| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 155/06 |
| Hearing date | 9 Oct 2006 |
| Determination date | 14 November 2006 |
| Member | P Cheyne |
| Representation | G Davenport ; R Harrison |
| Location | Christchurch |
| Parties | Holt & Anor v Toll NZ Consolidated Ltd |
| Other Parties | Rail & Maritime Transport Union Incorporated |
| Summary | DISPUTE – Interpretation of Holidays Act 2003 – Applicant’s request to take alternative holiday on specified weekend day denied – Respondent insisted applicant use annual leave – Whether respondent could refuse to allow employee to take alternative holiday because of perceived failure by employee to take into account employer’s view as to when convenient – Applicant had taken respondent’s view into account - Use of “only” in s58 Holidays Act meant employer could not determine date in any other circumstances – Meaning plain from words used and consistent with Act’s purpose – Respondent’s desire to minimise costs associated with taking alternative holiday on weekend could not defeat plain words of Act – Respondent argued employee’s decision subject to reasonableness – A concept of administrative law, reasonableness was not a requirement imported into dealings between two private individuals when one is exercising right granted by statute – No express or implied requirement in Holidays Act for employee to give reasons for decision – No particular notification process in Holidays Act and no requirement for written communications – Question of fact whether employer given 14 days notice of employee’s intention to take alternative holiday – Applicant entitled to determine specified weekend day as alternative holiday despite respondent’s view not convenient – Respondent breached Holidays Act and collective agreement by not recognising applicant’s right - Interpretation of collective agreement - Union (second applicant) argued collective agreement extended rights of employee and empowered them to determine date of alternative holiday when more than 12 months had passed since entitlement arose, i.e. respondent had lost right under s58 Holidays Act – Argument created by absence of comma in agreement – When interpreting employment agreements important to remember often not drafted by lawyers and may lack precision of commercial contracts – No reason to think drafters intended to create ambiguity – Parties intended to do no more than describe provisions of Holidays Act – PENALTY – Penalty provisions of Holidays Act did not extend to non compliance with s57 – Penalty for failure to comply with collective agreement not appropriate as respondent took steps to remedy pay and leave situation during investigation |
| Result | Question answered in favour of applicant (Interpretation of Holidays Act 2003) ; Question answered in favour of respondent (Interpretation of collective agreement) ; Application dismissed (Penalty) ; Costs reserved |
| Statutes | Holidays Act 1981;Holidays Act 2003;Holidays Act 2003 Part 2;Holidays Act 2003 Part 2 Subpart 3;Holidays Act 2003 s3;Holidays Act 2003 s4;Holidays Act 2003 s43;Holidays Act 2003 s56;Holidays Act 2003 s56(2);Holidays Act 2003 s57;Holidays Act 2003 s57(1);Holidays Act 2003 s57(2);Holidays Act 2003 s58;Holidays Act 2003 s75 |
| Cases Cited | New Zealand Engineering Printing and Manufacturing Union Inc v ACI Operations New Zealand Ltd [2006] ERNZ 361;New Zealand Professional Firefighters Union Inc v The Chief Executive of the New Zealand Fire Service [2005] 1 ERNZ 645 |
| Number of Pages | 7 |
| PDF File Link: | ca 155_06.pdf [pdf 43 KB] |