| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 303/06 |
| Hearing date | 30 Jun 2006 |
| Determination date | 21 September 2006 |
| Member | M Urlich |
| Representation | R McIlraith ; L Yukich |
| Location | Auckland |
| Parties | ABB Ltd v The Eastern Bay Independent Industrial Workers Union & Anor |
| Other Parties | The Northern Boilmakers Industrial Council of the Manufacturing and Construction Workers Union |
| Summary | DISPUTE – Enforceability of CEA modified after ratification - CEA clause provided “Where an employee is required to work on a Public holiday, in addition to the normal salary, payment will be at time and a half for all hours worked…” – Applicant sought declaration that CEA entitled employees to time and a half, not two and a half times normal rate – Alternatively, sought rectification of CEA to record what it said was agreement between parties, i.e. time and a half – Alternatively, sought damages from first respondent for loss suffered as result of its actions – During negotiations respondent sought inclusion of “and in addition to their normal salary” to clause but applicant rejected proposal - Authority found respondent had not raised public holiday payments at subsequent meeting – Applicant’s offer, providing payment at time and half, ratified by respondent’s members – Parties met to finalise CEA – Applicant understood final copy based on offer with only minor formatting changes – On its face, clause provided for normal time plus time and a half for work on public holiday – Document executed by parties did not accurately reflect offer ratified by respondent’s members – Once an offer ratified, contract between parties is complete, binding and expresses their mutual intention – It followed that any significant change to ratified agreement must be subject to further ratification – No convincing evidence that common intention of parties changed after ratification – No evidence ratification was conditional on addition to clause – Unlikely significant change would not be documented like other changes – Authority found it likely that change to clause was mistake on part of respondent’s advocate during drafting – Mutual intention of parties clear – Error occurred rendering contract to writing, appropriate that written word of CEA corrected to record what was agreed between parties – Order for rectification made – CEA corrected by removing “in addition to the normal salary” from clause – COMPLIANCE ORDER - Respondent’s counterclaim seeking compliance with clause providing for two and a half times normal rate dismissed - No compliance order could be issued as the term with which compliance was sought did not exist |
| Result | Question answered in favour of applicant ; Orders accordingly ; Application dismissed (Compliance order) ; Costs reserved |
| Statutes | ERA s51;ERA s162;ERA s163 |
| Cases Cited | NZ Engineering etc Union Inc v Babcock NZ Ltd [1997] ERNZ 82 |
| Number of Pages | 5 |
| PDF File Link: | aa 303_06.pdf [pdf 42 KB] |