| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 11 |
| Hearing date | 10 Aug 2012 - 11 Aug 2012 (2 days) |
| Determination date | 31 January 2012 |
| Member | G J Wood |
| Representation | T Oldfield ; M Richards |
| Location | Wellington |
| Parties | Fuimaono v New Zealand Racing Board |
| Summary | UNJUSTIFIED DISADVANTAGE - ARREARS OF WAGES – Applicant claimed unjustifiably disadvantaged by respondent’s unilateral reclassification of applicant’s position - Applicant sought arrears of wages – Alternatively applicant claimed misled by respondent about employment terms and conditions – Applicant originally employed as phone-bet operator but later accepted night administration support role - Respondent claimed applicant accepted position reclassification so could benefit from terms of collective employment agreement (“CEA”) – Parties agreed in new position applicant would work 40 hour week over four days – Respondent told applicant would not be required to work Saturdays or public holidays unless cover urgently required – CEA stated employees who worked after midnight would be paid one and half times applicable rate and employee required to fulfil manager’s role would be paid at higher hourly rate - Parties did not consider whether applicant’s position covered by CEA when made agreement – Parties’ individual employment agreement (“IEA”) stated superseded all previous agreements and hours of work would be any days of week as determined by applicant’s manager – Authority found parties agreed four years later applicant would be phone-bet operator who would act as team leader when required and would be covered by CEA – Applicant continued to be paid at rate $2 higher than applicable rate in CEA but mistake later remedied - Applicant not paid midnight allowance provided for in CEA until five years later – Respondent changed phone-bet operators’ hours of work and parties agreed to new CEA which provided hours worked would be set by roster – New CEA included savings clause that new CEA did not affect employee’s previous entitlement to particular roster – Found applicant was phone-bet operator covered by new CEA – Found even if applicant established position was not covered by new CEA, applicant had not established why entitled to $2 more than applicable hourly rate – Found IEA did not state applicant’s hourly rate would be $2 more and legitimate expectation not created – Applicant not entitled to be paid $2 more than applicable rate in new CEA – Found applicant agreed to reclassification of position – Found however as applicant covered by new CEA was entitled to outstanding midnight allowance over one year period – Found arrears iof wages due and owing - Parties to determine quantum – Interest payable – Found respondent did not mislead applicant and mistakenly paid applicant $2 higher than applicable rate – Found applicant not contractually entitled to particular hours or days of work and when parties agreed applicant covered by CEA, CEA superseded earlier IEA – No disadvantage - Phone-bet Operator |
| Result | Application granted (arrears of wages) ; Arrears of wages (parties to determine quantum) ; Interest (5%) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s61;Fair Trading Act |
| Cases Cited | NZ Meat Processors etc IUOW v Alliance Freezing Company (Southland) Ltd (1990) ERNZ Sel Cas 834 ; [1991] 1 NZLR 143 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Wellington_11.pdf [pdf 46 KB] |