May Moncur Terms Of Engagement vii

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  1. Definitions
    1. “Work Law” means Work Law Limited, its successors and assigns or any person acting on behalf of and with the authority of Work Law Limited.
    2. “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Work Law to provide the Services as specified in any quotation, order, invoice or other documentation, and if there is more than one person requesting the Services is a reference to each person jointly and severally.
    3. “Services” means all Services (including, strategies, diversity planning and advice, etc.) provided by Work Law to the Client at the Client’s request from time to time, and includes any goods, documents, plans, or aids supplied, consumed, created or deposited incidentally by Work Law in the course of it conducting, or providing to the Client, any Services.
    4. “Documentation” means any documents, schedules or plans supplied, consumed, created or deposited incidentally by Work Law during conducting, or supplying to the Client, any Services.
    5. “Financial Settlement” means any payment made by the other party and received by the Client, including but not limited to:
      1. Payments of outstanding wages and holiday pay that are in dispute; and
      2. Payments made “in lieu of notice” not currently on offer due to either the Client’s employment contract or at risk of forfeit due to potential dismissal;
      3. Payment made to compensate for loss of wages;
      4. Compensation payments;
      5. Payments made to reimburse the Client for any expenses relating to or resulting from the employment dispute; and
      6. Penalties awarded by the Employment Relations Authority (“ERA”) that are payable to the Client. The term Financial Settlement does not refer to any payment made by the other party of any wages or holiday pay that was not under dispute; and/or as a result of an order made by the ERA relating to penalties awarded by the ERA that are payable to the Crown.
    6. “Fee” means the Fee payable for the Services as agreed between Work Law and the Client in accordance with clause 3 of this Agreement.
    7. “Business Day” means a day on which the major trading banks are open for normal business to be conducted, excluding a Saturday, Sunday or public holiday.
    8. “Personal Information” means name, address and/or any registered office address, any relevant ABN, business names and/or ACN and company details, telephone number, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next-of-kin and other contact information (where applicable).
    9. "Confidential Information” means:
      1. The terms of this agreement and their subject matter;
      2. Any information, statements, contracts, agreements, specifications, reports, accounts, knowledge, information concerning the affairs of the Client; or
      3. Information which by its nature or by the circumstances of its disclosure, is or would reasonably be expected to be regarded as Confidential Information at any time disclosed (whether in writing or orally); but
      4. Does not include information that is in the public domain otherwise than as a result of a breach of this agreement by the Client or their agents;
      5. Including but not limited to, Personal Information.
    10. “Agreement” means this Agreement including any Fee Proposal, Schedule and any other agreement expressed to be supplemental to this Agreement and all other amendments to such a document.
  2. Acceptance
    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client requests or accepts Services provided by Work Law.
    2. These terms and conditions may only be amended with both parties consent in writing, and shall prevail to the extent of any inconsistency with any other document or Agreement between the Client and Work Law.
    3. None of Work Law’s staff are authorised to make any representations, statements, conditions or agreements not expressed by Work Law in writing, nor is Work Law bound by any such unauthorised statements unless they are expressly agreed to in writing by the Director of Work Law.
    4. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
    5. The Client acknowledges and accepts that Work Law will communicate electronically (email), unless otherwise instructed and Work Law will fully comply with all requirements under the Unsolicited Electronic Messages Act 2007. The Client accepts this form of communication maybe subject to inherent hazards in electronic distribution and as such Work Law cannot warrant against delays or errors in transmitting data between the Client and Work Law, and the Client agrees that to the maximum extent permitted by law, Work Law will not be liable for any losses which the Client suffers as a result of internet interruptions beyond Work Law’s control that may cause delays or errors in transmitting instructions and/or confirmations.
  3. Work Law’s Obligations
    1. Work Law warrants that it has the necessary skills, competence, and experience to undertake and complete the Services and shall at all times apply such skills, competence and experience in performance of the Services.
    2. Work Law accepts that it shall be appointed, and shall be entitled to act, as the Client’s agent for the purposes of the term of this Agreement.
    3. If the Client shall instruct Work Law to change the scope of the Services, Work Law shall promptly notify the Client in writing of any variation in Fees pursuant to clause 5.2 of this Agreement. The Client agrees that additional fees may be payable.
    4. Work Law shall keep full records of the Services provided in the manner determined by Work Law, and shall provide the Client with updates with respect of the Services at the time and in the manner determined by Work Law in Work Law’s absolute discretion.
  4. Client’s Obligations
    1. The Client must:
      1. Give Work Law access to all records and information as reasonably required by Work Law in order to properly provide the Services to the Client; and
