Posted on: May 20, 2013
A collective agreement (CA) between Holcim (NZ) Ltd (the employer) and the New Zealand Merchant Service Guild IUOW Inc (the union) which covered masters, deck officers and engineering officers on two named vessels defined what would be an “otherwise working day” for the purposes of the Holidays Act 2003.
Both parties, taking into account the practicalities of working at sea (28 days on, 28 days off), had expressly provided in the CA that any day during the time off period “would otherwise be a working day” for the purposes of section 12 of the Act (which deals with how to determine an employee’s entitlements to a public holiday, an alternative holiday, sick leave and bereavement leave). Section 56 of the Act provides that an alternative holiday must be granted to an employee who works on a public holiday. The effect of the clause in the CA was that employees who earned alternative holidays by working during a public holiday took the alternative holiday in the time off period.
The union argued that the parties had contracted out of the minimum entitlements provided by the Holidays Act and that pursuant to section 6(3) of the Act the agreement was of no effect. The Employment Court noted that it was not an option for officers to take an alternative holiday while on board the vessels and held that the CA did not contravene the Holidays Act.
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