As has been advised to members, whilst the general principles of the proposed settlement are clear, the detailed precise wording is critically important.

Because of the complex legal issues involved, this has proved to be a more lengthy process than expected, but the process ought to be completed shortly.

However, an unexpected complication has just arisen.

Members will recall that, on a joint basis with the employer, the Union sought a declaration from the Employment Court that the present averaging methodology of paying for work on Public Holidays was now lawful – given that the Holidays Act requires payment for Public Holidays to be made within the pay period in which the Public Holiday is worked.

The Union argued that the averaging methodology was a benefit over and above the minimum requirements of the Holidays Act, and that the totaled averaged amount paid was in excess of the minimum.

The Employment Court has now issued its decision, and whilst ruling that the averaging methodology may be an additional benefit and that the amount paid through this methodology was in excess of the minimum, nonetheless, some aspects of the averaging methodology as currently worded, breach the Holidays Act.

On the surface therefore, this ruling could disturb one of the elements of the basis of calculation of the Total Weekly Wage. 3.915 hours a week is currently incorporated into the T.W.W. for working on a Public Holiday.

The Employment Court decision will require a change to the Collective Agreement – at the earliest possible opportunity. Consequently, the Employment Court’s decision will need to be included into the forthcoming ratification process.

Inevitably, because of the significance of the Public Holiday Payment, the need to deal with the Court’s decision will cause a brief delay.

Given that this application to the Court was jointly supported by the Union and the employer, the decision is unfortunate, but demonstrates the risks that are inherent in any litigation.

In this case, both the Union and the employer had no choice but to seek a declaration that the averaging methodology complied with the Law, but the decision again demonstrates that decisions do not always go as expected.

Members will be updated further as soon as possible.

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