A Labour Inspector of the Ministry of Business, Innovation and Employment v Tourism Holdings Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA419/2019
[2019] NZCA 569

BETWEEN	A LABOUR INSPECTOR OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Applicant
AND	TOURISM HOLDINGS LIMITED Respondent

Court:	Clifford and Goddard JJ
Counsel:	A E Scott-Howman and S E Blick for Applicant S C Langton for Respondent
Judgment: (On the papers)	19 November 2019 at 11.00 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.
BThe approved questions of law are:
(a)What is the meaning of “not a regular part of the employee’s pay” in s 8(1)(c)(i) of the Holidays Act 2003 for the purpose of calculating ordinary weekly pay under s 8(2) of the Holidays Act?
(b)If productivity or incentive-based payments are a regular part of the employee’s pay, do those payments have to be “pay the employee receives under his or her employment agreement for an ordinary working week” for the purpose of calculating ordinary weekly pay under s 8(2) of the Holidays Act?

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REASONS OF THE COURT

(Given by Goddard J)

The application for leave to appeal is granted.
The approved questions of law are:
(a)What is the meaning of “not a regular part of the employee’s pay” in s 8(1)(c)(i) of the Holidays Act 2003 for the purpose of calculating ordinary weekly pay under s 8(2) of the Holidays Act?
(b)If productivity or incentive-based payments are a regular part of the employee’s pay, do those payments have to be “pay the employee receives under his or her employment agreement for an ordinary working week” for the purpose of calculating ordinary weekly pay under s 8(2) of the Holidays Act?
These questions focus on the application of s 8 to the facts as found by Judge Smith, and on the basis of the Judge’s finding at [38] of the judgment about when the commission was payable to the driver as a matter of interpretation of the employment agreement. To avoid doubt, the leave granted extends to questions as to the relevance and implications of those findings when applying s 8.

Solicitors:
LangtonHudsonButcher, Auckland for Respondent

CaseChat Overview and Summary

In the case of A Labour Inspector of the Ministry of Business, Innovation and Employment v Tourism Holdings Limited, the Court of Appeal of New Zealand considered an application for leave to appeal a decision on the interpretation of the Holidays Act 2003. The appeal concerned the calculation of ordinary weekly pay for holiday entitlements, specifically regarding the inclusion of productivity or incentive-based payments. The applicant, a Labour Inspector, sought clarification on the meaning of “not a regular part of the employee’s pay” as outlined in s 8(1)(c)(i) of the Act, and whether such payments, if they are regular, must be considered as part of the employee’s pay under s 8(2).

The central legal issues addressed by the Court of Appeal revolved around the interpretation of the statutory language in s 8 of the Holidays Act. The court had to determine the meaning of “not a regular part of the employee’s pay” and whether incentive-based payments that are regular must be considered as part of the employee’s pay under the Act. The Court of Appeal found that the questions presented were significant and warranted further examination, as they impacted the practical application of the Act and the rights of employees regarding holiday entitlements.

The Court of Appeal granted leave to appeal and approved the questions of law submitted for consideration. The reasoning behind this decision emphasised the importance of clarifying the statutory language to ensure proper application of the Holidays Act. The questions approved for appeal were deemed necessary to resolve ambiguity in the interpretation of the Act, which could have significant implications for both employers and employees. The Court’s decision allowed for a detailed examination of the statutory provisions in light of the specific facts of the case, as determined by the lower court’s findings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established