| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 482 |
| Hearing date | 23 Mar 2011 - 25 Mar 2011 (3 days) |
| Determination date | 08 November 2011 |
| Member | A Dumbleton |
| Representation | P Skelton ; T Clarke |
| Location | Auckland |
| Parties | Hutton and Ors v ProvencoCadmus Ltd (in receivership) and Ors |
| Other Parties | 113 others ; Provenco Payments Ltd, Provenco Retail Automation Ltd, Provenco Solutions Ltd, Provenco Technology Ltd (all in receivership) |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Applicants employed within respondent group of companies when first respondent (“PCL”) placed into receivership – PCL had several trading subsidiary companies that provided range of electronic payment solutions and point of sale equipment – Receivers terminated applicants’ employment with PCL – Applicants immediately reemployed by PCL (In Receivership) until employment ended – Applicants owed wages, holiday pay and redundancy compensation due as preferred creditors – Five respondent companies claimed applicants employed by PCL only – Applicants claimed employed by PCL jointly with one or more of subsidiary companies – PCL had no inventory or accounts receivable against which preferential creditor claims could be paid – All but one applicant had written employment agreement (“EA”) with PCL at date of merger between Provenco Group and Cadmus Group – No written EAs with subsidiaries – Payroll services provided by second respondent (“PPL”) – PPL was trading company part of Payment Solutions business unit (“PS”) – PPL clearly identified on payslips – Applicants claimed employed jointly by PPL and PCL because PPL was 100 percent wholly owned subsidiary of PCL and was legal entity through which PCL’s business carried on – Applicants worked for benefit of trading companies not listed public companies – PCL chosen to be employer of applicants by PS Human Resources General Manager (“C”) – C claimed choice conscious and deliberate – Authority found when applicants signed EAs, intended to be employed by PCL alone – Found applicants did not seek any remedy based on alleged breach by PCL at time entered EA – Found applicants did not ask Authority to set aside EA – Found applicants accepted entered into EA with PCL – Found C’s selection of PCL as employer was consistent with financial and administrative organisation of business – Found practical and legal control and direction of applicants came from senior managers within PS rather than from within other trading entities – Found applicants did not claim to have performed work specifically or integrally for PPL or other trading entities – Found all senior managers were employees of PCL – Found payroll function performed by PPL did not displace PCL as sole employer – Found PCL did not assign to other subsidiaries its status and function as employer – Found PCL was sole employer party to EA |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s6;Companies Act 1993;Receiverships Act 1993 |
| Cases Cited | Australian Insurance Employees Union v WP Insurance Services Pty Ltd (1982) 42 ALR 598;Gothard, in the matter of AFG Pty Ltd (in receivership and in liquidation) v Davey [2010] FCA 1163;Orakei Group (2007) Limited v Doherty [2008] ERNZ 345;Romero v Auty (2001) 19 ACLC 206;Textile Footwear and Clothing Union of Australia v Bellechic [1998] FCA 1465 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_482.pdf [pdf 46 KB] |