Lawyers: Employment Court wrong to recognise public holidays

NZAS said the Employment Court's judgment would cost it in excess of $20 million.

New Zealand Aluminium Smelters and its workers have returned to court in their long-running dispute over how holidays are calculated and recognised.

The smelter owner's calculation of employee holidays when workers moved from an eight-hour shift to 12 hours in the early 1990s is at the heart of the dispute, which was heard in the Christchurch Employment Court in December 2013.

NZAS calculated holiday entitlements in hours and continued calculating holidays based on eight hours, rather than the 12 hours worked after the change. This meant if an employee took a day off, it would be calculated as 1.5 days by NZAS.

In his May 2014 judgment, Judge Couch found in favour of the smelter workers, which brought the case led by Andrew Weller.

While the smelter has accepted the 12-hour holiday ruling, it is appealing how Justice Couch interpreted parts of the Holiday Act and how that flowed through to the contract's awarding of public holidays.

Appearing in the Court of Appeal before Justices John Wild, Helen Winkelmann and Stephen Kos, NZAS's legal counsel Pheroze Jagose said workers can't be awarded public holidays if they weren't working on the day the holiday falls.

While both sides agree under the Holidays Act 1981, under section 7a, if one of New Zealand's 11 public holiday falls on a weekend or a day the worker doesn't work than they are not entitled to it, Jagose says Justice Couch wrongly applied it to the NZAS contract, whereas the contract's provision is only for public holidays which were worked.

Justice Wild said it meant that essentially how holidays are awarded comes down to "how the calendar cookie crumbled".

Rodney Harrison QC, who is representing Weller and 63 other workers, said that the contract grants workers 11 days of leave annually, reflecting the statutory holidays as prescribed by section 7a of the act. He argued that Justice Couch did not interpret the legislation, only the actual contract.

The smelter's owner wants the Court of Appeal to make a declaration on the interpretation of the Holidays Act, while Harrison said if the court finds Judge Couch did make an error in his interpretation they must send it back for him to reconsider.

The Court of Appeal is restricted on how it can rule over Employment Court decisions, and can only make decisions based on points of law, rather than contract disputes.

NZAS has previously said the Employment Court's judgment would cost it in excess of $20 million.

The hearing is set down for one day.