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Kiely v Air New Zealand Ltd
20 Apr 2007, L Robinson, AA 113/07, (8 pages)
DISPUTE - Applicant sought reimbursement for lost tie pin - Collective employment agreement stated employees covered for loss of personal effects necessary or reasonable for them to carry - Respondent declined claim as considered value of pin excessive and not reasonable for applicant to carry it - Submitted value of item inherent consideration in determining whether reasonable - Grooming guide permitted simple gold tie pin - Whether "simple" meant not expensive - Applicant claimed referred to design, not value - Respondent required slide to be gold, must be taken to expect solid gold - No basis to interpret stipulation of gold to refer only to lower grade or inexpensive items - Respondent must have expected tie pins would possibly be expensive for generally the very nature of gold items - Reasonable for applicant to carry tie pin he claimed cover for - Applicant entitled to cover from respondent - Loss of effects clause in employment agreement not regarded as common law insurance contract, merely term of employment relationship - Flight attendant
Result: Question answered in favour of applicant ; Costs reserved
Lyttelton Engineering Ltd v New Zealand Engineering, Printing and Manufacturing Union Inc & Anor
26 Sep 2007, P Cheyne, CA 116/07, (6 pages)
DISPUTE – Interpretation of collective employment agreement (“CEA”) – CEA clauses provided three weeks annual leave, and “additional week” on completion of six years service – Whether entitlement in second clause included for purposes of satisfying statutory minimum entitlement – During bargaining parties considered effect of Holidays Act 2003, and deleted references to Holidays Act 1981 - Parties must have known first clause would be affected by change to minimum entitlement during term of CEA – Despite this, no change to clause made – In order to find second clause entitlement counted towards meeting minimum statutory entitlement, necessary to define “additional” as synonym of “enhanced” and different from “additional” in Holidays Act 2003 – Reasons for finding different meaning in New Zealand Dairy Workers Union v Fonterra Brands (Tip Top) Ltd (cited below) did not apply - Parties claims and subjective intentions during early negotiations not material affecting objective interpretation of clause – “Additional” in clause had same meaning as “additional” in Holidays Act 2003 – First clause of no effect to extent restricted or reduced employees’ minimum entitlement – Employees entitled to four weeks annual leave, and those with qualifying service, five weeks
Result: Question answered in favour of respondents ; Costs reserved
National Distribution Union v Arthur Barnett Ltd
27 Mar 2007, J Crichton, CA 29/07, (6 pages)
DISPUTE - Interpretation of overtime provision in collective employment agreement ("CEA") - Whether overtime triggered on daily or weekly basis - Applicant's analysis preferred, meant phrase "on a daily basis" made sense in context of clause as whole - Overtime accrued each day - Construction clear from words - Overtime provision in CEA wrongly applied by respondent - COMPLIANCE ORDER - ARREARS OF WAGES - Applicant sought compliance order to remedy default, and arrears - Respondent argued application not suitable for compliance order - In reality matter a dispute - Respondent resisted paying arrears as applicant not diligent in progressing claim - Argument had some force - With exception of two year "error period", respondent's interpretation had applied since 1992 - Parties to engage with each other to determine consequences of decision - Leave reserved to return to Authority if matters not resolved
Result: Question answered in favour of applicant ; Costs reserved
National Distribution Union v Gordon and Gotch (NZ) Ltd
11 Jan 2007, J Wilson, AA 5/07, (5 pages)
DISPUTE - Respondent relocated business - Applicant argued under collective employment agreement ("CEA") members entitled to negotiate relocation payment - Relocation allowance only negotiable where employee redundant - Some employees advised when appointed operations were to move - Those staff not redundant or entitled to payment - Parties only requested interpretation of CEA - Without evidence of individual circumstances not possible to determine which other employees were redundant and eligible to negotiate relocation payment - Parties to consider, on individual basis, which employees were redundant and level of any payment - Authority outlined factors parties to consider - Leave reserved if unable to determine individual cases
Result: Question answered ; Orders accordingly ; Costs reserved
Porter v Johnsondiversey New Zealand Ltd
21 Sep 2007, J WIlson, AA 292/07, (8 pages)
DISPUTE - Interpretation of individual employment agreements ("IEAs") - Applicant brought representative claim on behalf of other employees - Claimed entitled under IEA to additional five days leave over and above minimum statutory entitlement of four weeks - At time of drafting, applicant's IEA clear and unambiguous - Provided would receive three weeks annual holidays, and after five years additional week - IEA made no reference to Holidays Act 2003 - Was entirely new piece of legislation and not amendment to Holidays Act 1981 - Reasonable to assume when parties entered IEAs, either 2003 Act not yet enacted or parties had not intended it would materially alter terms of agreement - Holidays Act 2003 did not amend IEA, simply increased minimum statutory entitlement - Parties to date had not renegotiated IEA so IEA set out currently agreed terms of settlement - Plain meaning of words of IEA established entitlement at either three or four weeks depending on length of service - When tested against minimum statutory entitlement, all employees entitled to minimum four weeks - Employees with five years service, and by way of IEA entitled to four weeks, met minimum standards established by Holidays Act 2003 - Not entitled to fifth week - Applicant's request for order respondent credit her with additional five days leave declined
