| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 200 |
| Hearing date | 11 Apr 2012 |
| Determination date | 13 June 2012 |
| Member | A Dumbleton |
| Representation | S Mitchell ; A Drake |
| Parties | Service & Food Workers' Union Nga Ringa Tota Inc and Ors v Pacific Flight Catering and Ors |
| Other Parties | Ngakau, Tuiti, Mehana, Parker ; PRI Flight Catering Ltd |
| Summary | PENALTY - PRACTICE AND PROCEDURE – Identity of employer - Second to fifth applicants claimed employed by first respondent (“PFC”) - Applicants sought penalty against respondents for failure to provide wage and time records - PFC claimed second to fifth applicants’ wage and time records intermingled with other employees’ records and could not provide records unless second to fifth applicants signed confidentiality agreements - PFC later claimed justified in withholding second to fifth applicants’ records as PRI not PFC employer – Authority found PFC was second to fifth applicants’ employer or alternatively employer together with PRI with joint and several liability - PFC had no reasonable excuse for failure to comply with s130 Employment Relations Act 2000 (“ERA”) requirements - PFC deliberately and significantly breached s130 ERA - $5,000 penalty for each of second to fifth applicants appropriate |
| Abstract | Second to fifth applicants claimed employed by first respondent (Pacific Flight Catering Limited) (“PFC”). Applicants sought penalty against respondents for failure to provide second to fifth applicants’ wage and time records. Authority previously reserved determination of penalty claims and whether first or second respondent employer (“first determination”). Respondents appealed first determination in Employment Court (“EC”) and applicants filed cross-challenge. EC dismissed challenge and cross-challenge (“challenge decision”). Respondent’s statement in reply did not deny PFC was employer and made no reference to PRI. High Court (“HC”) previously heard application for injunction where PFC defendant and no suggestion by HC PFC not employer. EC previously held second, third and fifth applicants were employees of PFC. In previous matter involving first applicant and PFC Authority found PFC was employer. PFC claimed EC in challenge decision had held PRI was proper employer of second to fifth applicants. PFC claimed second to fifth applicants’ wage and time records intermingled with other employees’ records and could not provide records unless second to fifth applicants signed confidentiality agreements. PFC later claimed justified in withholding second to fifth applicants’ time records until request to correct employer, PRI, was made.;AUTHORITY FOUND –;PENALTY - PRACTICE AND PROCEDURE: EC did not hold PRI proper employer of second to fifth applicants. PFC did not claim PRI was employer until shortly before investigation meeting and did not provide supporting evidence. Even if respondents genuinely confused, second to fifth applicants had right to immediate access to wage and time records. Nothing unusual about employees of one company being paid wages by another company when companies part of group. PFC was second to fifth applicants’ employer or alternatively employer together with PRI with joint and several liability. PFC had no reasonable excuse for failure to comply with s130(2) Employment Relations Act 2000 (“ERA”) requirement that PFC immediately provide second to fifth applicants with wage and time records. PFC had no right to dictate second to fifth applicant’s right to information under s130 ERA. PFC deliberately and significantly breached s130 ERA. Second to fifth applicants gave compelling evidence of consequences suffered as result of PFC’s actions. $5,000 penalty for each of second to fifth applicants appropriate. |
| Result | Applications granted ; Penalty ($5,000)($2,500 payable to Crown)($2,500 payable to second applicant) ; Penalty ($5,000)($2,500 payable to Crown)($2,500 payable to third applicant) ; Penalty ($5,000)($2,500 payable to Crown)($2,500 payable to fourth applicant) ; Penalty ($5,000)($2,500 payable to Crown)($2,500 payable to fifth applicant) ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA s130;ERA s130(2);ERA s136(2);ERA s157 |
| Cases Cited | LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd unreported, Woolford J, 14 February 2011, CIV-2011-404-277;Matsuoka v LSG Sky Chefs New Zealand Ltd (2011) 9 NZELC 93,828;Service & Food Workers Union Nga Ringa Tota Inc v Pacific Flight Catering Ltd 2011] NZERA Auckland 23 01/11;Service & Food Workers Union Nga Ringa Tota v Pacific Flight Catering Ltd [2011] NZERA Auckland 99;Service & Food Workers' Union Nga Ringa Tota INc v Pacific Flight Catering Ltd [2011] NZERA Auckland 525 - 12/11 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Auckland_200.pdf [pdf 75 KB] |