HELP, legal advice wanted. HELP!!!

[Timaa]

ok, so im a car sales person, and i get paid a base salary of 300 per week plus 200 for every car i sell in that week.

according to the minimum wage act is this legal? or does another act control this type of commission based remuneration?

i need someone who can tell me with 200% confidence what the current new zealand law states regarding this matter, as if he has been under paying me from day one then im owed over 1500 gross in back pay which i need to get before i leave the company.

i signed a contract saying i accepted the pay structure, however ive been told by the labour department that under no circumstance can the employer contract out of minimum wage.

thanks in advance for the help,

ps, if anyone is an actual lawyer can they let me know where i stand in regard to this, preferably by PM.

Cheers all
Tim

[Gubb]

How many hours do you do a week to earn the $300 base?

If the Labour Department has informed you that he's wrong, they usually know what they are talking about. I have had some good dealings with them in the past.

[98tls]

I to sold cars,did it for seven years,5 for a Toyota franchise 2 for a Ford,was on $250 a week and $250 a car.Perfectly legal on there side.Best money i have ever earnt in my life.Just got sick of Wellington and working weekends to get it.

[Slingshot]

Are you employed as a staff member or do you contract to them (self employed)?

[Ixion]

If you are an employee you must receive pay that gives you the minimum wage. However how that is made up may vary.

So if you got $300 in salary and sold 1 car that week, then that is $500, more than the minimum wage.

The employer doesn't have to pay you the minimum wage in salary form , PLUS commssion as well.

It must be possible for a normally competent employee to earn sufficient commission that commission plus salary is at least the minimum wage. So if you have worked for 10 weeks at $300 per week, and only sold one car i n that time, and that rate of selling is "normal" then you have a case (though I suspect that if your sell rate was that bad, you wouldn't have a job)

Bear in mind that the minimum wage is before tax.

[Grub]

All it took was a Google Search "minimum wage commissions" to find...

"Fact sheet on minimum pay rates

Get the facts on paying minimum wage to your employees . By law, employers must pay at least the minimum wage - even if an employee is paid by commission or by piece rate. The minimum wage applies to all workers aged 16 years or older, including home workers, casuals, temporary and part-time workers.

This information is brought to you by Department of Labour"

Read the full text here (http://www.ers.dol.govt.nz/pay/minimum.html)


Bear in mind that the minimum wage is before tax.

AND before Holiday Pay

Like Ixion says, you have to receive the minimum wage made up of base + commissions ... so the basic deal must really be the min wage is the base because they're going to have to pay that anyway.

[Ragingrob]

If you are an employee you must receive pay that gives you the minimum wage. However how that is made up may vary.

So if you got $300 in salary and sold 1 car that week, then that is $500, more than the minimum wage.

The employer doesn't have to pay you the minimum wage in salary form , PLUS commssion as well.

It must be possible for a normally competent employee to earn sufficient commission that commission plus salary is at least the minimum wage. So if you have worked for 10 weeks at $300 per week, and only sold one car i n that time, and that rate of selling is "normal" then you have a case (though I suspect that if your sell rate was that bad, you wouldn't have a job)

Bear in mind that the minimum wage is before tax.


I'm guessing this changes completely if you are officially employed as a "sub-contractor"?

My Summer job was meant to be sales with a "guaranteed" $4,200 in the 35 day, the advert actually said guaranteed! Anyway me and 6 girls were the Auckland team and after 2 weeks of work, everyone, and I mean EVERYONE had to quit because we weren't getting like any sales at all, although it wasn't our fault. The product wasn't what they promised and was different to the training manual and contract etc.

Pretty much after 2 weeks full work I walked away with maybe $200 and them saying "We could charge you $143.90 due to produce not sold that you technically bought off us but we'll be nice and not charge you".

Yeah fucken right...

So are their asses saved because I signed the contract and a sub-contractor, i.e. pretty much self-employed.

Just pisses me off, surely a job advert can not blatently say "guaranteed $4,200" and that not to happen? What the hell defines a guarantee?!

[koba]

My Summer job was meant to be sales with a "guaranteed" $4,200 in the 35 day, the advert actually said guaranteed!

Wow, people actually answer those ads!?

What did you expect? really?!!?

