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Union wins against employer forcing staff leave

Published 19 Sep 2022

The Employment Court has ruled that during the COVID-19 level 4 lockdown in 2020 Carter Holt Harvey (CHH LVL) acted illegally when requiring staff to take leave. Even though they gave 14 days' notice.

E tu Union took CHH LVL to the Employment Relations Authority (ERA) over their forcing of staff to use 8 days' of annual leave during the level 4 lockdown in 2020. The ERA referred this onto the Employment Court as a case of significant public interest.

Initially the union had argued the employer had not given the required 14 days' notice, acted in bad faith having not sought agreement and argued that employees were unable to benefit from the intended nature of leave as they were in lockdown.

The Court found the employer had actually given 14 days' notice and it was not an employer's problem as to how staff can or can't use their leave when taking it. The problem the Court identified was the fact that the employer had not sought to consult with staff about taking the leave and actually ignored the Union's request to negotiate. This was considered bad faith.

The strong takeaway from the case is that although the law does allow for an employer to direct staff to take their annual leave with at least 14 days' notice, there has to be demonstration and genuine attempt in good faith to negotiate to get staff to agree to take their leave in the first instance. Only following such a consultation could an employer be entitled to direct staff to leave with at least 14 days' notice.