| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 56 |
| Hearing date | 3 Aug 2016 - 5 Aug 2016 (3 days) |
| Determination date | 21 April 2017 |
| Member | C Hickey |
| Representation | E Tait, C English ; R Burridge |
| Location | Blenheim |
| Parties | Labour Inspector v Precise Contracting Ltd |
| Summary | PENALTY - Applicant sought penalty for respondent’s various breaches of minimum standards - ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought arrears of wages and holiday pay |
| Abstract | AUTHORITY FOUND -;PENALTY: Respondent failed to keep accurate and complete time and wage records. Respondent failed to keep holiday and leave records. No grounds to make separate finding that respondent failed to provide access to holiday and leave records. Respondent failed to pay holiday pay with wages. Respondent cannot average out wages earned over more than one period to satisfy minimum wage requirements. Not acceptable to pay less than minimum wage to people who partnered up to work together. Respondent’s minimum wage calculations based on incorrect understanding and application of law. Respondent unlawfully withheld wages without consent when equipment not returned or employee left without notice. Expressed intention to withhold pay for lack of notice agreed to by employee may be unenforceable and illegal as penalty clause. No method for recording time of lunch breaks. Applicant’s calculations for lunchbreaks more accurate. Employees must be paid in money. Breaches involved minimum standards and affected large number of employees. Employees included migrant workers with little knowledge of rights. Deterrence necessary. Respondent continued to justify underpayments. Attempt to comply with improvement notice. Breaches not deliberate but based on incorrect understanding of law. Respondent small operation and not in strong financial positon. $40,000 penalty appropriate.;ARREARS OF WAGES AND HOLIDAY PAY: Respondent to pay $33,081 arrears of wages and holiday pay. |
| Result | Penalty ($40,000)(crown) ; Arrears of wages and holiday pay ($33,081.70) ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA s130 ; ERA s131 ; ERA s132 ; ERA s135 ; ERA s228(1) ; Holidays Act 2003 s23 ; Holidays Act 2003 s28 ; Holidays Act 2003 s81 ; Holidays Act 2003 s81(2)(a) ; Holidays Act 2003 s81(2)(d) ; Holidays Act 2003 s81(2)(o) ; Holidays Act 2003 s81(2)(p) ; Holidays Act 2003 s82 ; Minimum Wage Act 1983 s6 ; Minimum Wage Act 1983 s8A ; Wages Protection Act 1983 s4 ; Wages Protection Act 1983 s5 ; Wages Protection Act 1983 s7 |
| Cases Cited | Borsboom v Preet PVT Ltd [2016] NZEmpC 143, (2016) 10 NZELC 79-072;Lumsden v Skycity Management Ltd [2017] NZEmpC 30, (2017) 14 NZELR 546 |
| Number of Pages | 36 |
| PDF File Link: | 2017_NZERA_Christchurch_56.pdf [pdf 615 KB] |