| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 345 |
| Hearing date | 21 Sep 2012 |
| Determination date | 05 October 2012 |
| Member | K J Anderson |
| Representation | S Mitchell ; R McIlraith, K Dunn |
| Location | Auckland |
| Parties | Maritime Union of New Zealand Inc v Ports of Auckland Ltd |
| Summary | BREACH OF CONTRACT – HEALTH AND SAFETY – Applicant claimed respondent’s proposal to disestablish two foreman roles would result in unsafe work practices in breach of collective employment agreement (“CEA”) – Authority found no tangible evidence indicating proposed change would compromise health and safety – No breach of contract – GOOD FAITH – Applicant claimed respondent’s failure to consult adequately over proposal breach of good faith – Found respondent explained to applicant effect of proposed changes on who would carry out foreman’s work – No breach of good faith – GOOD FAITH – BARGAINING – Applicant claimed respondent’s proposal undermined bargaining for new CEA – Found disestablishment of foreman roles operational matter rather than bargaining issue – Found bargaining not undermined by respondent pursuing matter not subject to collective bargaining for new CEA – No breach of good faith |
| Abstract | Applicant claimed respondent’s proposal to disestablish two foreman roles would result in unsafe work practices in breach of collective employment agreement (“CEA”). Applicant claimed respondent’s failure to consult adequately over proposal breach of good faith and proposal undermined bargaining for new CEA. CEA recognised respondent would designate employees to carry out ‘Leading Hand’ supervisory duties and provided respondent to implement programme to ensure safe and healthy work environment. Respondent proposed to disestablish two foreman roles performing ‘Leading Hand’ duties. Applicant claimed foreman roles essential to ensure safe operations. Applicant claimed disestablishment of foreman roles major change and respondent unable to proceed without full opportunity for employee participation to address health and safety issues. Applicant claimed understood foreman work to be carried out by supervisors but instead work to be carried out largely by stevedores. Applicant claimed foreman roles included as part of CEA, should be part of collective bargaining and removal of work during negotiations would undermine collective bargaining. Respondent claimed foreman roles not fixed positions but conglomeration of duties to which employees may be designated. Respondent claimed foreman roles not specified in CEA and not included in collective bargaining as coverage clause of CEA not subject of bargaining. Respondent decided to implement proposal.;AUTHORITY FOUND –;BREACH OF CONTRACT – HEALTH AND SAFETY: Respondent had various programmes in place to ensure safe and healthy working environment including proactive Health and Safety Committee. No change to what was being done but rather to who would do it. No tangible evidence indicating proposed change would compromise health and safety. No breach of contract.;GOOD FAITH: Respondent explained to applicant effect of proposed changes on who would carry out foreman’s work. CEA referred to ‘Leading Hand’ supervisory duties rather than work carried out in foreman roles specifically and respondent had significant discretion under CEA to allocate particular tasks to individuals. While no mention during consultation of effect of proposal on individual employees in form of potential loss of earnings, neither party expressed concern about this factor. No breach of good faith.;GOOD FAITH – BARGAINING: No mention of foreman roles in CEA although roles one aspect of ‘Leading Hand’ duties. Disestablishment of foreman roles operational matter rather than bargaining issue. Bargaining not undermined by respondent pursuing matter not subject to collective bargaining for new CEA. No breach of good faith. |
| Result | Applications dismissed; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s4;ERA s4(4);ERA s4(4)(c);ERA s4(4)(d);ERA s32(1)(d)(iii);Health and Safety in Employment Act 1992;Health and Safety in Employment Act 1992 s6;Health and Safety in Employment Act 1992 s7;Health and Safety in Employment Act 1992 s11;Health and Safety in Employment Act 1992 Part 2A |
| Cases Cited | Communication & Energy Workers Union Inc v Telecom New Zealand Ltd [1993] 2 ERNZ 429;Maritime Union of New Zealand Inc v Ports of Auckland Ltd [2012] NZEmpC 54;New Zealand Amalgamated Engineering Printing & Manufacturing Union Inc v Carter Holt Harvey Ltd [2002] 1 ERNZ 597;Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 |
| Number of Pages | 19 |
| PDF File Link: | 2012_NZERA_Auckland_345.pdf [pdf 303 KB] |