Holidays Act Proceedings

 

:: 21 December 2006

Dispute Smolders

A FLARE-UP between the firefighters union and the Fire Service over public holidays is heading for the Supreme Court.

The Employment Court ruled in August 2005 that firefighters be granted a day off for each public holiday worked, a decision the Fire Service said could cost up to $5.5 million a year.

Firefighters would also be liable for about $10 million in backpay, backdated to April 1, 2004, when the Holidays Act took effect. The Court of Appeal recently upheld an appeal from the Fire Service over the Employment Court decision.

Derek Best, secretary of the Professional Firefighters Union, said yesterday the union had now filed leave to appeal to the Supreme Court. m

The case is expected to set a precedent for how other 24-hour services, such as police, meet the requirement to give staff a day off if they work a public holiday.

  • Story courtesy of the Dominion Post

Supreme Court Appeal

Papers seeking leave to appeal to the Supreme Court were lodged with the Supreme Court on 9 February.  Further documentation both in support of the initial application and in response from the Fire Service will be filed in the next few days and a hearing date set after that occurs.

The seeking of leave to appeal is based on the various grounds that such leave can be sought:

  • The interests of justice require a hearing.

  • It is a matter of general and public importance.

  • A substantial miscarriage of justice may have occurred.

  • It is a matter of general commercial significance.

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:: 24 July 2006

Court of Appeal Decision Reserved

The Court of Appeal has reserved its decision in the Union’s alternative holidays case.

The Court, comprising Judges William Young, O’Regan, and Chambers heard argument from the Union’s legal team (Peter Cranney and Anthea Hughes) and the NZFS lawyers (Bill Wilson QC and Geoff Davenport of Broadmore Barnett).

Business New Zealand also appeared and supported the employer’s view.

According to Peter Cranney, a decision is not likely for some weeks.

“The Court is likely to take some time to consider and rule on the matter. The essence of the case is whether the 14 days leave in 160 are “days that would otherwise be working days for the employee” as required by the Holidays Act in 2003. The case will turn on the Court’s view of that issue” says Mr Cranney.

Members will be updated as further information becomes available.

Fire Chiefs fight rule on public holidays

Courtesy of The Dominion Post
FIREFIGHTERS' employers are trying to pour cold water on an Employment Court ruling that they can take a day off after being on duty over public holidays.

The Employment Court has ruled that firefighters should be granted a day off for each public holiday worked, which the Fire Service has estimated could cost millions.

Firefighters would also be entitled to backpay to April 1, 2004, when the Holidays Act 2003 took effect.

Their employer, the New Zealand Fire Service Commission, was granted leave to appeal against the decision. Yesterday Bill Wilson, QC, told the Court of Appeal that at issue was whether alternative days off for working public holidays had to be a working day and whether that day had to be agreed by both sides.

He said firefighters already had 32 days' annual leave, of which 11 were considered compensation for the possibility of having to work on statutory holidays.

Mr Wilson said it was unlikely they would work all 11 holidays. It had to be concluded that the 11 days would not come from working days.

Tim Cleary, acting for Business New Zealand, said the organisation did not believe there were any material changes between the old act and the new one, but conceded the outcome of the hearing would be of major importance to employers.

Professional Firefighters Union lawyer Peter Cranney said their interpretation of the act was that they would be entitled to a day off on a day they chose. "And it should be a day that would normally have been worked."

Anything that restricted that should have no effect, he said.

An appeal by Air New Zealand against the Airline Pilots Association on a similar argument has also been before the court, which has yet to deliver its decision.

Other organisations, such as the Police Association, also have an interest in the outcome. The Court of Appeal has reserved its decision.

:: 12 May 2006

Court Of Appeal – Days in Lieu

The Union’s lawyers have finally received the Fire Service Case on Appeal to the Court of Appeal. The Fire Service has also applied to have the matter set down – i.e. seek a date for a hearing.

The Union will be following up with the Court of Appeal the need to have the case heard as soon as possible.

However, the Union’s advice is that it is likely to be at least 2 months before a hearing date will happen.

Members will be updated as further information becomes available.
:: 12 April 2006

Easter Period – Public Holidays

Members are reminded of the following information regarding working over this Easter period.

  1. Good Friday 14 April – Watches rostered to work - Brown/Green/Blue.

  2. Easter Monday 17 April – Watches rostered to work - Green/Red

  3. According to the Employment Court Decision (being appealed by the Fire Service) a Day in Lieu is earned: (Note: the Employment Court Decision is stayed pending the Court of Appeal hearing)
    - For Good Friday 14 April – Brown/Green/Blue
    - For Easter Monday 17 April – Green/Red

  4. For those working overtime on Good Friday – only those persons on Red Watch would earn a Day in Lieu. All other Watches have worked part of their rostered shift on that day and therefore have already received a Day in Lieu for that day (Note 3. above)

  5. For those working overtime on Easter Monday – only those persons on Blue and Brown Watches would earn a Day in Lieu. The other two Watches have worked part of their rostered shift on that day and therefore have already received a Day in Lieu for that day (Note 3. above).

Court of Appeal

The Fire Service continues to drag its feet in pursuing their Appeal. Presently we are close to seeing all the documents to be relied on in the Appeal filed with the court of Appeal.

Once this is finalized the Union will immediately apply to have the case set down – i.e. a hearing date fixed.

The Fire Service has not yet filed their actual argument to be relied on.

:: 8 March 2006

Court of Appeal - Days in Lieu

The Union is increasingly concerned at the length of time the Fire Service is taking in filing its case on appeal to the Court of Appeal.

The Fire Service has 6 months from the date of being granted leave to appeal to file its case.  Leave to appeal was granted in November 2005.

Members will recall that as part of the appeal process, the Fire Service applied to the Employment Court for a stay on the Employment Court Decision until determined by the Court of Appeal.

As part of that process, the Union did not oppose the application (the Union did not support it either), but simply agreed to abide the Decision of the Court.  This position was adopted subsequent to discussion and agreement with the Fire Service that they would process their application to the Court of Appeal with urgency.

