Lieu days dispute lies with Court of Appeal

An Employment Court decision about the accrual of lieu days could cost NZ Aluminium Smelters millions of dollars, and might have a similar outcome for the Fire Service and Air NZ, the Court of Appeal has been told.

NZ Aluminium Smelters is seeking leave to appeal the decision, arguing it was wrong in law and of broader relevance than the parties directly involved.

Fire Service firefighters and Air NZ pilots appear to be at least two categories of employees who also accrue such additional leave.

The case has raised interest among employment lawyers.

Wellington lawyer Susan Hornsby-Geluk said it was a significant case and many employers would be pleased if leave to appeal was granted.

In May last year, 64 Engineering, Printing and Manufacturing Union members won a case against NZ Aluminium Smelters with the Employment Relations Authority, concerning the accrual of lieu days for 12-hour shift workers at the Tiwai Pt smelter.

The company appealed the decision and an Employment Court hearing was held in December, with the appeal being rejected. The workers involved in the dispute are covered by three different individual employment agreements.

The union claimed that, since hundreds of employees shifted from eight-hour to 12-hour shifts at the plant about 20 years ago, the company had incorrectly calculated 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 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.

NZ Aluminium Smelters argued in its appeal that it was challenged on an unintended technical interpretation of a single sentence in a complex contractual setting.

It believed the Employment Court judge made an appealable error by disregarding the circumstances accompanying the introduction of the 12-hour shifts - instead focusing his attention on a single sentence in the contracts relating to additional leave for shift workers in lieu of statutory holidays. The court reserved its decision. Fairfax NZ

The Southland Times