| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 196 |
| Hearing date | 10 Sep 2013 |
| Determination date | 18 September 2013 |
| Member | D Appleton |
| Representation | K Coulston ; S Wilson |
| Location | Christchurch |
| Parties | Kirkpatrick and Ors v Ravensdown Fertiliser Co-Operative Ltd |
| Other Parties | The New Zealand Meat Workers and Related Trades Union Inc, Barr, Morgan, Standen, Parker |
| Summary | ARREARS OF WAGES – UNJUSTIFIED DISADVANTAGE – COMPLIANCE ORDER – PENALTY – First applicants sought arrears of wages – First applicants claimed unjustifiably disadvantaged by respondent’s breach of good faith – Applicants sought compliance with collective employment agreement (“CEA”) – Applicants sought penalty for respondent’s breach of CEA and breach of good faith – Whether respondent entitled under CEA or offer letter sent to first applicants to transfer first applicants from six day roster to five day roster during closedown period and pay first applicants at five day roster rate – Whether respondent’s ability under CEA to change first applicants’ hours within roster pattern gave respondent right to change roster pattern itself – Whether practice in other factories supported respondent’s claim to be able to change first applicants’ roster pattern – Whether term implied into CEA by longstanding and recognised custom and practice that six day roster workers working five day roster entitled to retain six day roster pay rate |
| Abstract | AUTHORITY FOUND –;ARREARS OF WAGES – UNJUSTIFIED DISADVANTAGE – COMPLIANCE ORDER – PENALTY: Natural and ordinary meaning of clause in CEA did not allow respondent to move first applicants from six day roster to five day roster. Given specific provisions in CEA allowing respondent to shift employees between roster patterns in other circumstances, no express power to transfer six day roster worker to five day roster in absence of express authorisation. Practices in some factories not relevant as different CEA applied. No detailed evidence as to practices in factory covered by same CEA and practices did not prove respondent entitled to change first applicants’ roster pattern. CEA did not allow respondent to transfer first applicants from six day roster to five day roster. Terms of offer letter could stand together with CEA. Term in offer letter would be inconsistent with CEA if unfavourable by comparison to CEA. Respondent’s ability to require first applicants on six day roster to work five day roster under terms of offer letter meant five day roster pay rate not less favourable than term in CEA. Respondent not required to consult with union regarding introduction of relevant clause into offer letter. Implied term claimed by applicants inconsistent with express terms of CEA. Respondent’s business needs justified shifting first applicants to five day roster over closedown period and reasonable notice given. Respondent entitled under offer letter to change first applicants’ roster pattern and change hourly rate of pay. No arrears of wages. No unjustified disadvantage. Application for compliance order dismissed. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Arrears |
| Statutes | ERA s4;ERA s61;ERA s61(1);ERA s61(1)(a);ERA s61(2) |
| Cases Cited | Dwyer v Air New Zealand Ltd (No 2) [1996] 2 ERNZ 435;New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Energex Ltd [2006] ERNZ 749;Maritime Union of New Zealand Inc v Ports of Auckland Ltd (2010) 7 NZELR 257;New Zealand Professional Firefighters Union v The New Zealand Fire Service Commission [2011] NZEmpC 149;Ports of Auckland Ltd v Maritime Union of New Zealand (2010) 7 NZELR 409;Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc [2010] ERNZ 317;Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444 |
| Number of Pages | 25 |
| PDF File Link: | 2013_NZERA_Christchurch_196.pdf [pdf 363 KB] |