Clearly the Fire Service is not proceeding with urgency, and the Union has formally notified the Chief Executive of its concern and asked him to honour the agreement made.

Members Leaving the Fire Service

Days in Lieu
Members who have left the Fire Service subsequent to 1 April 2004 will be entitled to payment for Days in Lieu accrued, if the Union wins its case.  Administration arrangements for this will need to be agreed.

Transferring Public Holidays to Other

Dates

There still appears to be some confusion over the application of Section 45 of the Holidays Act for the last Christmas/New Year period.  The Union’s understanding was outlined in two Newsletters – 22 December 2005 and again on 10 February 2006.

Section 45 of the Act provides inter alia –

If Christmas or New year’s Day:

  • Falls on a Sunday and that day would otherwise be a working day for the employee, the Public Holiday is treated as falling on that day i.e. the Sunday.

  • Falls on a Sunday and that day would not otherwise be a working day for the employee, the Public Holiday is treated as falling on the following Tuesday.

What this means for the 2005/06 Christmas/New Year period when Christmas and New Year’s Day fell on a Sunday is as follows:

  • Blue, Red and Green Watches worked on 25 December.  For those Watches the Public Holiday is observed on the actual Public Holiday (i.e. 25 December).

  • Brown Watch did not work on 25 December and therefore for that Watch, the Public Holiday is transferred to Tuesday 27 December.

  • Brown Watch was rostered to work on 27 December and therefore for that Watch, 27 December is treated as the Public Holiday.

No person working overtime on 27 December will have that overtime calculated at Public Holiday rates.

Blue, Red and Green Watches worked on 25 December and that is the day observed as the Public Holiday.

Brown Watch did not work on 25 December but worked a normal shift on 27 December and therefore for that Watch, 27 December is treated as the Public Holiday.

  • Blue and Green Watches worked on 1 January and therefore for those Watches, the Public Holiday is observed on the actual Public Holiday i.e. 1 January.

  • Brown and Red Watches did not work on 1 January 2005, therefore the Public Holiday is transferred to 3 January 2006.

  • Red Watch worked a normal shift on 3 January and therefore that day is treated as if it was a Public holiday.

  • Any member on Brown Watch working an overtime shift on 3 January will have that overtime calculated as if the day was a Public Holiday.

  • Any member of Blue or Green Watch who worked overtime on 3 January, will have the overtime calculated as for a regular Tuesday.  For them, 1 January (when they worked normally) was observed as a Public Holiday.

The Union’s Court action claims a Day in Lieu for all normal shifts worked on a Public Holiday, or the day observed as a Public Holiday.

:: 10 February 2006

Holidays Act Proceedings

The Fire Service has advised they expect to file at least part of their case on appeal sometime next week. Once the case has been filed, a date for the hearing can be established. 

The Union has been advised that Business New Zealand has applied for party status at the hearing.  Business New Zealand applied and was granted party status at the Employment Court hearing.

Transferring of Public Holidays to other

dates

The Union’s understanding of the transferring provision was set out in Newsletter of 22 December 2005.  It would seem that once again the Fire Service has difficulty in understanding clear English, as the relevant Section of the Holidays Act is quite explicit:

Section 45 Transfer of public holidays over Christmas and New Year provides inter alia -

If Christmas or New Year’s Day:

  • 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.

  • 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.

What this means for the 2005/2006 Christmas/New Year period when Christmas and New Year’s Day fell on a Sunday is as follows:

  • Blue and Green Watches worked on 25 December and 1 January.  These public holidays are observed on the actual day itself.

  • Brown and Red Watches did not work on 25 December or 1 January and therefore for those workers, the public holiday is transferred to Tuesday 27 December and 3 January.

  • Red Watch was rostered to work on 27 December and 3 January and that is the day for them observed as Christmas and New Year’s Day.  The Union’s Court actions claim a Day in Lieu for Red Watch on 27 December and 3 January.

Any Brown Watch worker who worked an Overtime Shift on any part of 27 December or 3 January has that overtime shift treated as if it is a public holiday – i.e. public holiday overtime rates plus a Day in Lieu.

The Union is aware that in some cases the above rules have not been applied, and the Union has formally disputed this with the Fire Service.  Please advise the Union if you believe you have also not received what you are entitled to.

Sickness or Bereavement Leave on a

Public Holiday

Again the Fire Service seems unable to understand plain English.  The Holidays Act provisions again are very clear.

Section 61 of the Act provides inter alia -

Any employee who is required to work on a public holiday but does not work because of sickness, injury at home or bereavement:

  • The public holiday is treated as a public holiday not as sick or bereavement leave i.e. no deduction from leave entitlement.

  • The employee is paid their relevant daily pay for the day.

  • The employee is not entitled to a Day in Lieu

Again the Union is aware of cases where these rules have not been applied, and the Union has formally raised this with the Fire Service.  If you believe you have not received your proper entitlement, please contact the Union.

:: 22 December 2006

  • Christmas/New Year Provisions

  • Sickness, injury or bereavement on public holidays

    Read More

:: 21 November 2005

Fire Service Application to Appeal

Employment Court Decision Granted

The Court of Appeal has granted the Fire Service’s application to appeal the Employment Court decision regarding Days in Lieu.

There is no indication at this time, as to when that hearing will occur, but it is unlikely to be this year. However, the Union will be strongly putting a case for urgency.

There also still appears to be some confusion as to when a member is entitled to take Days in Lieu that are currently provided (i.e. for working an overtime shift on a Public Holiday).  The rules are quite clear:

  • There must initially be an attempt at an agreement between the worker and the employer.

  • If agreement is not possible, then on a date determined by the worker.

If you wish therefore to take a Day in Lieu you are entitled to, you are entitled to ask and be given that Day in Lieu on another Public Holiday.

:: 14 November 2005

Court of Appeal hears Fire Service

Leave to Appeal Application

Today the Court of Appeal in Wellington sat to hear the Fire Service’s Application for Leave to Appeal against the decision of the Employment Court.

The Appeal Court was made up of three Judges, Judges Hammond, Willie-Young and Pankhurst.

