| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 100 |
| Hearing date | 29 Apr 2011 |
| Determination date | 10 June 2011 |
| Member | D Asher |
| Representation | P Cranney, C Mayston ; A Sherriff, D Marshall |
| Location | Wellington |
| Parties | New Zealand Public Service Association and Ors v Secetary for Justice |
| Other Parties | Robertshaw, Win, Raeburn |
| Summary | PRACTICE AND PROCEDURE – Referral of question of law to Employment Court (“EC”) – Applicants alleged respondent effected unlawful and out of time wage deductions in context of limited industrial action – Applicants and respondent parties to two collective employment agreements (“CEA”) – Former CEA had deduction clause and latter did not – Neither CEA allowed for deductions for partial non-performance of work – Both CEAs expired – Applicants involved in partial strike action – Respondent advised pay would be stopped for duration of employees attendance at stop work meetings – Respondent informed employees not entitled to pay while undertaking industrial action – Firstly, parties disputed whether wages could be deducted from employees who lawfully strike by refusing to perform some duties – Authority found issue whether an employer could deduct all or some pay in respect of partial strike action, without suspending striking employees, undecided by courts – Secondly, parties disputed whether subsequent pay period deductions were lawful – Found because of pay cycles reductions not always communicated before payroll closed and reductions not processed in same pay period – Applicants claimed notice to recover not properly served and extra resources could have avoided making overpayment – Thirdly, parties disputed whether employer entitled to make pro-rata deductions from bailiff’s allowance –Found answer to first issue significant and appropriate question of law to refer to EC – Found second important question of law arose from first; Whether Wages Protection Act 1983 envisaged situations in which employer did not suspend but not required to pay – Found third issue also significant and appropriate question of law to refer to EC – Found disadvantage to parties as result of referring questions to EC properly balanced by importance to parties and others – Questions of law referred to EC |
| Result | Orders accordingly ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s87;ERA s88;ERA s177;ECA s68;Wages Protection Act 1983 s4;Wages Protection Act 1983 s6;Wages Protection Act 1983 s6(2);Wages Protection Act 1983 s6(3);Wages Protection Act 1983 s6(3)(a);Wages Protection Act 1983 s6(3)(b) |
| Cases Cited | Bickerstaff v Healthcare Hawkes Bay [1996] 2 ERNZ 680;Rockhouse v AG [1998] ERNZ 598;Tawhiwhirangi v AG [1998] ERNZ 571 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Wellington_100.pdf [pdf 35 KB] |