radarscope marris: Posties Win Six-Year Court Battle Over Holiday Pay...

Tuesday, October 30, 2012

Posties Win Six-Year Court Battle Over Holiday Pay... | Stuff.co.nz

NZ Post is considering whether it will continue a six-year legal battle with its postal delivery workers after the Court of Appeal today ruled in the posties' favour over holiday pay - in a decision that could affect all employees entitled to holiday pay.

The Court of Appeal has overturned the decisions of the Employment Court and the Employment Relations Authority following an appeal by the Postal Workers Union of Aotearoa, which represents around 1200 posties. A further 3000 or so are members of the EPMU.

At issue was the correct method of calculating "relevant daily pay" under the Holiday Act and whether unrostered overtime for postal delivery workers should be included, and if so, when.

NZ Post said it was reviewing the Court of Appeal decision and considering the judgment's implications. It was too early to comment, a spokesman said, on the financial impact of the decision or the possibility of an appeal by the company.

Under the Holidays Act the relevant daily pay means the amount of pay the employee would have earned had they worked on that day and includes productivity or incentive-based payments (including commission), payments for overtime if they would have been received on the day concerned and the value of any board or lodging provided to an employee. It excludes employer contributions to an employee's superannuation scheme.

Included under section 9 of the Act is a formula for averaging out the calculation if isn't possible to determine what an employee's relevant daily pay is.

Posties work on a roster of 37.5 full-time hours each week but are expected to work unrostered overtime where necessary to complete their delivery round so that NZ Post meets its obligations to deliver mail on any given day. They are also expected to help cover someone else's round if they are away sick or injured. The amount of unrostered overtime varies but the average nationally is 1.6 per cent of their total hours or about 6.2 minutes per day. And most of the unrostered overtime - 71 per cent - is regularly incurred by about a quarter of the posties.

The effect of the Employment Court decision was that an employee had to establish that he or she would have worked overtime on the day in question and the actual amount they would have received.

But the Court of Appeal found that the Employment Court erred on that, saying the responsibility lay with the employer to meet the statutory obligation to pay the minimum entitlement for the day in question.

"That included the obligation to establish (or attempt to establish) the pay the employee would have received had he or she worked on the day in question, including any amounts for overtime," the court judgment said.

It said in many, if not most, cases involving posties it would be simply impossible to establish that unrostered overtime would have been worked on a particular day and for how long.

That's why the Act included a formula for practically calculating relevant daily pay where it would be otherwise impossible to do so, the judgment said. The Employment Court interpretation would defeat the statutory purpose of including that sub-section under the Act, it said.

Union advocate Graeme Clarke said it was difficult to quantify the amount of holiday pay owed to some posties. "For some it will be nothing, for others it will be quite a considerable sum."

Clarke claimed NZ Post had made a one-off offer to pay out the posties a few years ago "to make the issue go away". While that was attractive to those who considered they had been underpaid, Clarke said the union rejected it on the basis workers shouldn't negotiate away their statutory rights under the Act.

NZ Post said only it had sought to reach agreement with the union in the past on this matter.

Clarke said a meeting with NZ Post would now be needed to see "what they can do to fix it."

- ? Fairfax NZ News