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Source: Etu Union

By John Ryall, former E tū Assistant National Secretary

It seems obvious that if you are forced to have a day off sick you should be paid from your employer what you would have normally received if you had worked on that day.

However, this has not always been the case and it has only been through an amendment to the Holidays Act in 2003 that a separate right to sick leave of 5 days a year was created and that this was to be paid at “relevant daily pay”.

Not many people will realise though that 20 years before then the orderlies at Wellington, Hutt and Silverstream Hospitals fought for the same right.

The orderlies were then employed under the New Zealand Hospital Domestic Workers Award, which up until 1979 awarded them 10 days sick leave per year to be paid at ordinary pay.

The orderlies worked six days a week and their sixth day always occurred on either Saturday or Sunday at Wellington Hospital and at the other hospitals could occur on any day of the week depending on the roster. They were required to work the six days. If they were sick on any of their first five rostered days they would be paid eight hours at their ordinary hourly rate and if they were sick on their sixth day they would be paid nothing.

Despite the occasional grumble that they should be paid sick leave for all six days the roster worked well.

Award Sick Leave Changes

In 1979 the Hospital Boards agreed to a union claim to replace the Award sick leave clause with another one that appeared in most employment agreements in the state service. This gave the orderlies a more generous entitlement with an accumulation of untaken sick leave up to 365 days.

However, the more generous entitlement came with a catch. If you were a Monday to Friday worker and were sick for a week then you were paid five days sick leave but lost seven days from your entitlement.

Clause 14 (a) of the Award provided:

Where an employee is granted leave of absence on account of sickness or injury not arising out of and in the course of his employment he shall be entitled to full pay according to the scale set out in the schedule hereunder.

And clause 14 (d) provided:

Sick leave with full pay for each period allowed shall be reckoned in consecutive days inclusive of Saturdays, Sundays and statutory holidays.

Before the ink was even dry on the newly printed Award Wellington Hospital orderlies started complaining about the non-payment of sick leave on their sixth shift, which always occurred on either a Saturday or Sunday.

Their complaint was that if they were sick on a Friday and a Monday then the new Award removed an entitlement of four days, but they were only paid sick leave for two days rather than the three days for which they were arguing payment.

The Wellington Hospital Personnel Manager wrote to the Wellington Hospital Board Industrial Relations Manager Rino Tirikatene, who responded

Should Wellington Hospital conditionally require orderly staff to be permanently engaged on a six day shift weekly roster then each one of those six working days becomes applicable for sick leave with pay providing such staff have genuine sick leave and an adequate number of days entitlement

Issue Won’t Go Away

Despite this memo nothing was done and when I commenced work as an organiser in June 1982 the sick leave issue was still bubbling away.

The Wellington Hospital orderlies raised the issue again with the hospital management in 1983 but were told that they didn’t have to work the sixth day if they did not want to.

In 1984 the power dynamic changed with the election of some new active Wellington Hospital orderly delegates, who were not scared to take direct action to fix outstanding grievances.

A number of strikes were held over the re-negotiation of the Award and despite the head delegate Alan Wakefield being dismissed, the compulsory conference held to determine the outcome of his dismissal also heard stories of the orderly’s sick leave grievance.

In July 1985 the Wellington Hospital Deputy Director of Administration agreed to part of the claim. While the payment of sick leave for the sixth shift was not agreed, the Wellington Hospital Board would not in future deduct this shift off the orderly’s sick leave entitlement.

This move did not shut the issue down but gave it more steam.

In September 1985 the Wellington Hotel and Hospital Workers Union wrote to the Department of Labour for their opinion on payment of sick leave for the sixth shift under the NZ Hospital Domestic Workers Award. Their response supported the union view that the orderlies should be paid.

The Department of Labour opinion, which was circulated far and wide across the Wellington Hospital Board workforce, shook the Board managers.

Union Proposes Disputes Committee

The union, picking up on this state of affairs, proposed to the Wellington Hospital Board that the union and board should urgently meet as a Disputes Committee, with an agreed chair, put forward both sides in the dispute and allow the chair to issue a decision which would not be appealable.

In November 1985 the Board wrote to the union and agreed for a Disputes Committee Chair to give advice to the parties but not to make a binding, non-appealable decision on the matter.

