All employees must be paid at least the minimum wage for every hour that they work.
Minimum wage requirements apply equally to salaried employees. Problems can arise where salaried employees are employed in circumstances which require them to be available, or on call all day 6-7 days a week, and sometimes in to the evening or throughout the night.
Problems may also arise with the process of averaging, a process commonly adopted in the dairy industry. Averaging does not preclude the obligation to pay the minimum wage for each hour worked.
The consequences of getting it wrong can be costly. In a 2014 Employment Relations Authority case (Hill v Shand, [2014] NZERA Christchurch 66), the manager of a motor camp was awarded some $69,000.00 in unpaid wages.
The question is what an employer requires of an employee, and whether that constitutes work. Factors considered include:
- what constraints were placed on the employee’s freedom, i.e. would he/she have otherwise been able to do what he/she pleases;
- the nature and the extent of an employee’s responsibilities;
- what benefit there is to an employer by the employee performing that role.
The Employment Relations Authority’s determination is made on the individual facts of the particular case. If what an employer requires constitutes work, an employee must receive the minimum wage for that work.
If accommodation is provided, the value of the accommodation (for minimum wage purposes) should be agreed and recorded in the employee’s Individual Employment Agreement. If it is not, the default provisions of the Minimum Wage Act will apply.
A wage and time record is required for each employee, recording:
- the name of the employee;
- the employee’s age, if under 20 years of age;
- the employee’s postal address;
- the kind of work on which the employee is usually employed;
- whether the employee is employed under an individual employment agreement or a collective agreement;
- in the case of an employee employed under a collective agreement, the title and expiry date of the agreement, and the employee’s classification under it;
- the number of hours worked each day in a pay period and the pay for those hours;
- the wages paid to the employee each pay period and the method of calculation;
- details of any employment relations education leave taken;
- such other particulars as may be required.
A wage and time record must be in written form, or in a form easily converted to written form. Records must be kept for six years and must be provided to a person authorised to request them.
This article is only a general overview of the law in this area. If you require specific advice or assistance, please contact one of the lawyers in the Employment Team at Holland Beckett on 07 578 2199.
This article does not constitute legal advice. Readers should obtain specific legal advice before making any decisions or taking any action based upon information contained in this article.
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Holland Beckett promotes two partners
Leading New Zealand law firm, Holland Beckett has announced the promotion to partnership of two of its senior lawyers, Will Dymock and Natasha van der Wal, effective from April 1st 2024.
The Bay of Plenty based firm has offices in Tauranga, Rotorua, Whakatāne and Taupō, and advises local, national and international clients. With over 140 staff including over 70 lawyers, the full-service firm\'s specialist teams work collaboratively and cater to a vast range of legal matters, including property, trusts and estates, commercial, corporate, finance, employment, family, civil litigation, resource management and local government. Holland Beckett also has a specialised Māori Legal Unit.
“It is a pleasure to announce the promotion of Natasha and Will, both experts in their respective fields”, says Ken Hawkes, Partner at Holland Beckett. “These talented lawyers represent the diverse capabilities we have as a firm, and the growth and strength of our team. We look forward to expanding the partnership with their specialist expertise”.
The promotion of Will and Natasha expands the partnership to 16, which is testament to Holland Beckett’s reputation as a top tier legal employer, firmly focused on recruiting the best talent and developing the next generation of legal leaders. The firm has the most female partners of any law firm in the Bay of Plenty, growing from two to five women in the past seven years.
Will Dymock, Partner
Will advises clients on a wide range of finance, corporate, restructuring and commercial transactions. Will has extensive international and domestic experience advising financial institutions and businesses (small and large) across a broad range of areas including asset finance, general corporate lending, property finance and corporate finance. Will specialises in aviation and asset finance and leasing where he advises international clients, including financial institutions, aircraft lessors, lessees / airlines and other aviation market participants, on a wide range of aviation financing, acquisitions and sales, leasing and lease restructuring. Prior to joining Holland Beckett in 2021, he spent six years in Singapore where he worked for two leading international finance practices, most recently as a Senior Associate in the global asset finance team at Clifford Chance. Prior to Singapore, Will worked in a leading banking and finance practice in Auckland.
