Cases of interest: December 2016 – January 2017

A summary of interesting or topical employment cases.

Labour Inspector v Tech 5 Recruitment Ltd [2016] NZEmpC 167

Employment Court – Meaning of “premium”

A Full Court of the Employment Court discussed the meaning of “premium” as in s 12A of the Wages Protection Act 1983. The employment agreements in question contained a clause allowing the employer to recover the cost of trade testing. This money was deducted from each employee’s wages.

The Court held that a premium involves a situation where “a price is paid either by an employee, or potential employee, or is paid on that person’s behalf to secure employment” (see para 54). However, it could also include situations where an employer recouped, or attempted to recoup “recruitment-related costs or other expenses that would ordinarily be borne by an employer” (see para 54). The Court did note that there would be situations where employers and employees could arrange for the employee to reimburse the employer for “appropriate costs incurred” without it constituting a premium (see para 57).

Link to case (external link)

Hartono v Sajo Oyang Corporation [2017] NZERA Christchurch 5

Employment Relations Authority – Matter removed to Employment Court

The Employment Relations Authority removed the matter to the Employment Court as it raised two important questions of law:

  • whether provisions of the Minimum Wage Act 1983 apply to fishers at sea for extended periods when not working actively on board; and
  • whether the Authority and Court have jurisdiction over claims for personal grievances and holiday pay when the workers have been deemed to be employees for the purpose of the Minimum Wage Act 1983 and the Wages Protection Act 1983 under the Fisheries Act 1996.

The Authority also considered that it was likely to be a matter of significant public interest due to the potential to affect other employers in the fishing industry.

Link to case (external link)

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