| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 149/06 |
| Hearing date | 21 Sep 2006 |
| Determination date | 20 October 2006 |
| Member | H Doyle |
| Representation | D & J Boles de Boer ; A Baker (Labour Inspector) |
| Location | Christchurch |
| Parties | BVR Operations Ltd t/a Brinkley Village v Baker (Labour Inspector) |
| Summary | PRACTICE AND PROCEDURE - Objection to demand notice issued by respondent Labour Inspector - Demand notice required payment of annual and public holiday pay to former employee (S") - Applicant disputed notice on grounds S's employment intermittent and irregular, annual holiday pay included in hourly rate, and S knew and agreed to payment in that manner - Also objected on ground respondent incorrectly determined six public holidays otherwise working days - No written employment agreement - Payment in such manner only permitted in two circumstances in s28 Holidays Act 2003 - Not fixed term employment - Authority considered pattern of work to determine whether intermittent or irregular - Hours varied - Schedule indicated features of regularity and predictability of work patterns - Three weeks annual leave practicable - Although finding resolved issue, Authority considered s28 requirements - Authority not satisfied on balance of probabilities S agreed holiday pay included in hourly rate - No evidence in wage and time records and no payslips showing holiday pay as identifiable component - No deduction under s23(2) given applicant not entitled to pay holiday pay in advance - Annual holiday pay due and owing - Reasonable expectation S would have worked when restaurant open - Each public holiday fell on or transferred to otherwise working day - Fact restaurant closed for Christmas and Easter periods not relevant - Given variance in hours, and no other rate specified in any employment agreement, formula in s9(3) appropriate method of calculation of relevant daily pay - Authority agreed with respondents calculations - Public holiday pay due and owing - COMPLIANCE ORDER - Objection not upheld - Compliance with demand notice ordered" |
| Result | Application dismissed (Objection to demand notice) ; Arrears of holiday pay ($297.45)(Annual holiday pay), ($319.62)(Public holiday pay) ; Orders accordingly ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s224;ERA s226(1);Holidays Act 2003;Holidays Act 2003 s9(3);Holidays Act 003 s12;Holidays Act 2003 s23;Holidays Act 2003 s23(2)(b);Holidays Act 2003 s28;Holidays Act 2003 s45;Holidays Act 2003 s49 |
| Number of Pages | 9 |
| PDF File Link: | ca 149_06.pdf [pdf 32 KB] |