      2. Keep Work Law informed of any developments (such as a change to information provided to Work Law) that a reasonable person would consider is likely to impact on the Services.
    2. The Client acknowledges that if their requirements change during the term of the Agreement, the Fee may be subject to change.
    3. The Client authorises Work law Ltd (where applicable) to receive Fees directly from their employer. In the event that the entire amount (inclusive of Fees) is paid directly into the Client’s bank account, Work Law’s Fees will be due and payable, the same day as the Client receives their payment from the employer.
    4. Furthermore, the Client accepts and agrees where a settlement is reached which includes a contribution towards costs by the Client’s employer, or previous employer, and that payment is not paid by the employer as agreed to Work Law, then:
      1. The Client will assist Work Law in enforcing compliance with that condition of settlement (including but not limited to, attending an Employment Relations hearing or providing a witness statement to Work law) so that Work law may recover monies owed as part of that agreed settlement; and
      2. That the costs recovered are payable to Work Law and in the event where a penalty is awarded for the breach of the compliance of the relevant term, that amount that is awarded to the Client as part of the penalty for the enforcement of the costs will be divided in equal parts between both the Client and Work Law.
  5. Fee and Payment
    1. At Work Law’s sole discretion, the Fee shall be either;
      1. As indicated on invoices provided by Work Law to the Client in respect of Services supplied; or
      2. The Fee as at the date of delivery of the Services according to Work Law’s’ current Fee schedule subject to:
        1. Contingency Fees – No-Win-No Fee - where Work Law does work for the Client and Work Law is not able to achieve a successful result (ie the Client is in the same position as the Client was at the stage Work Law become involved), there will be no charge for the Services provided. However, where Work Law’s Services do achieve a successful result (ie the Client is in a better position than the Client was at the stage Work Law became involved) there will be a charge for the Services provided;
        2. Non-Contingency Fees -Time and Attendance Fees-Services such as representation at disciplinary or investigation meetings or for situations where a financial outcome is not being sought then Work Law’s Fee for this Service is $280.00 plus GST per hour. 
    2. Cost Structure of Fees:
      1. For “No-Win-No-Fee” cases that are resolved up to filing at the Employment Relations Authority the Client will be charged 1/3 (33.33%), plus GST of any Financial Settlement that is achieved up to the first $20,000 of your settlement and nothing thereafter.
      2. For “no-win-no-fee” situations that are resolved after filing in the Employment Relations Authority you will be charged 33.33% (1/3) of any financial settlement plus $2,000 base fee up to the first $20,000 of your settlement and then nothing thereafter.
      3. In the case of an employer refusing to attend mediation at which point Work Law would have to file the Client’s case with the Employment Relations Authority (“ERA”). The application Fee required by the ERA is $71.56 (including GST) payable by the Client. Employers, will at this point, be directed to mediation;
      4. If the Client’s case is not resolved during mediation both the Client’s, Work Law and the mediator will discuss taking the Client’s case to the ERA. The mediator will work through a risk analysis in relation to the Client’s case pointing out the strengths and potential risks, (this being part of the mediator’s role). Work Law will also provide the Client with independent advice as to the likelihood of the Client’s case being successfully resolved at the ERA, enabling the Client to make an informed decision on whether to proceed to the next stage;
      5. Work Law reserves the right to charge the base fee of $2,000 plus GST upfront for the work involved to take the Client’s case to the ERA;
      6. For “No-Win-No-Fee” cases that are resolved through an ERA investigation, the Client will be charged the base fee of $2,000 plus 1/3 (33.33%), plus GST of any Financial Settlement that is achieved (unless the base fee has already been paid);
      7. If Work Law achieve reinstatement or have the dismissal reversed to either a resignation or termination by agreement, the base fee shall be $300 plus two weeks of your normal net pay (plus GST). We reserve the right to negotiate a fee for other successful outcomes.
      8. In some cases there may be what is considered an extraordinary amount of work or work that falls outside the usual scope of a case, this could include a large amount of documentation to work through, gathering and tracking down witnesses for statements, several overseas calls or travel etc. Work which falls outside the usual scope may be charged on a quoted hourly rate basis. Work Law will advise the Client as soon as reasonably practicable, if it becomes necessary for Work Law to provide Services outside the agreed scope. The agreed scope includes (but is not limited to, separate charges for courier fees, photocopying, telephone charges, postage, forms etc. Upon request, Work Law will provide the Client with a written estimate of the likely amount of the further costs.
      9. Prior to accepting your case on a No-Win-No-Fee basis the Advocate may charge a $500 retainer fee. The retainer covers all of the services up to a two-hour limit. The retainer does not guarantee an outcome or final result. If you have paid a retainer and the case has been accepted to continue on a No-Win-No-Fee basis, then the retainer may be discounted off any fee we charge once a settlement with the employer has been reached. 
    3. Work Law reserves the right to change the Fee:
