| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 216/07 |
| Hearing date | 27 Jun 2007 |
| Determination date | 24 July 2007 |
| Member | V Campbell |
| Representation | P Skelton ; A McInally |
| Location | Auckland |
| Parties | NZ Steel Ltd v New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc |
| Summary | DISPUTE – Applicant sought declaration that lawfully entitled to implement drug and alcohol policy (“policy”) – Respondents argued applicant failed to comply with contractual obligations by unilaterally imposing policy without respondents’ agreement and failed to consult about purpose and content of policy – Authority directed mediation regarding lawfulness of specific aspects of policy content, limiting scope of determination - Expert in drug and alcohol policies (“N”) met with applicant’s management – Authority satisfied purpose of meeting exploratory – N later presented to management on options for testing and policy implementation – Expert on rehabilitation (“B”) also provided expert advice – Applicant’s management made minor amendments to template policy drafted by N and B – Authority accepted draft only intended for discussion – Draft policy tabled at Strategic Co-ordinating Team (“SCT”) meeting, consisting of senior representatives from unions and management – Respondents argued applicant in breach of CEA because aspects of policy contained in guide supplementary to CEA, so changes made by applicant required agreement before implementation – Undisputed that agreement not reached – Applicant claimed agreement not necessary before policy implemented – Authority found no dispute about interpretation, operation or application of CEA or its supplementary documents – Found applicant implemented new policy - No attempt to change or interpret CEA in way which would change CEA or supplementary documents - Agreement with unions not required before policy implemented – No breach of CEA - Union delegates asked to form joint consultative committee (“committee”) to formulate policy proposal – Applicant advised all staff of available consultation process and of plan to implement policy – First respondent would not support provision in policy for random testing – Management representatives on committee made changes to draft policy – Authority dismissed respondent’s argument that had no opportunity to have input to changes made at that time – Found was available to union representatives to assist committee – Found changes to draft reflected changes discussed and agreed at committee meetings – Conflicting evidence on possibilities for active participation in committee meetings – Authority found committee meetings provided open opportunity for those present to air views – Respondent claimed timeframe for consultation insufficient given large number of issues raised and holiday period – Authority found timeframe for consultation insufficient to allow proper consultation for unions outside committee, especially given time of year – However, Authority balanced this against further discussion between parties and changes to policy post policy implementation – Respondents also claimed no consultation with health and safety representatives – Authority found ERA and Health and Safety in Employment Act reinforce employers’ positive obligations to ensure participation of employees in health and safety consultation – Delay in putting policy to health and safety forum acceptable because likely given at earliest opportunity – Conflicting evidence whether applicant responded to health and safety forum’s feedback – Authority found full initial and ongoing opportunities to discuss and raise issues relating to draft – Respondents claimed consultation sham because applicant had fixed mind in relation to policy contents and because proposal documented before consultation commenced – Found applicant’s changes to final content of policy showed did not have fixed mind – Found applicant entitled to have working plan in mind before consultation commenced, and important for parties to know proposal so can provide views - Consultation obligations met – Applicant entitled to implement policy and amended policy |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | HSE s19A;HSE s19B |
| Cases Cited | Auckland City Council v NZ Public Service Association Inc [2003] 2 ERNZ 386;Communication & Energy Workers Union Inc v Telecom NZ Ltd [1993] 2 ERNZ 429;NZ Amalgamated Engineering Printing & Manufacturing Union Inc v Air New Zealand [2004] 1 ERNZ 614;OCS Limited v Service and Food Workers Union Nga Ringa Tota Inc (Shaw J, 31 Aug 2006, WC 15/06);Toll NZ v Rail & Maritime Union [2004] 1 ERNZ 392;Wellington International Airport Ltd v Air New Zealand Ltd [1993] 1 ERNZ 671 |
| Number of Pages | 14 |
| PDF File Link: | aa 216_07.pdf [pdf 70 KB] |