Counsel for the New Zealand Fire Service, Bill Wilson QC, argued the five points which the Fire Service believed the Employment Court erred as a matter of law:

The Union’s Counsel of Mr Peter Cranney and Anthea Hughes argued that the issues raised were not errors of law within the jurisdiction of the Court but were related to interpretations of the employment contract.

Members should note that the role of the Court of Appeal, under the Employment Relations Act, is to deal with points of law rather than the interpretation of employment contracts.

After both legal counsel answered questions put to them by the Court of Appeal, Judge Hammond indicated that the Court may allow the Fire Service to develop and prepare a Memorandum to the Court, setting out more clearly specific questions of law, for consideration.

The Court adjourned and on reconvening, Judge Hammond put to Wilson one final question relating to the argument of when a day begins and ends, for the purposes of assessing when work is performed on a public holiday see page 4, paragraph 8 (v) .

The hearing concluded with the Court of Appeal not seeking further opportunity for the Fire Service to submit a further Memorandum.

Judge Hammond announced that the Court would not give a decision today and that the decision would be reserved.

While considering the Court’s significant case load, Judge Hammond did advise the Court that the judgement would be made “relatively promptly”.

The outcome of this hearing allows either the Fire Service to proceed to the Court of Appeal for a substantive hearing before a full Court (with a possible appeal by either party to the Supreme Court); or whether, the judgement of the Employment Court is upheld. 

Clearly there is no timeframe given and members will be advised of any developments.

Fire Service seeks to appeal public

holiday decision

The Fire Service today applied to appeal an Employment Court ruling on firefighters working public holidays – which could cost it up to $5.5 million a year – and claimed it has implications for all shift workers.

The Employment Court in August ruled firefighters should be granted a day off for each public holiday worked, a decision the Fire Service estimated could cost between $3.5 and $5.5 million per year plus backpay to April 1, 2004, when the Holidays Act 2003 came into effect.

Fire Service lawyer Bill Wilson, QC said the Employment Court had made errors of law in its decision.

Firefighters received 32 days off each year, of which 21 days were annual leave and the remainder were provided to ensure a day's leave for any of the 11 statutory holidays worked.

"From the view of the fire service, it is a generous assumption because it is highly unlikely any firefighter would be required to work all 11 days," he told the Court of Appeal. This was because of four-day on, four-day off rosters and the likelihood some statutory holidays would fall in the annual leave period.

It needed to be determined whether there was any material changes between the Holidays Act 1991 as interpreted by the Employment Court and the new law, Mr Wilson said.

There was also a question over whether a leave day could be otherwise a working day. "If otherwise a working day, it cannot be invoked to fulfil a holiday day."

"These are matters of general and public importance," Mr Wilson said.

The ruling had "very real significance" for any shift workers, such as those in the health sector.

"Air New Zealand has already obtained leave to appeal to this court over holiday entitlements."

However, Professional Firefighters Union lawyer Peter Cranney said the 11 days in 32 was incorrect and firefighters had 28 days holiday over the next three years.

"Some years workers are working all 11 of the holidays," he told the court. The average was some eight to nine public holidays.

It was a controversy the Employment Court had recognised but deemed unnecessary to rule on.

"The Employment Court found it is a matter of contractual interpretation."

Contractual issues were not matters for determination by the Court of Appeal, Mr Cranney said.

"These issues which are before the court are exclusively matters of interpretation of the contract and beyond the jurisdiction of this court."

Professional Firefighters secretary Derek Best said the union was disappointed the case was back in court after its apparent victory in August.

"We certainly want to get it resolved," he said.

"The longer it goes on, there are potentially more and more days building up for the firefighters. That means not getting entitlements due now and dealing with the backlog."

Mr Best said he doubted other shift workers would be affected by the Employment Court ruling because the firefighters' collective agreement was very specific to firefighters.

The three-judge bench reserved its decision.

The case

  • The Employment Court has said firefighters must have a day off for each public holiday they work.

  • The Fire Service wants to appeal against the decision, saying the days off are already given on top of annual leave.

  • The Fire Service says other shift workers, such as aircraft crew, could also be affected.

- NZPA

:: 10 October 2005

Days in Lieu - Court of Appeal

The Union has been advised that the Court of Appeal will hear the Fire Service’s Leave to Appeal application on 14 November 2005.

The Union’s lawyers have responded to the Fire Service’s application and the Union is strongly opposing the application.

The Union is also advised that on 3 October 2005, the Employment Court granted the Fire Service’s application for a Stay of its decision on the Days in Lieu.  This Stay will remain in force at least until the Court of Appeal hearing.  The Stay has the effect of freezing any applications to use Days in Lieu.
:: 28 September 2005

Days in Lieu

The Fire Service’s decision to appeal the Employment Court’s decision has meant no further discussion of the implementation of that decision.

The initial step in the appeal process is that the Fire Service has sought leave to appeal.  It is expected this hearing will be held reasonable quickly.

If leave is granted by the Court to appeal on all or any of the grounds set out, it would usually be some months before the substantive hearing was heard in the Court of Appeal and a decision given.

The Union is considering whether to oppose the Leave to Appeal application.

The Union is aware that a number of members have applied to take Days in Lieu so far accumulated.  As a consequence, the Fire Service has advised they intend to apply to the Employment Court for a Stay of Proceedings until the appeal process is completed.

Acting on legal advice, the Union will indicate to the Employment Court at this Application for a Stay, that it will abide the decision of the Court.   If such a Stay is granted, this would have the effect of freezing the use of Days in Lieu.

The Union and the Fire Service have agreed that a Joint Memorandum will be put to the Court of Appeal asking for as much priority as possible to be given to the resolution of this matter.

The Union does not know at this stage when either the stay of proceedings or the application to seek leave to appeal will be heard, and members will be advised when dates are known.

:: 16 September 2005

Holidays Act Appeal

Posted 17/09/2005 7:49:03 Courtesy of Newstalk ZB
Firefighters say they are not surprised, but are disappointed their employer is appealing a decision giving them a day off in lieu if they work on a public holiday.

Last month the Employment Court ruled the new Holidays Act means firefighters are entitled to the day off.

