By CHRIS PATTERSON
Q. My employer pays different rates for the same job. It changes from $11 to $15. Last winter he paid $15 and this winter, even though we asked several times, didn't increase from $13.
If we miss a delivery he reduces the rate by $1 and if we delay even five minutes he reduces it by $1. Can an employer reduce pay rates like this?
Two years ago we started at 5.30am and a year ago he asked us to start at 5am. Now he is asking us to sign a letter saying that we should start at 4.30am.
The letter says: "This is not an employment agreement. It is a contract for the delivery on a per piece contract basis." But if he takes tax from our pay, doesn't that make it an employment agreement?
It also says "the employer shall pay the delivery contractor on a per piece basis, as this covers all entitlements including holiday pay, sick pay and special leave entitlements".
If we have to do additional deliveries which we cannot refuse, we will be paid at $12, but we feel overtime should be paid in a higher rate. Can we refuse extra work?
If my employer is not ready to negotiate, how can we get the holiday pay back? Can he include all our entitlements (sick leave pay, holiday pay) into daily rates?
How shall we deal with this sort of employer as he says if we do not sign he can find many migrants who are ready to work under any conditions?
A. The law requires employers and employees to do what they say they will do. Your employer is obliged to pay you $15 if that is what you negotiated.
An employer cannot unilaterally reduce your rate of pay during the term of your employment, just like you cannot unilaterally reduce the rate of interest that you had agreed with your bank to pay on your mortgage or the rent on your home with your landlord. Employment agreements create enforceable rights that one party cannot change without the agreement of the other.
The law allows employers to pay annual leave on an "as you go" basis in certain conditions. Special leave, which includes sick pay, can never be paid on an "as you go" basis.
You might be entitled to claim paid annual leave if you have been employed for 12 months or more. It is risky for employers to pay annual leave on an "as you go" basis if the employee is employed for 12 months or more.
The courts have held that the Holidays Act 1981 requires all employers to provide employees with at least three weeks' annual leave "on pay" after 12 months service. "On pay" means that you are paid when you take your holiday, even if you were paid on an "as you go basis".
The fact that your letter of appointment refers to annual and special leave certainly indicates an employment relationship. It would be in your interests to get your status as an employee clarified. Likewise, you should try to have your terms and conditions of employment put in writing. The Employment Relations Act 2000 requires all employment relationships to be recorded by way of a written employment agreement.
I suggest that if your employer is not willing to negotiate then you should seek the assistance of an employment relations professional, a union or the Department of Labour's mediation service.
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