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NZ Engineering Printing & Manufacturing Union Inc v Terry Young Ltd (t/a Yunca Heating & Gas)
28 Mar 2007, P Cheyne, CA 32/07, (13 pages)
BARGAINING - GOOD FAITH - Applicant claimed respondent advised and attempted to induce union members not to be involved in bargaining for collective employment agreement ("CEA") in breach of s4(6) Employment Relations Act 2000 ("ERA") - Following visit by union representative, 16 workers joined applicant - Some later resigned - Applicant alleged series of actions by respondent breached s4(6) -Respondent relied on s4(3) ERA that duty of good faith did not prevent communication of reasonably held statement of fact or opinion - Whether s4(3) permitted conduct otherwise in breach of s4(6) - Section 4(6) modified s4(3) to extent of inconsistency – Party to employment relationship may communicate reasonably held opinion but must not amount to advising or doing anything with intention of advising employee not to be involved in bargaining for CEA – Alleged actions occurred before notice commencing bargaining given – Section 4(4) stipulates duty of good faith applies to bargaining for CEA “including matters relating to initiation of bargaining” – If application of ss4(1) and 4(6) restricted to events occurring after notice given, would have been unnecessary to include that phrase – Application of s4 to matters before date of notice better achieved object of Act – Was clear to respondent EPMU and members were preparing to initiate bargaining - Whether conduct breached s4(6) – Authority found in meetings with employees, respondent advised and intended to induce employees not to be involved in collective bargaining - Respondent distributed credit union proposal to non-union members – Intended message that employees did not need to join union or bargain collectively - Respondent posted memo on notice board of union fee increase – Increase published to make point of its magnitude – Could only have been for intention of encouraging resignation and dissuading non-members from joining applicant – Respondent moved applicant member (“K”) moved to another work area - Respondent of view K spent too much time on union activities and wanted to maintain productive work - K not moved with intention of inducing him or other employees not to be involved in bargaining - Duty of good faith breached in respect of meetings, distribution of credit union proposal, and memo - Also alleged union representative denied access to speak with union members collectively at workplace - Authority noted dispute arose from respondent’s reading of s21 ERA - Respondent claimed representative could speak to only one employee at a time during work hours - Position tenable if simply read words of ERA - Context of ERA did not require different interpretation - Under s20 ERA, discussions not limited to one employee at a time - However, position not adopted in breach of s4(6) ERA - Penalty not appropriate - JURISDICTION - Whether Authority could impose penalty for breach of good faith – ERA s4A renders parties liable to penalty, but does not say jurisdiction lay in Authority – Omission appeared to be drafting error – Authority had exclusive jurisdiction to make determinations about employment relationship problems including whether good faith obligations complied with – Jurisdiction for recovery of penalties for breach of s4A lay in Authority not in Court – PENALTY – Respondent’s actions deliberate and serious and in breach of s4A – About one third new union members resigned and influenced to do so by respondent's actions - Penalty appropriate for breaches in respect of meetings, distribution proposal, and memo
Result: Question answered in favour of applicant ; Penalty ($6,000)(To Crown) ; Application dismissed (Compliance order) ; Costs reserved
Service and Food Workers Union Nga Ringa Tota Inc v Air New Zealand Ltd
29 Oct 2007, A Dumbleton, AA 338/07, (25 pages)
GOOD FAITH – Applicant alleged respondent attempted to undermine parties' collective employment agreement ("CEA") by inducing members to resign from applicant in breach of s4(6) Employment Relations Act 2000 ("ERA") – Also claimed members misled about consequences of retaining union membership with applicant – Respondent adopted “In-house" Solution as alternative to outsourcing work – Applicant and its members did not agree to change CEA terms to align with Solution – Respondent distributed letter about Solution to staff believed members of applicant - Letter advised could resign from applicant and sign up to Solution on individual basis or join another union - Letter emphasised only staff participating in Solution to receive benefits, and members ineligible - Letter intended to entice employees into resigning membership and induce members not to be covered by CEA, in breach of s4(6) ERA - Respondent's claim sole purpose of letter to communicate Solution and confirm staff still union members rejected - Goal was to reduce number of employees covered by CEA – By encouraging resignation, respondent intended to completely undermine employment relationship between member and applicant - Advice non-participants in Solution not eligible for new roles not misleading or deceptive – Rather, advice put forward to persuade resignation – Respondent telephoned members and non-members regarding Solution - Not satisfied telephone calls breached s4(1) ERA obligations or dominant purpose was to advise or induce employees not to be covered by CEA – COMPLIANCE ORDER – Given breach a “one-off”, compliance not necessary and unavailable – PENALTY – Applicant sought penalty for every breach - Letter sole ground for remedies – Although respondent’s breach deliberate and serious, penalty under s4A(a) unavailable given no sustained breach – Penalties under ss4A(b)(ii) and 4A(b)(iii) could be imposed – Sending of letter could attract multiple penalties, depending on number of recipients - Scale of communications went to gravity of breach, and relevant in determining total penalty – Penalty aimed at existence of bad faith intentions – Scale to which bad faith intentions present relevant to quantum – Leave reserved for parties to make submissions on quantum of penalties
Result: Question answered in favour of applicant ; Leave reserved for parties to make submissions on quantum of penalties ; No order for costs
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