The Fire Service is now taking the matter to the Appeal Court.

Union spokesman Derek Best says firefighters had thought they were in constructive discussions with their employer about how to implement the change.

He says with an appeal hanging over their heads, they will have to re-evaluate the negotiations.

The Fire Service says the change will cost it between $3.5 million and $5.5 million a year.

The Fire Service is now taking the matter to the Appeal Court.

Mr Best says it is concerning workers are having to fight so hard to get what the government had determined they are entitled to.

The Fire Service says the legal issues have implications for other employers.
 

Message from CEO Mike Hall

Good afternoon

This afternoon the Fire Service Commission filed an application for leave from the Court of Appeal to appeal the Employment Court's recent judgment on the Holidays Act. In deciding to appeal the judgment, the Commission considered a range of important organisational factors and sought extensive legal advice. Some of the legal and financial issues are significant and relate to the interpretation of the Holidays Act 2003, not only for the Fire Service but potentially for other employers.

In the past two weeks I have had constructive discussions with the NZ Professional Firefighters Union over the impact of the judgment. Despite the decision to appeal the judgment, I anticipate that these discussions will continue.

Mike Hall
Chief Executive/National Commander

Holiday Appeal Documents Now Online

 

:: 12 September 2005

Days in Lieu

Members will be aware that since the Employment Court decision, the Union has been meeting with the Fire Service in an effort to work through some issues that have arisen as a consequence of the successful outcome of the Court case.

The issue of M.S.M. has been a major guiding principle of the Firefighters Union, based both on the Health and Safety of firefighters and ensuring a proper response to the needs of the public in times of emergency.

Those involved in the Union’s battle throughout the 90’s will remember the many and varied tactics that the employer attempted including inducements and bribes to get reduced crews on fire appliances.

Clearly, with the number of days that members are now entitled to as a result of the Court case, there will be times when M.S.M. may be placed in jeopardy if not managed correctly.

The Union, therefore, does not wish to allow M.S.M. to be compromised by the employer’s actions and as such, has put to Fire Service Management a proposal to deal with this matter.

The Union is advised that a special meeting of the Commission is to be held on Wednesday 14 September to consider whether or not to appeal the Employment Court decision.  Any Notice of Appeal must be filed by Monday 19 September.

It is the Union’s understanding that the National Commander (Mike Hall) and the National Manager of Human Resources (Vincent Arbuckle) will be delivering a paper to the Commission on the Days in Lieu issues and the facts relevant to making a decision to seek an appeal on this Court case or not.

The Union is of the view that the paper will cover proposals to deal with the Days in Lieu issue such as:

  • Buying back details.

  • Increasing establishment numbers.

  • Creating part-time/casual positions within establishments.

  • Probability of running below M.S.M., as a result of persons taking their Days in Lieu.

The Union finds the implications of some of these proposals completely unacceptable as they would lead to significant ongoing employment problems and an unnecessary deterioration of workplace relations.  This is a situation that the Union believes must be avoided.  We have all seen the legacy left by the C.S.T. concept and the ‘Way Forward’ proposal.  Dredging them up again would be totally counter-productive to the current Fire Service environment.

The Union has, therefore, in general terms, proposed the following methodology of dealing with Days in Lieu entitlement based on maintaining M.S.M. and fairness and equity for members to have access to their accumulated lieu days.

General Principles.

  • The portion of members’ lieu days that are outside of the 12-month time frame be bought back by the employer.

  • The Union and Fire Service to agree on a suitable rate that the employer could buy back their lieu day entitlement.  This would be a per shift rate for both day and night shifts.

The remaining balance be dealt with as follows:

Non High Demand Days/Nights.

  • Member submits application for a Day in Lieu.

  • Approval granted subject to M.S.M. being maintained.

This process currently operates now for A.S.L. (Service Holiday) and present Days in Lieu applications.  No real changes or new processes.

High Demand Days/Nights.

e.g. Christmas/New Year Holidays.  Maybe some others, if demand deems it necessary over time.

  • Application for Day in Lieu submitted no later than 14 days in advance of the required day, or in a longer timeframe agreed between the Local Union and Fire Service Management.

Staff members wishing to make themselves available to cover shift of the same period will be required to submit notification of their availability within the same timeframe.

  • Upon the collation of both application and notification of availability to match M.S.M., the Union will undertake a formal ballot matching up the application with expressions of interest from those members wishing to maintain M.S.M.

  • Members who are unsuccessful will have their application declined and will then need to make alternative arrangements if they require a Day in Lieu.

A detailed proposal still needs working through, but the Union believes that with the full co-operation of Fire Service Management and the commitment of the Union and its members, a workable solution is achievable.  Notwithstanding this, the Union acknowledges that members have individual rights but recognises the needs of the public and the safety of firefighters to be significant.  We also would expect the Fire Service to amend policies that currently would restrict our ability to maintain M.S.M.

:: 2 September 2005

Holidays Act Update

A preliminary meeting was held on Thursday 1 September between Mike McEnaney, Derek Best and Mike Hall to commence discussions on the implementation of the Employment Court’s decision.

The Union outlined a number of key positions:

  1. A decision from the Fire Service on whether there is an intention to appeal is necessary as soon as possible.  Work on implementation details can only be worthwhile if the decision is not appealed.
     

  2. The Union will not make any agreement regarding the mass selling of Days in Lieu accrued back to 1 April 2004.  However, the Union noted that members can, if the employer agrees, sell back days that have accrued for more than 12 months.  A rate for such sellback will need to be agreed.
     

  3. The Union will not make any agreement that the existing amount of Annual Leave would provide compliance with the new minimum leave entitlement of 4 weeks that comes into force on 1 April 2007.  In fact the Union’s position, after seeking legal advice, is that members will be entitled to a further week’s leave on 1 April 2007.
     

  4. The Union has two objectives as far as implementing the Court’s decision:

  • To ensure members receive their statutory rights;  and

  • All efforts must be made to maintain M.S.M. when members exercise their rights to use a Day in Lieu.

It is expected that a further meeting will take place early next week to further explore the options available.

