| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 20/08 |
| Hearing date | 7 Nov 2007 |
| Determination date | 29 February 2008 |
| Member | H Doyle |
| Representation | P Yarrall ; N Jones |
| Location | Christchurch |
| Parties | Postal Workers Union & Anor v New Zealand Post Ltd |
| Other Parties | Dalley, Evrard, Wilson |
| Summary | COMPLIANCE ORDER – Authority to determine whether second applicants entitled to payment to attend mediation – Problem arose when first applicant advised respondent that second applicant’s wished to proceed to mediation – Respondent advised first applicant that second applicants would have to apply for special leave without pay, lieu days or annual leave – Second applicant claimed requirement to attend mediation on leave without pay or annual leave breached express and implied terms of Collective Employment Agreement (“CEA”) – Also claimed requirement breached Employment Relations Act 2000 (“ERA”) and Holidays Act 2003 (“HA”) – Compliance sought with good faith and fair treatment requirements to allow second applicants to attend mediation on pay – Respondent argued requirements lawful and met obligations under CEA, ERA and HA – Second applicants viewed leave entitlements as precious and not to be used to participate in mediation – Second applicants claimed physical nature of work meant needed to go home after rounds to eat and unhappy to attend mediation in own time – Respondent claimed no written policy employees to attend mediation on pay – Respondent conceded managers may approve payment to employees to attend mediation as part of mediated settlement – Authority to consider whether breach of express provision of CEA or statutory obligation – If no breach then to consider whether implied term existed – Applicants claimed requiring employees to take annual leave breached express part of CEA – Authority not satisfied from evidence respondent refused leave or uncooperative in arranging for employees to attend mediation – Authority found no breach of CEA where up to employee whether to take leave to attend mediation – Authority found no express term in CEA that provided employee would be paid – Applicants claimed requirement to take annual leave to attend mediation also breach of good faith principles in ERA – Also claimed breach of s3 HA as time spent resolving grievances neither restful nor recreational – Authority found promotion of mediation in ERA could not be converted to specific term – Authority found not an object of ERA to address inherent inequality in employment relationship by imposing term into CEA – Found duty of good faith in ERA did not extend to imposing term into CEA – Authority accepted annual leave for rest and relaxation, however, no breach of HA – Authority also considered whether term could be implied – Authority found such a term may be reasonable but not necessary to give business efficacy to CEA – Compliance order declined |
| Result | Application dismissed ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | Holidays Act 2003 s3;ERA s3(a)(i);ERA s3(a)(ii);ERA s3(a)(v);ERA s3(a)(vi);ERA s4;ERA s137;ERA s161(2) |
| Cases Cited | Attorney-General v NZ Post Primary Teachers Assn [1992] 1 ERNZ 1163;Scally v Southern Health and Social Services Board [1991] 4 All ER 563 |
| Number of Pages | 11 |
| PDF File Link: | ca 20_08.pdf [pdf 37 KB] |