| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 21 |
| Hearing date | 17 Oct 2011 |
| Determination date | 10 February 2012 |
| Member | H Doyle |
| Representation | P Churchman ; G Malone |
| Location | Invercargill |
| Parties | The New Zealand Meatworkers' Union Inc v South Pacific Meats Ltd |
| Summary | BREACH OF CONTRACT - COMPLIANCE ORDER – Applicant claimed respondent unlawfully prevented access to workplace – Applicant sought compliance order that respondent refrain from unreasonably denying or restricting access to workplace - Respondent claimed granted applicant reasonable access with regard to normal business operations – Applicant claimed respondent’s hostility result of applicant’s ongoing private prosecution of respondent which related to employee’s injury sustained at plant – Applicant’s branch president (“C”) sought access to workplace on respondent’s induction days (“first request”) – Respondent’s manager (“H”) claimed induction days very busy, needed cafeteria for administrative purposes and declined first request - Authority found previously applicant always present at induction – Found H could have reasonably scheduled C’s brief presentation and C did not seek access to places where would be any disruption to production – Found respondent’s refusal of first request breached ss20 and 21 Employment Relations Act 2000 (“ERA”) – C requested access to speak to employees during break about union updates and collective employment agreement (“CEA”) matters (“second request”) – H claimed not convenient for applicant to request access at such short notice and declined second request – H requested applicant provide two days’ advance notice – C sought reasons for respondent denying access and advanced notice requirements – H claimed advanced notice requirement temporary but did not provide reasons for refusal of second request – Found advanced notice requirement unlawful - Found respondent’s refusal of second request breached ss20 and 21 ERA – C requested access to speak to employees during break about union updates and CEA matters (“third request”) – H replied would consider third request when C specified time required – C requested access to cafeteria and smoking area four days later (“fourth request”) – H approved C sitting in cafeteria for employees to approach but told C could not make speeches, walk around unaccompanied and visit would be suspended if any disruption – Found H’s restrictions on fourth request unreasonable impediment and unreasonable for respondent to suspend access visit – H advised C any circulars in cafeteria prohibited unless respondent gave prior approval – Found requirement that applicant obtain approval of material before respondent granted access unreasonable and unlawful – Found respondent’s restrictions on fourth request breached ss20 and 21 ERA – C requested access to update members and recruit new members (“fifth request”) at induction – Found applicant required to obtain consent to fifth request under amended s20A ERA – Respondent claimed insufficient time for C to meet with members, not all members would be attending induction and declined fifth request – Found respondent’s refusal of fifth request breached s20A(2)(a) ERA – C requested access for recruitment purposes and wanted to hold meetings at plant (“sixth request”) – H claimed due to number of non-members and likely disruption could not grant sixth request – Found respondent’s refusal of sixth request breached s20A(2)(a) ERA – C requested access to update members on union matters and CEA and advised respondent general location would be smoko room (“seventh request”) – H declined seventh request but did not provide reasons, suggested C visit two days later and use training room as smoko room unavailable – Found respondent’s refusal of seventh request and failure to provided reasons breached ss20A(2)(a) and s20A(3) ERA – C requested access day after sixth request (“eighth request”) – H consented to eighth request if C used training room and did not disrupt production - Applicant claimed was told could only see one employee at a time and unreasonable restriction as employees on lunch break – Found more likely than not H restricted C to meet with one employee at a time – Found training room isolated from workplace and other employees and conditions on approval of eighth request breached s21 ERA – C requested access to talk to members and non-members in cafeteria or outside smoking area (“ninth request”) – H claimed non-members did not want to be interrupted by applicant during break and told C could use training room – H claimed later withdrew conditional consent to ninth request – Found respondent’s refusal of ninth request breached s20A(2)(a) ERA – Found appropriate to order compliance – Respondent ordered to comply with ss20, 20A and 21 ERA – Ordered consent to access not to be prohibited or restricted because applicant intended to distribute material and access not to be restricted to training room – PENALTY – Applicant sought penalty for respondent’s breaches – Found respondent deliberately denied or restricted access and aware withholding consent was unreasonable – Found breaches serious and ongoing - Found applicant had lost opportunities to recruit members and membership numbers had significantly decreased – Found likely applicant not having access affected CEA bargaining - $6,000 penalty appropriate for respondent’s refusal of first request - $4,000 penalty appropriate for respondent’s refusal of second request - $3,000 penalty appropriate for respondent’s conditions on fourth request - $4,000 penalty appropriate for respondent’s refusal of fifth request - $4,000 penalty appropriate for respondent’s refusal of sixth request - $5,000 penalty appropriate for respondent’s refusal of seventh request and conditions on eighth request - $4,000 penalty appropriate for respondent’s refusal of ninth request |
| Result | Applications granted ; Compliance ordered ; Penalty ($30,000)(Payable to applicant) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s20;ERA s20(3);ERA s20(3)(c);ERA s20A;ERA s20A(2)(a);ERA s20A(2)(b);ERA s20A(3);ERA s21;ERA s21(1);ERA s21(2);ERA s21(2)(c);ERA s21(3);ERA s21(4);ERA s21(5);ERA s22;ERA s23;ERA s25;ERA s26;ERA s136(1);ERA s136(2);ERA s137(1)(a)(ii);ERA s137(3);Health and Safety in Employment Act |
| Cases Cited | Carter Holt Harvey Ltd v National Distribution Union Inc [2002] 1 ERNZ 239;Hick v Raymond & Reid [1983] AC 22;Service Workers Union of Aotearoa Inc v Southern Pacific Hotel Corporation (New Zealand) Ltd [1993] 2 ERNZ 513 |
| Number of Pages | 24 |
| PDF File Link: | 2012_NZERA_Christchurch_21.pdf [pdf 111 KB] |