| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 423 |
| Hearing date | 8 Jun 2011 |
| Determination date | 27 September 2011 |
| Member | Y S Oldfield |
| Representation | H McAra ; G Blair |
| Location | Auckland |
| Parties | Wilson v Pacifica Shipping Ltd |
| Summary | COMPLIANCE ORDER – Applicant sought compliance with settlement agreement – COUNTERCLAIM – PENALTY – Respondent claimed misled when entered into settlement agreement and sought penalty for breach of good faith – Applicant not member of approved superannuation scheme until took up permanent employment after leaving respondent - Respondent’s general manager (“C”) claimed applicant failed to disclose had not been member of approved scheme - Agreement provided for respondent to pay applicant superannuation contribution – Respondent claimed not obliged to pay superannuation unless applicant paid corresponding employee contribution – Applicant claimed wanted to be enrolled in scheme from commencement of employment and expected respondent to arrange this as was customary in industry – Applicant claimed respondent aware applicant not enrolled in scheme and repeatedly asked respondent to resolve matter – Applicant applied for permanent employment with respondent and noted “TBA” on application when asked whether member of scheme, applicant claimed this showed not member of scheme at time – Union notified respondent before parties attempted mediation applicant wanted to be enrolled in scheme and applicant’s requests had been ignored – Authority found C not expressly told applicant member of scheme but C inferred applicant was member from union’s statements - Authority not satisfied union misled respondent about applicant’s membership – Found respondent knew or ought to have known applicant not member of scheme - Counterclaim dismissed – Respondent claimed no obligation to make superannuation payments if applicant not member – Applicant claimed settlement did not require employee contribution – Applicant provided copy of trust deed of superannuation fund which included provision members not required to make contributions to fund – Found respondent effectively asking Authority to write additional condition into settlement but settlement words should be construed on face – Found settlement imposed obligation on respondent but silent on applicant’s obligations – Found respondent had failed to comply with settlement and no good reason to refuse order for compliance – Found appropriate exercise of Authority’s discretion to order respondent to comply with settlement terms – Interest payable - Compliance ordered - Ship’s Officer |
| Result | Compliance ordered ; Interest (8.4%) ; Counterclaim dismissed ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | ERA Second Schedule cl11;Judicature Act 1908 s87(3) |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_423.pdf [pdf 27 KB] |