On Tuesday FENZ Workplace Relations Manager Michael Stevenson informed the NZPFU that FENZ had self-reported to IRD its failure to pay the 3% compulsory contribution to employees who have Kiwisaver and other non-complying superannuation scheme such as FireSuper. FENZ had been paying the employer contribution into FireSuper but not the compulsory contribution to the Kiwi Saver Account. We were informed 592 NZPFU members were affected and for all affected staff about $8-$10 million was owing over four years.
Mr Stevenson informed us that FENZ were waiting to hear from IRD as to the consequences of the breaches and what would need to occur to rectify the situation. He did not state that he would be writing immediately to all affected staff putting options to them including the member agreeing to fund the 3% from their wages going forward.
NZPFU MEMBERS WHO HAVE RECEIVED THE ATTACHED EMAIL FROM FENZ REGARDING THE 3 PERCENT KIWISAVER CONTRIBUTION ARE ADVISED NOT TO AGREE TO ANY OPTION OR CHANGE YOUR KIWISAVER STATUS WITHOUT FIRST OBTAINING LEGAL AND TAX ADVICE.
The union is seeking urgent legal and tax advice on the legalities of the situatIon, including the millions owed to NZPFU members and how the contribution is to be funded going forward. We will provide that advice to members once received.
The NZPFU has also notified CE Kerry Gregory of breaches of good faith and called for the emails to be withdrawn and to cease and desist seeking changes from employees until the Union and its lawyers have had an opportunity to work through the legal and tax issues.
Mr Stevenson did not indicate in any way that FENZ would be writing to those affected employees putting options which essentially is attempting to place the responsibility for the ongoing employer contribution on the employee. It is our view he deliberately misled and deceived the NZPFU National Council by stating FENZ was waiting for advice from IRD.
Overtime on a public holiday remediation payments
At the same meeting Mr Stevenson declared that the remediation payments for the unpaid overtime on public holidays would be paid to members on the 24th July 2024.
These payments have resulted from the NZPFU’s case which was heard in the ERA and then again decided in the Employment Court held that it was unlawful for FENZ not to calculate the 1.5 public holiday rate on the overtime rate when the employee was working overtime. Since 2013 FENZ had only been paying the holiday rate of 1.5 whether the employee was rostered to work or was working overtime.
The NZPFU had been proactive since the Employment Court decision last year to get the remediation payments made. Earlier this year FENZ said they would be made in March. It will nearly be 12 months before payment is made.
However, FENZ has unilaterally made the decision to cut the remediation period in half and apply a 6-year limitation and using the nonsensical date of the day FENZ filed its appear in the Employment Court as the date that it would apply from. This would mean payments are only remediated to 2017.
The NZPFU has put FENZ on notice it does not accept that remediation period and we have lawyers considering all options we have to ensure members are paid what they are owed.
We have also notified of a breach of good faith for Mr Stevenson’s failure to discuss the remediation period or process with the union despite the union actively seeking information. The Union has always stated the remediation is from the application of the 2013 collective agreement and at no time has FENZ disputed that or raised that they had other advice or opinion.
Sick leave calculations
A new inquiry is underway in the calculation of sick leave. FENZ has now accepted that the method of calculation is not consistent with the Holidays Act and now needs to ascertain the extent of the issue. The NZPFU expects all members are likely affected and again there will be a dispute on the remediation.
Again this is likely to be millions owed to members.
The NZPFU and its legal team are working on all the above issues and will take all action necessary to ensure members are paid correctly and receive all monies owing.
IN THE INTERIM, MEMBERS ARE ADVISED NOT TO AGREE TO PAY ANY ALLEGED OVERPAYMENTS UNTIL FENZ CAN CATEGORICALLY DEMONSTRATE THAT FENZ DOES NOT OWE THAT EMPLOYEE ANY MONEY FROM ANY OF THESE OUTSTANDING ISSUES.
We will provide more detailed information as it comes to hand.
In Unity,
Wattie Watson
National Secretary