:: 30 August 2005

Full Court Judgment now online

Checkpoint Transcripts now online

  • Read the full transcript of the National Radio Checkpoint interviews with Derek Best and Mike Hall... Click here.

NZPFU txt-alert reached Member in

Lebanese cave on Syrian border

  • Kevin "Mau" Barbara celebrates yet another victory in what has been a year of gold for the big man.

Currently on leave from the NZFS and back in Lebanon to catch up with friends and relatives, Mau has relied on his subscription to the NZPFU txt-message news alert service.

Mau is staying in relative comfort in a family owned "cave" believed to have been in the family for well over 700 years which is nestled in a remote hillside community in Lebanon approx one and a half hours from Beirut somewhere near the Syrian border.

Even on holiday the big man has been eager to hear of any news regarding the Holidays Act debacle.

Overjoyed at the latest success of the NZPFU and being one of the first to hear of the news which is in itself remarkable considering the distance between the two countries, Mau plans to celebrate in style.

He is looking forward to getting back into the rigours of everyday Comms Centre work and will still be taking time out for a celebratory drink to commemorate the win and to toast the NZPFU and all his colleagues.

Media Reaction on Win

Firefighters win holiday battle
Employment Court says firefighters have been treated unfairly because they get no day off for working on public holidays...
Read More

Fire crew win lieu day battle
The Fire Service faces a multimillion-dollar bill and might have to employ more firefighters after losing a long-running employment dispute...
Read More

Firefighters win holidays claim
Firefighters have won a battle in the Employment Court to be granted a day off for each public holiday they work...
Read More

Firefighters' decision being analysed
The Fire Service is analysing an Employment Court decision, which may have an impact on other emergency service workers...
Read More

Firefighters' decision could have flow on for other workers
An Employment Court ruling that firefighters should be granted a day off for each public holiday they work could have implications for other emergency services and shift workers...
Read More

Total Victory for NZPFU in Holidays Act

Case

:: 23 August 2005

In a decision issued late Monday, 22 August 2005, the full Court of the Employment Court has found in favour of the NZPFU’s claim that its members are entitled to take another working day off for each public holiday worked.

The decision means that all members are now owed significant numbers of days off, which have been unlawfully denied to them since 1 April 2004, when the new Holidays legislation came into force.

The full Court (comprising Judges Travis and Shaw and Chief Judge Colgan) rejected the employer’s arguments.  Mr. Bill Wilson QC and Geoff Davenport of Broadmore Barnett had argued that the 14 days leave in 160 currently received were all “working days”, and that all 14 were being used by the employer to satisfy its obligation to give alternative days off to Union members who work on public holidays.

The full Court preferred the argument of the Union’s solicitors, Peter Cranney and Anthea Connor from Oakley Moran. 

The Court held that the 14 days in 160 were not working days, and that the employer must grant additional days.  Significantly, the Court also rejected the employer’s argument that public holidays begin at 8am in the Fire Service.  The decision means that any member who has worked between 0001 and 2400 hours on any public holiday since 1 April 2004 is entitled to a full day off in recompense.

There are also provisions in the new Holidays Act which may allow some of those to be “sold” to the employer for a cash payment, although the details of this will need negotiation with the Fire Service.

Given that the Fire Service has 28 days in which to determine whether to appeal the decision to the Court of Appeal, no implementation of the decision is likely until that timeframe has expired.

The Union is currently consulting its lawyers, and no doubt will meet the Fire Service shortly.  Further details of what precisely the decision means, and its implementation will be provided as soon as possible once these discussions have been concluded.

Union Publishes Stat Holiday Data

:: 10 May 2005

  • Which is the worst leave group to be allocated and which is the best?

To answer this question we added up all the Statutory Holidays actually  worked by each of the Leave Groups from 1 April 2004 to 31 March 2019.  We have ranked them in order from lowest to highest below:
 
Best! RED3 88
RED9 90
BROWN3 91
RED6 93
GREEN9 94
RED2 95
GREEN2 96
GREEN6 96
RED10 96
BROWN7 96
BROWN9 96
BROWN10 96
BLUE9 96
GREEN3 97
RED5 97
BROWN6 97
BLUE3 97
BLUE10 97
RED7 98
BROWN1 98
BLUE1 98
BLUE5 98
GREEN1 99
GREEN5 99
GREEN8 99
RED1 99
RED4 99
RED8 99
BROWN4 99
BROWN5 99
BLUE7 99
BROWN2 100
BROWN8 100
BLUE6 100
BLUE2 101
BLUE4 101
GREEN7 103
GREEN10 103
BLUE8 103
Worst! GREEN4 104

  • Which leave groups will work all 11 Statutory Holidays and who will work only 2?

Who works all 11 Stat Days? Who will work only 2?
BLUE6 (2004) GREEN2 (2005)
BLUE7 (2004) RED6 (2010)
BLUE8 (2004) RED3 (2016)
BLUE10 (2004)  
BROWN5 (2007)  
BROWN6 (2007)  

  • Who will cop 12 Stat Days - Impossible you say... not so, we detail who, when and how this occurs...

GREEN9 and BLUE6 cop all 12 Statutory Holidays in the year 1 April 2004 to 31 March 2005.  GREEN9 works 8 of those days and BLUE6 works 11.  The remainder, to total 12, fall while the employee is on annual leave.

  • Why does a Wellingtonian on Blue 6 have it easy compared to an Aucklander or Cantab on Blue 6?

The above scenario (where BLUE6 cops all 12 Statutory Holidays) occurs only in the Auckland and Canterbury Provinces.  A Wellingtonian on BLUE6 cops only a maximum of 10 Statutory Holidays ever over the 15 year period.  This is due to the respective Anniversary Days falling on different dates.

  • Brown Watch & Blue Watch - you'll see more holidays in than anyone else...

Yes it's true!  Check it out for yourself - click here to view the NZPFU Holiday Data.

  • Why every employee allocated Green 9 may want to change leave groups?

See the answer to this scenario above.  This is the only watch and leave group ever to cop 12 Statutory Holidays.  Applies to all provinces (Auckland, Wellington and Canterbury Anniversary Days).  Also due to the fact that Easter falls twice in the same year (April 2004 and March 2005). 

