| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 443/10 |
| Hearing date | 8 Oct 2010 |
| Determination date | 14 October 2010 |
| Member | R Arthur |
| Representation | K Badcock ; A Reid (in person) |
| Location | Auckland |
| Parties | Forest and General Security Ltd v Reid (Labour Inspector) |
| Summary | PRACTICE AND PROCEDURE – ARREARS OF HOLIDAY PAY – Applicant made objection to demand notice for payment of holiday pay issued by respondent – Issue whether applicant entitled to pay former employee for annual holidays on pay-as-you-go basis as permitted in certain circumstances under s28 Holidays Act 2003 (“HA”) – Also raised issue of basis and nature of applicant’s employment – Central issue whether applicant casual employee – Authority found in circumstances public interest required determination rather than mediation of issue – Found facts of applicant’s employment confirmed “regularity of work and continuity of employment relationship indicative of ongoing rather than casual employment – Found parties day to day conduct justified conclusion that implicit agreement to vary arrangement to become regular ongoing employment – Found ongoing employment relationship – Found negotiations for variation of terms of employment which were not concluded and resulted in no actual changes, did not alter already ongoing nature of employment relationship – Found no fixed term agreement for purposes of s28 HA – Found time sheets and pay records confirmed applicant worked regular, rostered hours for most of employment – Found applicant did not meet requirements of s28 HA to pay applicant’s leave entitlements on pay-as-you-go basis – Authority declined under s226 Employment Relations Act 2000 to uphold applicant’s objection to demand notice – Found all holiday pay specified in demand notice due to respondent from applicant – Security guard |
| Result | Application dismissed ; Arrears of holiday pay (Payable to respondent) |
| Main Category | Practice & Procedure |
| Statutes | ERA s66;ERA s66(4);ERA s159;ERA s225;ERA s226;Holidays Act 2003 s28;Holidays Act 2003 s28(a)(ii);Holidays Act 2003 s28(1)(a)(i);Holidays Act 2003 s28(1)(a)(ii);Holidays Act 2003 s28(1)(c);Holidays Act 2003 s28(1)(d) |
| Cases Cited | Jinkinson v Oceania Gold (NZ) Ltd [2009] ERNZ 225 |
| Number of Pages | 8 |
| PDF File Link: | aa 443_10.pdf [pdf 23 KB] |