[Ixion]

Yes. contracting is different. But it must be genuine contracting. DoL takes a very dim view of employers trying to wriggle out on a contracting pretence.

BTW, there doesn't ahve to be ANY base salary. Perfectly legal to pay on commission only basis, so long as people can earn enough commission to at ;least make equivalent of minimum wage.

[Grub]

I'm guessing this changes completely if you are officially employed as a "sub-contractor"?

The tests for Contractor vs Employee are very rigorous and quite proscriptive. There's actually no such thing in Law as a "sub-contractor"

There are surprisingly few situations where you will pass IRD's scrutiny and not end up as an "employee".

Briefly to qualify as a contractor you must satisfy some of these criteria (list not complete this is off top of my head)
- You must be responsible for your own tax and ACC
- You must provide your own tools of trade
- You must be able to work your own hours in order to get the work done
- You must be able to carry out the work at any premises/location that you like.
- You must be able to work for someone else at the same time.

Fail any one of these and you are an "employee"

[Ragingrob]

Wow, people actually answer those ads!?

What did you expect? really?!!?

Well it seemed pretty genuine. They showed last people's sales volumes and money earnt and blah blah blah. I definitely didn't end up earning even minimum wage. Luckily me and one of the other girls just sold some stuff for cash profit lol cause we were like well fuck if they rip us off we may as well!

[Ragingrob]

The tests for Contractor vs Employee are very rigorous and quite proscriptive. There's actually no such thing in Law as a "sub-contractor"

There are surprisingly few situations where you will pass IRD's scrutiny and not end up as an "employee".

Briefly to qualify as a contractor you must satisfy some of these criteria (list not complete this is off top of my head)
- You must be responsible for your own tax and ACC
- You must provide your own tools of trade
- You must be able to work your own hours in order to get the work done
- You must be able to carry out the work at any premises/location that you like.
- You must be able to work for someone else at the same time.

Fail any one of these and you are an "employee"

Lol they supplied us with special selling crates and storage crates haha, does that count as tools of trade? I wanted to talk to a legal advisor about it all but couldn't find anything in the exact contract that guarantees the money etc...

[98tls]

If you cant make good money selling cars then move on,all you have to have is good cars and the gift of the gab,people want cars + you have them =easy money.

[Grub]

If you cant make good money selling cars then move on,all you have to have is good cars and the gift of the gab,people want cars + you have them =easy money.

Wouldn't that depend on how his boss is pricing them? If he sets high margins and therefore overprices his units, he's on a win-win. The boss will sell less units (fewer $200 commissions) but get a larger margin and therefore profit.

If he has the balance right, he wins, sales staff lose.

[98tls]

Wouldn't that depend on how his boss is pricing them? If he sets high margins and therefore overprices his units, he's on a win-win. The boss will sell less units (fewer $200 commissions) but get a larger margin and therefore profit.

If he has the balance right, he wins, sales staff lose. Good point but if hes over pricing his cars then he wont sell many so nobody wins.Selling cars is a very competitive business and in most citys car yards are in rows one next to the other,joe public are not the dumb arses they used to be so look around heaps before making a decision,franchised dealers work in 1/4s and its units out the door that matters most,i have missed out on selling a new Toyota at the end of a 1/4 because the Nissan dealer down the road sold the people a car at no profit,they did this because they can claim a rebate back from the factory for there loss and at the time it meant another unit out the door.Private dealers can price how they want but what they get is a different story,better to sell 10 cars a week at $1000 profit than 1 at $3000.

[Grub]

better to sell 10 cars a week at $1000 profit than 1 at $3000.

Agreed, I was thinking more like 1@ $3,000 vs 3@ $1,000 - the boss wins by saving $400 in commissions

[98tls]

Agreed, I was thinking more like 1@ $3,000 vs 3@ $1,000 - the boss wins by saving $400 in commissions When i was selling them they used to analyze everything,from memory of 1 month it was something like i sold 19 cars at a profit of $1900 per car,that was taking everything into account,even grooming the thing,remembering of course that at least 3/4 of those that i sold had a car traded in on which in turn would be sold they make huge money,in those days anyway if not now its the used car yard and the workshop that keeps em going.There is or used to be 12.5 % profit in a new car,only a mug pays retail so relying on profit from new cars alone will not keep a franchised dealer going.

