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150A Payment on resolution of problem and Advocates' GST Invoices are lawful

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Parties can agree that an advocate is paid directly by the employer in terms of an s 149 record of settlement. "Payment" excludes legal or advocacy services where such service is a separate term of the settlement and a GST invoice for a defined sum is provided to the other party.

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Parties can agree that advocate is paid directly

When an employment relationship problem is being resolved and an employment advocate assists in resolution of that problem, the parties to the employment relationship problem can freely agree to the employer paying the advocate directly. This can be recorded in an s 149 Record of Settlement and expressly record the parties agreement to this, for example:

"The Employer will pay the amount of $4,500 plus GST to No Win No Fee Kiwi Limited by direct credit as a contribution to the Employee’s advocacy costs. An appropriate tax invoice from No Win No Fee Kiwi Limited will be addressed to the Employer."

This is the process that will be followed:

  1. The settlement is negotiated in good faith.
  2. The employee agrees to the advocate being paid directly by their employer or former employer.
  3. The amount to be paid to the advocate is specific and has rationale behind it.
  4. The employee signs their agreement to it.
  5. The mediator confirms with the employee that they confirm the effect of settlement is understood by the employee, this is:
    1. Those terms are final and binding on, and enforceable by, the parties; and
    2. The terms may not be cancelled under sections 36 to 40 of the Contract and Commercial Law Act 2017; and
    3. Except for enforcement purposes, no party may seek to bring those terms before the Authority or the court, whether by action, appeal, application for review, or otherwise.
    4. A person who breaches an agreed term of settlement to which subsection (3) applies is liable to a penalty imposed by the Authority.

In this situation it is pretty obvious that the employee has control over the arrangement of how their costs will be paid for. In November 2008 the Mediation Service endorsed this practice, and this practice has continued ever since.

Mediation Practice Note, Topic: Recorded Settlements, Date of Issue: November 2008 (MBIE;DOL)
Payments to Advocates under s 150A

Payments made in breach of s 150A (i.e. directly to advocates) are, under the Act, to be treated as if they had not been made. The party making the payment is required to ensure the payment is legal.

Section 150A provides:

(1) Any payment by one party to another, required by any agreed terms of settlement under section 149(3) or decision under 150(3), must be paid directly to the other party and not to a representative of that party, and the party receiving the payment may not receive or agree to receive, payment in any other manner.

Legal Services has provided advice on when a 'payment' comes under s 150A and when it is excluded. They have advised that, payment includes any monetary settlement (e.g. $5,000), but excludes any goods or services e.g. outplacement services and arguably legal or advocacy services where such service is a separate term of the settlement and a GST invoice for a defined sum is provided to the other party.

Therefore where a respondent agrees to pay a contribution to the costs of the applicant's representation on receipt of a GST invoice for those costs such payment would be excluded from s 150A.

(This approach cures the mischief that the section was designed to remedy (i.e. preventing any less than ethical representatives taking a cut out of the settlement to ensure payment for their services), and places more power in the hands of the applicant.

150A Payment on resolution of problem
  1. Any payment by one party to another, required by any agreed terms of settlement under section 149(3) or decision under section 150(3), must be paid directly to the other party and not to a representative of that party, and the party receiving the payment may not receive, or agree to receive, payment in any other manner.
  2. For the purposes of this Act, a payment that does not comply with subsection (1) is to be treated as if the payment has not been made.
  3. Subsection (1) does not—
    1. apply if the party to whom the payment is required to be made is receiving or has received legal aid under the Legal Services Act 2000 for any matter related to the employment relationship problem giving rise to the mediation; or
    2. prevent a payment being made to the other party’s solicitor.
Section 150A: inserted, on 1 December 2004, by section 53 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

If it were the case that the amounts payable to the employee under the record of settlement were paid to the advocate or representative directly, that would render the payment as being if it had not been made. That is how s 150A works from a literal and purposive interpretation.

Section 150A was inserted because what was happening is that advocates and representatives were providing their own bank account numbers to the employer to then be paid and then the money would be passed on to the employee client after the costs are taken out of the full amount. That is a totally different scenario to parties agreeing that advocacy or representation costs are paid directly upon a GST invoice.

