOPs will remain non-binding, meaning a person can demonstrate compliance with the Act through other means. However, the Bill strengthens the role of ACOPs through deemed compliance. If a person complies with an ACOP they will be taken to have complied with the Act and regulations for the relevant risk when it is for the same risk and the same situation or set of circumstances. Upon commencement, these provisions will apply to only two existing ACOPs:
1. Loading and Unloading Cargo at Ports and on Ships 2024; and
2. Safe Practice for Forestry and Harvesting Operations 2025.
Other ACOPs will retain their current status (as evidence of compliance only) until reviewed and reapproved.
The Bill will also make it easier to develop ACOPs. It authorises any person or organisation(e.g. regulators, workers, employers and industry representatives) to propose a draft ACOP or amendment. The regulator may then review, amend, and recommend these to the Minister for approval.
Refocusing Regulator Functions
The Bill amends the statutory functions of WorkSafe New Zealand and designated regulators (e.g. Maritime New Zealand). These amendments explicitly prioritise core regulatory activities, describing their main functions as; providing guidance and advice, developing and reviewing ACOPs and safe work instruments, and monitoring and enforcing compliance.
Next Steps
The Bill passed its third reading on 30 June 2026. A key change in the Bill as it went through Parliament was a delay to commencement. The changes will come into effect on 1 April 2027 - rather than 1 November 2026 as previously provided for. This is due to the position of NZ First, who advised that while they would not collapse the coalition by voting against the Bill, they will campaign on changes with the intent that these are implemented after the 2026 election.
With this in mind, we suggest PCBUs begin considering what impact the changes will have on them now, without undertaking significant initiatives in reliance on the law hange until after the election. At that time, PCBUs will be better able to assess the likelihood of any further amendments to Health and Safety law. If further immediate changes are unlikely, PCBUs can then fully prepare for commencement by ensuring risks that fall within the new definition of “critical risk” are identified and prioritised, and by considering opportunities to develop industry-specific ACOPs.
If you would like further information on these changes, please contact Director, Brigitte Morten.
Summary
Pro-Palestinian activists successfully challenged the investment policies of the Guardians of New Zealand Superannuation, for failing to provide adequate standards and procedures to avoid prejudicing New Zealand’s international reputation.
Background
The Guardians of New Zealand Superannuation (“Guardians”) is a Crown entity that manages a sovereign wealth fund of approximately $86billion. The Guardians were established to help meet the future costs of superannuation. Under the New Zealand Superannuation and Retirement Income Act 2001, the Guardians are required to invest the fund on a prudent, commercial basis while “avoiding prejudice to New Zealand’s reputation as a responsible member of the world community”. The Act requires them to establish and adhere to specific investment policies, standards, and procedures covering ethical investment.
The applicants, including two Palestinian New Zealanders and the co-chair of the Palestinian Solidarity Network Aotearoa, had lobbied the Guardians since 2020 to divest from four specific companies (Airbnb, Booking.com, Expedia, and Motorola) due to their alleged complicity in human rights abuses in the occupied Palestinian territories. After the Guardians declined to exclude the companies, stating they did not meet the "exclusion threshold" under their Sustainable Investment Framework, the applicants initiated judicial review proceedings. They argued the Guardians' policy documents did not contain effective standards or procedures for avoiding prejudice to New Zealand’s reputation and were therefore unlawful.
The Case
The applicants sought two orders from the Court – that the investment policies, standards and procedures did not comply with the Act, and that four specific investments were unlawful because of this.
As a preliminary matter, the High Court rejected the Guardians' arguments that their policy decisions were non-justiciable or subject only to a "light touch" standard of review. The Court affirmed that it is the judiciary's role to determine whether public bodies have complied with their specific statutory duties.
The core legal issue was whether the Guardians' current policy documents complied with the Act. The High Court examined the evolution of the Guardians' policies, noting that earlier iterations (such as the 2020 policy) had referenced specific, universally recognised benchmarks like the UN Global Compact to measure human rights compliance. However, in 2022, the Guardians amended their policies to "reduce content," removing these specific benchmarks. They replaced them with broad undefined thresholds, such as a "serious risk of material breach of standards of good corporate practice," and a vague list of 13 bullet points for exercising judgment, without clarifying exactly who makes exclusion decisions or how.
