| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 143 |
| Hearing date | 13-Dec-16 |
| Determination date | 11 May 2017 |
| Member | N Craig |
| Representation | M Moncur ; P Kumar |
| Location | Auckland |
| Parties | Xu v Surgionix Ltd |
| Summary | BARGAINING - Applicant claimed subject to unfair bargaining - Whether employer satisfied requirements of s63A(2) of the Employment Relations Act 2000 - ARREARS OF WAGES - Applicant sought arrears of wages - Applicant paid partly in shares - PENALTY - GOOD FAITH - Applicant sought penalty for respondent’s breach of Wage Protection Act 1983 and breach of good faith - Applicant alleged respondent mislead her by suggesting purchasing of the shares would no longer be necessary - Research and Development Manager |
| Abstract | AUTHORITY FOUND -;BARGAINING: No particular form in which employee is required to be informed of right to independent advice. Requirement satisfied by declaration in employment agreement that applicant advised of right to seek independent advice. Although agreement signed two days after receiving draft, share arrangement discussed by parties up to two weeks earlier and agreement largely the same as previous agreement. Respondent set no deadline for applicant to sign employment agreement. No indication pressure to sign came from respondent. Respondent did not breach s63A(2). No evidence that respondent attempted to rush negotiation or signing process. Applicant had opportunity to extend visa. Applicant intelligent and under no disability. Applicant had active involvement in bargaining. Evidence did not support requisite degree of incapacity, reliance or oppressive means. No unfair bargaining;ARREARS OF WAGES: Law pre-Wages Protection Amendment Act 2016 applies. Applicant received part of her salary in shares. Employment agreement stated that salary split between equity/shares and cash. Applicant consented to deductions. No written notice to withdraw consent. No arrears of wages.;PENALTY - GOOD FAITH: No breach of Wages Protection Act 1983. When respondent indicated applicant’s purchasing of shares would no longer be necessary applicant was employee under intern agreement. Good faith in such circumstances limited to employment relationship in place rather than proposed relationship. No breach of good faith. No penalty. |
| Result | Applications dismissed (penalty)(arrears of wages)(bargaining) ; Costs reserved |
| Main Category | Bargaining |
| Statutes | ERA s4 ; ERA s63A ; ERA s63A(2) ; ERA s63A(2)(b) ; ERA s63A(2)(c) ; ERA s68 ; ERA s68(1) ; ERA s68(2) ; ERA s174E ; Wages Protection Act 1983 s4 ; Wages Protection Act 1983 s5 ; Wages Protection Act 1983 s5(1) ; Wages Protection Act 1983 s5(2) ; Wages Protection Act 1983 s7 ; Wages Protection Act 1983 s9 ; Wages Protection Act 1983 s12 |
| Cases Cited | Hayden v Wellington Free Ambulance Service [2002] 1 ERNZ 399 (EmpC) |
| Number of Pages | 16 |
| PDF File Link: | 2017_NZERA_Auckland_143.pdf [pdf 167 KB] |