We recently published an article regarding the cases arising from legal questions about the payment of wages in the pandemic. We talked about our surprise, due to the wider public impact of the decisions of the cases, that the cases were not referred to the Employment Court in the first instance.
One of the cases discussed was that of Sandhu & Ors v Gate Gourmet New Zealand Ltd which discussed the payment of minimum wages to staff who were not working during lockdown. Gate Gourmet have appealed the decision out of the ERA and there have been interlocutory applications (procedural applications which do not address the substantive issues in a case) made to the Employment Court in respect of this appeal.
Wider impact of the case
A recent interlocutory decision from the Employment Court confirms that Business New Zealand and the New Zealand Council of Trade Unions (NZCTU) have applied to the Court to be heard in the proceedings. They are considered to be ‘interveners’ in the case, an intervener being a person or organisation with a sufficient interest in the case. Interveners are often allowed in cases where the decision has the potential to impact the wider public or those who have similar interests to the parties but who are not participating in the hearing. Accordingly, their arguments may affect the Court’s decision.
The Court has granted Business New Zealand and NZCTU’s application and they will now be able to provide written submissions to the Court, appear at the hearing of the appeal and be heard by the Court. However, as they are not directly involved in the substantive issues of the appeal, they may not call witnesses or request the parties contribute to the costs of their participation in the hearing.
The Court noted that considering the “obvious importance of the issues, and the desirability of providing a degree of certainty to the broader business community and to employees as to their rights and obligations”, it is appropriate that a full Court (three judges) will hear the appeal. The Court has directed this is heard promptly.
A full Court will hear the substantive matter on 13 October 2020. The decision coming from that hearing will be an important one to help clarify employers’ obligations and employees’ rights during periods of lockdown. We will provide an update on that decision when it is available.
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