The Court emphasised that while the Act grants the Guardians flexibility to choose their standards it does not mandate the use of specific frameworks, like the UN Guiding Principles, though it noted they are highly relevant) The statutory requirement to "establish, and adhere to" policies means those documents must contain ascertainable benchmarks and defined processes. Because the current policies lacked specific human rights standards and procedural clarity, they could not be meaningfully applied consistently or subjected to the external review and certification required by the Act. Consequently, the Court found the policies were so general that they failed to meet minimum statutory requirements, rendering them unreasonable and unlawful.
Result
The Court found in favour of the applicants and granted the application for judicial review. It issued a formal declaration that Part Nine of the statement of investment policies, and the sustainable investment framework, did not comply with the New Zealand Superannuation and Retirement Income Act 2001 and are unlawful.
The Court declined to declare the specific investments unlawful, though the Guardians are required to reformulate their policies to comply with the Act, after which they must reassess the challenged investments.
This is a narrow judgement, applicable to the Guardians and the unique statutory role they have. However, it may have flow on affects to how other funds manage their responsible investment obligations.
For further information on this case or similar matters, please contact Director Brigitte Morten.
The Government is shifting the employment law landscape to better balance employee protections with the needs of businesses.
This explainer addresses three legislative changes:
1. The Employment Relations Amendment Act (“ERAA”)which came into effect on 20 February 2026;
2. The Privacy Amendment Act 2025 (“PAA”),which creates a new information privacy principle that will apply to information collected after 1 May 2026; and
3. The Employment Relations (Termination of Employment by Agreement) Amendment Bill (“TBAB”),which is awaiting its second reading.
The ERAA
Employee vs Contractor Distinction
Recently, the Supreme Court in Rasier Operations BV v E Tū Inc (the ‘Uber’ case) confirmed the Court of Appeal’s decision that Uber drivers were employees, not contractors, despite the written agreements being framed as a Contract for Services.
The ERAA clarifies this, by clearly defining who a contractor is. If a worker meets the new definition of “specified contractor”, they will not be able to claim they are an employee and will not be able to pursue a claim for breach of employment obligations. The definition requires:
1. There to be a written agreement stating the worker is an independent contractor;
2. The worker to not be restricted from working for others, except while performing work for the contracting party;
3. The worker to not be required to be available to work certain times or days or for a minimum period, or the worker is allowed to sub-contract the work; and
4. The business to be unable to terminate the arrangement where the worker declines additional work.
These provisions now apply to existing arrangements that meet the new definition of a "specified contractor," unless legal proceedings were filed before the 20 February 2026. In such a case, the old law will apply.
Claims solely based on procedural deficiencies won’t succeed
An employee can raise a “personal grievance” claim againstan employer based on claims of (among other things) that their employment was affected to their disadvantage by an unjustifiable action of their employer (“Unjustified Disadvantage”), or that they were dismissed unjustifiably (“Unjustified Dismissal”).
The Employment Relations Act 2000 sets out a test of “justification” that requires employer’s actions to be what a fair and reasonable employer could have done at the time of the action or dismissal. An action or dismissal was not unjustified solely because of defects in the process the employer followed, if the defects were minor and did not result in the employee being treated unfairly.
The ERAA removes the reference to “minor”. The defects must be demonstrated to have resulted in the employee being treated unfairly, regardless of how big the defect was. This prioritises substance over process, giving employer’s more leeway to get the process wrong, so long as the employee is not treated unfairly.
Remedies discounted where employee contributes to problem
The Employment Relations Act allows for remedies such as reinstatement of an employee to their former position, reimbursement of lost wages, compensation for injury to feelings and more.
Previously, it was only in rare circumstances that discounts on remedies would be made where an employee was successful in the employment relations authority or employment court. A full deduction in remedies would only be available if an employee’s conduct was so “egregious” to justify no award. This was a high threshold to meet, enabling employees to seek and obtain remedies when they had contributed to the problem.
The ERAA has shifted the balance back in favour of employers, through the following changes:
90-Day Trial Periods for employees eligible to join collective agreements
Previously, employees who were eligible to join a union and be bound by a collective agreement had to be employed under terms consistent with that agreement for the first 30 days of employment. If an individual agreement was signed during this time, it could not contain less favourable terms than the collective agreement. This means that a 90-day trial period could not be included in an individual agreement unless it was permitted by the collective agreement (which was virtually unheard of).
