| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 453 |
| Hearing date | 29 Nov 2012 - 30 Nov 2012 |
| Determination date | 12 December 2012 |
| Member | A Fitzgibbon |
| Representation | S Mitchell ; K Dunn |
| Location | Auckland |
| Parties | Maritime Union of New Zealand v Ports of Auckland Ltd |
| Summary | BARGAINING – PENALTY – Applicant claimed respondent engaged contractors to perform work of striking employees and sought penalties – Authority found during strike contractor’s (“N”) employee and respondent’s apprentice did work on daily basis performed normally by applicant’s members – Found highly unlikely respondent would agree to N’s employee travelling to New Zealand to provide training at cost in excess of $2,000 a day when respondent had notice of strike action and no employees to train because employees on strike – Found N’s employee allowed to perform work of striking employees in breach of s 97 Employment Relations Act 2000 (“ERA”) – Found refuelling and repair of straddle carriers by contractor (“P”) work performed normally by respondent’s employees – Found P performed work of striking employees in breach of s 97 ERA – Found respondent aware of s 97 ERA but made calculated decisions to breach provision in order to keep respondent operating during strike – $40,000 penalty appropriate |
| Abstract | Applicant claimed respondent engaged contractors to perform work of striking employees and sought penalties. During strike by applicant’s members, applicant claimed employee of contractor (“N”) performed repair work carried out normally by applicant’s striking members. N manufacturer of straddle carriers (“straddles”) used by respondent and had provided training to respondent’s employees on servicing and repair of straddles. Respondent claimed N’s employee engaged to provide ‘hands on’ training before strike and training not work performed normally by applicant’s members. Because of strike only one apprentice of respondent able to participate in training by N’s employee. Applicant claimed refuelling of straddles and some repair work also being carried out by another contractor (“P”). Respondent claimed P had performed repairs in workshop occasionally and refuelled equipment including fork hoists and repair and refuelling of straddles same type of work as performed by P.;AUTHORITY FOUND –;BARGAINING – PENALTY: During strike, N’s employee and apprentice did work on daily basis performed normally by applicant’s members and that would have been performed by applicant’s members if not on strike. Respondent did not confirm arrangements for N’s employee to come to New Zealand and undertake training until after respondent knew strike to take place. Highly unlikely respondent would agree to N’s employee travelling to New Zealand to provide training at cost in excess of $2,000 a day when respondent had notice of strike action and no employees to train because employees on strike. N’s employee retained to enable essential work at respondent to continue during course of strike and employee allowed to perform work of striking employees in breach of s 97 Employment Relations Act 2000 (“ERA”). Refuelling and repair of straddles by P work performed normally by respondent’s employees rather than P’s employees. No reference in s 97 ERA to ‘type of work’. P allowed to perform work of striking employees in breach of s 97 ERA. Respondent aware of s 97 ERA but made calculated decisions to breach provision in order to keep respondent operating during strike. $40,000 penalty appropriate. |
| Result | Applications granted; Penalty ($30,000)(payable to Crown)($10,000)(payable to applicant); Costs reserved |
| Main Category | Bargaining |
| Statutes | ERA;ERA s97;ERA s97(4);ERA s97(6);ERA s135(2);ERA s135(3);ERA s136 |
| Cases Cited | Air Nelson Ltd v New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc [2010] ERNZ 279; [2010] 3 NZLR 433;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_453.pdf [pdf 240 KB] |