| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 92 |
| Hearing date | 14/07/2016 |
| Determination date | 29 July 2016 |
| Member | James Crichton |
| Representation | E Tait; D Patten |
| Location | Wellington |
| Parties | Labour Inspector v Sun 2 Moon Ltd & 2 Ors |
| Other Parties | A to Z Cleaners Ltd; Luv Kumar Khattar |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Whether employee employed by second respondent – RECOVERY OF MONIES – Applicant sought recovery of premium for employment - ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay - PENALTY – Applicant sought penalties for failure to pay minimum wage, failure to pay holiday pay, failure to keep proper wage and time records and charging premium for employment |
| Abstract | AUTHORITY FOUND –PRACTICE AND PROCEDURE: Employee second respondent’s only source of labour. Employee always paid by first respondent. Only employment agreements between employee and first respondent. Employee only employed by first respondent.RECOVERY OF MONIES: Employee made to pay premium to secure employment. Respondent to pay applicant $10,407 recovery of monies.ARREARS OF WAGES AND HOLIDAY PAY: Respondent did not maintain proper wage and time records. Respondent failed to pay minimum wage. In absence of records from respondent, applicant’s claimed accepted as proved. Employee did not take any annual leave during employment. Employee not paid for working on some public holidays. Respondent to pay applicant $13,437 arrears of wages and $4,935 arrears of holiday pay.PENALTY: All breaches serious. Requiring employee to pay premium abuse of power imbalance between employer and employee and effectively taking advantage of migrant worker. Breaches continuing. Employee deeply affected by breaches. Employee vulnerable. Need for deterrence. $25,000 penalty appropriate. |
| Result | Applications granted ; Recovery of monies ($10,407.88) ; Arrears of wages ($13,437.28) ; Arrears of holiday pay ($4,935.87) ; Penalty ($25,000)(payable to Crown) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s132 ; ERA s135(4A) ; ERA s234 ; Wages Protection Act 1983 s 8A ; Wages Protection Act 1983 s 12A(1) ; Minimum Wage Act 1983 ; Holidays Act 2003 |
| Cases Cited | Idea Services Ltd v Dickson [2011] NZCA 14, [2011] 2 NZLR 522 ; Macrury v Cypress Villas Ltd [2015] NZEmpC 157 ; Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733 |
| Number of Pages | 22 |
| PDF File Link: | 2016_ NZERA_ Wellington_92.pdf [pdf 276 KB] |