Accrual of lieu days very costly, court told

COLLETTE DEVLIN
Last updated 05:00 26/08/2014

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An Employment Court decision about the accrual of lieu days could cost New Zealand Aluminium Smelters millions of dollars, and have a similar effect on the Fire Service and Air New Zealand, the Court of Appeal has been told.

NZAS is seeking leave to appeal against the decision, arguing it was wrong in law and of broader relevance than merely the parties involved.

New Zealand Fire Service firefighters and Air New Zealand pilots appear from past cases to be at least two categories of employees who accrue such additional leave.

The case has raised interest among employment lawyers in Wellington.

Susan Hornsby-Geluk, a partner at Dundas Street Employment Lawyers, said it was a significant case, which employers were watching with interest, and many would be pleased if NZAS's leave to appeal was successful.

In May last year, 64 Engineering, Printing and Manufacturing Union members won an Employment Relations Authority case they took against NZAS concerning the accrual of lieu days for 12-hour shift workers at the Tiwai Pt smelter in Southland.

The company appealed against the decision and a two-day Employment Court hearing was held in December. The appeal was rejected in May this year.

The workers embroiled in the dispute were covered by three versions of individual employment agreements at the plant.

The EPMU claimed that, since hundreds of employees shifted from eight-hour to 12-hour shifts at the plant about 20 years ago, the company had been incorrectly calculating their lieu day entitlements.

Hornsby-Geluk said some of her clients were considering how the Employment Court decision might apply to them. "Even if the particular contractual arrangements are different, the principles that flow from this case will be broadly relevant," she said.

Wellington employment lawyer Andrew Scott-Howman said the Holidays Act of 2003 was one of the most complicated pieces of New Zealand legislation, which did not fit every employee - for example, those working non-standard working hours or jobs.

It would not surprise him if the outcome of the case also applied to many other employers.

Peter Cullen, of Cullen Law in Wellington, said the case was one of interest, but it was early days yet. "It's about events that happened a long time ago during an old Holidays Act [from 1991]."

He cautioned that it seemed unlikely to have any great impact on other employers, unless their employment agreements went back a long way.

NZAS argued in court that it was challenged on an unintended technical interpretation of a single sentence in a complex contractual setting.

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The court reserved its decision.

- The Dominion Post

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