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Waikato District Health Board v The Service and Food Workers Union Nga Ringa Tota Incorporated
AC 30/07
Heard: 30 May 2007, Auckland
Judgment Date: 31 May 2007
Court/Authority/Tribunal: Colgan, CJ
Appearances: P White & M Wisker ; S Mitchell & T Oldfield
INJUNCTION - Application for interlocutory interim injunction to restrain strike in essential service - Defendant initiated bargaining and sought joinder of plaintiff to existing multi employer collective bargaining citing ss42, 45, 49 Employment Relations Act 2000 - Certain employer parties to that bargaining refused consent - Defendant gave notice of strike action - Plaintiff alleged defendant not in bargaining with it alone - Defendant alleged it intended to give notice of intention to bargain collectively and separately with plaintiff - HELD - Plaintiff established sufficiently arguable case that bargaining not initiated with plaintiff alone - Interlocutory interim order granted - Orderly/attendant, security, cleaning/domestic, laundry, and homecare employees
This was a successful application for an interlocutory interim injunction to restrain strike action in an essential service.
The plaintiff district health board employed members of the defendant union in essential services. The plaintiff and defendant were parties to a collective agreement due to expire in February 2007.
In June 2006 the defendant initiated bargaining ("the meca bargaining") with 16 other district health boards (not including the plaintiff) and 4 contract companies ("the other employers") for a multi employer collective agreement.
In November 2006 the plaintiff and defendant agreed to vary the collective agreement by changing retrospectively the expiry date to June 2006.
In February 2007 the defendant purported to give the plaintiff notice of initiation of bargaining ('the notice") for a meca citing ss42, 45, 49 Employment Relations Act 2000 ("ERA"). The notice cited the other employers as intended employer parties.
The defendant sought the consent of the other employers under s49 ERA for the plaintiff to become a party to the meca bargaining. Three of the contract companies refused consent. Despite this, there was evidence the plaintiff and the defendant participated in some of the meca bargaining and the plaintiff kept its employees updated about the meca bargaining.
In May 2007 the defendant served strike notices on the plaintiff referring expressly to the notice.
The plaintiff submitted that to be effective the notice under s42 ERA required the consent of all the other employers which had not been given. The plaintiff submitted the intended strike action would be unlawful because, under s86(1)(b) ERA, the strike would not occur during bargaining for a proposed collective agreement and, under s83(b)(i) ERA, the strike did not relate to bargaining for a collective agreement that would bind each of the employees concerned.
The defendant submitted, first, that the notice was sufficient and it intended to give notice of its own intention to bargain collectively and separately with the plaintiff alone for a single-employer collective agreement ("seca"). The defendant submitted that it did not matter that it could not now join the meca bargaining or that the identities of the intended parties had altered.
Secondly, the defendant submitted that even if it could not rely on the notice, the plaintiff's informal bargaining meant that it should not be entitled to assert that it was not in bargaining with the defendant citing ILA South Pacific v Unite (cited below).
Finally, the defendant submitted the balance of convenience supported it because if it could not strike, it would have to begin the bargaining process from scratch by issuing a notice under s42 ERA against the defendant alone.
Held
(1) ILA South Pacific v Unite (cited below) is distinguishable on several grounds. That case did not involve s49 ERA as the present does. Here, there was not the clear evidence of waiver by the employer of its entitlement to assert a failure to initiate bargaining. In the present case, on the evidence presented so far, it might be said that any bargaining that had been engaged in between these parties had been informal
bargaining. Finally, in the present case it did not appear from the evidence adduced so far that any of the preliminary legal requirements for bargaining set out in the legislation (such as the early use of best endeavours to enter into a bargaining process arrangement under s32(1)(a) ERA) had been undertaken by the defendant. (para 33)
(2) The plaintiff established a sufficiently arguable case that bargaining had not been initiated formally with the plaintiff alone. All the evidence pointed to the defendant's intention to seek to add the plaintiff as a party to the meca bargaining. It was strongly arguable for the plaintiff that the nature and intent of the notice given to the plaintiff was of the union's wish to join the employer to the meca bargaining. That was a very different thing from what the defendant now said it intended and achieved. (paras 34,35)
