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:: Notice to Members
23/2004 - 22 December 2004 |
Holidays Act - Days in Lieu Litigation
The
Union was surprised and disappointed to learn of the decision by the
Fire Service to appeal the Employment Court decision that dismissed
the Fire Service’s application to strike out our case.
The
Fire Service has filed papers in the Court of Appeal applying for
leave to appeal the Employment Court decision.
The
Union sees this as simply a continuation of the delaying tactics the
Fire Service has used throughout this whole dispute.
After
mediation, our case was commenced in the Employment Relations
Authority in April 2004. The Union’s submission was to have the
dispute referred directly to the Employment Court. It was self
evident that the dispute would end up in the Court and the Union’s
application saved time and money for both parties.
The
Fire Service opposed the Union’s application arguing the Authority
should hear the dispute and that the Union’s case had no merit and
should be struck out.
The
Fire Service failed in their argument and the Authority referred the
dispute to the Employment Court. A full bench of the Employment
Court (3 Judges) next heard the dispute. Again, the Fire Service
refused to argue the merits of the case and again argued that the
case be struck out.
The
Employment Court unanimously rejected the Fire Service’s case saying
that the Union’s argument “was tenable and may succeed”. The
Court also held that the substantive hearing be heard with urgency.
Tentative dates for this substantive hearing are 28 February – 2
March 2005. These dates are now in jeopardy because of the decision
of the Fire Service to appeal the Employment Court Judgment.
There
are even further delays as the Fire Service first must argue in the
Court of Appeal for leave to appeal. Only if this is granted can
the Fire Service make their strike out application to the Court of
Appeal.
There
are two conclusions that can be drawn from the Fire Service’s
actions:
- They want to cost the Union the
maximum possible in terms of both money and resources, particularly
the time of officials.
- They are so unconfident of their
position they don’t want to argue the actual issue in dispute in the
Court.
Mike
Hall explicitly stated at the recent Partnership Conference (more
about this later in this newsletter), that he had no problem with
letting the Court decide this issue. However in fact the Fire
Service’s approach has simply been one of putting all obstacles in
the way of letting the Courts decide.
Given
that the Employment Court has tentatively set aside three days to
hear the substantive matter (28 February – 2 March), the Union has
submitted to the Court of Appeal that the Fire Service’s application
be heard with urgency.
Holidays Act - Christmas / New Year
The
Holidays Act 2003 provides new rules regarding the Mondayizing of
Christmas/New Year when these days fall on a weekend.
This
is just another matter in dispute between the Union and the Fire
Service over the new Holidays legislation.
Essentially the Fire Service’s position is that for Monday – Friday
workers Christmas/New Year is celebrated on the Monday and Tuesday.
For
operational workers and Comm. Centres the days are celebrated on the
days they actually fall – i.e. on the weekend.
However, the Act is clear - Section 45 of the Act provides that if
Christmas/New Year –
a) falls on a Saturday and the day would
otherwise be a working day for the employee, the public holiday must
be treated as falling on that day;
b) falls on a Saturday and the day would
not otherwise be a working day for the employee, the public holiday
must be treated as falling on the following Monday;
c) falls on a Sunday and the day would
otherwise be a working day for the employee, the public holiday must
be treated as falling on that day;
d) falls on a Sunday and the day would
not otherwise be a working day for the employee, the public holiday
must be treated as falling on the following Tuesday.
However, no worker can receive more than four public holidays over
the Christmas/New Year period.
The
roster provides for this Christmas/New Year that Watches work as
follows:
- Red Watch Night Shift Friday 24 December
- Brown Watch Day Shift Saturday 25 December
- Red Watch Night Shift Saturday 25 December
- Blue Watch Day Shift Sunday 26 December
- Brown Watch Night Shift Sunday 26 December
- Blue Watch Day Shift Monday 27 December
- Brown Watch Night Shift Monday 27 December
- Green Watch Day Shift Tuesday 28 December
- Blue Watch Night Shift 28 December
For
Brown Watch, the Saturday is otherwise a working day – therefore for
Brown Watch, Christmas Day is celebrated on Saturday 25 December.
However, for Blue Watch, Saturday 25 December is not otherwise a
working day and therefore for Blue Watch, Christmas Day is
celebrated on Monday 27 December.
