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.
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.
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.
- NZ Herald Article: Faulty fire sprinklers approved
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.