| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2017] NZERA Wellington 6 |
| Hearing date | 14 and 15 Jun 2016 (2 days) |
| Determination date | 03 February 2017 |
| Member | M Ryan |
| Representation | G Davenport, G Ballara ; P Chemis, J Howes |
| Location | Wellington |
| Parties | The Rail & Maritime Transport Union Inc v Kiwirail Ltd |
| Summary | DISPUTE - Parties disputed interpretation of collective employment agreement (“CEA”) - Overseas employees employed by overseas company performed work in respondent’s workshops - Whether respondent met obligations under CEA - GOOD FAITH - Applicant claimed respondent breached good faith - Whether respondent had good faith obligation to confirm to applicant that overseas employees paid pursuant to CEA or minimum code - JURISDICTION - Whether applicant had standing to seek determination as to whether minimum code applies to employees of overseas company working in respondent’s workshop |
| Abstract | AUTHORITY FOUND -;DISPUTE: Authority ordered non publication of financial information provided by respondent. Work performed by employees of overseas company not “ongoing business activity” per CEA. No evidence of union members being excluded from work they would ordinarily carry out. No evidence parties intended CEA to cover work performed by overseas employees. Work covered by CEA not contracted out. Language of CEA too imprecise to create obligations sought. Use of overseas employees did not breach respondent’s obligation to be an ‘employer of choice’. Questions answered in favour of respondent.;GOOD FAITH: Respondent had no obligation towards overseas employees under minimum code legislation. Good faith obligation did not require respondent to obtain information about overseas employees and pass it on to applicant. Respondent furnished information it was reasonably able to obtain. No evidence CEA diminished or members disadvantaged. No failure to consult as work performed by overseas employees not covered by CEA. No breach of good faith.;JURISDICTION: Commercial relationship between applicant and overseas company not sufficient grounds for applicant to raise employment relationship problem in respect of overseas employees. Not employment relationship problem. No jurisdiction. |
| Result | Question answered in favour of respondent ; Applications dismissed ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s4 ; ERA s4(1)(b) ; ERA s4(1A) ; ERA s4(2)(b) ; ERA s4(4) ; ERA s5 ; ERA s130 ; ERA s157(1) ; ERA s174C(3) ; ERA s174C(4) ; ERA s174E ; Health and Safety in Employment Act 1992 ; Holidays Act 2003 ; Minimum Wage Act 1983 ; State-Owned Enterprises Act 1986 s4(1) ; State-Owned Enterprises Act 1986 s4(1)(c) ; ERA Second Schedule cl10 |
| Cases Cited | Auckland Electric Power Board v Electricity Corporation of NZ [1994] 1 NZLR 551 (CA);JP Morgan Chase Bank NA v Lewis [2015] NZCA 255, [2015] ERNZ 37;Maritime Union of New Zealand Inc v Ports of Auckland Ltd [2010] NZEmpC 32, (2010) 7 NZELR 257;Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 |
| Number of Pages | 17 |
| PDF File Link: | 2017_NZERA_Wellington_6.pdf [pdf 408 KB] |