| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 483 |
| Hearing date | 8 Sep 2011 |
| Determination date | 08 November 2011 |
| Member | E Robinson |
| Representation | T Oldfield, J Lawrie ; K Dunn, J Hardacre |
| Location | Auckland |
| Parties | Service and Food Workers Union Nga Ringa Tota Inc and Anor v Oceania Care Company (No 2) Ltd |
| Other Parties | New Zealand Nurses' Organisation |
| Summary | DISPUTE – Interpretation of collective employment agreement (“CEA”) – Respondent denied CEA provided for additional week of annual leave for employees with five or more years’ service – Respondent claimed if employees were entitled to further annual leave entitlement any entitlement ended when parties entered into multi employer multi union collective agreement (“MEMUCA”) – Respondent owned and managed providers of elderly care – Group of companies (“Q”) divided into four regions later amalgamated into respondent – Before amalgamation regions negotiated CEAs separately – Q and applicants concluded CEA for one region (“E’s CEA”) – E’s CEA provided for additional week of annual leave entitlement for employees with five or more years’ experience – Annual holiday entitlements increased under Holidays Act 2003 (“HA 2003”) - All employees employed under E’s CEA received four weeks’ annual leave in accordance with HA 2003 but employees already receiving four weeks’ annual leave did not have entitlement increased to five weeks’ annual leave – Respondent’s general manager (“M”) claimed had previously advised applicants respondent would not agree to increasing annual leave entitlements to five weeks’ leave after five years’ service – M claimed that by retaining E’s CEA respondent reflected changes under HA 2003 but did not change entitlement to annual leave under E’s CEA – First applicant’s union organiser (“T”) claimed parties’ only agreed additional annual leave above current minimum legal requirements would be discussed as soon as possible – Second applicant’s industrial advisor (“H”) claimed additional week provided for was above minimum legal requirements as difficult to retain employees in residential care sector - Parties agreed to new CEA (“second CEA”) including clause that existing annual leave entitlements would continue and matter would be discussed once Court of Appeal (“CA”) decision on similar issue released – While second CEA in force Q merged into respondent and respondent widened MEMUCA to include Q – M claimed after MEMUCA widened all CEAs between parties were “frozen” – Parties agreed to memorandum of understanding (“MOU”) that employees would continue to be employed on current CEA until replaced by new CEA – M claimed applicants did not raise five weeks’ annual leave issue during MEMUCA bargaining process – MEMUCA stated at end of each completed twelve months employee entitled to four weeks’ annual leave and employees entitled to one week’s earnings after completing five years’ service – M claimed before MEMUCA’s final settlement second applicant claimed employees’ previous allowances had not been included in MEMUCA – Parties agreed allowances would be attached as schedule to MEMUCA – Clause added to MEMUCA that nothing in MEMUCA reduced individual employee entitlements (“savings clause”) but schedule did not refer to additional week of annual leave after five years’ service – H claimed leave entitlements omitted as union members had been told parties disputed issue – T claimed savings clause should have preserved annual leave entitlements - After CA decision respondent denied employees should receive five weeks’ annual leave – Authority found on plain reading of E’s CEA employees’ annual leave entitlement complied with statutory minima – Found however additional week of annual leave was dependent on employee completing five years’ service and not applicable to all employees – Found H’s argument that additional leave was incentive so employees could be retained was persuasive - Found therefore entitlement to additional week of annual leave additional to employees’ statutory entitlement – Found employees covered by E’s CEA entitled to total five weeks’ annual leave – Found MOU was unequivocal statement parties intended MEMUCA would replace previous CEAs – Found more credible that employees’ entitlement to additional week of annual leave not raised during MEMUCA bargaining as employees accepted leave entitlements were superseded by MEMUCA – Found settlement of MEMUCA ended employees’ entitlement to five weeks’ annual leave under E’s CEA – Question answered in favour of respondent - Nurses, health care assistants and support workers |
| Result | Question answered in favour of respondent ; Costs reserved |
| Main Category | Dispute |
| Statutes | Companies Act 1993 Part 13;Holidays Act 2003 s3(a);Holidays Act 2003 s6;Holidays Act 2003 s41 |
| Cases Cited | Hansells NZ Ltd v Ma Ltd [2007] ERNZ 637;National Distribution Union Inc v Capital and Coast District Health Board [2010] ERNZ 499;NZ Meat Workers and Related Trades Union Inc v Silver Fern Farms Ltd [2009] ERNZ 149;New Zealand Tramways and Public Transport Employees Union Inc v Transportation Auckland Corporation Ltd [2006] ERNZ 1005;New Zealand Tramways and Public Transport Employees Union Inc v Transportation Auckland Corporation Ltd [2008] ERNZ 229;New Zealand Tramways and Public Transport Employees Union Inc v Transportation Auckland Corporation Ltd [2008] ERNZ 584;Robinson v Capital and Coast District Health Board [2010] ERNZ 507;Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc [2010] ERNZ 317 |
| Number of Pages | 16 |
| PDF File Link: | 2011_NZERA_Auckland_483.pdf [pdf 86 KB] |