| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 23 |
| Hearing date | 20 Jun 2011 - 4 Jul 2011 (2 days) |
| Determination date | 18 January 2012 |
| Member | R A Monaghan |
| Representation | L Yukich ; G Service |
| Location | Auckland |
| Parties | Harris v TSNZ Pulp and Paper Maintenance Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent – Respondent took over from ABB Ltd – Respondent industrial relations manager informed union that intended to maintain continuity of union members employment without disruption or disadvantage – Respondent informed applicant that offer of employment on similar terms and conditions as applicant had with ABB Ltd and would recognise applicant’s prior service with ABB Ltd – Union suggested that unlike ABB Ltd respondent excluded transport allowance from salaries when calculated payments – Union withdrew claims after inability to obtain details of ABB Ltd calculations – Applicant claimed disadvantaged by respondent calculating payment of relevant daily pay and annual holiday differently to ABB Ltd – Authority found respondent’s assurances of no disadvantage addressed preservation of existing terms and conditions and did not amount to inchoate term or condition in own right independently of existing terms and conditions – Found not possible to identify whether ABB Ltd had calculated holiday payments in manner contended – Found even if belief of applicant and union regarding ABB Ltd’s method of calculation was correct there were no grounds on which to suggest ABB Ltd was acting other than in accordance with terms of ABB Ltd collective employment agreement (“CEA”) as understood by ABB Ltd – Found problem not one of changed conditions of employment causing disadvantage nor one of omitting to carry over into employment with respondent condition of employment enjoyed at ABB Ltd with resulting disadvantage to applicant – Found problem concerned correct interpretation or application of CEAs themselves – Found even if there was unjustifiable action on respondent’s part action did not fall within definition of personal grievance under Employment Relations Act 2000 – Found could not make order which obliged respondent to calculate payments other than in accordance with terms of CEA – Found claim for arrears of wages should be made in own right and on ground that respondent misapplying terms of CEA in specified respects resulting in underpayments to employees – No disadvantage – PENALTY – Applicant sought penalty for respondent’s alleged unlawful deduction of transport allowance from pay – Found respondent did not make any deduction from applicant’s pay – Found circumstances concerned disputed method of calculation – No penalty – Leave reserved for either party to refer dispute concerning place of transport allowance in calculations of holiday pay, public holiday pay and sick pay to Authority |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103(3);ERA s129;Wages Protection Act 1983 s4;Wages Protection Act 1983 s5;Wages Protection Act 1983 s6 |
| Cases Cited | Eastern Bay Independent Industrial Workers Union Inc v ABB Ltd unreported, J Wilson, 12 April 2010, AA166/10;Portia Developments Ltd (t/a Silverstone Intercredit NZ) v Taylor unreported, Travis J, 9 September 1997, AEC100/97 |
| Number of Pages | 14 |
| PDF File Link: | 2012_NZERA_Auckland_23.pdf [pdf 60 KB] |