For those clients who have been involved in Part 6A Vulnerable Worker issues, we currently have two significant matters before the Court of Appeal. The first matter involves the difficult question of what happens to employees’ accrued entitlements such as holiday pay, sick leave, etc., on transfer. The current Part 6A is silent on this but is being tidied up in the current amending legislation which at this stage has only had its first reading.
The second and critically important matter which was heard as a preliminary matter in the Court of Appeal on Monday 12 August, centres around who is and who is not a vulnerable employee for the purposes of Part 6A. Clients will be aware that it is an anomaly in the legislation that there is no definition of a “vulnerable worker”. Parliamentary committees have suggested a salary bar between $40,000.00 and $50,000.00 exclusive of overtime which would reflect the original intentions of Part 6A. At this stage the Court of Appeal is still considering whether or not this is a matter that they should decide or whether or not it should be left to the Employment Court to decide. We argued that it was a matter of fact in any particular circumstance and not a matter of law and was best left to the Employment Court.