  • The Green 1 Court case study - we detail who gets only 28 days annual leave for 3 years running...

  • But is it possible to get 70 days annual leave over 2 years?  Yes it is, we'll show you which watch and leave group you need to change to...

In fact, most people no matter what leave group you are allocated get only 28 days annual leave in any one year.  Some employees can work 3 years straight and receive 28 days annual leave for each of the years worked.  The opposite is also true, and it is possible to find many combinations where adding any 2 years in a row an employee receives 70 days annual leave.  Green 1 was one case study that was used in Court.  We added up all the Annual Leave days actually received by each of the Leave Groups from 1 April 2004 to 31 March 2019.  We have ranked them in order from highest to lowest below:
 
Best! GREEN3 490
Best! GREEN4 490
Best! RED3 490
Best! BROWN3 490
Best! BLUE3 490
RED4 489
BROWN4 487
BLUE2 487
BROWN2 485
BLUE4 485
RED2 483
GREEN2 481
Worst! GREEN1 476
Worst! GREEN5 476
Worst! GREEN6 476
Worst! GREEN7 476
Worst! GREEN8 476
Worst! GREEN9 476
Worst! GREEN10 476
Worst! RED1 476
Worst! RED5 476
Worst! RED6 476
Worst! RED7 476
Worst! RED8 476
Worst! RED9 476
Worst! RED10 476
Worst! BROWN1 476
Worst! BROWN5 476
Worst! BROWN6 476
Worst! BROWN7 476
Worst! BROWN8 476
Worst! BROWN9 476
Worst! BROWN10 476
Worst! BLUE1 476
Worst! BLUE5 476
Worst! BLUE6 476
Worst! BLUE7 476
Worst! BLUE8 476
Worst! BLUE9 476
Worst! BLUE10 476

The NZPFU Holidays Data Homepage allows members to select individual leave groups and see actual Statutory Holidays worked.  Data displayed gets as technical as you want it and includes Box plots, Means, SD, SE, 95% CI of Mean, Median, IQR and 95% CI of Median...

Judges Decision Reserved

:: Recap of Day 1 - Employment Court Action - 2 May 2005
Monday has seen the commencement of the Employment Court hearing in regards to the Holidays Act Proceedings before a full bench of the Employment Court. 

Presiding were Judges G Colgan, B Travis and C M Shaw. 

Counsel for the Union is Mr Peter Cranney and Ms Anthea Hughes.  Also present on behalf of the NZPFU was your National President Michael McEnaney, National Vice President John Devereux, National Secretary Derek Best, Wellington Local Vice President Rob Hutchison and Jaron Phillips NZPFU webmaster & witness, and other Union members from the Wellington Local.

Counsel for the Fire Service is Mr Bill Wilson QC and Mr Geoff Davenport

Mr Cranney attempted to open the case at which time the Fire Service objected to the evidence which was to be given by the two Union witnesses (Mr Derek Best & Mr Jaron Phillips).

The Fire Services’ argument centred on the admissibility of our witnesses evidence and took up almost an hour and half of the Courts time.  The Fire Service’s objection centred on the Union’s response to evidence which the Union submitted was inadmissible.  The Union was particularly concerned about some of the proposed evidence of Mr Summers.

The Fire Service sought to have all evidence struck out and if not to have the case adjourned in full, or the case only part heard, consequently requiring a further hearing date.

Obviously such request to the Court could only result in further ongoing delays which would have continued to have stalled the case until such time well into the future given the current heavy work load of the Employment Court.

Given that it had taken the Union almost 12-months to get to this stage of the first full Employment Court hearing any adjournment was opposed by the Union’s lawyers.

The outcome was an agreement that the briefs of evidence of both sides be reduced, and no adjournment resulted.

After the Unions lawyers opening submission was delivered to the Court, the Union called as their first witness, National Secretary Mr Best.  Mr Best gave evidence to the Court and was subsequently cross examined by Mr Wilson QC.  Mr Best’s evidence focussed on various aspects of the firefighters contract, the relationship and implications of the new Holidays Act and the history relating to the current contract and the clauses where the Fire Service will be required to demonstrate compliance with the intent and entitlements of the new legislation (see clause 2.7.1 of the CEA).

Mr Jaron Phillips, an Auckland member & Brown Watch Senior Communicator of NorthComm, appeared as an expert statistician for the Union and gave evidence about the numbers of public holidays worked by members, in respect of which days in lieu are sought.  He referred to detailed research about that issue, which identified every public holiday for every watch and every leave group for the next 15 years.  He also criticised the Fire Service’s evidence as not accurate.  Mr Phillips emphasised under cross-examination the importance of using actual days rather than averages when dealing with days in lieu issues.

Regardless of the outcome of the case, Jaron’s research will be made available to all members through the Union’s Web site.
:: Recap of Day 2 - Employment Court Action - 3 May 2005
Day two of the Holidays Act case commenced with the Fire Service lawyers opening submissions to the Court.  That was then followed by two witnesses giving evidence in support of the Fire Service's opposition to the Union's claim.

The first witness was Geoff Summers.  The Union opposed a significant amount of the evidence which was to be given by Geoff Summers.  This was subsequently agreed and his brief of evidence was consequently significantly reduced. 

Mr Summers was cross examined by the Unions lawyer, Mr Peter Cranney.

The second witness for the Fire Service was Vincent Arbuckle.  His evidence was presented to the Court and he, likewise, was cross examined.

In both cases, some of the evidence that the two witnesses gave was extremely enlightening with respect to Fire Service Managements view of Employee entitlements and the day to day operation of the New Zealand Fire Service.

More details regarding their evidence will be released in due course.

Also providing evidence and a submission in support of the New Zealand Fire Service was Mr Tim Cleary, a lawyer for Business New Zealand.

The parties then went on to give their closing submissions.

Both parties sought the opportunity to make last minute verbal submissions in reply to each of the parties documented closing submissions.

Summing up was concluded at 1730hrs tonight.

