Clarke said she was thrilled with the result, and had no regrets.
“If you asked me if I would do it again, I would.”
Even though it’s been three and a half years of a really long slog, I most definitely would, because I stood up for what I believe in.”
In her ruling on November 22, Judge Joanna Holden said a challenge by Arohanui Hospice of an Employment Relations Authority (ERA) decision supporting NZNO’s position, had failed.
“Part-time employees employed by Arohanui who work different days each week, and are covered by the terms of the Multi-Employer Collective Agreement/Single Employer Collective Agreement, are entitled to public holiday provisions in accordance with the formula provided under the second paragraph of clause 12.5.”
In April 2019, Clarke was turned down for payment for the Easter public holiday Good Friday.
The hospice had previously provided staff not rostered on for a public holiday, an alternative leave day, or payment, if requested – which was also not a correct interpretation of the clause, Clarke said.
But from early 2019, they changed their policy, and declined requests for pay entirely – a move which put them in breach of the collective agreement.
According to the relevant clause, part-time staff who were not on a fixed roster, were to be paid for unworked public holidays if they had worked on that day for at least 40 per cent of the previous three-month period.
“The idea is that, yes, it’s over and above the holidays act but it means that those of us who do shift work get a fair entitlement for public holidays,” Clarke said.
The employer argued that “an employee’s days of work may be fixed by way of a pattern (eg three days on and three days off)”, and not specific days of the week, and therefore, they would not be eligible for the payment.
Clarke challenged her employer’s position on the payment and sought support from an NZNO organiser Manny Downs.
They asked the Ministry of Business, Innovation and Employment labour inspectorate to review the employer’s decision – but the office said there was no breach of the agreement.
NZNO lodged an application for a determination with the Employment Relations Authority (ERA) in 2020 and, following a delay due to illness, a determination – in favour of NZNO – was released in April this year.
In a move that surprised NZNO lawyers, Arohanui Hospice Trust appealed the ERA decision in the Employment Court.
“We thought the clause, had been around for many, many years in health collective agreements, was really clear and had been understood and applied by most employers consistently with what we thought it would be,” NZNO lawyer Christine Hickey said.
The case was significant, as many collective agreements included the clause, and losing the case could have put the entitlement at risk.
Hickey said she was “ecstatic and relieved” to hear the court’s verdict in NZNO’s favour.
The employer’s decision to stop applying the clause properly, and appealing the ERA decision to the court had eroded the good will of their employees, and came at a financial cost, she said.
Clarke appeared as a witness for NZNO, presenting evidence and responding to a barrage of questions by her employer’s lawyer for about an hour and a half.
“I was very strong on my knowledge, and very passionate about my cause – and I just wouldn’t let them rattle me,” she said of the experience.
Hickey said a delegate’s role as a witness in disputes over interpretation of collective agreements was important because they have detailed experience with the issue, and can provide strong rebuttals to the employer’s evidence.
She said it was always NZNO’s preference to resolve issues without having to go down a legal path, but the organisation would go to court “if we know what is happening to our members in their workplace is unjust”.
“And, of course, it’s even more important to have it dealt with by way of an Authority or Employment Court decision if the issue has a wider impact for other workplaces like this one did.”
NZNO’s legal team helped to prepare delegates in advance, and supported them through the process on the day, Hickey said.
“If it does need to go all the way, NZNO is there with you the whole time.”
Clarke said it had been a long hard slog since she first raised the issue in April 2019, but she had no regrets.
“At times it’s been challenging, but I guess for me, I felt that I was right, so I had nothing to feel bad about. I felt I was doing the right thing, standing up for the little people.”
Arohanui Hospice members will be entitled to backpay for unpaid public holidays for the past three-and-a-half years.