Advantage to the employer

An employer paying an advocate directly upon a GST invoice does help the employer because there is a tax advantage in being able to claim back the GST portion. Compare this with if the employer were to pay the employee the amount directly the employer will be unable to claim back GST if the employee is not GST registered, which is often the case.

An employer being able to claim back 15% on a $1,000 plus GST invoice might seem insigificant if it were only the amount of $150 that can be claimed back, however, when the parties enter into a record of settlement when there has been significant advocacy costs, for example where the matter has been dealt with by the Employment Relations Authority or beyond that to the Employment Court, the employer being able to claim back GST on a principle liability for example of $20,000 is much more significant, that is $3,000 GST at 15% if we use that example.

If the advocate's time at $300 plus GST per hour and having spent 40 hours on the case in total (written correspondence, mediation, assisting in writing witness statements and managing documents, writing submissions and investigation meeting attendance, the fee could rationally be $12,000 plus GST. That is a figure of $13,800 inclusive of GST.

If the advocate's employee client was awarded a total of $30,000 (including contribution to costs), the advocate and their client could agree (and to agree with the employer) that $13,800 be paid inclusive of GST by the employer to the advocate, and the client receives the remaining about of $16,200. The employer would be getting a 15% discount on the invoice portion from the advocate.

Compliance order decisions

If the parties have entered into a record of settlement and it has been agreed that the advocate will be paid costs directly by the employer on a GST invoice, and then if there is a breach of this term of settlement, the Employment Relations Authority has the power to order compliance.

For example, in this case an employer was ordered to comply with the terms of settlement and pay the advocate their costs directly.
Maree v Sanem Digital Limited [2023] NZERA 50

The record of settlement in that case contained the term: "Upon receipt of an invoice for legal fees, Sanem Digital Limited agrees to pay $3500 plus GST to Christine Maree’s legal advisor on or before the 20th of November 2022."

The Authority Member ordered the employer to pay the advocate directly: "In order to effect compliance with clause 4 of the Record of Settlement, I therefore order Sanem Digital Limited to pay Ms Maree’s advocate the sum of $3500."

The Member forgot to add the GST, in which case if it was the writer's case, the matter would have been challenged to the Employment Court to put right the amount plus GST.

The Authority's interference with the freedom of parties to contract

In a recent Authority decision involving the issuing of a compliance order another Authority Member has interfered with how the payment of the contractual agreement is to be effected. The Authority ordered that payment of an advocate's invoice be made directly to the employee client of that advocate.
Armstrong v MTS Energy Limited and Anor [2023] NZERA 72

Second year law students learn about the law of contract and the first lecture contains the following.

From the Economic Theory of Freedom of Contract: "From the laissez faire economies of the 19th century, to the free market and global economies today, freedom from interference has been and remains a fundamental premise" (emphasis added, Thomas J. p 6 of the review article)

Further: "... it is the law of contract which has the greatest impact on interactions where freedom of choice and action and freedom from interference are most coveted." (p 14)

The writer places emphasis also on the relevance of contractual jurisprudence, Liberal Theory ("liber" (Latin) = "free"), promotes individuals rights, liberty, free enterprise. It focusses on consent and voluntariness. Courts give effect to agreement of parties.

There was no legal basis for the Authority Member to make the order that was made in this case. If the writer had the opportunity to challenge a decision like this to the Employment Court just to make the point, the writer would do so. As stated above, taking both a literal and purposive approach to s 150A does not reasonably result in the conclusion that was made here.

The Authority should have ordered that the employer pay the advocates invoice directly because that was what was contemplated by the parties in having entered into the Section 149 settlement.

As it stands the employer is not getting the benefit of being able to claim back the GST.

Just because one Authority Member has this view does not make it the law, the Authority is not bound by its own decisions.

Recorded Settlements Practice Note (Mediation Practice Note)

Restraint of Trade provisions in settlements Download File: Recorded Settlements Practice Note.pdf

Last Updated: March 4, 2023 0800 WIN KIWI