| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 139A/09 |
| Hearing date | 23 Sep 2009 |
| Determination date | 29 September 2009 |
| Member | D Asher |
| Representation | M Quigg, T Sissons ; P Cranney, H McAra |
| Location | Wellington |
| Parties | KiwiRail Ltd v Maritime Union of New Zealand & Ors |
| Other Parties | New Zealand Merchant Service Guild Industiral Union of Workers Inc |
| Summary | DISPUTE – Employer requiring employees to take annual leave - Applicant sought to reduce number of ferry sailings due to financial difficulties – Applicant sought agreement from employees to take annual holidays at certain time – Respondents’ members withheld agreement – Applicant applied to Authority to determine issues regarding interpretation and application of s18 and s19 Holidays Act 2003 (“HA 2003”), and relevant collective employment agreements – Authority noted no evidence as to why employees unwilling to take leave at time sought by applicant – Authority speculated employees must wish to take leave on dates other than those proposed by applicant - Authority found although applicant initiated leave proposal, followed from s18(4) HA 2003 that applicant must not unreasonably withhold consent to employee seeking leave at another time - Found applicant’s primary reason for declining employees’ preference of alternative annual leave dates was economic, in benefit of laying up ferry – Found secondary reason to reduce some crew members’ considerable leave stockpiles – Found both genuine and significant reasons and warranted fair consideration by respondents and respondents’ members – However, found HA 2003 clear that onus on employer not to unreasonably withhold consent to employees’ requests to take annual leave – Found applicant’s proposals failed s18(4) HA 2003 test because fair and reasonable employer would have tested each individual’s position before assuming an across the board directive – Applicant wrote letter to employees stating “notwithstanding any response you may have made, you will be required to take leave as indicated” – Found in absence of evidence of clear, one on one communication between applicant and individual crew, and notwithstanding applicant’s earlier letters seeking response, direction in letter breached clear obligation under HA 2003 to measure each individual’s request and not unreasonably withhold consent, in this case to their declining to take leave at time nominated by applicant – On balance of probabilities, Authority not satisfied applicant could rely on communications to date to say it met statutory obligation to consult with each crew member in respect of employees’ requests to take annual holidays, and that it has taken account of the reasons for their request in coming to decision to reject request – Found applicant’s proposal did not comply with HA 2003 and thereby failed |
| Result | Question answered in favour of unions ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s236;Holidays Act 2003 s18;Holidays Act 2003 s18(3);Holidays Act 2003 s18(4);Holidays Act 2003 s19;Holidays Act 2003 s19(1)(a) |
| Number of Pages | 14 |
| PDF File Link: | wa 139a_09.pdf [pdf 41 KB] |