Court of Appeal - Days in Lieu

The decision on the Fire Service appeal against the Employment Court ruling was delivered on 21 December 2006 at 4.00pm. The decision, on a split 2-1, upheld the appeal.

Obviously this decision is disappointing to say the least. The decision is attached. Members should read this carefully.

The Union's immediate analysis is the dissenting opinion is both the better law and demonstrates a better understanding of the issues involved.

The Union and its lawyers will consider the possibility of a further appeal to the Supreme Court.

The initial reaction is such an appeal is very likely. Papers seeking an appeal must be filed with the Supreme Court by 12 February 2007 at the latest.

The decision also provides an additional factor into the consideration of the relevance of the extra week's leave to be provided from 1 April 2007.

Clearly, if the decision is correct, there are no days available within the existing Annual Leave entitlement to accommodate any suggestion that an extra week's leave over the present 3 week minimum entitlement is provided for.

The worst case scenario is that either additional Days in Lieu must be provided or an extra week's leave must be provided from 1 April 2007.

Total weekly wage/payment for working on public holidays

The Employment Relations Authority has referred this application directly to the Employment Court, with urgency.

Christmas/New Year

The situation this year is considerably simpler than for the previous two Christmas/New Year periods because none of the Public Holidays falls on a Saturday or Sunday and therefore "Mondayizing" of the Public Holiday is not relevant.

Blue and Brown Watches work on all four Public Holidays.
Red and Green Watches work on one of the Public Holidays.

The Holidays Act provides that any employee can only receive a maximum of four Days in Lieu over the Christmas/New Year period.

Therefore, only people on Red and Green Watch have the ability to receive a Day in Lieu if overtime is worked.

Anyone on Brown or BlueWatch who works overtime on any of the four Public Holidays will therefore only receive the T2 overtime payment.

Sickness, Injury or Bereavement on a Public Holiday (Section 61A of the Holidays Act)

Where anyone is required to work on a Public Holiday, but does not work on that Public Holiday due to:

  • Sickness (Whether with or without a Medical Certificate)
  • Injury
  • Bereavement
  • Sickness at Home

that day is treated as a paid Public Holiday - therefore:

  • The day will be paid for;
  • No Sick or Bereavement Leave is deducted.

There is no entitlement to a Day in Lieu. This provision applies to all three shifts that are worked on any Public Holiday.

Matters in Dispute

Following further discussions with the Fire Service, the situation is as follows:

Time Banking

The Fire Service has agreed to meeting claims for additional mileage reimbursement.

Black Watch Workers
  • Payment of the training of volunteers allowances will be made whenever such training occurs on overtime (i.e. outside of normal hours).
  • The payment of overtime will revert back to the traditional hourly rate on the basis of T1.5 for the first 3 hours and T2 thereafter etc.
  • No changes to existing salary rates and conditions (apart from the 2.1% increase and the payment of volunteer allowance to extend to overtime) will occur until the Working Party has completed its work on determining criteria for the various non-salary steps.
Mileage Rates

The Union is seeking clarification from the IRD on the ability to claim on one particular determined A.A. rate - i.e. 10,000km a year for a 1600-2000cc vehicle.

Qualifying Sick Leave/USL

The Union has discussed with the Fire Service the application of the new Collective Agreement provisions. It is apparent there are differing applications of the new provisions by management across the country. The Union's position is that the Collective Agreement is quite clear.

There is now an entitlement to 5 days a year where there is no requirement to supply a Medical Certificate. The only qualification on this is that the duration of Sick Leave is not 3 days or more and if the Fire Service has reasonable grounds to suspect that the Sick Leave is not genuine. (in the latter circumstance, the Fire Service must pay for the medical certificate).

As well, any of these five days untaken in a leave year will accumulate up to a maximum of 20 days. For example:

  • A firefighter commences a year with 20 days Sick Leave available.
  • 8 days Sick Leave is taken with a Medical Certificate provided.
  • A firefighter has a remaining entitlement for 12 days Sick Leave - 5 of these remaining as qualifying Sick Leave are able to be taken without a Medical Certificate.
  • If the firefighter takes no further Sick Leave in the year, that firefighter carries forward a total of 12 days Sick Leave, 5 of these being qualifying Sick Leave.

Collective Agreement Negotiations

Dates to commence formal negotiations have been agreed as 15 - 16 January 2007 and before that date, the Committee will have met to consider claims forwarded from Locals.

Office Closure

The office will be closed until 8 January. If any urgent matters arise please contact either Local or Branch officials.

The Union wishes all Members a safe and enjoyable Christmas/New Year and we all look forward to a challenging New Year.

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