| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2016] NZERA Christchurch 130 |
| Hearing date | 14/07/2016 |
| Determination date | 04 August 2016 |
| Member | David Appleton |
| Representation | A McIlroy; J Richardson |
| Location | Christchurch |
| Parties | Labour Inspector v Alpine Motor Inn & Caf� (2008) Ltd |
| Summary | JURISDICTION – Whether applicant employee or volunteer – PRACTICE AND PROCEDURE – Admissibility of evidence – Whether hidden audio recording admissible – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – PENALTY – Applicant sought penalties for respondent’s failure to pay minimum wage |
| Abstract | AUTHORITY FOUND -;JURISDICTION: Applicant expected to be paid for work. Applicant understood pay would be received after full work visa obtained. Applicant not casual employee, worked reasonably predictable pattern. Applicant employee.;PRACTICE AND PROCEDURE: Applicant present during majority of recording and did not capture private information when absent. Applicant recorded meeting protect herself in absence of independent support person. Applicant did not ‘entrap’ respondent. Recording relevant to investigation. Audio recording transcript admissible.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent did not keep time and wage records during relevant period. Respondents failed to prove on balance of probabilities applicant’s evidence incorrect. No express agreement between parties as to value of food and accommodation. 20 per cent aggregate percentage deduction for food and accommodation appropriate. Respondent to pay applicant $6,292 arrears of wages and $503 arrears of holiday pay.;PENALTY: Deliberate failure to pay employee wages for work amounts to exploitation, serious. $7,500 penalty appropriate. Employee vulnerable migrant worker. Failure to keep records serious breach. $5,000 penalty appropriate. |
| Result | Applications granted ; Arrears of wages ($6,292.80) ; Arrears of holiday pay ($503.42) ; Penalty ($7,500)(respondent)(payable to Crown)($5,000)(respondent)(payable to applicant) ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s6;ERA s103A;ERA s132;ERA s160;ERA s160(2);Holidays Act 2003 s23;Holidays Act 2003 s77;Minimum Wage Act 1983 s6;Minimum Wage Act 1983 s7;Minimum Wage Act 1983 s7(1);Minimum Wage Act 1983 s8A;Minimum Wage Act 1983 s10;Minimum Wage Act 1983 s11;Minimum Wage Act 1983 s135;Minimum Wage Act 1983 s136;Minimum Wage Amendment Act 2016 s5;Minimum Wage Amendment Act 2016 s6;Minimum Wage Order 2014 |
| Cases Cited | Allison v Roller t/a Kingston Corner EMT Christchurch CT116/93, 1 September 1993;Brook v Macown [2014] NZEmpC 79,[2014] ERNZ 639 ;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225 (EmpC);Kirby v New Zealand China Friendship Society [2015] NZEmpC 189;Ravnjak v Wellington International Airport Ltd [2011] NZEmpC 31;Salad Bowl Ltd v Howe-Thornley [2013] NZEmpC 152, [2013] ERNZ 326;Simms v Santos Mount Eden Ltd ERA Auckland AA254/03, 21 August 2003;Talbot v Air New Zealand Ltd [1996] 1 NZLR 414 (CA), [1995] 2 ERNZ 356;Tan v Yang [2014] NZEmpC 65, [2014] ERNZ 733;Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 23 |
| PDF File Link: | 2016_NZERA_Christchurch_130.pdf [pdf 309 KB] |