Result: Question answered in favour of respondent ; Costs reserved
Service and Food Workers' Union Nga Ringa Tota Inc v Air New Zealand Ltd
9 Oct 2007, A Dumbleton, AA 314/07, (16 pages)
DISPUTE – Respondent implemented plan to reorganise ground handling unit – “In-house solution” formulated by respondent and unions representing majority of ground handling employees – Averted outsourcing of work – Applicant and two other unions negotiated Collective Employment Agreement ("CEA") with respondent – Maximum effectiveness required all three unions change CEAs – Other 2 unions made changes but applicant unable to get consent of members – Respondent bound by terms and conditions in original Collective Employment Agreement "CEA" – Prevented respondent gaining full benefit of “In-house solution” – Respondent wanted greater uniformity of terms and conditions across the three collective agreements, particularly on matters which significantly influenced labour costs and productivity – Bargaining provisions of ERA did not require applicant to align CEA with those of other unions covering same work - Applicant claimed new employees not advised of existence of CEA, not given copy of document and led to believe CEA expired – Letters to new employees failed to expressly acknowledge could join applicant – Other unions referred to by name six times, applicant just once, in separate part of letter in offhanded way – Letter expressly stated applicant did not have current CEA and gave impression applicant not open to membership – Representations incorrect and likely to mislead average employee – CEA lifeblood of union and its members – Incorrect representation CEA no longer effective serious and damaging misstatement - Investigation suspended to give applicant opportunity to take corrective action - Applicant took issue with “fundamental term” of Individual Employment Agreement new employees required to accept - Required employees to agree to work new rosters or respondent entitled to dismiss them – Term inconsistent with applicants CEA – Respondent contended if new employee bound by applicants CEA it could invoke fundamental term to end employment – Authority found “fundamental term” had no effect in preventing new employees from joining applicant and having terms and conditions of CEA applied to their work in full – Compliance as sought by applicant not available at this stage – No indication any new employee who had joined applicant not employed on terms and conditions of CEA – However, if situation arose compliance likely to be appropriate remedy
Result: Orders accordingly ; Costs reserved
Te Ao v Department of Labour
12 Oct 2007, J Wilson, AA 319/07, (9 pages)
DISPUTE – Interpretation of s148 Employment Relations Act 2000 ("ERA") – Respondent wanted to discuss applicant’s behaviour during mediation after received complaint – Applicant contended statute barred from discussing mediation and sought determination s148 ERA meant unable to release information – Both parties to mediation consented to release of information under s148(1) – Applicant argued disciplinary process was “proceedings” under ERA as could lead to action in Authority or Employment Court, and barred by s148(2) from “giving evidence” about “provision of services” at mediation in question – Also submitted parties’ waiver of confidentiality did not apply to provision of services under s148(2) – Respondent argued investigation of complaints necessary to preserve integrity of mediation process and give effect to ERA – Respondent’s disciplinary investigation not proceedings under ERA and applicant not “giving evidence” – Disciplinary process clearly for “purposes of giving effect to the Act” – Requirement for Chief Executive (“CE”) to ensure mediator able to act independently did not mandate mediator to act outside general instructions given by CE in terms of s153(2) – Applicant’s interpretation went beyond purpose of s148 and mitigated against requirement CE provide mediation services which promote fast and effective resolution of employment relationship problems – Applicant not barred by s148 ERA from attending disciplinary investigation or answering questions about way provided mediation services – Question answered in favour of respondent - Although Authority not required to address question of whether applicant could bring evidence if brought personal grievance to Authority, it commented mischief rule would have bearing of interpretation of s148(2) – Statutory bar on applicant’s evidence would be against principles of natural justice and inconsistent with objects or purpose of ERA – Alternatively, on plain meaning of s148, parties’ approval meant s148(2) did not operate as bar – Mediator
Result: Question answered in favour of respondent ; Costs reserved
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