| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 215/07 |
| Hearing date | 15 Jun 2007 |
| Determination date | 23 July 2007 |
| Member | R Arthur |
| Representation | S Mitchell ; P Swarbrick |
| Location | Auckland |
| Parties | Postal Workers Association v New Zealand Post Ltd |
| Summary | DISPUTE – Applicant sought declaration whether respondent entitled to withhold pay from workers (“Posties”) in relation to strike – Strike comprised posties delivering some mail and “reposting” rest – Strike surprise to respondent – Parties agreed activity comprised legal strike under s81 Employment Relations Act 2000 (ERA") – Posties notified of suspension following day, and did not return until bargaining resolved – Respondent backdated suspension to beginning of day posties undertook partial delivery – Applicant claimed posties entitled to be paid for hours worked and suspension only effective from proper service of notice – Section 87 ERA essentially unchanged for 30 years – Scheme allowing suspension inherently linear and contemplated strike, notice of suspension and no entitlement to wages happening on timeline – Suspension could not be imposed retrospectively – Disentitlement to wages applied on event of suspension rather than from event of strike – Respondent argued surprise strike action denied it proper opportunity to suspend posties – Surprise strikes legal – Employer not entitled to notice of strike – Respondent argued doctrine of abatement available – Abatement appeared inconsistent with principle underlying s85(1)(c)(i) ERA that employee cannot be sued for damages for breach of employment agreement - Abatement inconsistent with integrity of legislative provisions for suspension of employees engaged in lawful strike – If doctrine applied, part of benefit of what is otherwise immunity for striking workers from civil suit lost – Remedies – Declarations respondent not entitled to backdate suspension notices and to pay for hours worked on day – Comment on disciplinary actions open to employer when employees striking" |
| Result | Questions answered in favour of applicant |
| Main Category | Dispute |
| Statutes | Employment Contracts Act s65;ERA s81;ERA s83;ERA s85(1);ERA s85(1)(c)(i);ERA s86;ERA s87;ERA s87(2);ERA s87(4);ERA s89;ERA s157(3);Industrial Relations Act 1973 s127A;Labour Relations Act 1987 s39 |
| Cases Cited | PSA v SSC [1987] NZILR 681;Bickerstaff v Hawkes Bay Healthcare Ltd [1996] 2 ERNZ 680;Kelly v Tranz Rail [1997] ERNZ 476;Miles v Wakefield Metropolitan District Council [1987] 1 All ER 1089;Witehira v Presbyterian Support Services [1994] 1 ERNZ 578 (EC);Fogelberg, Vice-Chancellor of the University of Otago v Association of University Staff [2003] 2 ERNZ 112;Fuller and Ors v Minister for Agriculture and Food [2005] IESC 14 (Supreme Court of Ireland);Rockhouse v A-G [1998] 1 ERNZ 598;McClenaghan v Bank of New Zealand [1978] 2 NZLR 528;Larson and Ors v Ford Motor Co Ltd (1998) ERNZ Sel Cas 215 (CA);Beesley v NZ Clerical Workers Union [1991] 2 ERNZ 616 |
| Number of Pages | 13 |
| PDF File Link: | aa 215_07.pdf [pdf 52 KB] |