For the most part, the provisions of this Act come into force on 1 April 2004 (the minimum 4 weeks leave entitlement comes into force on 1 April 2007).
The Union and the Fire Service, along with their respective lawyers, have met to discuss the implications and effect of the new Act.
As far as the Union is concerned, this meeting and any subsequent discussions must be squarely in the context of Clause 2.7.1 (c) of the Collective
“The parties recognize that, at the time that this Agreement came into force, the government had introduced new legislation governing holidays. When these provisions come into force, the Fire Service will be required to demonstrate compliance with the intent and entitlement of the new legislation”. (Our emphasis)
What this means is that it is not for the Union to demonstrate or prove that the Fire Service is not complying with the Act. Rather it is the Fire Service’s obligation to demonstrate that they are complying.
At the meeting referred to above, no agreement was reached on key issues arising out of the new Act.
Agreement was reached on the new provisions that in effect require payment for rostered overtime during any period of Sick Leave, Bereavement Leave, Sickness at Home.
The matters which the Fire Service has yet to demonstrate compliance with the new Act include:
- The entitlement of Uncertificated Sick Leave
- Payment for working Statutory Holidays
- Days in Lieu for working on Statutory Holidays.
The Union is well aware of the continuing concerns expressed by members regarding the provision of Days in Lieu for working on Statutory Holidays.
This matter has been previously considered in an Employment Court case in 1996 taken by individuals (Small & Others v the New Zealand Fire Service Commission).
Parts of that decision suggest that within the 14 days every 160 Annual Leave entitlement, sufficient days off are provided to provide Days in Lieu for Statutory Holidays worked.
The Union believes those suggestions are wrong, principally because of the incomplete and factually incorrect information given to that Court. There was material information that should have been made available to the Court by the Fire Service, which appears not to have been.
That decision in any event, was in the context of the Holidays Act 1981 and the Holidays Amendment Act 1991.
With this new Act, the changed provisions it contains and the new Collective Agreement provisions requiring the Fire Service to demonstrate compliance with the new Holidays Act provide the opportunity for the matter of Days in Lieu incorporation into the 14 days every 160 days Annual Leave to be reconsidered, if necessary by the Employment Authority/Court.
The new Act provides additional Statutory Holidays that attract Days in Lieu if worked (Waitangi Day and ANZAC Day), and a varied provision relating to Christmas/Boxing Day and New Years Day and the Day Following, when these days fall on a weekend.
The Union’s position is quite clear. The Union does not accept that the Fire Service has demonstrated, or even attempted to demonstrate, compliance with the intent and entitlements that flow from the new Act.
Because of the Fire Service’s attitude regarding compliance with the Collective Agreement, the reality is that the only way this matter will be resolved is in the Employment Authority/Court.
In those forums, the Fire Service will have to prove their case, and the Union is in the process of seeking further detailed advice from our lawyers of both the proper interpretation of the Act and the best process of obtaining compliance with the Act and the Collective Agreement .
As the matter relates to minimum statutory rights, and if the Union is successful in its action, the Union sees that no entitlements will be lost even if they would need to be applied retrospectively.
This is particularly true given that it is likely the Employment Authority/Court will have before it shortly, a number of cases seeking clarification on the application of the new Holidays Act.
Members will be kept updated on the progression of the resolution of this matter.