Over
the Christmas period therefore, the Union sees the Days in Lieu
accumulating as follows:
- Red Watch 2 Days (Night Shifts 24 and 25 December)
- Brown Watch 2 Days (Day Shift 25 December, Night Shift
26 December)
- Blue Watch 2 Days (Day Shift 26 December, Night
Shift 27 December)
- Green Watch 1 Day (Day Shift 28 December)
The
same principle applies over the New Year. The above Watches should
claim Days in Lieu accordingly.
As
far as Days in Lieu for overtime is concerned, if the Union’s
position as outlined above is taken, and given that only 2 days for
Christmas and 2 days for New Year can be accumulated, over the
Christmas period, only Green Watch would have the possibility of
getting a Day in Lieu if overtime is worked. The other three
Watches would have already accumulated 2 Days in Lieu for their
normal shifts.
If
the Fire Service is correct, and no doubt what they will apply until
a Court directs otherwise, overtime worked on the Saturday and
Sunday, if no part of a normal shift is worked on the Saturday and
Sunday, will accrue a Day in Lieu.
As
noted, this matter as well will need to be determined by the Courts
and the Union will proceed accordingly.
Use of Fire Service E-mail
The
Union Committee reminds members and officials not to use the Fire
Service e-mail system to conduct Union business.
There
is no doubt the Fire Service monitors e-mails exchanged on their
system. Consequently there is no confidentiality on this system.
Review of Fire Service Act
The
full discussion document can be viewed through the
Union’s website. The
Union will be making a substantive submission on the discussion
document. The Union Committee asks members to forward to the Union
any points they wish to make on the discussion document rather than
submitting to the Fire Service.
Partnership Conference
The
Union Committee attended the second Partnership Conference and met
with the Fire Service Senior Management Team. The Chief Fire
Officers’ Society also attended.
The
basis of attending was the commitment given at the first Conference
to meet regularly at national, Regional and District level.
It
should be noted that the Union has not formally agreed to the
partnership protocol by signing the document, as there is no
agreement on Time Off for Union Leave arrangements.
The
conference agreed the following partnership objectives for 2005:
- The Review of the Fire Service Act;
- The introduction and ratification of TAPs
- Further training and development of SMS
- Resourcing – moving to 24/7 manning in areas of need.
It
was disappointing to have confirmed after this meeting that the Fire
Service intended to appeal the Employment Court decision in the Days
in Lieu case. Mike Hall was well aware of this decision when he
addressed the meeting, and yet his only comments regarding the case
were to the effect:
- that he had no problem with letting the Courts tell us
what the Act provides; and
- if that decision requires additional
expenditure, he would expect the government to provide this.
The
decision to appeal and thereby further delay a resolution, and not
informing the Union of this decision at the conference is hardly
evidence of a partnership approach.
Hours of Work
The
Working Party met on Monday 20 December. Advice was given to the
Working Party by an Occupational Health Consultant (Dr. Simon
Ryder-Lewis).
The
Union strongly suggested that the only logical timeframe to use was
the eight day roster cycle.
The
present 6 day timeframe is a hangover from the CST roster system (3
days on 3 days off).
The
Union also raised the matter of volunteer hours (own employment and
Fire Service responding) and persons on-call. The Union has
significant concerns over the practice of particularly CFOs being
rostered on-call 24 hours a day in excess of 7 days.
The
Working Party was unable to reach agreement at this meeting on
modification to the present rigid 72 hour maximum. The Union was
advised that the Chief Executive would decide to increase the 72
hours to 76 hours in a 6 day period. This would allow two overtime
Night shifts to be worked.
The
Working Party will meet again on 2 February, and in the meantime the
Union will be further researching fatigue management systems.
Sprinklered Buildings
The
Union was interested to read reports of a Fire Service report that
significant numbers of sprinkler systems do not work properly.
Given that the standard response of the Fire Service to a building
being sprinklered is to reduce the pre-determined turn-out to that
building, the Union will be raising this with Mike Hall.
SEASONS GREETINGS
The Union wishes all members the
Compliments of the Season and enjoyment over the Christmas/New year
period.
We will look forward to a successful 2005.
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