| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 338/07 |
| Hearing date | 18 Sep 2007 - 20 Sep 2007 (2 days) |
| Determination date | 29 October 2007 |
| Member | A Dumbleton |
| Representation | S Mitchell ; A Caisley, R Larmer |
| Location | Auckland |
| Parties | Service and Food Workers Union Nga Ringa Tota Inc v Air New Zealand Ltd |
| Summary | GOOD FAITH – Applicant alleged respondent attempted to undermine parties' collective employment agreement (CEA") by inducing members to resign from applicant in breach of s4(6) Employment Relations Act 2000 ("ERA") – Also claimed members misled about consequences of retaining union membership with applicant – Respondent adopted “In-house" Solution as alternative to outsourcing work – Applicant and its members did not agree to change CEA terms to align with Solution – Respondent distributed letter about Solution to staff believed members of applicant - Letter advised could resign from applicant and sign up to Solution on individual basis or join another union - Letter emphasised only staff participating in Solution to receive benefits, and members ineligible - Letter intended to entice employees into resigning membership and induce members not to be covered by CEA, in breach of s4(6) ERA - Respondent's claim sole purpose of letter to communicate Solution and confirm staff still union members rejected - Goal was to reduce number of employees covered by CEA – By encouraging resignation, respondent intended to completely undermine employment relationship between member and applicant - Advice non-participants in Solution not eligible for new roles not misleading or deceptive – Rather, advice put forward to persuade resignation – Respondent telephoned members and non-members regarding Solution - Not satisfied telephone calls breached s4(1) ERA obligations or dominant purpose was to advise or induce employees not to be covered by CEA – COMPLIANCE ORDER – Given breach a “one-off”, compliance not necessary and unavailable – PENALTY – Applicant sought penalty for every breach - Letter sole ground for remedies – Although respondent’s breach deliberate and serious, penalty under s4A(a) unavailable given no sustained breach – Penalties under ss4A(b)(ii) and 4A(b)(iii) could be imposed – Sending of letter could attract multiple penalties, depending on number of recipients - Scale of communications went to gravity of breach, and relevant in determining total penalty – Penalty aimed at existence of bad faith intentions – Scale to which bad faith intentions present relevant to quantum – Leave reserved for parties to make submissions on quantum of penalties" |
| Result | Question answered in favour of applicant ; Leave reserved for parties to make submissions on quantum of penalties ; No order for costs |
| Main Category | Good Faith |
| Statutes | ERA s4;ERA s4(1);ERA s4(1A);ERA s4(2);ERA s4(3);ERA s4(4);ERA s4(6);ERA s4(6)(b);ERA s4A;ERA s4A(a);ERA s4A(b)(ii);ERA s4A(b)(iii);ERA s53;ERA s56;ERA s59A;ERA s135;ERA s137;ERA s137(2);ERA s138;ERA Part 1 |
| Cases Cited | Association of University Staff Inc v The Vice-Chancellor of The University of Auckland [2004] 1 ERNZ 224;National Distribution Union Inc v General Distributors Ltd [2007] ERNZ 120; (2007) 8 NZELC 98, 710 |
| Number of Pages | 25 |
| PDF File Link: | aa 338_07.pdf [pdf 85 KB] |