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.
Summary
The Human Rights Review Tribunal awarded $60,000 in damages for a privacy breach, in which an employer took an employee’s work laptop, personal cell phone and a personal USB drive, without consent.
Background
BMN, a former employee of Stonewood Group Limited, was invited to a coffee meeting outside the office. While he was gone, Stonewood's Executive Director removed his work laptop, personal cell phone, and personal USB flash drive from his desk. One week later, BMN's employment was terminated.
Despite repeated requests, Stonewood failed to return BMN's devices which contained personal information including tax returns and medical information.
BMN filed a claim with the Human Rights Review Tribunal alleging Stonewood interfered with his privacy. Stonewood disputed taking the cell phone and USB and argued there was no breach of privacy.
The Case
The Tribunal considered whether there was an "interference with privacy" under the Privacy Act, which requires both a breach of an Information Privacy Principle (“IPP”) and demonstrable harm to the individual.
Prior to considering the IPPs, the tribunal analysed the definition of collection, finding it is to be interpreted widely and can mean “acquire”. The active and intentional steps of Stonewood to take BMN’s devices, while knowing that they contained his personal information was “collection”, not the receipt of unsolicited information.
IPPs
Harm to the Individual
The Tribunal found that Stonewood’s breach of IPPs 1, 2, and 4 caused significant humiliation, loss of dignity, and injury to feelings. This was evidenced by BMN's subsequent diagnosis of acute anxiety and depression. The Tribunal acknowledged the impact on BMN’s tax filing and career prospects.
Result
The Tribunal ruled in favour of BMN, finding that Stonewood interfered with his privacy. Stonewood was ordered to return BMN's personal information and USB drive, delete all copies of his information, and pay $60,000 in damages for humiliation, loss of dignity, and injury to feelings, in addition to $394.87 in pecuniary losses. Non-publication orders were granted to protect BMN's identity.
The case highlights that “collection” is to be interpreted widely and that a right to privacy exists in the context of taking property that is known to contain personal information, without consent, and without a lawful purpose or where the person did not reasonably believe an exception to requiring consent, under the Act, applied. An interference with privacy under the Act will only be made out where there is evidence of correlating harm to the individual.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
Summary
This decision of the Employment Relations Authority declined an application to fix a Fair Pay Agreement following the repeal of the Fair Pay Agreements Act. The Legislation Act allows initiated processes to continue despite a repeal of its underlying Act, but legislative context allowed the Authority to determine that Parliament intended all bargaining processes to cease.
Background
In 2022, Parliament passed the Fair Pay Agreements Act (“FPAA”). The FPAA was designed to bring employee and employer associations to the table to bargain for minimum employment terms and conditions that would apply to a whole industry or occupation. These bargaining processes could be brought by a relatively small proportion of an industry sector.
In 2023, Unite Union applied for a fair pay agreement for the hospitality industry. The preliminary requirements to initiate bargaining were met and on 29 May 2023 public notice of approval of the application was given. Employee and employer bargaining sides were formed and notified, with additional unions and employer organisations joining the respective sides. The employer bargaining side did not produce an inter-party side agreement or appoint a lead advocate within the FPAA prescribed timeline.
National and ACT campaigned to repeal the FPAA during the 2023 election, and subsequently repealed the FPAA under urgency in late 2023.The Repeal Bill contained no transitional provisions and made no mention of ongoing bargaining processes.
On the same day as the Repeal Bill was introduced, Unite lodged an application in the Employment Relations Authority (“ERA”) to fix (unilaterally determine) a fair pay agreement for the hospitality industry. It claimed that the failure of the employer associations to come to an inter-party side agreement was a breach of the FPAA’s requirements for good faith, and it had no reasonable alternative to reach a fair pay agreement without the ERA fixing one.
The Case
As the FPAA was repealed shortly after Unite’s application for a fixed agreement, the issue before the ERA was jurisdictional: could it still fix a fair pay agreement even after the legislation empowering it to do so had been repealed?
In its application for the fair pay agreement process to continue, Unite relied upon section 33(1)(c) of the Legislation Act 2019, which provided that certain processes commenced under the authority of an act may continue until their completion even if the underlying act was repealed. Unite argued that proceedings were to be determined under the law at the time they were filed, relying on the principle against the retroactive application of legislation as a lens to view section 33(1)(c).
