| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 11 |
| Hearing date | 13 Dec 2011 |
| Determination date | 17 January 2012 |
| Member | D Appleton |
| Representation | G Lloyd ; D France |
| Location | Nelson |
| Parties | McMillan and Ors v Air Nelson Ltd |
| Other Parties | Grayer, Grinstead, Steenkamp, Newman, Francey, Likiliki, Buckendhal, Twose (claim withdrawn), Miller (claim withdrawn) |
| Summary | UNJUSTIFIED DISADVANTAGE – ARREARS OF WAGES – Applicants claimed unjustifiably disadvantaged by respondent and owed arrears of wages – Applicants claimed received paid half hour meal break for approximately three weeks – Respondent claimed realised did not intend to pay half hour meal break and so advised applicants that half hour meal break would no longer be paid – Applicants claimed former production manager (“B”) specifically said applicants would receive paid meal break and instructed applicants how to fill out timesheets which included paid meal break – B denied mentioned paid meal break and claimed made mistake in instructing applicants how to fill out timesheet – Authority found B made error in showing applicants how to fill out timesheets – Two applicants (“G”) and (“N”) claimed told at initial interviews by shift manager (“D”) would receive paid meal break – Found N not present at investigation meeting so was unable to be questioned – D denied told G would receive paid meal break – Authority preferred G’s evidence – Applicants claimed only reached agreement on terms and conditions of employment at induction meetings with B and therefore fell into category contemplated in collective employment agreement (“CEA”) by words “unless otherwise agreed” – Applicants claimed withdrawal of paid meal breaks was unilateral and unlawful variation of terms and conditions of employment – Applicants alternatively claimed as shift workers, entitled to paid meal break under CEA – Found applicants rostered workers within specified hours – Applicants claimed as rostered hours not specified before applicants started, applicants shift workers – Respondent claimed applicants, apart from N, were day workers – Respondent claimed shift workers worked at night – Found no applicant gave evidence of working outside of specified hours in CEA – Found roster existed before applicants started work – Found applicants not shift workers – Applicants claimed had otherwise agreed to paid meal breaks – Applicants claimed received flexibility allowance they were not otherwise entitled to because existing employees doing similar work received allowance – Applicants claimed same principle should be applied to paid meal breaks – Found rostered employees entitled to flexibility allowance – Found comparing existing non shift engineers who received paid meal breaks did not assist applicants as specified agreement reached – Found agreement to paid meal break not reached in B’s instructions to applicants about filling out timesheets – Found complete agreements between respondent and applicants reached before induction – Found mistake by B in how to fill out timesheets did not create contractual right to paid meal break – Found otherwise agreed between D and G that G entitled to paid meal break – Found G entitled to receive benefit of paid meal break and right to paid meal break be reinstated by respondent – G entitled to arrears of wages – Licensed Aviation Maintenance Engineer and Aircraft Tradesmen |
| Result | Applications dismissed (unjustified disadvantage) (arrears of wages)(five applicants) ; Applications granted (unjustified disadvantage) (arrears of wages)(G) ; Arrears of wages (quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s131;ERA s137 |
| Cases Cited | Krukziener v Hanover Finance [2008] 19 PRINZ 162;Newmans Tour Ltd v Ranier Investments Ltd [1992] 2 NZLR 68 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Christchurch_11.pdf [pdf 76 KB] |