| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 191 |
| Determination date | 31 August 2012 |
| Member | D Appleton |
| Representation | G Malone ; K Radich |
| Location | Christchurch |
| Parties | Moretti & Anor v The New Zealand King Salmon Co Ltd |
| Other Parties | Cerny |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – Authority found applicants’ claim better characterised as arrears of wages claim rather than personal grievance - Found matter did not raise question of law of whether employees in industry entitled to be paid minimum hourly rate for “on call” work for overnight periods – Found determination of matter would not inevitably set precedent for wider industry – Found likelihood of challenge to EC not determinative factor on its own – Found not appropriate in all circumstances to remove matter to EC - Application for removal to EC declined - Hatchery Operators |
| Abstract | Applicants employed as hatchery operators. Respondent sought removal of matter to Employment Court (“EC”) on ground important question of law likely to arise. Applicants claimed unjustifiably disadvantaged as required to work “on call” but not paid minimum hourly rate for period. Respondent claimed applicants not entitled to be paid at minimum hourly rate for “on call” period as not actually working during period. Respondent claimed whether employees in fishing or farming industries, required to stay overnight at provided accommodation and deal with issues that arose, entitled to minimum hourly rate important question of law. Respondent claimed matter test case, challenge likely and large number of employees and employers potentially affected by outcome. Applicants opposed application. Applicants claimed appropriate Authority determine matter as required factual enquiry only and unlikely to have wider impact on industry.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Applicants’ claim better characterised as arrears of wages claim rather than personal grievance. Matter did not raise question of law of whether employees in industry entitled to be paid minimum hourly rate for “on call” work, rather question was whether employees engaged in work as defined by Minimum Wage Act 1983. Determination of matter would not inevitably set precedent for wider industry. Likely many factors unique to applicants’ case that would not be at issue for other employees in industry. Likelihood of challenge to EC not determinative factor on its own. Not appropriate in all circumstances to remove matter to EC. Application for removal to EC declined. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s131;ERA s178;ERA s178(2);ERA s178(2)(d);Minimum Wage Act 1983 s6;Minimum Wage Act 1983 s11 |
| Cases Cited | Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1;Ideas Services Ltd v Dickson [2009] ERNZ 116;Idea Services Ltd v Dickson [2011] 2 NZLR 522;McAlister v Air New Zealand Ltd unreported, Shaw J, 11 May 2005, AC22/05;New Zealand Fire Service Commission v New Zealand Professional Firefighters Union [2006] ERNZ 1109 ; [2007] 2 NZLR 356;Ozieranska v Cintra Quad Group Ltd [2011] NZERA Auckland 442;Transpacific Industries Group (NZ) Ltd v Harris [2012] NZEmpC 17 |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Christchurch_191.pdf [pdf 226 KB] |