| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 277 |
| Hearing date | 23 Apr 2012 |
| Determination date | 14 August 2012 |
| Member | R A Monaghan |
| Representation | S Austin v G Bingham |
| Location | Whakatane |
| Parties | Kingi and Ors v Bay of Plenty District Health Board |
| Other Parties | Hughes, Kau Kau, Akurangi, Boynton, Hunt, Allison, Albertyn, O'Halloran, Williams |
| Summary | COMPLIANCE ORDER – Applicants sought compliance with provisions of Employment Relations Act 2000 (“ERA”) – Authority found applicants having to remain at workstations did not amount to break under ERA – Found break provisions in collective employment agreement not consistent with ERA – Found not appropriate to make compliance order in absence of full argument – PENALTY – Applicants sought penalty for respondent’s failure to provide breaks – Found respondent’s failure to provide breaks serious but not egregious – $3,000 penalty appropriate for first, second, third, fourth, fifth, sixth, seventh, ninth and tenth applicants – ARREARS OF WAGES – Applicants sought arrears of wages – Found applicants not denied opportunity to have meal – Found no term of ninth applicant’s employment entitled to minimum number of shifts per week – No arrears of wages – DISPUTE – Applicants claimed respondent attempting to alter applicants’ hours of work requirement and unable to do so without applicants’ agreement – Found respondent attempting to alter applicants’ hours of work requirement – Found respondent required to obtain applicants’ agreement before implementing change to hours of work requirement – Questions relating to attempted change of applicants’ hours of work requirement answered in favour of applicants – Seventh, ninth and tenth applicants claimed classified incorrectly as casual employees – Found ninth and tenth applicants permanent employees – Found seventh applicant casual employee – Question relating to classification of ninth and tenth applicants answered in favour of applicants – Question relating to classification of seventh applicant answer in favour of respondent – Seventh, ninth and tenth applicants claimed entitled to minimum number of shifts per week – Found no term of employment that seventh, ninth and tenth applicants entitled to minimum number of shifts – Question relating to entitlement to minimum number of shifts answered in favour of respondent – Applicants claimed entitled to four weeks annual leave and respondent not entitled to recover holiday pay paid to applicants on pay as you go basis – Found not impracticable to provide employees with accrued annual leave – Question relating to applicants’ entitlement to accrued annual leave answered in favour of applicants – Not appropriate to answer question regarding ability of respondent to recover annual leave paid to applicants on pay as you go basis – Telephonists |
| Abstract | Applicants employed by respondent as telephonists. Applicants sought compliance with provisions of Employment Relations Act 2000 (“ERA”) and penalty for respondent’s failure to provide breaks. Applicants sought arrears of wages. Collective employment agreement (“CEA”) provided applicants generally not required to work more than five hours continuously without meal break. If employee unable to take meal after five hours employee entitled to penalty payment until meal taken. If employee unable to be relieved from work for meal break employee entitled to have meal on duty as working time. Applicants claimed did not have breaks as unable to leave workstation. Respondent claimed employee rostered to cover meal breaks of other employees. Applicants claimed should be paid penalty payment under CEA for time worked after five continuous hours on duty without meal. Ninth applicant sought arrears of wages equivalent to 25 shifts.;Applicants claimed respondent attempted to alter applicants’ hours of work requirement and unable to do so without applicants’ agreement. CEA provided changes to hours of work requirement generally required eight weeks’ notice for purpose of reaching agreement between employee and employer. CEA provided hours of work requirement, if not defined in employee’s terms of employment, meant regular routine or rostered hours normally worked. Respondent attempted to change shift start and finish times but claimed not requiring applicants to change hours of work requirement. Seventh, ninth and tenth applicants claimed classified incorrectly as casual employees. Ninth and tenth applicants worked every week in employment apart from certain periods. Seventh and ninth applicants initially received holiday pay on pay as you go basis but subsequently accrued annual leave entitlements. Tenth applicant accrued annual leave entitlements. Ninth applicant given time off in lieu when worked public holiday and paid at penalty rates for work done on public holiday. Seventh, ninth and tenth applicants claimed entitled to minimum number of shifts per week. Applicants claimed entitled to four weeks annual leave and respondent not entitled to recover holiday pay paid to applicants on pay as you go basis.;AUTHORITY FOUND –;COMPLIANCE ORDER: Employee rostered to cover other employees’ breaks did not cover full duration of breaks and did not provide cover for all shifts. Applicants having to remain at