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The Association of Professionals & Executive Employees Inc v Capital & Coast District Health Board
17 Jul 2007, G J Wood, WA 98/07, (14 pages)
GOOD FAITH - Applicant represented public hospital radiation therapists - Applicant withdrew claim respondent breached Life Preserving Services Agreement ("LPSA") by requesting services of union members for treatment of a patient ("A") - Applicant claimed respondent failed to act in good faith by not fully informing it of events and not involving it in internal review of A's medical situation - Necessary to take broad view of what constituted life preserving services under Code of Good Faith in Public Health Sector - Purpose of Code and LPSAs to ensure patient safety and limit deaths by requiring provision of life preserving services - Potential risk (or jeopardy) to life, rather than actual existence of risk to life, must be considered when interpreting Code - LPSA also to be interpreted in that light, given it must be consistent with Code - Although opinions of medical practitioners to be given credence, employers to ensure minimised use of workers who would otherwise be on strike, including by putting systems in place - Clearly did not occur in present case - Except for meeting requirements of Code regarding communication and information, Respondent not required to do more than use dispute resolution process in collective employment agreement ("CEA") - Applicant informed of respondent's actions in timely manner and given necessary information - Failure to involve applicant in review, and other actions, not breach of good faith under Code or CEA - Claims dismissed - Disputes involving use of life preserving services probably better determined by independent medical specialist in advisory/decision-making role - Recommendation parties agree on method for determination of disputes in future LPSAs
Result: Application dismissed ; Costs reserved
Asure New Zealand Ltd v NZ Public Service Association Inc
26 Jan 2007, P Cheyne, CA 7/07, (5 pages)
DISPUTE - Dispute between parties regarding penal rate clause in collective employment agreement ("CEA") - Employees sometimes worked extra hours at specified plant to service overtime worked by plant - Clause stated overtime paid at T1.5 when over current daily hours of work, except during periods of extended/high kill - Hours of work ("HOW") agreement set out duration of normal day and "OT" day at plant - Memos and rosters referred to extra production as OT - Applicant argued work fell within "extended/high kill" exception - Exception related to production pattern distinct from frequent but irregular additional production at issue here - Authority considered parties intended to create entitlement to penal rate when employee worked over daily hours currently required and worked greater than the total weekly hours currently required - Applicant argued "OT" in HOW agreement synonym for "extended/high kill" - If parties had intended that would have used same words - "OT" worked at specified plant not caught by exclusion - Overtime to be paid at penal rate of T1.5 when it was over daily hours and greater than their total applicable weekly set out in HOW agreement
Result: Question answered in favour of respondent ; Orders accordingly ; Costs reserved
CSR Building Products (NZ) Ltd v Northern Amalgamated Workers Union Inc
8 Jan 2007, Y S Oldfield, AA 2/07, (6 pages)
DISPUTE - Applicant wanted to change to 24 hour production and place employees on rotating day and night shifts - Respondent would not agree to changes - Applicant sought declaration change permitted by collective employment agreement ("CEA") - Rejected respondent's suggestion of permanent night shift for recruitment and health and safety reasons - CEA provided "four days on fours days off" roster - Words of CEA clear no other roster permitted - Authority not convinced 24 operation could be met only with rotating roster - Although applicant had good reasons for preferring not run them, permanent nights shifts permitted by CEA - Respondent also questioned whether existing staff could be moved to rotating rosters without consent - Previous conclusion rendered answer superfluous - However, whether or not CEA accommodated rotating rosters, consent of affected employees would be required to change hours of work
Result: Questions answered in favour of respondent ; Costs reserved
Fleming v Airways Corporation of New Zealand Ltd
25 Jan 2007, J Wilson, AA 18/07, (6 pages)
DISPUTE - Applicant decided to retire - Intended to finish work but remain employee until expiry of annual leave, days in lieu, retirement leave etc - For previous 35 years applicant had worked 4/2 roster - Respondent calculated leave using 5/2 roster - Change resulted in less leave - Respondent believed calculation appropriate as 4/2 roster devised as health and safety measure - As no prospect of returning to work alleged no basis to maintain 4/2 roster - Collective agreement ("CEA") provided little to resolve dispute - Necessary to consider factual matrix - Previous employees retirement leave calculated using 5/2 roster - During employment leave calculated on 4/2 roster - Authority considered State Service Tribunal decision that established 4/2 roster - Neither original Tribunal decision nor CEA suggested employee should be removed from 4/2 roster merely because not returning to operational duty - Applicant not notified of change to roster in accordance with CEA - Entitled to assume continued on 4/2 roster - Remedies - Applicant's leave to be recalculated in accordance with 4/2 roster - Any arrears due following recalculation to be paid as soon as practical, with interest - PENALTY - Respondent genuinely believed interpretation correct - No evidence breach deliberate - Penalty not appropriate - Air Traffic Controller
Result: Question answered in favour of applicant ; Orders accordingly ; Interest (9%) ; Application dismissed (Penalty) ; Costs reserved
New Zealand Airline Pilots Association Incorporated v Air New Zealand Ltd
7 Mar 2007, L Robinson, AA 61/07, (7 pages)
