| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 77 |
| Hearing date | 14 Sep 2010 |
| Determination date | 01 March 2011 |
| Member | K J Anderson |
| Representation | S Blick ; No appearance |
| Location | Hamilton |
| Parties | Keightley (Labour Inspector) v Ly t/a Taumarunui Bakery |
| Summary | ARREARS OF WAGES AND HOLIDAY PAY - Applicant Labour Inspector sought arrears of wages and holiday pay for three former employees of respondent - No appearance for respondent – Respondent had been represented on earlier occasions - Employees entered New Zealand from Thailand on visitors permits – Employees began working at respondent’s bakery – Employees found to be working illegally in New Zealand and deported following investigation by Immigration New Zealand – During investigation employees indicated had worked for respondent for approximately six years working six or seven days a week without annual holidays or sick leave – Applicant concluded employees probably not paid entitlements under Minimum Wage Act 1983 or Holidays Act 2003 – Respondent claimed employees had only worked at bakery for two weeks and at other times were fruit picking – Respondent failed to provide wage and time records when requested - On evidence before Authority, appeared employees were vulnerable and grossly exploited by respondent, most probably in full knowledge unlikely to complain due to immigration status - Authority found obliged to be cautious when determining matters if was only evidence of one party to proceedings, particularly where substantial sums of money involved – However as respondent failed to prove applicant’s claims incorrect and applying relevant legislative provisions Authority accepted applicant’s evidence as proved - Found claims fell within appropriate limitation periods - Respondent ordered to pay applicant, for use of employees, sums claimed by applicant - Interest awarded - COSTS – Less than one day investigation meeting – Applicant sought $10,000 contribution to total costs of $22,028 – Authority found, from evidence provided, that costs incurred appeared to be reasonable – Found normally Authority would apply daily tariff of $3,000 – Found as matter not defended length of investigation meeting reduced - However, found substantial preparation required in order for applicant to present relevant probative evidence – Found in those circumstances $10,000 contribution to costs reasonable – Respondent to pay applicant $10,000 contribution to costs - Found applicant incurred further costs of $4,333 for airfares for travel to and from Thailand to interview employees – Found given overall relatively unusual circumstances costs reasonably incurred – Respondent to pay applicant $4,333 travel expenses - Baker |
| Result | Application granted ; Arrears of wages and holiday pay ($73,476.68)(Employee 1) ; Arrears of wages and holiday pay ($73,476.68)(Employee 2) ; Arrears of wages and holiday pay ($73,979.90)(Employee 3) ; Interest (4.89%) ; Costs in favour of applicant ($10,000) ; Travel expenses ($4,333) |
| Main Category | Arrears |
| Statutes | ERA s132;ERA s229(1)(c);ERA Second Schedule cl11;ERA Second Schedule cl12;Holidays Act 1981;Holidays Act 1981 s7A;Holidays Act 2003;Holidays Act 2003 s24;Holidays Act 2003 s25;Holidays Act 2003 s26;Holidays Act 2003 s40;Holidays Act 2003 s49;Holidays Act 2003 s50;Holidays Act 2003 s60;Holidays Act 2003 s83;Illegal Contracts Act 1970;Immigration Act 1987 s142(1)(f);Immigration Act 2009 s350;Minimum Wage Act 1983 s6;Minimum Wage Act 1983 s7 |
| Cases Cited | Napier Aero Club Inc v Tayler [1998] 1 ERNZ 241 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Auckland_77.pdf [pdf 38 KB] |