(3) As to the balance of convenience, strike action was intended to harm the plaintiff and, consequently, those others who depend on its services. It may be found after trial to have been unlawful. On the other hand, the position was not necessarily as dire as that predicted by the defendant if it was restrained for a relatively short period from the intended strike action. The ability of the Court to hear the substantive proceeding between the parties in a fortnight gave the union and its members an opportunity to implement strike action in a short period if the defendant was successful at trial. (para 36)
(4) The balance of convenience favoured the plaintiff's position. So too did the overall justice of the case. Other factors in determining that consideration included that there were, and would be, strikes by the defendant employees at substantial numbers of other health boards in New Zealand not affected by the issues raised by the present case that might well settle a collective agreement or collective agreements that would be able to extend to employees at Waikato hospitals. (paras 37,38)
(5) The plaintiff was entitled to interlocutory injunctive orders restraining the defendant from striking or threatening strike action in reliance upon collective bargaining initiated by the notice. (para 39)
Result: Application granted ; Interim injunction ordered ; No order for costs
Statutes considered:
ERA s32(1)(a)
ERA s42
ERA s42(2)(c)
ERA s43
ERA s45
ERA s49
ERA s83(b)(i)
ERA s86(1)(b)
ERA s188
ERA Part8
ERA Schedule 1B cl12
Employment Relations Amendment Act (No 2) 2004 s69
Words and phrases:
Initiates bargaining
How bargaining initiated
Cases referred to in judgment:
ILA South Pacific Ltd v Unite Inc unreported, Chief Judge Goddard, 8 June 2004, CC
11/04
Epic Packaging Ltd v New Zealand Amalgamated Engineering, Printing &
Manufacturing Union Inc (2006) 7 NZELC 98,314; (2006) 3 NZELR 480; [2006] 1
ERNZ 617
Pages: 3
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New Zealand Amalgamated Engineering, Printing and Manufacturing Union Incorporated v Air Nelson Ltd
CC 12/07
Heard: 15 Jun 2007, Auckland
Judgment Date: 17 Jun 2007
Court/Authority/Tribunal: Colgan, CJ
Appearances: T Wilton ; D France & R Larmer
CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY - INTERLOCUTORY INJUNCTION - Application for interlocutory injunction to restrain defendant from alleged breach of s97 Employment Relations Act 2000 - Plaintiff alleged defendant engaged parent company to perform work of striking employees including loading foodstuff freight - HELD - No evidence of reasonable grounds for believing that work necessary for reasons of safety or health - Arguable case that defendant "employed" or "engaged" parent company to perform work - Balance of convenience and overall justice favoured granting of interlocutory injunction - Challenge granted - Tarmac and traffic employees
This was a successful challenge to an Employment Relations Authority determination. The Court granted an interlocutory injunction to restrain the defendant from using alternative means of performing the work of striking employees in alleged breach of s97 Employment Relations Act 2000.
Members of the plaintiff union ("the union") were employed by the defendant airline as tarmac and traffic workers. The defendant was a wholly owned subsidiary of Air New Zealand. The defendant had written commercial agreements with a division of Air New Zealand ("the division") to handle freight in and out of certain airports, including Nelson. Air New Zealand in turn was contracted to other parties including King Salmon New Zealand Ltd.
The parties had been in bargaining for a collective agreement. The union initiated strike action involving a reduction in normal performance of work. Soon after the strike commenced, union officials discovered managerial employees of Air New Zealand loading freight (including salmon) onto aircraft in Nelson. There was evidence that the defendant's manager had emailed the division regarding the impending strike and requested the division to "make the necessary arrangements to ensure the continuation of cargo out of Nelson" ("the communication").
The union applied to the Employment Relations Authority for an interlocutory injunction to restrain the defendant from using alternative means of performing the work of striking employees in alleged breach of s97 Employment Relations Act 2000 ("ERA"). The Authority determined that the union did not have an arguable case.
The union challenged that determination. The defendant submitted there was no arguable case relying on National Distribution Union v General Distributors (cited below).
