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New Zealand Tramways and Public Passenger Transport Authorities Employees IUOW (Wellington) Branch v Mana Coach Services Ltd
20 Dec 2007, P Cheyne, WA 176/07, (18 pages)
BARGAINING - GOOD FAITH - PENALTY - Parties bargaining for new collective employment agreement - Union issued strike notices - Respondent responded with letters advising striking employees would be suspended for duration of strikes - At time of suspension only a threatened strike, not active strike as required - No valid suspension - However, invalidity did not make actions breach of good faith - No dishonesty or ulterior purpose in circulating invalid suspension notices -Third strike arranged but called off before it began - Nothing to prevent unilateral withdrawal of strike notice - Respondent not informed of cancellation until last minute - Had already altered rosters to remove employees threatening to strike - Applicant sought arrears of wages for affected employees - No legal basis for roster changes - Respondent argued equity and good conscience meant should not have to pay arrears - Strikes lawful and contractual right could not be defeated by reference to equity and good conscience - Employees entitled to be paid in accordance with original roster -Respondent also issued direct communications to employees detailing bargaining - Applicant complained breach of bargaining process agreement and s32(1) Employment Relations Act 2000 ("ERA") - Communications calculated attempt to bypass union, undermine its authority and undermine bargaining - Breach of good faith - Breach not sustained and respondent ultimately resiled from intentions expressed in letter - $2,500 penalty appropriate - Applicant also sought penalty for use of substitute labour to perform work of striking employees - Drivers from other depots used to run services - Could not be said drivers normally based at another depot were performing own work as did not regularly or routinely work out of different depot - However, no evidence to indicate lack of consent - Number of casual employees also used to cover striking workers - Nature of casual employment meant not "already employed" by respondent at time of strike - Breach of s97 ERA - $4,000 penalty appropriate
Result: Orders accordingly ; Arrears of wages (Quantum to be determined) ; Penalty(payable to Crown) ($2,500)(Breach of good faith) ; ($4,000)(Breach ERA s97) ; Costs reserved
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