The employer associations argued that section 33(1)(c) was limited to processes and did not resurrect substantive remedies (such as the fixing of an agreement), and relied upon the Minister’s speeches to the House to show Parliament’s intention that the ongoing bargaining processes would cease upon repeal. Further, the presumption against retroactive enforcement of legislation was not to be used to undermine government policy. They also argued the application was moot: the repeal of the FPAA meant there was no underlying structure for any award to have effect.
Section 33(1)(c) of the Legislation Act is subject to section 9 of that Act. Section 9 excludes the provisions in Part 2 of the Act (which includes section 33) if the provisions of the legislation in question, or the legislative context, require otherwise. The Government had the chance (and declined) to amend the repeal Bill to either explicitly allow ongoing processes to continue or to state that they were to end. Each party argued that this was beneficial to their own side.
The ERA determined that without the empowering legislation the ERA had no resources to draw on to make the necessary investigations for fixing an FPA, and in any case there would have been no legislative mechanism to enforce an FPA going forward. Parliament must therefore have intended that the repeal of the FPAA was to put a stop to ongoing bargaining processes, and so the legislative context of the case required that section 33(1)(c) not apply.
Result
The ERA determined they did not have jurisdiction and declined to proceed with Unite’s application to fix a fair pay agreement.
This decision highlights the importance of thorough statutory drafting. The Repeal Bill was very barebones, and despite the Minister’s speeches in Parliament about her clear intention to end the bargaining processes it still took the issue going through the ERA and the use of the peripheral legislative context, not a clear intention within the Bill itself, to settle the issue.
For further information on this case or similar issues, please contact Director Rob Ogilvie.
Note: Hospitality NZ, one of the employer associations involved in this case, was represented by their General Counsel Tim Blake. Tim also works as a Consultant for Franks Ogilvie. Franks Ogilvie was not itself involved in this case.
Summary
The High Court declined Te Runanga O Ngati Whatua’s application to judicially review the Kaipara District Council’s decision to disestablish its Māori Ward. The key issue was whether the Council was required to consult with local iwi and hapū before making the decision.
Background
In July 2024, the Local Electoral Act 2001 was amended to require local authorities who had established a Māori Ward by resolution under the previous Labour Government’s change, to decide by 6 September 2024 whether to retain or dissolve the Ward. You can read more about Māori Wards and the Amendment Act changes, here.
On 7 August 2024, the Kaipara District Council decided to disestablish its Māori ward. This drew considerable public debate and media attention as it was the only local authority to do so.
If authorities decided to disestablish its ward, the Amendment Act required Councils to decide on an initial proposal for a “representation review” by 13 September 2024. Previously, in 2018, such a proposal had taken the Kaipara District Council (“Council”) 3 months to decide upon.
The Chief Executive of the Council had concluded there was no requirement to consult with the community on the decision, including Māori, partly because there was no time to do so without jeopardising the (potential) representation review.
The Case
Te Runanga O Ngati Whatua (“Ngati Whatua”) (a Māori Trust Board representative of iwi and hapū occupying lands between the Hokianga Harbour and Auckland), brought a judicial review application seeking a declaration that the Council failed to adequately consult with local iwi and hapū before making the decision.
Ngati Whatua claimed the decision was in breach of the Local Government Act (“LGA”), and in particular the Council’s obligation:
There was a further claim that Ngati Whatua had a legitimate expectation that they would be consulted.
Sections 81 and 82 of the LGA, the Court concluded, did not mandate consultation with Māori. Consultation with Māori may be one way in which a local authority provides opportunities for Māori to contribute to decision-making processes under section 81, but it is not the only way. The Council’s Chief Executive held monthly meetings with representatives of relevant iwi and at these he informed them of the Amendment Bill, potential options from this, and timeframes. The Court therefore found processes for Māori to contribute to the decision-making process were “maintained”.
Section 82 similarly did not create a duty to consult, and the Council had a discretion as to the manner in which it considered the principles. Justice Campbell found the Council’s decision was not unreasonable in the circumstances due to the short timeframe for the representation review prescribed by the Act.
Result and Significance
The Court declined Ngati Whatua’s application, finding in favour of the Council.
The case is significant due to its conclusions on the obligations owed to Māori under the LGA. Whilst previous case law had considered other decision-making provisions under the Act finding these didn’t create a duty to consult Māori, this had not been considered in relation to section 81. Ultimately, local authorities have discretion as to what processes they have in place to promote Māori contribution to decision-making, and how they consider principles of consultation.
For further information on this case or similar issues, please contact Director Brigitte Morten.
Franks Ogilvie acts for Kaipara District Council but did not advise on this particular matter.
