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Wendy's going to employment tribunal over staff holiday pay

Fast food chain Wendy’s is being accused of breaching employment laws - for the second time.

Source: 1 NEWS

But the company denies it’s failed to pay any of its workers correctly.

Unite Union says an audit of records from the last few public holidays has found some workers either haven’t been paid correctly, and they have filed proceedings with the Employment Relations Authority.

“Almost no one is getting paid for not working,” Unite’s Mike Treen told 1 NEWS.

Wendy’s says all employees who work on a public holiday receive their public holiday entitlements in accordance with the Holidays Act. It also says it’s confident in its processes and it’s acted in good faith.

The Holidays Act is complicated. So complicated, in fact, the Government ordered a review of it in 2018 and a taskforce handed an interim report to then-Workplace Relations Minister Iain Lees-Galloway. But no action has yet been taken by the Government.

As it stands, employers have to work out a formula to figure out if an employee is entitled to a day to be treated as a public holiday. If it is a day they’d ordinarily be working, they should be paid even if they aren’t rostered on. If they do work, the employee should be paid and given a day in lieu.

Treen says Wendy’s had been using a seven days out of 13 formula – so if a worker had worked at least seven of the last 13 Mondays and then it was a public holiday, they’d get the day treated as such.

But employment law expert Max Whitehead says it’s very difficult - so difficult that even the courts haven’t defined it.

“When should an employer pay a casual - say, for a Monday - and what it comes back to is how often that worker would work on a Monday,” he said.

In 2018, the Employment Relations Authority ruled Wendy’s hadn’t met the requirements, told it to review its procedures and credit staff who were owed days.

Treen said when he did a recent audit, he didn’t expect to find any issues.

Wendy’s wouldn’t be interviewed but denied any wrongdoing.

It hopes to successfully defend itself in any legal action and says in 2019, the Labour Inspectorate signed off on a full audit.

A spokesman for new Workplace Relations Minister Michael Wood says the final review of the law will be released in the next couple of weeks and everyone will be hoping some clarity will come with that.

This article was updated on 16 February 2021. Unite Union no longer claims that an audit of records from the last few public holidays has found some workers haven’t been given time in lieu.