Chief Employment Court Judge Travis outlined to the parties that "not surprisingly, the Court will not be deciding today" and consequently, the decision was reserved.
 

:: 17 March 2005

Fire Service suffers another defeat at the

hands of the Courts

The Fire Service has suffered another defeat at the hands of the Courts.

The Court of Appeal today declined the employers application for leave to appeal the Employment Court's strike out decision.

The Union expects the matter to now go to trial commencing in the Employment Court on the 2nd of May for a full substantive hearing.

Further comment on this decision is expected shortly.

:: 14 March 2005

Fire Service argues that

Employment Court "made an error"

The Court of Appeal has reserved its decision on the New Zealand Fire Service’s application for leave to appeal the recent Employment Court decision.

Members will recall that the Employment Court declined to “strike out” the NZPFU’s claim for days in lieu for time worked on public holidays.  Before the employer is entitled to appeal that decision, it must seek the “leave” of the Court of Appeal.  That preliminary issue was heard today.

The employer’s lawyer, Bill Wilson QC, argued that the Employment Court made an error in the way it handled the case.  According to Wilson, the Employment Court should have decided whether there were any new arguments under the Holidays Act 2003.  Instead, the Employment Court had only decided that the issue was “arguable”.

For the Union, Peter Cranney of Oakley Moran argued that the matter must now be heard on its merits in the Employment Court.  He was assisted by Anthea Hughes of Oakley Moran.

Mr Cranney stated that the effect of the Employment Court’s decision was to decide that there were new issues to argue.  The matter should now go to trial.

The three Court of Appeal judges (Hammond, O’Regan and McGrath) questioned both sides closely.  They reserved the decision.  Members can expect the decision to be announced in the near future with a likely timeframe of within one week.  If leave to appeal is not granted, the matter will go to trial commencing 2 May 2005.
:: NZPFU Enters to the Tui 'Yeah Right Competition' - 19 January 2005

  • You can also enter the Tui 'Yeah Right' Competition by clicking here.

:: Notice to Members 24/2004 - 23 December 2004

Further to NTM 23/2004 that reported in detail on the Fire Service’s actions in this dispute, the Union has now been advised that the Court of Appeal has set 14 March 2005 to hear the Fire Service’s appeal.

As detailed in yesterday’s Newsletter, the Employment Court had tentatively set 28 February – 2 March 2005 to hear the substantive issue.  The dates are now overtaken by the date set by the Appeal Court.

The Union repeats to members its serious concerns at the continuing delaying tactics of the Fire Service.

Members might like to directly ask Mike Hall why he is taking every step to prevent the Courts actually determining the actual issue – whether the Fire Service is providing an alternative Day in Lieu for Public Holidays that are worked.

 
:: Notice to Members 23/2004 - 22 December 2004

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.

:: 21 December 2004 - Information from the CEO/National Commander...

The NZPFU has challenged the adequacy of the extended leave provisions contained in the Collective Employment Agreement. The Union's claim is that although the leave provisions complied with the requirements of the Holidays Act 1981, they do not comply with the new Holidays Act that came into force in April 2004.

There has been a long-standing agreement between the Union and the Fire Service on the question of leave. That agreement was upheld in an Employment Court decision in 1996.

The cost implications of the Union's claim are potentially very significant.

The present approved Fire Service budget does not provide for such a cost.

It is also possible that the existing personnel establishment may not be sufficient to cover the additional leave requirements and, as a result, the establishment may need to increase.

Given the significant budget operational implications of the Union's claim, the Fire Service must take careful legal advice on the matter, particularly as there are potential implications for levy payers.

The Fire Service Commission was briefed on the Union's claims last week and considered legal advice regarding the options available following the Employment Court's recent decision not to allow the matter to be struck out.

Acting on legal advice, the Commission has determined to appeal the Employment Court's decision and papers were filed with the Court of Appeal last week. Depending upon the outcome of the appeal, the matter will either be decided at the Court of Appeal or be referred back to the Employment Court for a full hearing.

The issues in this case are important and the costs are large, which is why the guidance of the Court is being sought. The organisation has no wish to extend the litigation process unnecessarily but is motivated by a desire to fully clarify the impact of the Holidays Act. A number of other industries are in a similar position in needing to clarify the intent of the legislation. Once clarified, we will observe whatever decision the Courts determine.

Mike Hall
Chief Executive/National Commander

:: 24 November 2004

Holidays Act Victory for NZPFU

Chief Executive Mike Hall’s attempt to have the Union’s Holidays Act case struck out ended in disaster for the Fire Service today.  A full Court of three judges threw out the Fire Service’s application and ruled that the matter must now go to trial urgently.  The Court stated that the Union’s argument was “not only tenable but has some chance of succeeding”.

The case is the second defeat for the Chief Executive – he already had argued unsuccessfully in the Employment Relations Authority that the matter should be struck out.   The Authority declined to strike out and instead decided to remove the issue to the Employment Court.  A full Court was convened to hear that matter.

Judges Tom Goddard, Barry Travis and Coral Shaw heard the case on 11 and 12 November 2004.  The Union was represented by Peter Cranney and Anthea O’Connor of Oakley Moran.  The Fire Service was represented by a Queen’s Counsel Bill Wilson and by Derek Broadmore of Broadmore Barnett.

The main argument between the parties related to days in lieu for work on public holidays.  The new Holidays Act provides that days in lieu be taken on days that would otherwise be working days.  The Court stated that this meant “a day when the employee is rostered to work”.  The Fire Service claimed to grant days in lieu on days when workers are not rostered to work – that is, during annual leave.

In declining to strike that matter out, the Judges noted that there was some support for the Union’s position in many different sections of the new Act.

The Court stated:

“   …we hold that the union and its members of today are entitled to litigate the validity, not under the Holidays Act 1981, but under the supervening Holidays Act 2003, of the provisions for public holidays contained in the collective agreement in the respects in which the union in this case brings a challenge to those provisions”.

That matter will now be heard as soon as possible by the same three judges.

The Union notes the efforts of Peter Cranney and Anthea O’Connor and recognises the effort put in so far.  Members will be kept informed of any developments.

