A LABOUR INSPECTOR OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT v TOURISM HOLDINGS LIMITED [2019] NZCA 569
The Court granted leave to appeal and approved two specific questions of law concerning the meaning and application of s 8(1)(c)(i) and s 8(2) of the Holidays Act 2003; leave expressly extends to issues arising from Judge Smith's factual and contractual interpretation findings (notably at [38]) as they bear on...
Source-derived case information.
- Citation
- [2019] NZCA 569
- Parties
- Applicant: A Labour Inspector of the Ministry of Business, Innovation and Employment; Respondent: Tourism Holdings Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 19 November 2019
- Procedural Posture
- Application for Leave to Appeal Under the Holidays Act 2003 / Court of Appeal (leave Granted)
- Outcome
- Leave to appeal granted
- Legal Topics
- Ordinary Weekly Pay, Productivity Payments, Incentive Payments, Interpretation of Statutory Terms, Leave to Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
A Labour Inspector of the Ministry of Business, Innovation and Employment
Applicant
Tourism Holdings Limited
Respondent
Procedural Posture
Application for Leave to Appeal Under the Holidays Act 2003 / Court of Appeal (leave Granted)
Legal Issues
- 1 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)?
- 2 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)?
- 3 Relevance and implications of Judge Smith's factual and interpretive findings (notably at [38]) when applying s 8
Ratio Decidendi
The Court granted leave to appeal and approved two specific questions of law concerning the meaning and application of s 8(1)(c)(i) and s 8(2) of the Holidays Act 2003; leave expressly extends to issues arising from Judge Smith's factual and contractual interpretation findings (notably at [38]) as they bear on application of s 8.
Court Disposition
Leave to appeal granted
Orders
- Leave to appeal granted
- Approved question (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)?
Full Case Text
Judgment text and source record
1 paragraphs
A LABOUR INSPECTOR OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT vTOURISM HOLDINGS LIMITED [2019] NZCA 569 [19 November 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA419/2019[2019] NZCA 569BETWEEN A LABOUR INSPECTOR OF THEMINISTRY OF BUSINESS,INNOVATION AND EMPLOYMENTApplicantAND TOURISM HOLDINGS LIMITEDRespondentCourt: Clifford and Goddard JJCounsel: A E Scott-Howman and S E Blick for ApplicantS C Langton for RespondentJudgment:(On the papers)19 November 2019 at 11.00 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B 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 calculatingordinary weekly pay under s 8(2) of the Holidays Act?(b) If productivity or incentive-based payments are a regular part ofthe employee's pay, do those payments have to be "paythe employee receives under his or her employment agreement foran ordinary working week" for the purpose of calculating ordinaryweekly pay under s 8(2) of the Holidays Act?____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] The application for leave to appeal is granted.[2] The approved questions of law are:(a) What is the meaning of "not a regular part of the employee's pay" ins 8(1)(c)(i) of the Holidays Act 2003 for the purpose of calculatingordinary weekly pay under s 8(2) of the Holidays Act?(b) If productivity or incentive-based payments are a regular part ofthe employee's pay, do those payments have to be "pay the employeereceives under his or her employment agreement for an ordinaryworking week" for the purpose of calculating ordinary weekly payunder s 8(2) of the Holidays Act?[3] These questions focus on the application of s 8 to the facts as found byJudge Smith, and on the basis of the Judge's finding at [38] of the judgment aboutwhen the commission was payable to the driver as a matter of interpretation ofthe employment agreement. To avoid doubt, the leave granted extends to questions asto the relevance and implications of those findings when applying s 8.Solicitors:LangtonHudsonButcher, Auckland for Respondent