NEW ZEALAND TRAMWAYS AND PUBLIC TRANSPORT EMPLOYEES UNION INCORPORATED AND ANOR V TRANSPORTATION AUCKLAND CORPORATION LIMITED AND CITYLINE (NEW ZEALAND) LIMITED CA CA287/06

NEW ZEALAND TRAMWAYS AND PUBLIC TRANSPORT EMPLOYEES UNION INCORPORATED AND ANOR V TRANSPORTATION AUCKLAND CORPORATION LIMITED AND CITYLINE (NEW ZEALAND) LIMITED CA CA287/06 3 April 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA287/06 [2007] NZCA 116BETWEEN NEW ZEALAND TRAMWAYS AND PUBLIC TRANSPORT EMPLOYEES UNION INCORPORATED First Applicant AND NATIONAL DISTRIBUTION UNION INCORPORATED Second Applicant AND TRANSPORTATION AUCKLAND CORPORATION LIMITED AND CITYLINE (NEW ZEALAND) LIMITED Respondent Hearing: 12 March 2007 Court: Hammond, Arnold and Wilson JJ Counsel: P Cranney for First and Second Applicants P A Caisley for Respondents Judgment: 3 April 2007 at 4 pmJUDGMENT OF THE COURT A Leave to appeal on the question set out in [4] is granted. B The respondents are to pay costs of $750 to each of the applicants, plus usual disbursements.REASONS OF THE COURT(Given by Arnold J) [1] The applicant unions seek leave to appeal against a decision of the Full Court of the Employment Court which dealt with the annual leave entitlements of their member bus drivers: AC 61 A/06 and ARC 46/06 27 November 2006. [2] Under s 214(1) of the Employment Relations Act 2000, a party who is dissatisfied with a decision of the Employment Court on the ground that it is wrong in law may appeal to this Court, with leave, with the exception of decisions on the construction of individual and collective employment agreements. Leave may be granted if the Court considers that the question of law involved is one that ought to be submitted to the Court for decision, by reason of its general or public importance or for any other reason (s 214(3)). [3] In their application the applicants identified two grounds of appeal, namely that:(a) The Employment Court erred in law in holding that the further holiday of one week in recognition of the nature of the work is an enhanced entitlement within the meaning of s 6(2) of the Holidays Act 2003. The correct position is that the further holiday of one week as an additional entitlement within the meaning of s 6(2). (b) The Employment Court erred in law in holding that the further holiday of one week in recognition of the nature of the work may be applied for the purposes of Subpart 1 of Part 2 of the 2003 Act.[4] In the course of the hearing before us, Mr Cranney for the applicants refined these grounds to produce the following question:Whether additional holidays which are agreed to be in recognition of the nature of work are absorbed by or are in addition to minimum annual leave conferred by Subpart 1 of Part 2 of the Holidays Act 2003, when such annual leave moves to four weeks from 4 April 2007?[5] The respondents opposed the application. Mr Caisley said that the case involved a question of fact and of the construction of a collective employmentagreement and so was outside the jurisdiction of the Court. He also said that the matter was not one of public importance. [6] We consider that leave to appeal on the question identified at [4] above should be granted. As the Employment Court recognised, central to its decision was the interpretation of the Holidays Act, in particular s 6. The appeal raises a question of law concerning the proper interpretation and application of the Act. We agree with Mr Cranney's submission that the issue is an important one. It will affect other employers and employees. Its importance is reflected in the fact that the Employment Court sat as a Full Court to hear the case.Decision[7] We grant leave to appeal in relation to the question set out in [4] above. The respondents are to pay costs of $750 to each of the first and second applicants, plus usual disbursements.Solicitors: Oakley Moran, Wellington for First and Second Applicants Kiely Thompson Caisley, Auckland for Respondents