| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 207 |
| Determination date | 08 December 2014 |
| Member | H Doyle |
| Representation | A Graham ; no appearance |
| Location | Christchurch |
| Parties | Belley v Verney Construction Ltd |
| Summary | JURISDICTION – Whether employees (“H” and “M”) employees or independent contractors – PRACTICE AND PROCEDURE – Identity of employer – Whether H and M employed by first or second respondent – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay on behalf of H and M – COMPLIANCE ORDER – Applicant sought compliance order requiring first respondent to provide all wage, time, holiday and leave records – Applicant sought compliance order requiring first respondent to provide records showing payment of at least minimum wage to all current employees – PENALTY – Applicant sought penalty for first respondent’s failure to provide all relevant wage, time, holiday and leave records – No appearance for respondents |
| Abstract | AUTHORITY FOUND –;JURISDICTION: No written agreement given to H. No common intention about nature of relationship. H’s work supervised and H instructed what to do. Control test favoured employment relationship. Tools and gear supplied by first respondent and H wore uniform. Integration test favoured employment relationship. Form of taxation provided on invoices supported contractor relationship but real possibility tax not paid to Inland Revenue Department. No evidence H carried on business on own account. No reason to conclude M’s situation different from H’s. H and M employees.;PRACTICE AND PROCEDURE: H and M paid by first respondent. H and M employed by first respondent.;ARREARS OF WAGES AND HOLIDAY PAY: H and M not paid in accordance with Minimum Wage Act 1983 and Holidays Act 2003. First respondent to pay applicant $309 arrears of wages and holiday pay for H’s use and $584 arrears of wages and holiday pay for M’s use. Interest payable.;COMPLIANCE ORDER: No point in ordering production of records given applicant able to calculate money owed to H and M. Not clear if first respondent still had other employees. Application dismissed.;PENALTY: Harm occasioned because applicant unable to ascertain H’s and M’s employment status properly. Penalty should reflect presence of issue about H’s and M’s employment status. $2,000 penalty appropriate. |
| Result | Applications granted (jurisdiction)(practice and procedure)(arrears of wages and holiday pay)(penalty) ; Arrears of wages and holiday pay ($894.19) ; Interest (5%) ; Penalty ($2,000)(payable to Crown) ; Application dismissed (compliance order) ; Disbursements in favour of applicant ($71.56)(filing fee)($25)(witness expenses) ; No order for costs |
| Main Category | Jurisdiction |
| Statutes | Criminal Procedure Act 2011;ERA;ERA s6;ERA s135;ERA s165;ERA s229(1)(c);ERA s229(1)(d);ERA s232;ERA Second Schedule cl6;ERA Second Schedule cl11(1);Holidays Act 2003;Holidays Act 2003 s23;Holidays Act 2003 s81;Judicature Act 1908 s87(3);Minimum Wage Act 1983;Minimum Wage Act 1983 s6;Witnesses and Interpreters Fees Regulations 1974 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372 ; [2005] 3 NZLR 721;Hagfish NZ Ltd v Choi [2014] NZEmpC 170;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Christchurch_207.pdf [pdf 174 KB] |