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Metcalf (Labour Inspector) v Mr Sparkel Ltd
9 Aug 2007, L Robinson, AA 241/07, (4 pages)
ARREARS OF HOLIDAY PAY - Applicant Labour Inspector sought to recover holiday pay on behalf of TW – Respondent did not file statement in reply but granted leave to defend application at investigation meeting – Respondent accepted arrears due and owing – Interest 10 percent – PENALTY – Respondent failed to provide wage and time records when requested – Penalty of $2,000 appropriate
Result: Application granted ; Arrears of Holiday pay ( $1,377.52) ; Interest (10%) ; Penalty ($2,000)($1,000 to Crown, $1,000 to Applicant) ; Disbursements ($70)(Filing fee)
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
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