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

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.