      1. In the event of a variation to the Fee where the Client requests changes after commencement of the Services then Work Law (at its sole discretion) shall be entitled to vary the Fee; or
      2. To include any Reimbursable Expenses as per clause 6; or
      3. Where additional costs are incurred by Work Law.
    4. Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by Work Law, which is seven (7) Business Days following the date of any invoice given to the Client by Work Law, unless subject to clause 4.3 that payment is immediately due and payable in accordance with the settlement conditions.
    5. Payment may be made by electronic/on-line banking, credit card (plus a surcharge will apply per transaction), ezidebit or by any other method as agreed to between the Client and Work Law.
    6. Unless otherwise stated the Fee does not include GST. In addition to the Fee the Client must pay to Work Law an amount equal to any GST Work Law must pay for any provision of Services by Work Law under this Agreement, or any other, agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fee.
    7. Receipt by Work Law of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Work Law’s ownership or rights in respect of the Services, and this Agreement, shall continue.
  6. Reimbursable Expenses
    1. Work Law shall be reimbursed for all expenses reasonably and properly incurred in connection with the provision of the Services, except where such expenses are specifically stated in writing by Work Law as being non-reimbursable. All reimbursable expenses (e.g. travel, accommodation, communications, couriers, etc.) will be charged at the cost involved (excluding GST) to Work Law, plus an administration fee of 10% thereof.
  7. Provision of Services
    1. Work Law shall:
      1. Exercise all due care skill and judgement and work diligently, effectively and to a high standard and at all times act in accordance with the applicable professional standards, principles and practices;
      2. Observe and comply with all relevant legislation.
    2. Both parties shall make all reasonable effort to ensure the Services are completed in accordance with this agreement and take all necessary reasonable steps to minimise any possible delay thereto. However, any time specified by Work Law for provision of the Services is an estimate only, and Work Law will not be liable for any loss or damage incurred by the Client as a result of any delay. In the event that Work Law is unable to provide the Services as agreed solely due to any action or inaction of the Client, then Work Law shall be entitled to charge a reasonable Fee for re-providing the Services at a later time and date or terminate the provision of Services to the Client.
  8. Security and Charge
    1. In consideration of Work Law agreeing to provide Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. The Client indemnifies Work Law from and against all Work Law’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Work Law’s rights under this clause.
    3. The Client irrevocably appoints Work Law and each director of Work Law as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 8 including, but not limited to, signing any document on the Client’s behalf.
  9. Intellectual Property
    1. Where Work Law has supplied the Client with any information, ideas, strategies, advice and documentation (including reports, proposals, strategies, plans, and other materials and aids, etc.) during the provision of the Services (“Intellectual Property”), then the copyright in that Intellectual Property shall remain the property of Work Law, and the Client must not reproduce, copy or use it in any manner without the prior written permission of Work Law.
  10. Confidentiality Information/Conflict of Interest
    1. Work Law and the Client agree to treat all information, schedules or annexures that form any part of this agreement or any ideas communicated by either other party as confidential and each agree not to divulge it to any third party, without the other party's written consent.
    2. The Client shall not divulge any information regarding the nature or progress of the Services or give any publicity concerning the Services except with the written consent of Work Law.
    3. The Client acknowledges that Work Law shall be entitled (in addition to any entitlement to damages) to an injunction or other equitable relief with respect to any actual or threatened breach by the Client of this clause 10 and without the need on the part of Work Law to prove any special damage.
    4. The Client’s obligations under this clause 10 shall not extend to:
      1. Information already in the public domain other than due to a breach of this agreement; or
      2. Any disclosure required by law.
      3. Clause 10 survives termination of this Agreement.
    5. Work Law is obliged to remain vigilant to, and to advise the Client of, any conflict of interest that may potentially impact or harm the Client. To avoid conflict of interest and commercial sensitivities, it is agreed by Work Law that any and all information regarding the Client (and their business, commercial agenda and employees) shall remain confidential at all times and shall only be disclosed in the event of legal order or obligation.
  11. Default and Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 2.5% per calendar month (and at Work Law’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes Work Law any money the Client shall indemnify Work Law from and against all costs and disbursements incurred by Work Law in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Work Law’s collection agency costs, and bank dishonour fees).
    3. Further to any other rights or remedies Work Law may have under this Agreement, if a Client has made payment to Work Law, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Work Law under this clause 11, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
  12. Termination