The Board though did agree that if any orderly was absent through illness on a Friday and a Monday then in future they would be paid at ordinary rates of pay three sick days and not two.

This offer was taken back to the Wellington, Hutt and Silverstream Hospital orderlies and was unanimously rejected. The demands had hardened up and there was going to be no settlement without the payment of overtime when sick on the sixth day and the orderlies threatened to go on strike unless their demands were met.

Wellington Hospital orderlies delegate Jock McMahon posed the key question:

“Why do we have to lose pay when we are sick? We are a hospital caring for sick people and we should be paid for our sick leave the amount we would have earned if we had not been sick. We don’t want to be forced back to work when we are sick because we cannot afford to be off work.”

The threats of strike action led to an early meeting of the Disputes Committee, under Chairman Jim Newman, but no resolution was arrived at. After some delay the chairman referred the matter to the Arbitration Court in June 1986.

The Arbitration Court heard the case in October 1987 and sought to answer two questions:

  1. If a worker employed under the Award is granted leave of absence due to sickness under clause 14 and if that worker is required to work a six day week as a team of his or her employment, does the employer have to pay sick pay for the sixth day?
  2. If the answer to the question is yes, is the amount the board has to pay defined as “full pay” under the same clause, the amount the worker would have earned had he or she been working that day?

The union was represented by lawyer Sandra Moran. It was the first time I had seen Sandra in action. She was relatively small, very well dressed and looked like she would not hurt a fly. However, she had a steely tone to her voice that cut like a rapier and her cross-examination was so ruthless the employer witnesses just wanted to agree with everything she said in order to quickly depart the witness stand.

The Court took just less than two weeks to deliver its judgement in writing, affirming that the orderlies were required to work a 48 hour week and when sick must be paid “the monies he or she would have received had he/she performed his/her normal work on his/her sixth day on the roster irrespective of the day of the week on which the sixth day happens to fall.”

Attention Turns to Other Workers

While the union focussed on organising around the six year’s backpay for the Wellington, Hutt and Silverstream Hospital orderlies and other workers (such as a group of Wellington Hospital cleaners who worked a six-day week), it also turned its attention to other workers who were not receiving “full pay” when they were sick. This included public hospital orderlies, cleaners and food service workers who were sick on public holidays and weekends (where it was not their sixth shift) both in Wellington and throughout the country.

The actions of the Wellington Hotel and Hospital Workers Union to extend the case beyond the sixth-shift orderlies was not without controversy both within the Hotel and Hospital Workers Federation and amongst other unions.

While the words of Wellington Hospital orderlies delegate Jock McMahon portrayed a simple concept of sickness not automatically leading to a reduction in pay others saw the concept as too radical and challenging, perhaps because of the potential cost to the public health system of six-years backpay for tens of thousands of health workers, including doctors and nurses.

The Wellington Hotel and Hospital Workers Union returned to the Labour Court in October 1988 on behalf of a weekend cleaner and a kitchenhand on a rotating roster that included work on the weekends. Both these workers were paid ordinary pay when sick on the weekends. They claimed that “full pay” included their weekend penal rates and other allowances in addition to their ordinary pay.

Judge Castle, who had also heard the earlier case, said in his judgement that extending the full pay argument beyond six-day workers was “inevitable” and ruled that it was not proper to interpret “full pay” as anything else than the “agreed contracted pay with the worker”.

Both the newly created Area Health Boards and the hospital contractors refused to settle the 1990 NZ Hospital and Area Health Boards Domestic Workers Award without the elimination of the words “full pay” from the sick leave clause, the abolition of the travel time clause and the removal of the union veto over the employment of part-time workers.

With the writing on the wall for the fourth Labour Government and the National Party already secretly drafting the Employment Contracts Act, the union conceded full pay providing all members received hundreds of thousands of dollars in backpay and the date for its removal was extended out to 26 August 1992, which co-incidentally was the day after the expiry of the last national award.

While hospital workers had to wait another 11 years before the fifth Labour Government amended the Holidays Act to allow for relevant daily pay rather than ordinary pay for sick leave, the change would not have been possible unless the Wellington Hospital orderlies had identified an injustice and fought for its removal.