| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012 NZERA Auckland 379 |
| Hearing date | 15 Aug 2012 |
| Determination date | 24 October 2012 |
| Member | R A Monaghan |
| Representation | L Yukich ; G Service |
| Location | Auckland |
| Parties | Harris v TSNZ Pulp and Paper Maintenance Ltd |
| Summary | DISPUTE – Parties disputed interpretation of parties collective employment agreement (“CEA”) - Parties disputed whether transport, laundry and tool allowances (“disputed payments”) should be included in calculation of applicant's holiday pay, payment for work on public holiday and payment of sick pay – Authority found disputed payments expressly and clearly reimbursing payments and could not be described as “remunerative” payments - Found if disputed payments were treated as part of applicant’s salary payments they would not be incurred while applicant was on leave as underlying expenses would not be incurred – Found disputed payments not part of applicant’s earnings for purposes of calculating applicant’s annual leave payments – Found disputed payments non-taxable reimbursing allowances and not what applicant received in return for work done – Found disputed payments not incorporated in applicant’s salary for purposes of calculating holiday pay, not included in calculation of relevant daily pay for purposes of calculating payment for work done on public holidays and not included in calculation of sick pay - Questions answered in favour of respondent - Control Systems Technician |
| Abstract | Applicant employed as control systems technician. Parties disputed interpretation of parties’ collective employment agreement (“CEA”). Respondent took over maintenance contract from applicant’s previous employer (“X”) and offered X’s employees same terms and conditions of employment. Parties entered into new CEA containing same clauses as those in CEA when X employer. Applicant claimed therefore respondent required to apply same construction of CEA as X had applied where transport, laundry and tool allowances (“disputed payments”) were included in applicant’s salary when holiday pay and sick pay were calculated. Parties disputed whether disputed payments included in calculation of holiday pay, payment for work on public holiday and payment of sick pay. CEA described disputed payments as “reimbursement allowances.” Parties agreed disputed payments were non-taxable. Applicant claimed parties had created own definition of salary, gross earnings and relevant daily pay and disputed payments were “remunerative” payments which could be distinguished from other reimbursing payments not included in parties’ definition of salary. CEA provided for payment of greater rate with reference to applicant’s “average weekly earnings” and “ordinary weekly pay.”;AUTHORITY FOUND –;DISPUTE: Disputed payments expressly and clearly reimbursing payments and could not be described as “remunerative” payments. If disputed payments were remunerative could not be tax free. If disputed payments were treated as part of applicant’s salary payments they would not be incurred while applicant was on leave as underlying expenses would not be incurred. Applicant’s claim parties could create own definition of salary amounted to respondent making payment of different kind while applicant on leave which parties had not agreed to. Disputed payments not part of applicant’s earnings for purposes of calculating applicant’s annual leave payments. “Pay” referred to what employee received in return for work done. Disputed payments were what applicant received as reimbursement of expenses incurred while doing work. Disputed payments not incorporated in applicant’s salary for purposes of calculating of holiday pay. Disputed payments not included in calculation of relevant daily pay for purposes of calculating payment for work done on public holidays. “Pay” excluded non-taxable reimbursing payments. Disputed payments not included in calculation of sick pay. Questions answered in favour of respondent. |
| Result | Questions answered in favour of respondents ; Costs reserved |
| Main Category | Dispute |
| Cases Cited | ABB Ltd v Eastern Bay Independent Industrial Workers Union & Anor unreported, M Urlich, 21 September 2006, AA303/06;Harris v TSNZ Pulp and Paper Maintenance Ltd [2012] NZERA Auckland 23;Service and Food Workers Union Nga Ringa Tota v Cerebos Gregg’s Limited [2012] NZCA 25;Vector Gas Limited v Bay of Plenty Energy Limited [2010] NZSC 5 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Auckland_379.pdf [pdf 204 KB] |