| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 51 |
| Determination date | 10 February 2011 |
| Member | E Robinson |
| Representation | R Keightley (in person) ; D Black |
| Location | Auckland |
| Parties | Keightley (Labour Inspector) v Allied Security Ltd |
| Summary | ARREARS OF HOLIDAY PAY - Applicant Labour Inspector claimed respondent failed to recognise and make payments for minimum statutory entitlements to employee (“D”) – Applicant claimed failure occurred when D transferred and relocated between worksites in situation which constituted continuous employment - Respondent denied D transferred and employment continuous – Respondent claimed D’s employment ended when left period of employment with one client and began new period of employment with different client – Respondent claimed as result of re-employment D employed subject to employment agreement with different terms and conditions with new client – Claimed D’s statutory entitlements accrued under first employment agreement correctly paid to him after that employment agreement terminated – Claimed D then subject to terms and conditions contained in new employment agreement in respect of statutory entitlements, with these entitlements accruing anew from effective date of new employment agreement – Authority found first and second employment agreements identical in respect of respondent’s ability to transfer employees and public holiday and leave entitlements - Respondent claimed terms and conditions of employment under second employment agreement different to those under first employment agreement in respect of remuneration, role and job description, employment location, new training and different uniform and equipment – Authority found those matters did not support conclusion that D’s employment not continuous – Found were matters that were regularly subject of negotiations between employers and employees, resulting in variations to terms and conditions of employment agreement, but did not result in break in continuity of employment relationship – Found both employment agreements provided to D referred to employer having right to transfer employee to any of its client locations – Found payroll records indicated no hiatus in payments, nor was there any evidence of D’s employment being of fixed term nature – Authority found respondent transferred D’s employment to another client location as was entitled to do pursuant to both employment agreements, and that D had continuous service with Allied – Found therefore respondent not legally entitled to pay out D’s accrued statutory entitlements - Authority ordered respondent to reinstate D’s statutory entitlements to position should currently occupy had there been no payments in respect of statutory leave entitlements made - Authority understood D agreed to repay amounts paid in entirety and so ordered amount to be repaid within seven working days – Leave reserved to return to Authority if further issues – Security Guard |
| Result | Orders made ; Disbursements in favour of applicant ($71.56)(Filing fee) |
| Main Category | Arrears |
| Statutes | Holidays Act 2003 s16;Holidays Act 2003 s16(4);Holidays Act 2003 s28;Holidays Act 2003 s61;Holidays Act 2003 s63(1)(a);Parental Leave and Employment Protection Act 1987;Parental Leave and Employment Protection Act 1987 s17 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Auckland_51.pdf [pdf 37 KB] |