:: Day 1 - Thursday - 11 November 2004...

Hearing the matter is a full bench of employment court judges consisting of Judges Goddard (Chief judge of Employment Court), Travis and Shaw.

The Fire Service, as the respondent, opened by speaking to their submission to have "struck out" the Unions case.  The Fire Service were represented by Bill Wilson QC (Queens Council) assisted by Derek Broadmore.  Also present from the NZFS was Vince Arbuckle, Steven Fraser and Jeff Davenport.

Wilson's verbal submission lasted until about 1pm and included a variety of questions posed by the judges.  The court adjourned.

When it reconvened, the Union respectfully submitted that the "strike out" application be dismissed.  This submission was put by Mr Peter Cranney & Anthea Connor and their legal team - members of the National Council (Michael McEnaney,  John Devereux & Derek Best) and Jaron Phillips.  Rob Hutchison (Wellington Local) was also present in the Courtroom.

The Unions submission went through to the adjournment of the court. 

:: Day 2 - Friday - 12 November 2004...

Today has seen the closing arguments put forward by the Unions Lawyer, Mr Peter Cranney.

  • The ingenious Mr Cranney [left] seated alongside National President Michael McEnaney after the hearing (both wearing large grins)

In summing up, Mr Cranney covered:

  1. First submission - Union not a party
    The Union was not a party to the Small litigation.  Neither was it privy to any party.  In those circumstances there can be no cause of action estoppel or issue estoppel.

  2. Second submission - cause of action different, no issue determined in Small binding on Union in this proceeding
    The cause of action in this case is not the same as that determined in Small; and there is no legal or factual issue determined in Small which can be regarded as a final determination of any factual issue in this proceeding.

  3. Third submission - cross estoppel
    The Respondent is himself estopped from asserting an estoppel because of the terms of the current collective employment agreement which can be freely entered into.

  4. Fourth submission - public policy, breach of statutory duty and illegality
    Even if made out, the asserted estoppel is defeated because:

  • it is contrary to public policy and the public interest.

  • It cannot lie so as to hinder the performance of the statutory obligations imposed on the Respondent by the Holidays Act 2003.

  • It cannot be countenanced because it would lead to a situation precluded by the law.

At the completion of the Unions submission, the NZFS had the right of reply - their response lasted 20-30mins and focused mainly on the fact that the outcome of the Small case is still the correct position.

The 3 Judges have reserved their decision and we await the outcome.

:: 29 October 2004

Business NZ has appeared as an interested party in the first Employment Court case on the new Holidays Act - NZ Air Line Pilots Association v Air NZ Ltd, relating to relevant daily pay and a half for working a public holiday.

Business NZ was involved because the issue affects many 7-day employers: whether employees who've agreed to public holidays being added on to their annual leave should then also be paid time and a half when working on listed public holidays.

The decision was reserved.

The NZ Professional Firefighters Union also has a case before the Employment Court on the Holidays Act 2003.

:: 10 September 2004

Members will recall that the Union won the first round of the legal argument about the employer’s refusal to grant an alternative holiday to members for each day worked on a public holiday or part of a public holiday.

On 4 August 2004, the Employment Relations Authority rejected an employer attempt to have the matter “struck out” and also upheld the NZPFU’s application to have the matter removed up to the Employment Court.

A Statement of Claim was immediately filed in the Employment Court by the Union’s legal team at Oakley Moran.

The Employment Court considers the matter to be of sufficient importance to convene a “Full Court” of three judges to hear the matter.  The next stage of the case will be a second attempt by the employer to have the matter “struck out”, this time before the three Employment Court judges.  The case will be heard on 11 and 12 November 2004 in Wellington.

The Fire Service has informed the Union solicitors that it has engaged Mr Bill Wilson QC (Queens Council) to assist Broadmore Barnett (Fire Service solicitors) in arguing their case.

:: 6 August 2004

The New Zealand Fire Service has been resoundingly defeated by the Union in the first round of the legal argument about members’ rights to public holidays.

Under the Holidays Act 2003, all members are entitled to a paid alternative holiday in respect of any time worked on a public holiday or part of a public holiday.  The alternative holiday must be granted on a day that was otherwise a working day.

In response to the Union’s legitimate claim the New Zealand Fire Service adopted a dual strategy.  The first part of the strategy was to assert to the Employment Relations Authority that the Union’s case was so hopeless that it should be struck out without even being heard.

The second part of the strategy was to make behind the scenes submissions to the government seeking changes to the Holidays Act 2003 so as to destroy the Union’s claim.

The Union, for its part, wanted the whole matter removed from the Employment Relations Authority so that the issue can be determined by the Employment Court.  Needless to say, the employer strenuously resisted the Union’s application.

Following a hearing on 2 August 2004, argued before the Employment Relations Authority by Peter Cranney of Oakley Moran assisted by Derek Best, the Authority (Mr Denis Asher) rejected all of the New Zealand Fire Service’s arguments.  The Authority accepted the Union’s argument that the matter should be properly dealt with by the Court and not the Authority.

The Authority stated “I am satisfied that it cannot be said on this occasion that the new Holidays Act 2003 does not contain major implications for the contractual relations between these parties.  …  The question is:  what impact if any has the passage of the new Holidays Act had on [an earlier case, Small v New Zealand Fire Service].  It follows that the Union should be permitted the opportunity to advance its argument.”

The Authority also commented on the very significant amount of money involved in the dispute, that is, about $5,580,000 per annum.

The Authority declined to strike out the claim and removed it to the Court where it will be heard in due course.  A Statement of Claim has already been filed and acknowledged by the Employment Court.

Michael McEnaney
President

:: 25 June 2004

There has been a significant amount of work undertaken by the Union’s Legal Team, Peter Cranney and Anthea Connor, and some excellent research has been completed by a dedicated group of Union members.

All this has culminated in the following documents now being filed with the Employment Authority as of Thursday 24 June.

The two relevant documents are:

Help with reading or downloading the .pdf files

Both documents are available for download so that members can be fully updated with progress at this point in time.

:: Further Links & Articles of Interest

 

 

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