| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 124 |
| Hearing date | 20 Nov 2013 |
| Determination date | 03 April 2014 |
| Member | K J Anderson |
| Representation | S Carr ; No appearance |
| Location | Hamilton |
| Parties | MacRury (Labour Inspector) v Cypress Villas Ltd and Anor |
| Other Parties | Brill |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay on behalf of former employee of first respondent (N") - Whether N employed on fixed-term employment agreement ("EA") - Whether N's salary included holiday pay component - Whether N entitled to payment for working on public holidays - Whether number of hours actually worked by N reduced hourly rate below minimum wage - PENALTY - Applicant sought penalties for first respondent's breaches of Holidays Act 2003 and Minimum Wage Act 1983 - PRACTICE AND PROCEDURE - Applicant sought order that second respondent jointly and severally liable for arrears of wages and holiday pay - Second respondent sole director of first respondent - No appearance for respondents - Motel supervisor" |
| Abstract | AUTHORITY FOUND -;ARREARS OF WAGES AND HOLIDAY PAY: N employed on initial fixed-term EA for genuine reasons based on reasonable grounds. N employed on further fixed-term EA ending on occurrence of closure of business. N did not agree to have annual holiday pay included as component of salary. Annual holiday pay not identified clearly as component of N's salary. N entitled to payment of $4,491 arrears of holiday pay. First respondent failed to keep holiday and leave record for N. N required to work or be available to work on all public holidays during N's employment. N entitled to payment of $1,205 for working public holidays and $2,431 for time off in lieu. Minimum Wage Act 1983 applied to salaried employees in appropriate circumstances. N's pay calculated based on 40 hour working week but N required to be available on more or less continuous basis for total of 77 hours per week. N's EA silent as to hours N expected to work. N entitled to payment of $30,018 minimum wage arrears. First respondent to pay applicant $31,223 arrears of wages and $6,922 arrears of holiday pay. Interest payable.;PENALTY: Award of penalties would be exercise in futility given parlous financial state of first respondent. No penalty.;PRACTICE AND PROCEDURE: First respondent did not have sufficient assets to pay amounts awarded in full. Not appropriate for applicant to simply assert right to payments in question when right in dispute and Authority determination required to determine N's right. Second respondent acted on professional advice in good faith and no tangible evidence second respondent deliberately embarked on course of action designed to deprive N of legal entitlements. Second respondent did not deliberately direct or authorise any action resulting in default of payments due to N. Application dismissed. |
| Result | Application granted (arrears of wages and holiday pay) ; Arrears of wages ($31,223.91) ; Arrears of holiday pay ($6,922.98) ; Interest (5%) ; Applications dismissed (penalty)(practice and procedure) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA;ERA s65;ERA s66;ERA s66(1)(b);ERA s66(2);ERA s234;ERA s234(2);ERA s234(2)(b);ERA Second Schedule cl11;Holidays Act 2003;Holidays Act 2003 s23;Holidays Act 2003 s24;Holidays Act 2003 s25;Holidays Act 2003 s27;Holidays Act 2003 s28;Holidays Act 2003 s28(1);Holidays Act 2003 s28(1)(c);Holidays Act 2003 s28(4);Holidays Act 2003 s50;Holidays Act 2003 s56;Holidays Act 2003 s81;Holidays Act 2003 s81(2);Holidays Act 2003 s81(3);Minimum Wage Act 1983;Minimum Wage Act 1983 s11 |
| Cases Cited | Begum (Labour Inspector) v Effective Fencing NZ Ltd unreported, A Dumbleton, 3 March 2010, AA94/10;Begum (Labour Inspector) v Effective Fencing NZ Ltd [2011] NZERA Auckland 163;Idea Services Ltd v Dickson [2009] ERNZ 116;Idea Services Ltd v Dickson [2011] ERNZ 192 ; [2011] 2 NZLR 522;Law v Board of Trustees of Woodford House [2014] NZEmpC 25;Taljaard, Labour Inspector v Sevans Operator Hire Ltd (in rec and in liq) [2011] NZERA Auckland 412 |
| Number of Pages | 19 |
| PDF File Link: | 2014_NZERA_Auckland_124.pdf [pdf 223 KB] |