| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 143 |
| Hearing date | 11 Sep 2012 |
| Determination date | 19 November 2012 |
| Member | P R Stapp |
| Representation | G Davenport ; P Chemis |
| Location | Wellington |
| Parties | The Rail and Maritime Transport Union Inc v Kiwirail Ltd |
| Summary | DISPUTE – Parties disputed whether team leader positions covered by collective employment agreement (“CEA”) – Authority found parties had not excluded team leaders from coverage of CEA and team leaders had been included expressly in CEA across respondent’s business – Found team leader positions not managerial positions – Found respondent had obligation to negotiate coverage with applicant as team leader positions covered by CEA – Question answered in favour of applicant – GOOD FAITH – PENALTY – Applicant claimed respondent’s response to applicant’s concerns over coverage issue breach of good faith duty and sought penalty – Found respondent did not respond to applicant in timely manner – Found respondent failed to fulfil assurance given to applicant – Found respondent breached good faith duty by proceeding with restructure decision without engaging further with applicant once coverage issue raised – Found respondent’s response inadequate as obligation to deal with applicant over coverage issue and not appropriate to leave it to applicant to resolve problems by taking proceeding – Found respondent breached good faith duty – Found penalty not appropriate as would not assist support of successful employment relationship – No penalty |
| Abstract | Parties disputed whether team leader positions covered by collective employment agreement (“CEA”). Applicant claimed respondent’s response to applicant’s concerns over coverage issue breach of good faith duty and sought penalty. CEA provided applicant’s members employed by respondent covered by CEA except managerial positions. Respondent issued consultation document proposing restructure including establishment of new team leader positions. Following communication from applicant, respondent’s manager (“B”) stated new positions would be employed under individual employment agreements. After applicant disputed B’s statement, B responded further thought would be given to issue and B would advise applicant as soon as possible. Respondent issued decision document on restructure without further response to applicant. Applicant claimed fact coverage issue not responded to by respondent breach of good faith duty. B accepted delay in responding but claimed only had time to complete restructure decision before going on leave. After applicant raised issue again, different manager stated issue of coverage to be discussed with individual employees. Applicant claimed right to be involved centrally in coverage issues undermined. Applicant claimed team leader positions covered by CEA as roles already leadership roles not treated by parties in past as management positions falling outside coverage of CEA.;AUTHORITY FOUND –;DISPUTE: Parties had not excluded team leaders from coverage of CEA and team leaders had been included expressly in CEA across respondent’s business. Team leader positions not managerial positions as term not defined in CEA, wording used related to more senior positions and removal of language from previous CEAs excluding position above certain level from coverage did not mean more junior roles now excluded also. Not likely delegations would reach team leader positions and new team leader positions set at same level as other supervisor position covered by CEA. Respondent had obligation to negotiate coverage with applicant as team leader positions covered by CEA. Question answered in favour of applicant.;GOOD FAITH – PENALTY: Respondent did not respond to applicant in timely manner and fact B absent no defence. B failed to fulfil assurance given to applicant. Respondent breached good faith duty by proceeding with restructure decision without engaging further with applicant once coverage issue raised. Respondent’s response inadequate as obligation to deal with applicant over coverage issue rather than leave it to people selected to fill team leader positions. Issue of respondent’s making and not appropriate to leave it to applicant to resolve problems by taking proceeding. Respondent breached good faith duty. Breach deliberate but not sustained. Penalty not appropriate as would not assist support of successful employment relationship. No penalty. |
| Result | Question answered in favour of applicant ; Application partially granted (good faith – penalty) ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s3(a)(ii);ERA s4(4)(b);ERA s53 |
| Cases Cited | Denbee v United Group Rail (NZ) Ltd (formerly Alstom Transport New Zealand Ltd) unreported, D Asher, 7 February 2006, WA 14/06 |
| Number of Pages | 12 |
| PDF File Link: | 2012_NZERA_Wellington_143.pdf [pdf 193 KB] |