Judge reserves decision on Tiwai case

LAUREN HAYES
Last updated 13:55 10/12/2013

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Judge Tony Couch has reserved his decision in the NZ Aluminium Smelters employment court appeal.

Yesterday, Tiwai Pt aluminum smelter management said the company would have to pay workers almost $20 million if an Employment Relations Authority ruling is upheld.

In May, 64 Engineering, Printing and Manufacturing Union members working at the Tiwai Point aluminium smelter won an Employment Relations Authority case they took against New Zealand Aluminium Smelters.

NZ Aluminium Smelters appealed the decision in the employment court this week.

The dispute centres on the interpretation of lieu days after workers at the plant changed from eight-hour shifts to 12-hour shifts in the 1990s.

The company continued to provide the 12-hour shift workers with an additional eight hours of paid leave in respect of each public holiday.

The union argued it should have been providing the workers with an additional 12 hours of paid leave for each public holiday, which the authority agreed with.

During the final day of the appeal today, smelter lawyer Pheroze Jagose said when management had agreed to implement 12-hour shifts it was made clear there would be no changes to other aspects of employment, including leave entitlement.

The continuation of the eight-hour lieu day was expressly discussed before the changes were voted on by employees, Mr Jagose said.

Union members' lawyer Greg Lloyd argued no evidence had been presented that showed there was an ''express reference'' to lieu day entitlements before employees had voted on changing to the shifts.

Employees called as witnesses during the appeal had no recollection of the lieu day entitlements being directly discussed during meetings and focus groups, Mr Lloyd said.

He also refuted ''the suggestion that 20 years is a long time to allow this issue to go unresolved and that somehow equates to acquiescence'' by the employees.

Evidence provided during the appeal showed employees had raised concerns or asked questions about lieu day entitlements during the years but the issue remained unresolved, he said.

Judge Couch said he would release his decision in writing as soon as possible but warned it could take some time.

''I need to give it a good deal of thought. This is not an easy case.''

Yesterday, smelter human resources specialist Barry Simmonds, called as a smelter witness during the appeal hearing, said NZ Aluminium Smelters had calculated it would cost $13m to December 31 this year if the authority's ruling was upheld.

In future years it would cost the company another $6m, calculated on costs of all employees remaining with the company until they were 65, he said.

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At the initial authority hearing, the company said if it was found liable it would pay all its affected employees, not just its union members, which it then estimated would cost about $7m.

It is understood the figure has jumped because the union members had originally only included leave entitlements for the past six years, but now believed they were able to include more.

Witness Clifford Dobbie, an employee at the Tiwai Pt smelter for 24 years, said the issue was "simple".

"If you work eight-hour days, then you are entitled to eight-hour lieu days. If you work 12-hour days, you are entitled to 12-hour lieu days."

The change had reduced costs such as laundry and transportation for the company, while also increasing productivity, Mr Dobbie said.

He believed the change to 12-hour shifts had increased "currency efficiency" by 1 per cent, which he estimated would have brought in millions of dollars for the company.

However, smelter witness Thomas Campbell said the currency efficiency increase immediately after the roster change was part of a continued long-term increase which had nothing to do with the roster change.

Other perceived benefits of the 12-hour shifts, such as the reduction of laundry costs, were offset by additional costs of the longer shifts, he said.

- © Fairfax NZ News

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