[Timaa]

hmmm well this seems to have gotten off the comission topic, i really need to kno iff i can shove this in their faces...

[Timaa]

also if i work 52 hours a week they have to pay 52 hours of minimum wage gross if i sell nothing? or only 40? and i am an employee eonly and ive signed a contract.

[Ixion]

Add up your total payments from them, pre tax (everything, all money recieved)

divide by the number of weeks you worked for them

divide by the number of hour you nominally worked each week (usually 40)

If the answer is over 12, forget it

If it's way under 12, you've probably got a case

If it's around 12, you need an expert to do the calculation

[Ragingrob]

From what Ixion's said I think yeah they can't pay you any less than minimum wage overall for the hours you put in. Well that's what I gather anyway!

[Tank]

from 1 April last year the minimum wage for someone your age is $450 for a 40 hour week - unless the have a permit to pay less than minimum wage (like an apprenitce) you have them bang to rights.

Talk to the department of labour asap - good luck

[Timaa]

isnt it calculated on a weekly basis cause its comission? so if its under minimum for that week then they have to top it up by law...????

[Ixion]

No, not necessarily the hours you put in. You might decide to work a lot of extra hours in the hope of getting more commission.

It's based on your contract hours. If the contract is silent , normally 40 (though there are all sorts of special cases, this stuff can get really complicated).

So if you work 52 hours, the minimum wage thing will usually (NB , usually, see above about complicaitons) be based on 40. Unless your contract specifically says you have to work 52. Or, if 52 is the universally accepted hours in the industry.

But you cna't work extra hours above and beyoind your contrcat and load them into minimum wage calculation. Usually. It can get complicated.

[Timaa]

nah contract says 52 hours is the norm.

[HenryDorsetCase]

No, not necessarily the hours you put in. You might decide to work a lot of extra hours in the hope of getting more commission.

It's based on your contract hours. If the contract is silent , normally 40 (though there are all sorts of special cases, this stuff can get really complicated).

So if you work 52 hours, the minimum wage thing will usually (NB , usually, see above about complicaitons) be based on 40. Unless your contract specifically says you have to work 52. Or, if 52 is the universally accepted hours in the industry.

But you cna't work extra hours above and beyoind your contrcat and load them into minimum wage calculation. Usually. It can get complicated.

so, I take it from what you're saying that it can get quite complicated?

would that be a fair summary?

[98tls]

also if i work 52 hours a week they have to pay 52 hours of minimum wage gross if i sell nothing? or only 40? and i am an employee eonly and ive signed a contract. Red rep away but know this,if your selling cars and you are earning so little that you have to be bothered about the min wage then you are seriously in the wrong game,that or your working for the wrong guy,hook up with a franchised dealer and your away,to look at selling cars through an hourly rate viewpoint is silly,hours on the yard = talking with prospective car buyers = they go away do there thing and if serious come back.Not being negative at all but a car salesman worrying about the min wage is like a farmer worrying about the min wage.

[Ragingrob]

so, I take it from what you're saying that it can get quite complicated?

would that be a fair summary?

You just hit the nail on the head!:2guns:

[Grub]

hmmm well this seems to have gotten off the comission topic, i really need to kno iff i can shove this in their faces...

I did your research for you and gave you the answer in Message #6

[Ixion]

Actually, your best bet is to PM Mr Frosty or Mr OnearmedBandit

Thye've both managed/owned car yards, and will know all about how it works

This stuff can get complicated when commission payments are involved and industry practice comes into it.

[Conquiztador]

It will all be based on your contract. Without seeing it there is no way to give you specific advise.

Currently the minimum hourly wage for 18yo + is $11.25. (1 April 2008 goes up to $12/h) That makes $450 for 40 hours of work. If your contract clearly stipulates that you are to work 52 hours per week then you should before tax be paid $585 per week.

Car sales with a retainer is nothing new. It has been around since first cars were sold (and probably horses before that), so one would assume that your employer has knowledge of how these contracts are done so they do not come and bite him. In that contract there will somewhere be stated what he expects you to sell in a week/month to keep your job.

Based on this you need to sell 1 1/2 cars per week. If you are not achieving that then perhaps car sales is not for you???

