| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 95 |
| Determination date | 20 August 2012 |
| Member | A Dumbleton |
| Representation | T Kennedy ; A Russell, D Asher |
| Location | Wellington |
| Parties | New Zealand Post Primary Teachers Association v Secretary for Education & Anor |
| Other Parties | New Zealand School Trustees Association |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) - Applicant sought removal of matter to Employment Court on grounds important question of law likely to arise and matter of such nature and urgency that in public interest matter be removed to EC – Applicant claimed issue of bias if Authority heard matter as previous Authority member and current Authority member had involvement in matter - Authority found no evidence of apparent bias by previous Authority member – Found reasonable observer would not think would be institutional bias if Authority heard matter and would not think members appointed to Authority since previous member left could not bring impartial mind to investigation of matter – Found potential bias could be addressed by Chief of Authority requiring particular member to investigate matter – Found important question of law not likely to arise from main issue of interpretation of CEA – Found some public interest in matter but EC unable to hear matter before Authority member available – Found no grounds present for removal - Matter not removed to EC |
| Abstract | Applicant sought removal of matter to Employment Court (EC") on grounds important question of law likely to arise and matter of such nature and urgency that in public interest matter be removed to EC. Respondents opposed removal. Applicant sought declaration as to rights and obligations of applicant and first respondent ("Secretary") under collective employment agreement (“CEA”). Applicant also sought compliance orders and penalties against respondents. Applicant claimed potential bias if matter heard by Authority as second respondent’s ("NZSTA") advocate (“A”) previously member of Authority and other member recently appointed to Authority (“M”) previously legal advisor employed by Secretary and could be called as witness.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: M not sworn in at time of investigation meeting therefore unable available to determine matter or any other matter as Authority member. No evidence of apparent bias by M. Unlikely Authority would order compliance at same time resolved CEA interpretation issue as likely parties would first have opportunity to comply with Authority findings “non-coercively.” Insufficient evidence of basis for applicant’s penalty claims. Therefore possibility M called as witness remote as determination likely to relate to CEA interpretation rather than factual matters. Reasonable observer would not think would be institutional bias if Authority heard matter. Reasonable observer would not think members appointed to Authority since A left could not bring impartial mind to investigation of matter. Potential bias could be addressed by Chief of Authority requiring particular member to investigate matter. Important question of law not likely to arise from main issue of interpretation of CEA. Questions of law relied on by applicant, whether NZSTA properly respondent and whether board of trustees needed to be cited as party as well, incidental and of mixed fact and procedural. Secretary appropriate respondent to applications but matter did not require that board of trustees become party. Applicant chose NZSTA, and NZSTA wished to remain, as party. Some public interest in matter but EC unable to hear matter before Authority member available. No grounds present for removal. Matter not removed to EC." |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s137;ERA s166A(2)(b);ERA s178;State Sector Act 1988 |
| Cases Cited | Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495;New Zealand Educational Institute Te Riu Roa Inc v Secretary for Education [2012] NZEmpC 84;Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Wellington_95.pdf [pdf 185 KB] |