Disputes - Employment Relations Act 2000
Hinde v Lenovo (Australia & New Zealand) Pty Ltd
21 Nov 2007, G J Wood, WA 153/07, (5 pages)
DISPUTE - Applicant sought payment of retention award under individual employment agreement - Payment conditional on satisfactory performance - Respondent concerned applicant did not meet sales targets and considered overall performance needed improvement - Applicant claimed not subject to formal performance review and failure to meet targets due to reasons outside of her control - Submitted performing well compared to other staff - Letter setting out retention award clear - Conditional on performance as determined at respondent’s discretion - Discretion exercised in fair and reasonable manner - Entitled to rely on assessment applicant’s performance needed improvement even though formal process not completed as performance could be assess from sales figures - Applicant not entitled to payment - Sales
Result:
Application dismissed ; Costs reserved
Johnson v Salamander Enterprises Ltd
29 Nov 2007, G J Wood, WA 156/07, (7 pages)
DISPUTE - Applicant claimed should have been made redundant when respondent transferred business to new location - Respondent intended to retain all staff - Gave notice and paid retention payments to staff who relocated - Applicant did not want to relocate and sought to have position declared redundant - would then be entitled to redundancy payment - Contended extra travelling time and associated expense unreasonable in his circumstances - Extra distance of 80km not unreasonable in its own right, and extra 2 hours of commuting not unreasonable burden in general - Extra costs at level not unusual for commuters - Although highly inconvenient for applicant, no special circumstances relating to health or family differentiated him from average person - However, applicant did not have access to vehicle and unreasonable to expect him to acquire one - Also, commute home affected by rush hour traffic - Finely balanced, but due to personal circumstances reality of new commute was such that it was not reasonable to expect applicant to work at new premises - Position in effect made redundant - Issue of compliance reserved if necessary
Result:
Question answered in favour of applicant ; Costs reserved
New Zealand Meat Workers and Related Trades Union Inc. Aotearoa Branch v Whakatu Wool Scour Ltd
17 Dec 2007, P R Stapp, WA 170/07, (4 pages)
DISPUTE - Interpretation of incentive clause in collective employment agreement (“CEA”) - Bonus payment payable when “production exceeded 500 bales” of wool in 24 hours - Whether bales counted at start of process or end - Respondent’s calculation using end product consistent with CEA
Result:
Question answered in favour of respondent ; Costs reserved
New Zealand Public Service Association Inc v Otago District Health Board and Anor
28 Sep 2007, P Cheyne, CA 117/07, (7 pages)
DISPUTE - BARGAINING - Applicant’s members originally employed by first respondent at counselling centre - Centre and its employees transferred to second respondent on existing terms and conditions, including coverage by collective employment agreement (“CEA”) - During negotiations for CEA second respondent sought to restrict coverage to former employees of first respondent and thereby reserve right to negotiate other terms with non-transferring employees, while applicant wanted coverage for positions occupied by transferring employees regardless of who held them - New CEA not signed - Code of Good Faith in the Public Health Sector (as in Schedule 1B Employment Relations Act 2000) entitled staff to be employed on same terms and conditions, but did not make second respondent party to existing CEA between applicant and first respondent - Applicant and second respondent obliged to create new CEA - However, bargaining constrained by entitlement of transferring staff to employment on same terms and other statutory requirements - Second respondent’s position failed to adequately recognise scope of clause 19 Schedule 1B - Transferring staff entitled to insist of CEA containing coverage clause from previous CEA - Also did not take into account effect of s62(1A) ERA - Even if coverage clause simply listed names of transferring staff, once in force agreement had to be treated as covering work or type of work done by named employees for purposes of ascertaining terms of employment of any new employees - Position taken by second respondent wrong - Impasse had given rise to claims of breach of good faith - Appropriate to adjourn further consideration of breach of good faith and give parties opportunity to sort contractual relationship in light of determination - Leave reserved if further difficulty arose
Result:
Question answered in favour of applicant ; Orders accordingly ; Costs reserved
NZ Amalgamated Engineering Printing & Manufacturing Union v Lyttelton Engineering Ltd
21 Dec 2007, P Montgomery, CA 159/07, (4 pages)
DISPUTE - Multi Employer Collective Agreement (MECA) provided for wage increase on 1 April 2006 equivalent to greater of consumer price index (CPI) or rate in MECA - However, MECA settled for term expiring on 30 June 2006, not 31 March 2006 as expected - Parties initially agreed CPI as at April would apply but if MECA settled at higher rate any increase would be backdated - Around same time respondent lifted hourly rate of trade certified staff to aid recruitment and retention - MECA settled at higher rate than CPI - Whether required to pay backdated increase to trade certified staff in addition to rise related to market conditions - Respondent unilaterally increased trade staff pay rate - Documents from time indicated respondent attempted to make clear trade staff would not receive additional increase, although failed to formally clarify situation - Trade staff not entitled to additional increase
Result:
Question answered in favour of respondent ; Costs reserved
Sealed Air (New Zealand) Ltd v New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc
6 Dec 2007, G J Wood, WA 160/07, (7 pages)
DISPUTE - Whether parties collective employment agreement (“CEA”) allowed applicant to require employees to take meal breaks on staggered basis to improve productivity - Applicant alleged would result in significant gains - Respondent and members objected to plan - Whether variation to CEA overrode clause requiring parties to agree on breaks - Variation did not mention clause of CEA dealing with breaks - Break clause not incompatible with variation - Applicant could not rely on variation to override requirement for agreement in CEA
Result:
Question answered in favour of respondent ; Costs reserved
Unite Union Inc v ILA South Pacific Ltd t/a Kaplan Aspect
17 Dec 2007, M Urlich, AA 397/07, (8 pages)
DISPUTE - Applicant argued terms of employment allowed members to complete other duties off-site once contact teaching hours complete - Respondent contended able to direct teachers to work 37.5 hours on-site - Collective employment agreement (“CEA”) silent on usual working hours or rostering of non-contact hours - Teachers could not be rostered duties in absence of agreed rostering mechanism and usual working hours could not be set when no agreement as to what usual hours would be - Working week of 37.5 hours beyond scope of CEA and respondent unable to direct staff to be onsite those hours - No consultation about changes and no agreement to vary terms of employment - Respondent also wanted to teachers to supervise study centre - Considered work administrative only, while applicant argued amounted to contact teaching and should be paid accordingly - Based on evidence, reasonable to conclude work amounted to contact teaching - Questions answered in applicant’s favour - Respondent also to make roles under CEA clear
Result:
Questions answered in favour of applicant ; Costs reserved