Held
(1) Where an employer seeks to strike break other than by using its own existing workforce that is not on strike, s97(4) ERA imposes very stringent conditions upon doing so. Those are that there must be reasonable grounds for believing that it is
necessary for the work to be so performed for reasons of safety or health. There was no suggestion that this test was met in this case. (para 17)
(2) National Distribution Union v General Distributors (cited below) was plainly distinguishable. In General Distributors the prevailing inference to be drawn was that suppliers or end customers had arranged for other parties than the employer to undertake alternative work arrangements so that the employer's part of the supply chain was avoided altogether. There was no evidence that those arrangements had been made or participated in by the employer or that it had engaged others to do the work of locked out employees. Here, by contrast, the defendant continued to convey freight on its aircraft. The task of loading that freight and of associated administrative work was undertaken at the defendant's premises but by persons who were not employees of the defendant and were employees of another entity. There was also the communication. (paras 23, 24)
(3) The expression by Parliament of its intention in s97 ERA is not entirely felicitous. Considering the scheme or purpose of the section being to constrain strike breaking, it is distinctly arguable that an employer will act in breach of s97 by having another or others perform the work of striking or locked out employees. (para 28)
(4) There was an arguable case that the defendant "employed" or "engaged" Air New Zealand to perform the work that would otherwise have been undertaken by the defendant employees but who were then on strike. The communication was arguably evidence of employment or engagement of Air New Zealand to perform the work of the striking employees. (para 30)
(5) The defendant could not plead contractual entitlement or obligation as a defence to statutorily prohibited conduct. The contract between the defendant and Air New Zealand was subject to s97 ERA as part of the law of New Zealand and the contract also so confirmed. (para 31)
(6) The plaintiff had a sound arguable case of breach of s97 ERA by the defendant. The balance of convenience favoured the granting of interlocutory injunctive relief for three principal reasons. First, damages that might be attributable to the effects of injunctive restraint would be an adequate remedy for the defendant and, through it, for others affected economically. Second, there was a relatively short period before the substantive merits of the case could be determined. Third, the integrity of the legislative scheme to prohibit strike breaking except in limited and defined circumstances should be preserved, and the respective bargaining strengths of the parties in their negotiations maintained in accordance with that legislative scheme that addresses bargaining power inequality. The overall justice required the grant of injunctive relief for a limited period. (paras 46, 47)
Result: Challenge granted ; Orders accordingly ; Costs reserved
Statutes considered:
ERA s3
ERA s3(a)(ii)
ERA s80(a)
ERA s97
ERA s97(2)
ERA s97(3)
ERA s97(3)(a)
ERA s97(3)(b)
ERA s97(4)
ERA s97(6)
ERA s135(2)(b)
ERA s178
Cases referred to in judgment:
Employ
Engage
An employer
Pages: 3
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Abernethy v Dynea New Zealand Ltd
CC 13/07
Heard: 18 Jun 2007, Nelson
Judgment Date: 10 Jul 2007
Court/Authority/Tribunal: Full Court
Appearances: N Ironside ; S Wilson
PRACTICE AND PROCEDURE - Preliminary judgment as to scope of challenge to Authority determination which heard and disposed of matter on preliminary point - Whether Court limited to determining preliminary point or able to determine entire matter - Plaintiff submitted Court seized of entire matter - Defendant submitted Court's jurisdiction limited to preliminary point - ss179 and 187(1)(a) Employment Relations Act 2000 - HELD - Entire employment relationship problem before the Court - Disposal of litigation on preliminary point determined proceedings in Authority - No part of employment relationship problem remained before Authority - If challenge on preliminary point successful, Court to resolve rest of employment relationship problem - Senior technician
This was a determination by the full Court regarding the scope of the challenge in the situation where the Employment Relations Authority had disposed of the proceedings on a preliminary point. The issue was whether the Employment Court was limited to only the preliminary point determined by the Authority or whether the Court was entitled to consider the entire personal grievance.
The plaintiff lodged a personal grievance alleging unjustified dismissal and unjustified disadvantage, and sought interim reinstatement. The Authority convened an urgent investigation meeting to determine, as a preliminary issue, whether there had been accord and satisfaction. The Authority determined that the plaintiff was barred from pursuing his personal grievance because, under verbally agreed terms, he had received accord and satisfaction.
The plaintiff filed a challenge to that determination. The plaintiff elected a full hearing of the entire matter under s179(3)(b) of the Employment Relations Act 2000 ("ERA").
The plaintiff submitted that once a challenge was brought to an Authority determination, even on a preliminary point, the Employment Court was seized of the entire matter and could resolve all of the issues put before the Authority. The defendant submitted that the Authority had determined only a preliminary issue and therefore, on hearing the challenge, the Court's jurisdiction should be limited to examining the matter which was the subject of the determination.
