| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 29 |
| Hearing date | 19 Jan 2011 |
| Determination date | 20 January 2011 |
| Member | R A Monaghan |
| Representation | S Lau (in person) ; no appearance |
| Location | Auckland |
| Parties | Lau v Canaan Productions Ltd (in liq) and Anor |
| Other Parties | Microb Ltd (formerly Uniforms Plus Ltd) |
| Summary | JURISDICTION - No appearance for respondents - First respondent went into liquidation after statement in reply filed – Applicant not permitted to continue proceedings against first respondent - Applicant claimed employed as homeworker – Respondents claimed applicant subcontractor – Authority found definition of employee in s6 Employment Relations Act 2000 (“ERA”) included homeworker – Found s5 ERA defined homeworker as person engaged, employed, or contracted by any other person (in course of that other person's trade or business) to do work for that other person in dwellinghouse - Found dwellinghouse defined in s5 ERA as any building or any part of building to extent occupied as residence – Found use of the words ‘engaged, employed or contracted’ in definition of homeworker meant usual distinction between employees and contractors not relevant in case of homeworkers – Found not necessary to determine whether applicant employee or contractor if working arrangements fell within definition of homeworker - Found applicant engaged to carry out work in his own residence to sew clothing on piece rate basis for person who engaged him, being work carried out in course of that person’s trade or business – Found therefore applicant came within definition of homeworker – Found applicant an employee - PRACTICE AND PROCEDURE – Identity of employer - Second respondent denied was applicant’s employer – Claimed was not legal entity at time applicant engaged and applicant engaged by and worked for first respondent throughout - Authority found first respondent was applicant’s employer from commencement of employment until specified date – Found second respondent became applicant’s employer from that date onwards - ARREARS OF HOLIDAY PAY – Applicant sought holiday pay from 2001 – Found applicant’s claim limited to six years prior to filing statement of problem - Found as first respondent applicant’s employer until certain date claims for payment from beginning of limitation period until that date unable to proceed – Authority quantified remaining claims for payment with reference to applicant’s total gross earnings for years in question - Found payment of holiday pay not made – Second respondent to pay first respondent $4,342 outstanding holiday pay - Interest awarded - ARREARS OF WAGES – Applicant claimed underpaid in sum of $598 for period of work – Authority ordered payment of sum owed - Interest awarded |
| Result | Applications granted ; Holiday pay ($4,342.88) ; Arrears of wages ($598) ; Interest (5.2%) ; Disbursement in favour of applicant ($71.56)(Filing fee) |
| Main Category | Jurisdiction |
| Statutes | ERA s5;ERA s6;ERA s142;ERA Second Schedule cl12;Holidays Act 2003 s5 |
| Number of Pages | 6 |
| PDF File Link: | 2011_NZERA_Auckland_29.pdf [pdf 21 KB] |