| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 161 |
| Hearing date | 16 Sep 2014 |
| Determination date | 16 October 2014 |
| Member | C Hickey |
| Representation | S Burnhill ; no appearance |
| Parties | Lagrosa v Maxwell Partnership |
| Summary | ARREARS OF WAGES – Applicant sought arrears of wages – PENALTY – Applicant sought penalty for respondent’s failure to supply wage, time, holiday and leave records, and breach of employment agreement (“EA”) – Migrant worker – Essential skills work visa – English as second language – COSTS – Applicant sought $7,000 contribution towards costs – Applicant made $12,253 and $12,924 Calderbank offers – No appearance for respondent – Assistant herd manager |
| Abstract | AUTHORITY FOUND –;ARREARS OF WAGES: Applicant largely provided own wet weather and protective gear and entitled to payment of wet weather / protective gear allowance under EA. Applicant not paid time and a half for working on five public holidays. Appropriate to include accommodation allowance in calculating applicant’s gross earnings. Applicant not paid full salary. Respondent to pay applicant $5,817 arrears of wages. Interest payable.;PENALTY: Appropriate to impose penalty for respondent’s failure to provide wage and time records but not to impose additional penalty for failure to supply holiday and leave records. Appropriate to impose penalty for respondent’s breach of EA by not paying applicant’s salary in equal instalments or at regular intervals. Inherent inequality of bargaining power increased greatly for migrant workers such as applicant. Breaches ongoing and not technical. Failure to provide wage and time records not inadvertent. $4,000 penalty appropriate.;COSTS: Less than one day investigation meeting. Investigation meeting would have taken half day if respondent appeared. Appropriate to increase notional daily tariff due to respondent’s lack of co-operation with Authority process and rejection of applicant’s Calderbank offers. Respondent to pay applicant $6,000 contribution towards costs. |
| Result | Applications granted ; Arrears of wages ($5,817.70) ; Interest (5%) ; Penalty ($4,000)(payable to applicant) ; Costs in favour of applicant ($6,000) ; Disbursements in favour of applicant ($71.56)(filing fee) |
| Main Category | Arrears |
| Statutes | ERA;ERA s3(a)(ii);ERA s130;ERA s132;ERA s132(2);ERA s135;ERA s135(1)(b);ERA s135(2)(a);ERA s136(2);ERA Second Schedule cl15;Holidays Act 2003 s50;Holidays Act 2003 s81;Holidays Act 2003 s81(5);Holidays Act 2003 s82;Partnership Act 1908;Partnership Act 1908 s7;Partnership Act 1908 s12;Partnership Act 1908 s13 |
| Cases Cited | Feeney, Labour Inspector v BY Ltd, t/a Viz Cafe [2014] NZERA Auckland 208;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Tan v Yang [2014] NZEmpC 65 |
| Number of Pages | 18 |
| PDF File Link: | 2014_NZERA_Christchurch_161.pdf [pdf 1.6 MB] |