| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 105/09 |
| Hearing date | 31 Mar 2009 |
| Determination date | 03 April 2009 |
| Member | A Dumbleton |
| Representation | S Mitchell ; R McIlwraith, G Service |
| Location | Auckland |
| Parties | Postal Workers' Union of Aotearoa v New Zealand Post Ltd |
| Summary | DISPUTE – Parties disputed whether in circumstances not possible to determine postie employee’s relevant daily pay as that pay defined in s9(1) Holidays Act 2003 (“HA”) – Applicant claimed for particular employees concerned determination of relevant daily pay under s9(1) HA not possible – Authority noted where not possible for an employer to determine postie’s relevant daily pay as defined by s9(1) HA, formula under s9(3) HA must be used – Found posties not rostered to work overtime but if had to work longer than standard hours to complete rounds then paid overtime – Found need to work overtime may or may not arise from matters within control of employee – Found considerable elements of randomness and uncertainty about occurrence of overtime across posties as a group of respondent’s employees – Found labelling of overtime as “non-rostered” had no bearing on application of HA regarding determination of relevant daily pay – Found absence of rostering indicated unplanned nature of overtime and contributed to uncertainty – Applicant argued because working of overtime could not be foretold or anticipated, became impossible to determine relevant daily pay as defined by s9(1) HA – Respondent argued was possible to calculate relevant daily pay therefore formula in s9(3) HA had no application – Argued where overtime paid on occasions could not be regarded as component of relevant daily pay – Authority found HA required overtime to be included in calculation of relevant daily pay under s9(1)(b)(ii) HA if overtime payments “would have otherwise been received on the day concerned” – Found expression “would have” signified high degree of certainty or probability – Found when applying plain and ordinary meaning of s9(1) HA could not be said no possibility of respondent being able to determine what employees would have received if worked on day concerned – Found overtime payments not certain or sufficiently predictable and therefore not appropriate to be included in calculation of relevant daily pay – Found misapplication of s9(3) HA to use uncertainty as trigger for application of formula in section – Found clear from express language in s9(3) HA that trigger was existence of state of impossibility with regard to determining relevant daily pay under s9(1) HA – Found possible to say what posties would have earned had they worked on day in question – Found respondents approach to s9 HA in accordance with correct application of principles of statutory interpretation |
| Result | Questions answered in favour of respondents ; Costs reserved |
| Main Category | Dispute |
| Statutes | Holidays Act 2003 s9(1);Holidays Act 2003 s9(1)(a);Holidays Act 2003 s49;Holidays Act 2003 s9(3);Holidays Act 2003 s9(1)(b)(ii) |
| Number of Pages | 5 |
| PDF File Link: | aa 105_09.pdf [pdf 21 KB] |