| Summary |
DISPUTE - Parties in dispute about how employees’ entitlement to annual holidays could be met under Holidays Act 2003 (“HA”) and parties’ collective employment agreement (“CEA”) - Applicant claimed allowed to calculate annual leave in hours - Respondent claimed annual leave to be calculated in days - Applicant treated week as 40 hours and five weeks holiday as 200 hours - Authority found by allowing employees 200 hours annual leave per annum applicant discharging obligations under HA - Found employees worked on average 39 hours per week, worked on average 4.5 days per week, employees paid and accept 40 hours pay per week regardless of actual hours worked, employees had not objected to time off on leave being equated with hours, were approximately 230 employees to whom applicant applied approach and only seven had objected, 40 hour treatment beneficial in most employees’ favour, and no actual disadvantage had been identified except theoretically - BREACH OF CONTRACT - Whether applicant’s approach breached CEA - CEA provided for four weeks annual holidays plus additional one week - Found no specific definition of week - Found was provision for 40 hours per week - Found no express provision to use hours to calculate holiday pay - Authority found calculation of holiday pay in hours did not breach CEA because approach consistent with week meaning 40 hours per week - Had been no prior objection to approach - Was no agreement in writing to contrary - Variables and unpredictable hours of work resulting from shift arrangements meant some meaning had to be provided to a week to enable employees’ entitlement to be met - Respondent claimed was agreement in 2005/2006 for only eight hours to be deducted from accrued leave entitlements where leave taken on 12 hour daily shifts - Applicant denied claim - Found on balance of probabilities no agreement in 2005/2006 as alleged by respondent - Found under CEA permissible for applicant to treat week as 40 hour week and calculate holiday entitlement by hours - COUNTERCLAIMS - JURISDICTION - Respondent claimed Authority had no jurisdiction to fix terms and conditions of employment by defining what week was to calculate annual holiday entitlement in clause 19.1 CEA and s16 HA - Authority found applicant seeking declaration over dispute about calculation of annual leave entitlement under CEA and HA - Found question arising from filing of statement of problem was whether or not was lawful to make that calculation in hours as opposed to days as claimed by respondent - Found application for declaration did not involve request to fix new terms and conditions of employment, but involved dispute about interpretation, application and operation of CEA - Found within Authority’s jurisdiction - PENALTY - Respondent claimed applicant deliberately and wilfully breached ss16 and 73(1) HA and s4A Employment Relations Act 2000 (“ERA”) - Applicant provided evidence of compliance with s16 HA - Found treatment of week as forty hours met requirement and applicant requested help from Department of Labour - Found no deliberate and wilful breach of s16 HA - Penalty application declined - Section 73(1) HA required parties to deal with each other in good faith - No evidence produced applicant done anything to mislead or deceive or anything likely to mislead or deceive respondent - Found applicant open and honest, had negotiations, approach open and transparent, referred matter to Labour Inspector, and applied to Authority to determine matter - Found no proven breach of applicant’s obligations - Further found HA did not provide for penalty for breach s73(1) HA - Authority satisfied applicant had not breached s4A ERA - Found applicant’s actions not deliberate, serious and sustained failure to act in good faith - Penalty application declined |