Natasha van der Wal, Partner
Natasha joined Holland Beckett as a Senior Solicitor in 2016. Natasha’s expertise is focused on property law, commercial law and Māori legal issues. Natasha provides strategic and trusted advice on a broad range of property and commercial matters for individuals, corporate entities and local government. She has experience with complex property issues including subdivisions and development, the acquisition and disposal of residential, rural and commercial properties; and commercial leasing and licencing matters generally. As part of the specialised Māori Legal Unit at Holland Beckett, Natasha provides advice on Māori legal issues for local government, individuals, Māori trusts, Māori incorporations and post settlement governance entities. She is experienced with Māori property matters such as partitions, large commercial developments, iwi social housing and Papakainga. She has appeared before the Māori Land Court on property related matters. Outside of work, you’ll find Natasha supporting her children on the sidelines of their various sporting interests. She also promotes scientific literacy for children in New Zealand as a trustee of the House of Science NZ Charitable Trust.
Family Trusts Q&A Evening – Whakatāne
Come along to a free Trusts Q&A evening with Holland Beckett’s Trust Law experts Luke Stewart, Dan Broadhurst and Brittany Ivil.
5:30 to 6:30, Wednesday 22 May
BNZ Partners Centre, 181 The Strand, Whakatāne This free event is an opportunity for the Whakatāne community to get general guidance and discuss specific issues: Do I still need my Trust?
How easy is it to wind up my Trust?
If I keep my Trust what do I need to do?
How can I simplify my Trust? There is no charge for this session, and it is open to the public.
Please email Tiffany.head@hobec.co.nz or contact our Whakatāne office +64 7 308 8325 to indicate your intention to attend.
Holidays Act – could change finally be on the horizon?
Earlier this week the Workplace Relations and Safety Minister Brooke Van Velden gave a speech to the Auckland Business Chamber, reiterating her priorities following the conclusion of the Government’s 100-day plan in which Fair Pay Agreements were abolished, and the availability of 90 day trial periods extended to all new employees. The Minister has confirmed that delivering changes to the Holidays Act (“Act”) is one of her top priorities, which is likely to be welcome news to both employers and employees. Compliance with the Act has been difficult and costly for employers and payroll providers. The Labour Government put together a taskforce in 2018 to address the many issues being experienced by employers when calculating leave and holiday entitlements. The taskforce made a number of recommendations, all of which were accepted (for further details on these changes see our previous article here). A draft Leave Entitlements Bill was prepared, however was not introduced prior to last year’s election. The overarching issue with the Act is that there are multiple ways to calculate an employee’s holiday pay, and the Act has struggled to keep up with working arrangements outside of a normal five day a week salaried employee. Payments such as bonuses, commission, or if an employee works variable hours mean that the calculations are not straight forward and are often done incorrectly. The changes proposed were an attempt to simplify these calculations. The Minister has now confirmed that the changes recommended by the taskforce and the draft Bill will not be “simply rubberstamped” and will be subject to scrutiny as well as consultation with key stakeholders. She went on to say “if the policy is difficult to draft, chances are businesses would have a tough time implementing it too”. This indicates a major reset of the Act, and the changes which we had expected, could be on the way. Other indicated changes to employment law include a change to the rules surrounding contractors (with the Court of Appeal due to hear the Uber case this month (see here for our previous advice regarding this), we are likely to also have further developments in this area from the Courts later in the year) and changes to personal grievances. The Minister has asked for advice on whether an income threshold for raising a personal grievance can be set and removing eligibility for any remedies when an employee is at fault. The Minister has been very clear that she would like to receive feedback from the stakeholders who will eventually have to work with the Act and it is important that businesses use this opportunity to have a say on the Act. The majority of employers have struggled to achieve strict compliance with the Act due to its many complexities. Putting forward issues which regularly impact your business will ensure these can be given consideration. Our team will be closely monitoring this and will provide specific information on how feedback can be given when this information is available. If you require assistance with your current obligations under the Act, or would like to discuss providing feedback then please feel free to get in touch with a member of our specialist employment team.