| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2017] NZERA Christchurch 199 |
| Hearing date | 16-Jun-2016 - 6-Jul-2017 (2 days) |
| Determination date | 15 November 2017 |
| Member | C Hickey |
| Representation | J Foden ; G Kelly, C English |
| Location | Christchurch |
| Parties | Wendco (NZ) Ltd v Labour Inspector |
| Summary | DISPUTE – Applicant objected to Labour Inspector’s Improvement Notice requiring employees to be paid for alternative holidays taking into account all factors in s12(3) of Holidays Act 2003 (“HA”) – Respondent challenged applicant’s method to determine when an employee works on a public holiday |
| Abstract | AUTHORITY FOUND –;DISPUTE: Question whether applicants method to determine when an employee works on a public holiday and is entitled to an alternative holiday complies with s12(3) of HA. Applicant disagreed with respondent’s approach to identify what would otherwise have been a working day. Respondent submitted that expressed daily availability and weekly rosters were to be predominant factors to determine alternative holidays. Authority not satisfied respondent’s approach was correct as it only considered two factors of s12(3) out of four. Alternatively applicant assessed employee’s work pattern over a three week period prior to public holiday worked, employee would then be entitled to an alternative holiday where they worked any time on the same day of preceding three weeks. Three-week rule used by applicant could according to s6 of HA restrict or reduce employee’s entitlement to an alternative holiday after working a public holiday. Applicant did not consider all factors of s12(3). Applicant did not take s12(3)(c)(iii) in account. Review of employees work history for the purposes of s12 must be longer than 3 weeks. Where an employee works for a period of three months or more it would be sensible to assess the period of at least three months, or full work history if less than three months. Questions answered. |
| Result | Questions answered ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s174C(3)(b);ERA s174C(4);ERA s223E;Holidays Act 2003 s6;Holidays Act 2003 s12;Holidays Act 2003 s12(2);Holidays Act 2003 s12(3);Holidays Act 2003 s12(3)(c)(ii);Holidays Act 2003 s13;Holidays Act 2003 s56;Holidays Act 2003 s60 |
| Cases Cited | BW Murdoch Ltd v Horn [2008] ERNZ 38 (EmpC);New Zealand Fire Service Commission v New Zealand Professional Firefighters Union [2006] ERNZ 1109 (CA);Tranzit Coachlines Wairarapa Ltd v Morgan [2013] ERNZ 638 (EmpC) |
| Number of Pages | 17 |
| PDF File Link: | 2017_NZERA_Christchurch_199.pdf [pdf 225 KB] |