| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 169/01 |
| Determination date | 29 October 2001 |
| Member | A Dumbleton |
| Representation | AM Hendra ; P Kiely & D France |
| Location | Auckland |
| Parties | Couling & Ors v Carter Holt Harvey |
| Summary | DISPUTE - Employees required to take annual leave during market shutdown - Interpretation of Holidays Act 1981 and employment agreements - Exceptional case where mediation not appropriate - Whether employment agreements restricted ability to invoke Holidays Act 1981 - Whether complied with requirements of s12(2) and s19(1) of the Holidays Act 1981 - Consultation - No consultation with employees directly - Could have consulted with union as agent - Communications with site delegates did not amount to consultation - Decision was already made - Merely offered opportunity to persuade decision-makers to change their minds - No evidence of open mind - No real or proper consultation - Prior notification rather than consultation - Notice - General notification issued - Clearly represented further notice would be given - Notice received less than 7 days before required leave dates - Actual notice required - Insufficient notice was no notice - Breaches of Holidays Act 1981 established - Employees should not forfeit pay for shutdown - Breach of Holidays Act 1981 was not of itself act of bad faith - No breach of good faith - Breached consultation provision of employment agreement - No breach of agreement with relation to payment of wages - Employer did not have ability to assign annual leave to public holiday - Investigation suspended - Remedies reserved pending further mediation |
| Result | Orders accordingly ; Costs reserved |
| Statutes | ERA s4;ERA s4(4);ERA s4(4)(d);ERA s159(1)(b)(i);ERA s159 (1)(c);ERA s160(3);Holidays Act 1981;Holidays Act 1981 s7A;Holidays Act 1981 s12;Holidays Act 1981 s12(2);Holidays Act 1981 s19(1);Holidays Act 1981 s34 |
| Cases Cited | Wellington International Airport Ltd v Air NZ [1993] 1 NZLR 671 |
| Number of Pages | 13 |
| PDF File Link: | PDF file not available for download, please contact us to request a copy. |