[98tls]

[QUOTE=Conquiztador;1439431 In that contract there will somewhere be stated what he expects you to sell in a week/month to keep your job.[/QUOTE] That combined with if your not doing it by rights you should starve to death.:laugh:

[Conquiztador]

What really gets me going is ppl who read a contract and happily sign it. And then later come and complain about it.

[Timaa]

well its not like that actually. i read it believing the fact it was comission negated the minimum and with the promise that i would sell heaps, however ive been put on a dull yard with nothing but internet traffic, its hard to find and we get all the shit cars the other yard doesnt want. plus im working a one man yard with two people on it and neither of us is getting enough pay to sustain us. therefore the need to investigate this, plus my boss is a cock and despite my best efforts and positive attitude i havnt had one bit of praise from the guy about ANYTHING, i frequently get negative feedback about contradicting things he has said. the boss clearly has no people management skills or professionalism, as he thinks its ok to swear at employees in a formal workplace environment. so if you red repped me without full knowledge of the story and my situation then your just not thinking right tonite.

add all this to the fact that they are using the learn from your reprimands approach to training me as opposed to actually telling me a list of what they want done in regards to sales, also, having read and reread and reread my contract it says nothing of an actual figure of sales expected...

oh and my contract says plenty about professional conduct which neither of the bosses/owners adhere to in the workplace in the slightest.

and no i have no problem with comission only or retainer or any of that, its the fact that i was told i would make considerable sales and advertised with a salary of 60k in the ad i applied for. of which im currently making approx 20. far below the minimum for employment, and the sole reason for this is that i have been placed in and environment where achieving target sales in literally impossible.

so please dont judge (or rep) me before you know why your doing it,

dont judge a book (or story) by its cover,

Tim

[Grub]

And you STILL haven't responded to post#6

[Timaa]

lol yea no i know i got it man, but i thort 98tls gave me red rep? and i thort i would just state my story for the masses. lol. all good, cheers for the help grub.
Tim

[Conquiztador]

well its not like that actually. i read it believing the fact it was comission negated the minimum and with the promise that i would sell heaps, however ive been put on a dull yard with nothing but internet traffic, its hard to find and we get all the shit cars the other yard doesnt want. plus im working a one man yard with two people on it and neither of us is getting enough pay to sustain us. therefore the need to investigate this, plus my boss is a cock and despite my best efforts and positive attitude i havnt had one bit of praise from the guy about ANYTHING, i frequently get negative feedback about contradicting things he has said. the boss clearly has no people management skills or professionalism, as he thinks its ok to swear at employees in a formal workplace environment. so if you red repped me without full knowledge of the story and my situation then your just not thinking right tonite.

add all this to the fact that they are using the learn from your reprimands approach to training me as opposed to actually telling me a list of what they want done in regards to sales, also, having read and reread and reread my contract it says nothing of an actual figure of sales expected...

oh and my contract says plenty about professional conduct which neither of the bosses/owners adhere to in the workplace in the slightest.

and no i have no problem with comission only or retainer or any of that, its the fact that i was told i would make considerable sales and advertised with a salary of 60k in the ad i applied for. of which im currently making approx 20. far below the minimum for employment, and the sole reason for this is that i have been placed in and environment where achieving target sales in literally impossible.

so please dont judge (or rep) me before you know why your doing it,

dont judge a book (or story) by its cover,

Tim

OK. There the picture.

Now you have to make a decision:

1. You give notice and move on as it is not working.

or

2. You do something about your situation. (And no, I am not talking about complaining, unions and labour department).

- You have told here that the sales are not happening because the car selection is wrong: Try to see if you can get some other cars to sell. Talk to the owner. Focus on what type of customers you get and get that type of cars.

- Focus on a buyer group: - Boy Racers, mums, farmers, low income, high income, islanders, solo mums, families with young children etc. You will never be everything for everyone. So by focusing on one group and providing the type/price/finance/extras/service they are interested in you will soon have a reputation in that group.

- Any sale you do make, make sure the customer is very happy. Nothing gets more sales like word by mouth. Throw in something for free. Ex: If you focus on child families, go to a local place that sell kids gear/saefty equipment and strike a deal with them. Why not a 25% discount voucher to all buyers of cars from you on the gear the kids shop sells? Offer them a really good deal on a car as exchange.
Or petrol vouchers, a free first wheel balancing at a local shop, a meat pack from the local butchers, repco seat covers. Endless oppportunities. Use your imagination.

