| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 10/07 |
| Hearing date | 29 Nov 2006 |
| Determination date | 30 January 2007 |
| Member | J Crichton |
| Representation | P Dawson ; K Whelan & R Daysh |
| Location | Christchurch |
| Parties | DV Ryboproduckt Ltd v The 49 Crew of the MFV Aleksandr Ksenofonotov'" |
| Summary | ARREARS OF WAGES – Matter came before Authority last year when applicant alleged respondent crew refused to leave vessel at end of contract of employment, preventing applicant from re-crewing vessel – Crew refused to leave ship because disputed wages calculation - Presence of crew on vessel resolved at mediation – Issues before Authority concerned what contract and terms of employment governed employment relationship and whether deductions from pay were lawful – Authority satisfied it had jurisdiction to hear Wages Protection Act 1983 (WPA") claim under s103(5) Fisheries Act 1996 – Jurisdiction to hear claim about whether could look at employment agreement (to extent required to deal with wages issues) considered – Crew authorised captain to sign collective employment agreement ("CEA") on their behalf – Dispute over what happened at meeting when CEA discussed – Crew alleged were told deductions would not be taken from wages (unless wrongdoing) - Whether deduction for accommodation and airfares lawful – CEA sought to provide ship owner with option to deduct expenses for travel, daily allowances, food and lodging – Submission that by entering into CEA crew consented in writing to deductions not accepted – Explicit informed consent required, opposed to consent by default as in present case – Authority impelled to that view by informal way CEA executed and by its wording, which only conveyed option on employer – Form of execution of CEA (crew being asked to execute schedule the effect of which authorised captain to enter CEA on their behalf) amounted to remote control – Even less likely arrangements could be seen as complying with s5 WPA – Arrangement not saved by s16 WPA since not a CEA in terms of Employment Relations Act 2000 – Deductions unlawful and must be returned to crew – Position different in respect of some wage advances where separate documentation of consent - Orders made confirming agreements parties reached provisionally about wages due and owing to crew – Crew’s entitlement to share of catch did not factor into wages calculation for particular voyage – Tax issue outside of Authority's ambit – Whether applicant had right to recover cost of housing two crew members in Wellington while they waited for Authority's decision not within Authority’s jurisdiction – Parties' representatives encouraged to resolve application of determination – COSTS – Applicant alleged crew’s behaviour put it to additional costs of $100,000 – Also alleged made $600,000 loss on voyage – Application primarily favoured crew – Costs to lie where they fall" |
| Result | Arrears of wages ; Orders accordingly ; Costs to lie where they fall |
| Main Category | Dispute |
| Statutes | ERA s149;Fisheries Act 1996 s103(5);Minimum Wage Act 1983;Wages Protection Act 1983 s5;Wages Protection Act 1983 s16 |
| Number of Pages | 11 |
| PDF File Link: | ca 10_07.pdf [pdf 72 KB] |