DISPUTE - Calculation of Roster Average Incentive Hours for pilots - Parties disagreed over activities to be excluded from calculation - Applicant argued including duties significantly diminished hours and resulted in arrears of wages for affected pilots - Sought declarations accordingly - Whether activities were "agreed company approved duties unrelated to flying duties" under collective employment agreement - "Duties unrelated to flying duties" qualified by "company approved" - Particular duty also to be "agreed" - Both parties to agree that a particular duty approved by the respondent as a "duty unrelated to flying to duties" was to be included for purposes of sub-clause - Respondent's communication to applicant clear no approval or agreement - Declined to make orders sought - Authority recommended parties take steps to formulate appropriate procedural mechanisms to facilitate correct operation of sub-clause - Authority concerned about transparency surrounding calculation - Pilots entitled to know how remuneration calculated - Recommended respondent implement steps aimed at making relevant calculations available to pilots
Result: Questions answered in favour of respondent ; Costs reserved
NZ Amalgamated Engineering, Printing & Manufacturing Union Inc v APN Print NZ Ltd
21 Feb 2007, M Urlich, AA 45/07, (3 pages)
DISPUTE - Interpretation of collective employment agreement ("CEA") -Applicant sought urgent determination of issues - Applicant claimed CEA did not provide for change to shift start time outside span of ordinary hours without agreement - Alternatively, if respondent able to effect change without agreement, claimed effective notice had not been given - Respondent claimed had extensive consultation process, and entitled to give notice of intended change when agreement unable to be reached - Core dispute whether clause enabled variation outside span of ordinary hours of work - Authority to determine whether applicant could change, by consultation and notice, start of day shift - CEA to maintain integrity of parties expressed intention ordinary hours of work to be changed by agreement only - Any changes out side span of hours in Clause 4 must be by agreement of the parties
Result: Question answered in favour of applicant
Seaso v New Zealand Post Ltd
30 Jan 2007, P R Stapp, WA 13/07, (9 pages)
DISPUTE - Whether applicant consulted before new start/finish times imposed - Applicant completed shift preference form during restructure - Only indicated redundancy as claimed unable to work new shifts - Respondent declined redundancy and informed her placed on shift with new start/finish times - Given warning as continued to arrive at old start time - Collective employment agreement required consultation with those likely to be affected by change - Consultation also required due to length of service and lack of information from applicant regarding preferences - Respondent consulted with union but not applicant - Should have raised concerns about genuineness of applicant's unavailability during consultation - Not entitled to change applicant's start/finish times without consultation - Applicant also sought declaration regarding voluntary redundancy rights, or to be made redundant - Appropriate for parties to attempt to reach agreement themselves - Leave reserved if matter unable to be resolved - Postal worker
Result: Question answered in favour of applicant ; Costs reserved
Unite Incorporated v Independent Liquor (NZ) Ltd
27 Aug 2007, M Urlich, AA 260/07, (7 pages)
DISPUTE - Applicant union sought declaration respondent's restrictions on site access unlawful - Pre-emptive application - Applicant sought full access without management escort, after appropriate health and safety briefing - Respondent opposed applicant "wandering" anywhere on site accompanied only by union delegate - Offered access on same terms as other visitors, accompanied by approved company employee responsible for health and safety - Applicant submitted management escort contrary to important aspect of access, normalising union on site - Authority declined to order applicant's officials be given health and safety induction as no request made to respondent - Respondent claimed no union delegate authorised to accompany visitors and not appropriate to ask one to be - Respondent's health and safety rules reasonable - Who was to accompany visitors to destination within factory an issue for respondent - Authority did not understand respondent to say delegate could never train for accompaniment role or that accompaniment would extend to respondent being present while access rights exercised - Question answered in favour of respondent
Result: Question answered in favour of respondent ; Costs reserved
Van Heerden v Fonterra Co-Operative Group Ltd
29 Aug 2007, A Dumbleton, AA 266/07, (11 pages)
DISPUTE - Interpretation, application and operation of collective employment agreement ("CEA") - Applicant's position redundant due to restructuring - CEA provided redeployment, and redeployment process - Respondent accepted required to make every endeavour to redeploy, with discretion as to how done - Applicant and co-worker ("B") wanted newly created co-ordinator position - Applicant claimed redeployment matter of right under CEA - B's individual employment agreement ("IEA") had no redeployment clause - Both required to submit to same selection process for co-ordinator position - Respondent claimed suspension of CEA necessary, apparently under mistaken belief to apply CEA would confer preference to applicant in breach of s9 Employment Relations Act 2000 ("ERA") - Respondent approached question of redeployment incorrectly - Required to focus on express terms of CEA, and do same in relation to B's IEA - No general overriding principle of equality of treatment, unless CEA and IEA contained identical provisions - Preference did not exist simply because terms and conditions different - Any betterment product of collective bargaining, rather than union membership - Respondent also claimed because co-ordinator position not within coverage of CEA, clauses did not operate beyond introductory clause - CEA continued to apply to applicant, at least until appointed to other position - Co-ordinator position not precluded from being subject of respondent's discretion under CEA - Applicant entitled to have provisions applied fully, not just partly - Provisions relating to formation and role of committee did not detract from effective application of CEA - Respondent to start afresh, and reconsider applicant as potential appointee to co-ordinator position, or any other appropriate position - COMPLIANCE ORDER - Application for compliance order declined to allow respondent to exercise its discretion
Result: Question answered in favour of applicant ; Application dismissed (Compliance order) ' Leave reserved for personal grievance claim ; Leave reserved for parties to apply for further directions regarding dispute ; Costs reserved
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