| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 111 |
| Hearing date | 17 Jul 2015 |
| Determination date | 05 August 2015 |
| Member | Christine Hickey |
| Representation | G La Hood ; K Jerard, M Withers |
| Location | Christchurch |
| Parties | Kim (Labour Inspector) v Pro-Build Canterbury Ltd |
| Summary | JURISDICTION – Whether employees or independent contractors – ARREARS OF HOLIDAY PAY – Applicant sought arrears of holiday pay – PENALTY – Applicant sought penalties for respondent’s failure to pay holiday pay and keep holiday and leave records – COSTS – Parties sought contributions towards costs - Migrant workers |
| Abstract | AUTHORITY FOUND –JURISDICTION: Parties intended first (“M”) to be an employee. M had an employment agreement (“EA”) and paid sick leave. Second employee (“MC”) did not have written EA but pattern of dealing more indicative of employment. Third employee (“MM”) given EA. Respondent required M, MC and MM to complete timesheets and supervised M, MC and MM’s work M, MC and MM’s work integral to respondent’s business. M, MC and MM did not pay PAYE, but also did not pay GST or render invoices. M, MC and MM not in business on own account. M, MC and MM employed by respondent.ARREARS OF HOLIDAY PAY: Respondent failed to keep accurate records of time and wages, which prejudiced employees’ ability to make accurate claim. Respondent also failed to provide evidence employee’s evidence incorrect. Respondent to pay applicant $41,858 arrears of holiday pay. Interest payable.PENALTY: Respondent breached requirement to pay annual holiday pay, pay for public holidays otherwise ordinary working days, failure to pay time and half on public holidays, failure to provide alternative holidays and failure to pay for alternative holidays owed. Breaches serious and sustained and deprived vulnerable migrant employees of pay owed. No remorse on part of respondent. $15,000 penalty appropriate.COSTS: Less than one day investigation meeting. Respondent wholly unsuccessful so unable to seek costs against applicant. Appropriate to apply notional daily tariff. Respondent to pay applicant $1,000 contribution towards costs. |
| Result | Applications granted ; Arrears of holiday pay ($41,858.09) ; Interest (5%) ; Penalty ($15,000)(payable to Crown) ; Costs in favour of applicant ($1,000) ; Disbursements in favour of applicant ($145.36)(filing fee and witness expenses) |
| Main Category | Arrears |
| Statutes | ERA s6(1)(a);ERA s6(2);ERA s6(3)(a);ERA s6(3)(b);ERA s130;ERA s132;ERA Second Schedule cl11;ERA Second Schedule cl12;Holidays Act 2003 s12;Holidays Act 2003 s13;Holidays Act 2003 s16;Holidays Act 2003 s27;Holidays Act 2003 s49;Holidays Act 2003 s50;Holidays Act 2003 s55;Holidays Act 2003 s56;Holidays Act 2003 s60;Holidays Act 2003 s60(20(ii);Holidays Act 2003 s75;Holidays Act 2003 s75(2);Judicature Act 1908 s87(3);Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] NZSC 34, [2005] 3 NZLR 721;Labour Inspector v Civic City Ltd t/a Civic Convenience [2013] NZERA Auckland 385;Labour Inspector v R.V. Motor Home World (2003) Ltd ERA Christchurch CA13/08, 15 February 2008;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 (EmpC);Tan v Yang [2014] NZEmpC 65 ; Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 32 |
| PDF File Link: | 2015_NZERA_Christchurch_111.pdf [pdf 282 KB] |