| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 98 |
| Hearing date | 12 Feb 2015 |
| Determination date | 31 March 2015 |
| Member | J Crichton |
| Representation | R Rendle ; H White |
| Location | Auckland |
| Parties | Golden Bay Cement, a division of Fletcher Concrete and Infrastructure Ltd v Northern Amalgamated Workers' Union of New Zealand Inc. |
| Summary | DISPUTE – Parties disputed whether clause in employment agreement (“EA”) conferred unlawful preference on respondent’s members - Clause stated where union employee’s position became vacant, applications would be opened to union employees first –COUNTERCLAIM - GOOD FAITH – Respondent claimed applicant had not acted in good faith by acting in breach of disputed clause – Applicant suspended all actions relating to disputed clause until legality settled by Authority |
| Abstract | AUTHORITY FOUND –DISPUTE: Clause gave respondent first right of refusal over positions traditionally held by union members and gave union members preference over other employees based on membership of respondent union. Clause appeared to give respondent’s members material advantage over applicant’s other employees. Intention behind clause irrelevant to decision. Clause declared to have no force or effect by virtue of s 10 Employment Relations Act 2000. Authority could not modify clause and replacement provision to be negotiated by parties. Question answered in favour of applicant.COUNTERCLAIM - GOOD FAITH: Applicant had at all times during negotiations asserted clause illegal. Applicant mentioned issue during collective bargaining, but respondent would not accept changes. Applicant made clear during collective bargaining that if clause remained, applicant would challenge legality. No breach of good faith. |
| Result | Question answered in favour of respondent; Application dismissed (counterclaim - good faith) ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s7;ERA s9;ERA s9(1);ERA s9(2);ERA s10;ERA s163 |
| Cases Cited | Air New Zealand Ltd v Kippenberger [1999] 1 NZLR 418 (HC);New Zealand Engineering Printing and Manufacturing Union Inc v ACI Operations New Zealand Ltd [2006] ERNZ 361 (EmpC);Taylor Preston Ltd v New Zealand Meat Workers and Related Trades Union [2009] NZCA 372, (2009) 6 NZELR 828 |
| Number of Pages | 12 |
| PDF File Link: | 2015_NZERA_Auckland_98.pdf [pdf 179 KB] |