| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 237 |
| Determination date | 13 July 2012 |
| Member | E Robinson |
| Representation | S Buckingham ; H Perry, T McKinnon |
| Location | Auckland |
| Parties | Newmark v Board of Trustees Waikowhai Intermediate School & Ors |
| Other Parties | State Services Commissioner, Secretary for Education |
| Summary | PRACTICE AND PROCEDURE – Whether second and third respondents should be joined as parties – Authority found no basis to join second and third respondents as parties to applicant’s personal grievance on basis of employment relationship – Found second respondent’s authority to bargain for new collective employment agreement and issue template individual employment agreement (“IEA”) delegated to third respondent – Found second respondent should not be joined as party – Found third respondent exercised degree of influence on ability of first respondent to comply with terms of IEA issued to applicant and potentially liable for inciting, instigating, aiding or abetting breach of employment agreement – Found third respondent should be joined as party – Teacher |
| Abstract | Applicant employed by first respondent as teacher. Applicant employed by first respondent under individual employment agreement (“IEA”). Second respondent responsible for negotiating collective employment agreement (“CEA”) with union. Second respondent delegated this function to third respondent. New CEA negotiated providing union employees to be paid higher salary back to commencement of CEA. Third respondent issued new template IEA for non-union employees. Template IEA stipulated higher salary effective from date of signature of IEA and not back-paid. First respondent offered applicant IEA stipulating applicant’s terms and conditions of employment to be those in CEA. Applicant claimed entitled to be paid at higher salary rate during period between commencement of CEA and applicant signing IEA. Applicant claimed remuneration intrinsic part of employment agreement and, as second respondent had sole control of remuneration, second respondent also employer. Second and third respondents claimed first respondent had almost complete discretion to manage and control school and able to financially recognise contribution of individual teachers.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: No basis to join second and third respondents as parties to applicant’s personal grievance on basis of employment relationship. Second respondent’s authority to bargain for new CEA and issue template IEA delegated to third respondent. Second respondent should not be joined as party. Applicant’s IEA not compliant with template IEA and required written agreement of third respondent for applicant’s higher salary to be paid back to commencement of CEA. While applicant and first respondent only parties to IEA, third respondent exercised degree of influence on ability of first respondent to comply with terms of IEA and potentially liable for inciting, instigating, aiding or abetting breach of employment agreement. Third respondent should be joined as party. |
| Result | Application partially granted; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | Education Act 1989;ERA;ERA s134(2);Human Rights Act 1993;State Sector Act 1988;State Sector Act 1988 s2;State Sector Act 1988 s2, definition of “employer”, para (a)(i);State Sector Act 1988 s23;State Sector Act 1988 s74;State Sector Act 1988 s74A;State Sector Act 1988 s74A(a);State Sector Act 1988 s74A(b);State Sector Act 1988 s74A(c);State Sector Act 1988 s75;State Sector Act 1988 s75(1);State Sector Act 1988 s75(2);State Sector Act 1988 s75(3) |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_237.pdf [pdf 201 KB] |