The ERAA removed this requirement. Instead, an employee is now required to decide at the commencement of their employment whether they will join the union and be bound by the collective agreement or sign an individual employment agreement. This enables there to be 90-day trial periods for employees who opt for an individual agreement.
The ERAA also reduced information sharing obligations. At the time of entering into an individual employment agreement, an employer is (still) required to inform the employee that if they join the union they will be bound by the collective terms, and they must be given a copy of the terms. However, an employer no longer needs to pass on other information provided by a union. An employee is no longer required to complete a form, and an employer only needs to tell the union of the fact the employee has entered into an individual employment agreement if the employee consents.
Personal Grievances within trial periods
Previously, an employee could not raise a personal grievance for Unjustified Dismissal if they were given notice of termination before the end of a trial period.
The ERAA has extended this to prevent employees being able to raise Unjustified Disadvantage claims that “relate” to the dismissal, if that dismissal was before the end of a trial period.
Reduced protections for workers earning above $200,000
The ERAA removes the right to raise a personal grievance for unjustified dismissal for employees who earn over $200,000 per annum. This only applies to Unjustified Disadvantage or Unjustified Dismissal claims that relate to a dismissal, so there is still an ability to raise a personal grievance for other breaches of employment obligations, such as for breaches of good faith, discrimination or bullying and harassment.
If they agree, employers and employees can contract back into the personal grievance provisions or include terms for dispute resolution in employment agreements.
The threshold for unjustified dismissal personal grievances will apply to employees on new employment agreements made after 20 February 2026.
For pre-existing employment agreements, there will be a 12-month transitional period (to 20 February 2027). During the transitional period, employees on existing employment agreements will retain the ability to raise an Unjustified Dismissal personal grievance, unless they agree with their employer to vary their employment agreement and have the wages and salary threshold apply early.
PAA
The PAA introduced a new information privacy principle, IPP 3A.
IPP 3A requires agencies (which encompasses public or private sector agencies (ie businesses) as well as individuals) when collecting personal information about an individual other than from that individual, to take “reasonable steps” to ensure the individual is aware of:
Reasonable steps must be taken as soon as is reasonably practicable after the information has been collected. There are exceptions to this, including (among other things) where an individual has previously been made aware of the matters listed above, if the agency believes that non-compliance would not prejudice the interests of the individual or if it believes the information is publicly available.
Employers who collect personal information about employees through indirect means (such as from former employers, recruiters, or social media), will need to ensure they understand the application of IPP 3A.
IPP 3A will apply to information collected after 1 May 2026.
TBAB
The TBAB will allow an employer to ask an employee to enter negotiations to terminate their employment for a sum, without needing to establish a reason.
Employment law does not currently allow for employer instigated exit negotiations to take place outside of an employment relationship problem, and where the employee agrees to a discussion being made on a without prejudice basis (a confidential conversation that cannot be referred to in legal proceedings).
The TBAB seeks to change this. If it passes, employers will be able to ask an employee to begin “pre-termination negotiations” without there needing to be an employment relationship problem, and without this being grounds for a personal grievance (in and of itself). As currently drafted , the request must:
A request will not be able to be made more than once in any 6-month period, unless there is a genuine reason based on reasonable grounds to make another request in that period. Both employers and employees will therefore want to consider a request carefully. The employer is required to record requests and responses.
If negotiations are entered into and a termination agreement is reached, to be a protected and valid termination agreement, it must:
Prior to confirming the agreement, the employer must again inform the employee that they are entitled to seek independent advice and give the employee a reasonable opportunity to obtain that advice.
Employers will still be required to comply with employment obligations such as acting in good faith. There is also a proposed obligation on an employer to not enter into “unfair pre-termination negotiations”, which are defined in the Bill, and will allow an employee to take a personal grievance in such situations, seeking usual remedies of reinstatement, reimbursement of lost wages, or compensation. A penalty against the employer can also be imposed.
Termination agreements can also be cancelled if an employee is found to have been treated unfairly because of a defect in the process, or a failure to include necessary information in the agreement.
Evidence of pre-termination negotiations will be inadmissible in any proceeding before the Employment Relations Authority or Court, except in some circumstances, such as a claim that there were unfair pre-termination negotiations.
We note that this change is proposed, but not confirmed.
Employers and employees should ensure they understand these changes now. For further information regarding this or similar issues please contactDirector, Brigitte Morten.
