| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 436 |
| Hearing date | 24 oct 2012 |
| Determination date | 05 December 2012 |
| Member | E Robinson |
| Representation | R McCabe ; M O'Brien |
| Location | Auckland |
| Parties | Greenslade v Jetstar Airways Ltd |
| Summary | DISPUTE – Interpretation of parties’ employment agreement (“EA”) – Applicant claimed respondent had breached EA as had not provided applicant with breaks in accordance with EA and s69ZD Employment Relations Act 2000 (“ERA”) – Authority found respondent did not act in breach of Part 6D ERA by not providing applicant with breaks in accordance with s69ZD ERA – Found respondent would have breached EA if particular clause taken in isolation but EA referred to Part 6D ERA did not preclude s69ZH ERA applying – Found respondent did not breach parties’ EA - GOOD FAITH – Applicant claimed respondent breached good faith obligations in relation to rest breaks – Found applicant had opportunity to raise any concerns with respondent before entering into EA – Found no evidence respondent had deliberately attempted to deceive applicant about rest breaks – Found respondent did not breach good faith obligations towards applicant - Authority recommended respondent revisit wording of EAs to ensure was meeting legislative requirements - Pilot |
| Abstract | Applicant employed as pilot. Applicant claimed respondent had breached parties’ employment agreement (“EA”) as had not provided breaks in accordance with EA and s69ZD Employment Relations Act 2000 (“ERA”) and had breached good faith obligations. Respondent denied had breached parties’ EA and claimed, if employee required to take rest break under another enactment, other enactment rather than ERA applied. Applicant claimed as flew both domestic and international routes during ‘duty periods,’ defined as “period between sign on and sign off” and when applicant on duty, was unable to take break from workplace during aircraft turnaround period on ground. Respondent chief pilot claimed was opportunity for rest or meal break for pilots during cruise part of flights although acknowledged would not be possible on shorter domestic flights. Parties’ EA stated breaks would be provided in accordance with s69ZD ERA or “any amending or substituting Acts” and no reference to s69ZH in EA. Respondent manager claimed operated pursuant to Civil Aviation Act 1990 and Australian Civil Aviation Act 1988 and accordingly complied with particular Civil Aviation Order exemption stating that pilots required to take adequate rest periods between flights (“exemption”). Exemption allowed operator to work to different set of flight and duty time limitations. Respondent claimed as only operated multi-crew operations, meal break needed to be facilitated within practical constraints with one pilot controlling the aeroplane while co-worker had rest break. Respondent claimed no set time for breaks during pilot’s flight duty period so rest breaks factored into rest breaks provided for between shifts in accordance with exemption. Respondent claimed mandatory rest breaks under exemption ensured pilots had adequate rest and took into account realities of aviation industry and claimed if s69ZD ERA requirements applied to respondent would have significant economic implications for respondent. Applicant claimed as no reference to s69ZH ERA, respondent could not rely on s69ZH ERA as justification for not complying with s69ZD ERA.;AUTHORITY FOUND –;DISPUTE: s69ZH ERA specific provision applying only to employees to whom other legislative or regulatory rest and meal breaks applied and s69ZD general provision applying to employees not covered by other legislative or regulatory rest and meal breaks. s69ZH ERA applied to respondent, not s69ZD ERA. Respondent did not act in breach of Part 6D ERA by not providing applicant with breaks in accordance with s69ZD ERA. Rest breaks under exemption much longer than rest breaks provided for by s69ZD ERA. Respondent would have breached EA if particular clause taken in isolation but EA referred to Part 6D ERA did not preclude s69ZH ERA applying. Respondent did not breach parties’ EA.;GOOD FAITH: Applicant would have been aware, given length of employment, that rest breaks at respondent in accordance with exemption not s69ZD ERA. Applicant had opportunity to raise any concerns with respondent before entering into EA. No evidence respondent had deliberately attempted to deceive applicant about rest breaks. Respondent did not breach good faith obligations towards applicant. Authority recommended respondent revisit wording of EAs to ensure was meeting legislative requirements. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Dispute |
| Statutes | Australian Civil Aviation Act 1988 s288D;Civil Aviation Act 1990 s4(1);Civil Aviation Act 1990 s4(3);Civil Aviation Act 1990 s4(4);Civil Aviation Act 1990 s30;ERA s4;ERA s69ZD;ERA s69ZH;ERA s69ZH(1);ERA s69ZH(2);ERA Part 6D;ERA s238;Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008;Interpretation Act 1999 s5;Land Transport Act 1998 |
| Cases Cited | Barker v Edgar (1898) NZPC 422;Gibbs v Crest Commercial Cleaning [2005] ERNZ 399;Marac Life Assurance Ltd v Commissioner of Inland Revenue [1986] 1 NZLR 694 |
| Number of Pages | 16 |
| PDF File Link: | 2012_NZERA_Auckland_436.pdf [pdf 289 KB] |