workstations did not amount to break as on duty constantly. Respondent did not comply with break provisions in ERA apart from commencement of afternoon shift. Break provisions in CEA reduced employees’ right to break. Fact that limits on breaks in CEA accompanied by corresponding benefit irrelevant as ERA permitted only enhanced benefits and prevented reduction of right to meal break. Even if ‘package’ approach correct penalty payments unacceptable contracting out of ERA and applicants’ entitlements under CEA not enhanced. Break provisions in CEA not consistent with ERA. Even if CEA consistent with ERA respondent did not comply with CEA as did not provide breaks apart from commencement of afternoon shift on weekdays. Not appropriate to make compliance order in absence of full argument.;PENALTY: Respondent’s failure to provide meal breaks serious but not egregious. $3,000 penalty appropriate for first, second, third, fourth, fifth, sixth, seventh, ninth and tenth applicants.;ARREARS OF WAGES: CEA provided for penalty payment where employees unable to have ‘meal’ rather than ‘meal break’. Fact that applicants brought food to work that was quick and easy to eat did not mean applicants did not have meal. No evidence to find entitlement to penalty payment. No term of ninth applicant’s employment that entitled to minimum number of shifts per week. No arrears of wages.;DISPUTE: Hours of work requirement only defined by regular routine or rostered hours normally worked if hours of work requirement not defined in employees’ terms of employment. Terms of employment included applicants’ letters of appointment, which did not define shift start and finish times, but also other obligations or entitlements known to parties and expected of each other. Shift start and finish times applied over period of time and mutual understandings and expectations of parties regarding matter meant shift start and finish times part of applicants’ terms of employment. Respondent attempting to alter applicants’ hours of work requirement. Respondent required to obtain applicants’ agreement before implementing change to applicants’ hours of work requirement. Questions relating to attempted change of applicants’ hours of work requirement answered in favour of applicants. Ninth applicant worked frequently so that respondent accepted obligation to provide ninth applicant work. Casual employee would not accrue entitlement to time off in lieu of public holidays worked or paid penalty rates for work done on public holidays. Ninth applicant permanent employee. Tenth applicant rostered for sustained period of on-going work that combined with accrual of annual leave entitlements indicated respondent accepted obligation to provide tenth applicant with work. Tenth applicant permanent employee. Seventh applicant’s leave entitlements and rostering treated in same manner as ninth applicant but shifts worked by seventh applicant unpredictable and irregular. Seventh applicant casual employee. Question relating to classification of ninth and tenth applicants answered in favour of applicants. Question relating to classification of seventh applicant answer in favour of respondent. No term of employment that seventh, ninth and tenth applicants entitled to certain number of shifts. Question relating to entitlement to minimum number of shifts answered in favour of respondent. Not impracticable to provide employees with accrued annual leave. Pay as you go annual leave payments permitted only under s 28 Holidays Act 2003. Question relating to applicants’ entitlement to accrued annual leave answered in favour of applicants. Not appropriate to answer question regarding ability of respondent to recover annual leave paid to applicants on pay as you go basis. |
| Result | Application granted (penalty); Penalty ($3,000)(payable to first applicant)($3,000)(payable to second applicant)($3,000)(payable to third applicant)($3,000)(payable to fourth applicant)($3,000)(payable to fifth applicant)($3,000)(payable to sixth applicant)($3,000)(payable to seventh applicant)($3,000)(payable to ninth applicant)($3,000)(payable to tenth applicant); Questions answered in favour of applicants (attempted change of applicants’ hours of work requirement)(classification of ninth and tenth applicants)(entitlement to accrued annual leave); Questions answered in favour of respondent (classification of seventh applicant)(entitlement to minimum number of shifts); Applications dismissed (compliance order)(arrears of wages); Question not answered (ability of respondent to recover annual leave); Costs reserved |
| Main Category | Dispute |
| Statutes | ERA;ERA s69ZD;ERA s69ZD(4);ERA s69ZE;ERA s69ZF;ERA s69ZG;ERA s69ZG(2);ERA s136(2);Holidays Act 2003;Holidays Act 2003 s16;Holidays Act 2003 s27;Holidays Act 2003 s27(1);Holidays Act 2003 s28;Holidays Act 2003 s28(1);Holidays Act 2003 s28(1)(a)(ii);Holidays Act 2003 s28(4);Holidays Act 2003 s48 |
| Cases Cited | David O’Neill Contracting Ltd v Labour Inspector (Jon Henning) unreported, P Cheyne, 16 April 2008, CA41/08;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225;Lee v Minor Developments Ltd t/a Before Six Childcare Centre unreported, Shaw J, 23 December 2008, AC52/08 |
| Number of Pages | 28 |
| PDF File Link: | 2012_NZERA_Auckland_277.pdf [pdf 275 KB] |