| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 176/07 |
| Hearing date | 2 Oct 2007 - 3 Oct 2007 (2 days) |
| Determination date | 20 December 2007 |
| Member | P Cheyne |
| Representation | P McBride, T Kennedy ; B Banks, H Fulton |
| Location | Wellington |
| Parties | New Zealand Tramways and Public Passenger Transport Authorities Employees IUOW (Wellington) Branch v Mana Coach Services Ltd |
| Summary | BARGAINING – GOOD FAITH – PENALTY - Parties bargaining for new collective employment agreement – Union issued strike notices – Respondent responded with letters advising striking employees would be suspended for duration of strikes – At time of suspension only a threatened strike, not active strike as required – No valid suspension – However, invalidity did not make actions breach of good faith – No dishonesty or ulterior purpose in circulating invalid suspension notices –Third strike arranged but called off before it began – Nothing to prevent unilateral withdrawal of strike notice – Respondent not informed of cancellation until last minute – Had already altered rosters to remove employees threatening to strike – Applicant sought arrears of wages for affected employees – No legal basis for roster changes - Respondent argued equity and good conscience meant should not have to pay arrears – Strikes lawful and contractual right could not be defeated by reference to equity and good conscience - Employees entitled to be paid in accordance with original roster –Respondent also issued direct communications to employees detailing bargaining – Applicant complained breach of bargaining process agreement and s32(1) Employment Relations Act 2000 (“ERA”) - Communications calculated attempt to bypass union, undermine its authority and undermine bargaining – Breach of good faith – Breach not sustained and respondent ultimately resiled from intentions expressed in letter - $2,500 penalty appropriate - Applicant also sought penalty for use of substitute labour to perform work of striking employees – Drivers from other depots used to run services – Could not be said drivers normally based at another depot were performing own work as did not regularly or routinely work out of different depot – However, no evidence to indicate lack of consent – Number of casual employees also used to cover striking workers – Nature of casual employment meant not “already employed” by respondent at time of strike – Breach of s97 ERA - $4,000 penalty appropriate |
| Result | Orders accordingly ; Arrears of wages (Quantum to be determined) ; Penalty(payable to Crown) ($2,500)(Breach of good faith) ; ($4,000)(Breach ERA s97) ; Costs reserved |
| Main Category | Bargaining |
| Statutes | ERA s4(1);ERA s4A(b)(i);ERA s4A(b)(iii);ERA s4(3);ERA s32(1);ERA s32(1)(d);ERA s32(3)(b);ERA s80(c);ERA s81;ERA s87;ERA s89;ERA s93;ERA s97;ERA s97(3)(a);ERA s97(3)(c);ERA s99(1)(a) |
| Cases Cited | AMI Insurance Ltd v Finsec Inc [2003] 1 ERNZ 518;Bell v Broadly Downs Ltd [1987] NZILR 959;Bickerstaff v Healthcare Hawkes Bay Ltd [1996] 2 ERNZ 680;Carter Holt Harvey Ltd v National Distribution Union In [2002] 1ERNZ 239;Christchurch City Council v Southern Local Government Officers Union Inc [2007] 1 ERNZ 37;Finau and Ors v Southland Engineering Company Ltd unreported, G J Wood, 31 January 2007, WC 17/07;NZ Engineering, Printing and Manufacturing Union v The New Zealand Herald unreported, J Wilson, 24 June 2002, AA 190/02;Postal Workers Assn v NZ Post Ltd unreported, R Arthur, 23 July 2007, AA 215/07;Wellington District Woollen Mills IUOW v Feltex Carpets (NZ) Ltd [1978] ACJ 59 |
| Number of Pages | 18 |
| PDF File Link: | wa 176_07.pdf [pdf 1005 KB] |