| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 165 |
| Hearing date | 22 to 24 Mar & 18 Apr 2016 (4 days) |
| Determination date | 26 May 2016 |
| Member | Vicki Campbell |
| Representation | A Dumbleton ; G Lally (in person), R Revell |
| Location | Auckland |
| Parties | Labour Inspector v Freemind Enterprize Ltd and Ors |
| Other Parties | Lally, Singh |
| Summary | JURISDICTION – Whether applicant able to bring claims on behalf of employees who have not had contact with applicant – PRACTICE AND PROCEDURE – Applicant sought to bring claim against second and third respondents under section 234 of the Employment Relations Act 2000 (“ERA”) - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – PENALTY – Applicant sought penalties for failure to provide written employment agreements, failure to keep holiday records, failure to pay holiday pay, failure to pay public holiday pay and failure to pay minimum wage and holiday pay for specific employee |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Relevant provisions of ERA do not require employees to give consent before Labour Inspector can take action on their behalf. Labour Inspector able to bring claims.;PRACTICE AND PROCEDURE: Reasonable grounds to believe that first respondent did not have sufficient assets to pay amount claimed. Part of first respondent’s accounts made up of current shareholder accounts and Authority not satisfied current accounts would be repaid. Second respondent a director of first respondent at time of defaults. Third respondent not director of first respondent but managed workers, signed company documents and acted as guarantor on hire purchase agreements for first respondent. Third respondent officer and agent of company but had no involvement in calculation and payment of wages. Third respondent did not direct or authorise defaults in payment. Application to bring claim against second respondent granted. Second respondent jointly liable with first respondent.;ARREARS OF WAGES AND HOLIDAY PAY: First and second respondents paid holiday pay with each pay cycle without meeting requirements of Holidays Act 2003. First and second respondents failed to pay employees time and a half on public holidays. First and second respondents failed to pay employee statutory minimum wage and holiday pay. Respondent failed to provide wages and time records, which prejudiced applicant’s ability to bring accurate claim. In absence of evidence to contrary, applicant’s evidence accepted as proved. First and second respondents to pay applicant $153,522 arrears of holiday pay and to pay former employee $7,821 arrears of wages and holiday pay. Interest payable.;PENALTY: First respondent failed to provide written employment agreements. Breach left employees without knowledge of rights and affected vulnerable migrant workers. Second respondent aware of legal requirements. Little or no remorse shown. $15,000 penalty appropriate. First respondent failed to keep holiday records. Breaches serious and sustained and impacted on vulnerable employees. No remorse shown. $15,000 penalty appropriate. Failure to pay holiday pay serious and sustained breached with significant impact on vulnerable employees. $15,000 penalty appropriate. Failure to pay public holiday pay serious and sustained breach with significant impact on vulnerable employees. $10,000 penalty appropriate. Failure to pay minimum wage and holiday pay for specific employee serious and sustained breach. $10,000 penalty appropriate. |
| Result | Applications granted ; Arrears of wages and holiday pay ($161,343.67)( first and second respondents) ; Penalty ($65,000)(payable to Crown)(first respondent) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s65;ERA s65(4);ERA s130;ERA s131;ERA s132;ERA s132(2);ERA s133;ERA s135(5);ERA s174E;ERA s228;ERA s228(3);ERA s234;ERA s234(1);ERA s234(2);ERA s234(3);ERA s235;ERA s236;ERA Schedule 1AA cl3(7);Holidays Act 2003 s8;Holidays Act 2003 s28;Holidays Act 2003 s75;Holidays Act 2003 s76(5);Holidays Act 2003 s81;Holidays Act 2003 s82(1);ECA;ECA s58(3);Minimum Wage Act 1983;Minimum Wage Act 1983 s10 |
| Cases Cited | Adams v Alliance Textiles (New Zealand) Ltd [1992]1 ERNZ 982 (EmpC);Labour Inspector v Cypress Villas Ltd [2015] NZEmpC 157;Re GJ Mannix Ltd [1984] 1 NZLR 309 (CA);Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733;Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 (CA) |
| Number of Pages | 30 |
| PDF File Link: | 2016_NZERA_Auckland_165.pdf [pdf 243 KB] |