    Without prejudice to any other remedies Work Law may have, Work Law reserves the right in its sole discretion to cease or suspend providing the service to you, if:

    1. You breach or threaten or intend to breach these terms (including those relating to payment).
    2. Work Law is required to do so under any applicable law, rule or regulation.
    3. Continuing to provide the service could create a substantial economic burden on Work Law as determined by Work Law in its sole discretion or
    4. Continuing to provide the service could create a professional risk or material technical burden or conflict of interest as determined by Work Law in its sole discretion.
    5. Mediations :
      In certain instances, postponement of mediation is inevitable. No cancellation fee will apply to a postponed and re-booked mediation.
      Cancellation five (5) or more business days before the mediation was due to take place:
      No mediation Fee shall be payable other than any irrecoverable expenses (such as travel costs already incurred etc);
      Cancellation less than five (5) business days before mediation was due to take place: the Fees for any preparation time actually spent by Work Law shall be payable in addition to the irrecoverable expenses incurred.
  13. Penalty Fees
    1. Work Law reserves the right to charge you penalty fees if:
      1. Without reasonable cause and/or against Work Law’s advice, the Client terminates Work Law’s engagement or withdraws from the case before it has reached conclusion; or
      2. The Client by-passes Work Law by negotiating a settlement directly with the other party; or
      3. Failure by the Client to inform Work Law of any changes to the Client’s contact details to the degree that Work Law has no alternative but to cancel the mediation or ERA investigation dates; and
      4. If in the event that the Client provides any false or misleading information and/or lack of providing material facts that could affect the feasibility or likelihood of success relating to the Client’s case.
      5. The client carries out actions or communications that Work Law considers materially harmful to the successful outcome of the clients case.
      6. Penalty fees will be charged at $280+gst per hour plus reimbursement of other incurred expenses such as travel, parking, phone calls, office expenses etc.
  14. Privacy Policy
    1. All emails, documents, images or other recorded information held or used by Work Law is Personal Information as defined and referred to in clause 13.3 and therefore considered confidential. Work Law acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993
    2. The Client authorises Work Law or Work Law’s agent to:
      1. Access, collect, retain and use any information about the Client; (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
      2. Disclose information about the Client, whether collected by Work Law from the Client directly or obtained by Work Law from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
      3. The Client shall have the right to request Work Law for a copy of the Personal Information about the Client retained by Work Law and the right to request Work Law to correct any incorrect Personal Information about the Client held by Work Law.
  15. Liability Limitations

    1. Work Law undertakes to act in all professional matters as a faithful consultant to the Client, whose interests will be watched over with skill and care. Notwithstanding:
      1. Any recommendations given to the Client by Work Law as part of the provision of the Services based on information and documentation provided by the Client without verification by Work Law.

        The Client acknowledges and agrees that:

        1. Work Law gives no representation or guarantee as to a satisfactory resolution for every mediation undertaken; and
        2. All other conditions, terms, representations and warranties (whether express or implied by law), in respect to the provision of any advice, recommendations, information or Services which may be binding on Work Law, are excluded.
      2. Notwithstanding clauses 15.1 Work Law shall not be liable for any loss or damage sustained or sustainable by a Client in relation to:
        1. Errors occurring in any goods, materials, documentation, information, etc. not created or prepared by Work Law; or
        2. Errors occurring during the course of any services which are not provided by, nor the responsibility of, Work Law; or
        3. The use of any information or advice without the approval of Work Law.
  16. Service of Notices

    1. Any written notice given under this Agreement shall be deemed to have been given and received:
      1. By handing the notice to the other party, in person;
      2. By leaving it at the address of the other party as stated in this Agreement;
      3. By sending it by registered post to the address of the other party as stated in this Agreement;
      4. If sent by facsimile transmission to the fax number of the other party as stated in this Agreement (if any), on receipt of confirmation of the transmission;
      5. If sent by email to the other party’s last known email address.
      6. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
  17.  General
    1. If any provision of this Agreement is invalid, illegal, unlawful or otherwise incapable of being enforced, all other provisions of this Agreement shall nevertheless remain in full force and effect and be valid and fully enforceable and no other provision of this Agreement shall be construed to be dependent upon any provision unless so expressed in this Agreement.
    2. These terms and conditions and any Agreement to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Courts of New Zealand.
    3. Work Law may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
    4. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    5. This Agreement constitutes the entire Agreement between the parties with respect of the subject matter and contains all of the representations, undertakings, warranties, covenants and agreements of the parties. This Agreement supersedes all prior negotiations, contracts, arrangements, understandings and agreements with respect to such subject matter. There are no representations, undertakings, warranties, covenants or agreements between the parties express or implied except as contained in this Agreement.

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