- Make the sales yard look professional. Paint the building, new signs, flags, nice sounds. "Uniform" for staff. Wont cost more then $35 for a decent Polo shirt. Add the logo to that. Cost embroyded $30 ea (or something like that).

- Give every visitor something to take away. A CD, a can of drink, a lollie pack, a flag, a hat. Anything that has the company logo on it.

- Have "open days" with specials and give aways. Sausage sizzles (get a local sports club, kindy, scout club to do it, they jump on the opportunity)

- Do a mailbox drop locally.

- Do networking. Use your contacts: Sports club, mates, kids schools newsletter, pub you go to, etc. And hey, KB...

Use your imagination. Don't go stale!

The owner does not want to do all the thinking. You start doing it and take ownership of your own situation and you be surprised where it will get you. OK, so perhaps the yard is a dog. But if you do the sort of things I have here said, then the owner will soon move you to a better place, or another more successful place will come head hunting for you. Good hardworking staff (that focus on positives) are in short supply these days... So make up your mind, are you going to be successful or a failure?

Good Luck!

[Finn]

The answer is very simple. G e t a n o t h e r j o b !

Stop going on about employment contracts and sort yourself out.

[Timaa]

ok so i am getting another job but i want the money that they owe me for under paying me. cheers.

[Nasty]

ok so i am getting another job but i want the money that they owe me for under paying me. cheers.

So you are prepared to take them to the employment tribunal etc .. I think that may be the only way to get it resolved.

[jim.cox]

but i want the money that they owe me for under paying me.

Good luck with that one mate

Blood from a stone will probably be easier

[Conquiztador]

ok so i am getting another job but i want the money that they owe me for under paying me. cheers.

Thats the NZ spirit! Blame someone else for your failure. It is not your fault that you did not sell any cars. After all, you are just the sales guy...

Oh and, how come you can be on here at 1pm? I suppose you are still working there??? Instant dismissal if working for me!!

[Timaa]

oh wow thats really nice. ill make sure i apply for a job under you so you can fire me again. lol.

you wouldnt really know the situation and its my first job in the industry and i havnt been through any training so yea. its fun but this company is the wrong one.

[Conquiztador]

oh wow thats really nice. ill make sure i apply for a job under you so you can fire me again. lol.

you wouldnt really know the situation and its my first job in the industry and i havnt been through any training so yea. its fun but this company is the wrong one.

So much for giving you advise. At 19 you already know it all...

Oh and, thanks for the two red blings.

You are new in the industry and the first thing you are planning to do is take the employer to employment court. Have you considered that he might have been in the industy a fraction longer and perhaps knows a guy or two...

You be lucky to get another job in a car yard washing the dust off.

And when applying for a job with me I would contact your ex employer, and imagine how enthusiastic I would be to employ someone who at 19 had taken the ex employer to employment court...

Your funeral.
:buggerd:
:whocares:

[98tls]

lol yea no i know i got it man, but i thort 98tls gave me red rep? and i thort i would just state my story for the masses. lol. all good, cheers for the help grub.
Tim :nono:Wasnt me.

[Timaa]

Thats the NZ spirit! Blame someone else for your failure. It is not your fault that you did not sell any cars. After all, you are just the sales guy...


lol. well someone did. lol. my bad man, and no i havnt taken anyone to court. i wasnt even planning that so i dont know who got that idea. lol.

turns out im right and the "employer who knows a few people and knows what he is doing" is wrong and they owe me money an they will pay it.

all i did was resign and let them know the situation.

red for being rude, and how is me saying that its my first job in the industry mean that i know it all? i think your a little confused. lol. or a whole lot.

if i knew it all i wouldnt have put up a post on kb hoping to get some help from people who actually know what they talking bout. not people looking to abuse me cause i didnt sell cars. i mean grow up lol.

anyway. situation under control now and no need to persue it.

[Conquiztador]

red for being rude, and how is me saying that its my first job in the industry mean that i know it all? i think your a little confused. lol. or a whole lot.



Opps, was I rude? I am sooo sorry for hurting your feelings!!! But I agree with what they did: It's worth paying to get rid of non-performing whinging azzwipes.