| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 385 |
| Hearing date | 20 Feb 2013 - 13 May 2013 (8 days) |
| Determination date | 28 August 2013 |
| Member | A Dumbleton |
| Representation | S Blick, R Denmead ; N Faltaus |
| Location | Auckland |
| Parties | Labour Inspector (Ministry of Business, Innovation and Employment) v Civic City Ltd t/a Civic Convenience and Ors |
| Other Parties | Rum Ltd t/a Symonds Liquor, 123J Ltd t/a Sky Liquor |
| Summary | ARREARS OF WAGES - PENALTY - Respondents to pay applicant $96,574 arrears of wages and holiday pay - $115,000 penalty appropriate |
| Abstract | Applicant (Labour Inspector (Ministry of Business, Innovation and Employment)) sought arrears of wages and holiday pay. Applicant sought penalties for respondents’ (Civic City Ltd t/a Civic Convenience and Ors) breaches of Minimum Wage Act 1983, Holidays Act 2003 and Employment Relations Act 2000. Applicant brought claim for use of 11 complainants employed by respondents in Retail Trade Sector. Applicant claimed respondents failed to comply with applicant’s demand for correct payment and sought determination by Authority. Complainants on student visas limited to 20 hours work per week. Applicant claimed complainants worked significantly in excess of 20 hours per week but not paid accordingly. Applicant claimed complainants not paid for training periods. Applicant claimed owner of respondent companies (“B”) threatened complainants with exposure to police and immigration service when complainants asked about minimum wage. Respondents claimed complainants engaged in “illegal and immoral” activities and colluded in plan to falsely claim additional hours worked.;AUTHORITY FOUND –;ARREARS OF WAGES - PENALTY: Eight complainants participated in investigation meeting. Complainants’ failure to comply with visa requirements not indicative of generally bad character. Respondents aware of statutory and regulatory obligations.;B acknowledged deliberate failure to provide employment agreements. Respondents intended to use complainants illegally as cheap labour. Respondents took advantage of complainants’ fear of being caught for breaching visa conditions. Complainants worked significantly in excess of 20 hours per week. Complainants not paid during training periods and paid below minimum wage. Respondents enticed or encouraged complainants to breach visa conditions. Respondents failed to keep proper time and wage records. Respondents’ record keeping generally inadequate and haphazard. Respondents’ failures prejudiced applicants' and complainants’ ability to bring accurate claims. Evidence of “bizarre” discriminatory behaviour towards complainants. Three respondent companies owned by B and able to be held jointly and severally liable to discharge orders of Authority. Respondents to pay applicant $96,574 arrears of wages and holiday pay. Interest payable. Respondents breached Minimum Wage Act 1983 and Holidays Act 2003. $60,000 penalty appropriate. Respondents breached Employment Relations Act 2000. $55,000 penalty appropriate. |
| Result | Applications granted; Respondents to pay applicant arrears of wages and holiday pay ($96,574.33); Interest (5%); Penalty ($79,500)(payable to applicant)($35,500)(payable to Crown); Costs reserved |
| Main Category | Arrears |
| Statutes | ERA - ERA s63A - ERA s64 - ERA s65 - ERA s130 - ERA s130(1) - ERA s132 - ERA s135(1)(c) - ERA s148A - ERA s174 - Holidays Act 2003 - Holidays Act 2003 s23 - Holidays Act 2003 s50 - Holidays Act 2003 s60 - Minimum Wage Act 1983 - Minimum Wage Act 1983 s6 |
| Number of Pages | 16 |
| PDF File Link: | 2013_NZERA_Auckland_385.pdf [pdf 224 KB] |