Held
(1) The answer to the question before the full Court depended principally on the interpretation of s179 ERA. The relevant words in s179(1) are capable of at least two interpretations. The ambiguity arises from the words "matter" and "determination". What is it that a party may elect to have heard - a challenge to the determination of the Authority with which there is dissatisfaction, or a challenge to the matter before the Authority? Is the matter before the Authority the entire proceedings as initiated by the grievant in the first place, or is it the matter which the Authority considered in the investigation and which is the subject of its determination? (paras 13, 16)
(2) The ERA may be said to have two purposes which would be at odds if the approach urged on the Court by the defendant was to be followed. The first purpose is that personal grievances are generally to be disposed of by the Authority in the first instance: s143(fa). This may be compared with the objectives inherent in ss101(ab) and 143(b) and (c) that employment relationship problems, including personal grievances, should be resolved "quickly and successfully" and "promptly". To have employment relationship problems resolved in the Authority on preliminary issues, relitigated in the Court on appeal, re-determined by the Authority after another investigation, with rights of appeal by hearing de novo again, is inimical to those statutory objectives of success through promptness. (paras 24, 25)
(3) In Sibly v Christchurch City Council (cited below) the Court held that the matter referred to in s187(1) ERA could only refer to an employment relationship problem. It rejected a narrow interpretation of s179(1) ERA. That analysis was confirmed with one reservation. As was said in Paul v Capital and Coast District Health Board (cited below) the scope of a challenge to the Court is as broad as the challenger elects to make it subject to the important provision that the challenge is limited to a "matter before the Authority". That wide definition of "determination" had implications for the interpretation of both s179 and s187(1)(a). Applying it to s187(1)(a) the Court found the words "a matter previously determined by the Authority" refer to the whole employment relationship problem which has been determined by the Authority. (paras 31, 33-34)
(4) The Authority's finding that an accord and satisfaction barred the grievant from proceeding with his personal grievance, had effectively determined the proceedings in that forum. No part of the employment relationship problem remained before the Authority. (para 34)
(5) A wide interpretation of the words "to hear and determine elections under section 179" means that all matters which were before the Authority and which are the subject of an election, are to be heard and determined by the Court in the sense that the Court should deal with the whole grievance. (para 35)
(6) There was no necessary conflict between the legislative purposes of generally having investigations completed by the Authority before the Employment Court exercises its jurisdiction, and the prompt settlement of cases to ensure successful employment relationships in circumstances where the Authority has only decided a preliminary issue. (para 52)
(7) Where a party elects to challenge a preliminary determination of the Authority which has had the effect of resolving the employment relationship problem before it, the entire employment relationship problem is then before the Court for resolution. If the employment relationship problem survives a challenge to a preliminary point, then it is for the Court to resolve it. (paras 59,60)
(8) The situation is different where, for example, the Authority had determined a preliminary point in favour of a grievant and stated that it will continue to investigate the substance of the employment relationship problem. Where an employer unsuccessfully challenges such a determination, the problem will still be before the Authority for resolution. (para 62)
(9) If the Court decides there was no accord and satisfaction, the plaintiff's application for interim reinstatement and any other matters arising out of the employment relationship problem were to be heard in the Employment Court as part of the challenge. (para 66)
Result: Preliminary question answered in favour of plaintiff ; Costs reserved (indication given that proceedings were a test case)
Statutes considered:
ECA s88(7)
ECA s95
ECA s95(5)
ECA s157
ECA s182
ERA s101(ab)
ERA s143
ERA s143(b)
ERA s143(c)
ERA s143(fa)
ERA s177
ERA s178
ERA s179
ERA s179(1)
ERA s179(3)
ERA s179(3)(a)
ERA s179(3)(b)
ERA s179(4)
ERA s183(1)
ERA s187(1)
ERA s187(1)(a)
ERA s189
ERA Part 10
Employment Court Regulations 2000 r7
Employment Court Regulations 2000 r7(2)
Industrial Relations Act 1973 s48(1)(b)
Interpretation Act 1999
Words and phrases: Determination ; Matter ; Quickly and successfully ; Promptly
Cases referred to in judgment:
Asure New Zealand Ltd v New Zealand Public Service Association (No 1) [2005]
ERNZ 747
Jerram v Franklin Veterinary Services (1977) Ltd [2001] ERNZ 157
J S Whyte Ltd v Wellington District Hotel, Hospital, Restaurant & Related Trades
Employees IUOW [1984] ACJ 995
New Zealand Police Association Inc v Commissioner of Police [1995] 1 ERNZ 344
Paul v Capital and Coast District Health Board [2005] ERNZ 197
PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808
Rawlings v Employment Relations Authority [2006] 1 ERNZ 729
Shotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZLR 437
Sibly v Christchurch City Council [2002] 1 ERNZ 476
Skinner v Stayinfront Inc unreported, Judge Shaw, 8 December 2006, AC 70/06
Skinner v Stayinfront Inc [2007] NZCA 154
Pages: 4
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