| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 31/08 |
| Hearing date | 20 Mar 2008 |
| Determination date | 25 March 2008 |
| Member | P Cheyne |
| Representation | A Little ; J Roberts, S Turner, R Brunton |
| Location | Wellington |
| Parties | New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc & Anor v Sitel New Zealand Ltd & Ors |
| Other Parties | Barber ; Telecom New Zealand Ltd, Baty |
| Summary | INTERIM INJUNCTION - JURISDICTION - First respondent (Employer") operated call centre from building owned by second respondent - Lost contract with second respondent which resulted in redundancies - Some affected employees members of first applicant ("Union") and covered by collective agreement - Union asked to exercise right of entry to discuss redundancy situation with members - Employer declined request - Union officials attempted to exercise right of entry regardless - Employer resisted access with security officers and others - Union organiser arrested and charged with assault - Union organiser served trespass notice by second respondent in capacity as building owner - Union sought interim and permanent injunctions against employer and second respondent - Second respondent had no employment relationship with Union or employer - Argued Authority lacked jurisdiction to make orders sought - Authority had power to extend remedial orders beyond those party to employment relationship - High Court contemplated Authority having powers to take action against non parties to employment agreement - Authority distinguished Credit Consultants Debts Service v Wilson (No 2) (cited below) - Established, to arguable standard, had jurisdiction - However, no order made against second respondent - Section 13 Trespass Act 1980 stated nothing in Act should derogate from anything any person was authorised to do by or under any other enactment or restrict provisions of any enactment conferring a right of entry on any land - Second respondent accepted Union organiser not trespasser if entered building under ss20 and 21 Employment Relations Act 2000 ("ERA") - Full Court in National Distribution Union Inc v Carter Holt Harvey Ltd (cited below) held person exercising statutory rights of entry could not ordinarily be trespasser - Application against second respondent dismissed - Authority concluded should be a form of interim injunction against employer - No current agreement between Union and employer concerning access to workplace - When exercising right of entry must do so in reasonable way, having regard to normal business operations - Employer’s interpretation failed to recognise overall objects of ERA - Good faith argument raised by employer not helpful - Arguable employer’s own actions lacked good faith - Section 26 ERA argument unhelpful - Employment Court had recognised s26 ERA dealt with a different topic to ss20 and 21 ERA - Authority found strongly arguable case employer did not comply with, and was in breach of ss20 and 21 ERA - Balance of convenience favoured Union - Employees in much weaker bargaining position if redundant, and redundancy was imminent - Orders made restraining employer from obstructing or denying Union representatives accessing building when access for purpose of discussion with members about redundancy issues - Application against employer granted, with conditions" |
| Result | Application granted (Interim injunction against first respondent) ; Orders accordingly ; Application dismissed (Interim injunction against second respondent) ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s20;ERA s21;ERA s21(2);ERA s21(5);ERA s26;ERA s148;Trespass Act 1980 s4;Trespass Act 1980 s13 |
| Cases Cited | BDM Grange v Parker [2005] ERNZ 343;Coutts Cars Ltd v Baguley [2001] ERNZ 660;Credit Consultants Debts Service v Wilson (No 2) [2007] ERNZ 205;Foodstuffs (Auckland) Ltd v National Distribution Inc [1995] 1 ERNZ 110;Just Hotel Limited v Jesudhass [2007] NZCA 582;National Distribution Union Inc v Carter Holt Harvey [2001] ERNZ 822;Service Workers Union of Aotearoa v Southern Pacific Hotel Corp (NZ) Ltd [1993] 2 ERNZ 513;TelstraClear Limited v NZ Amalgamated Engineering, Printing and Manufacturing Union Inc 31 August 2004, P Cheyne (member), CA 107/04;Terry Young Limited v NZ Engineering, Printing and Manufacturing Union Incorporated [2007] ERNZ 533 |
| Number of Pages | 11 |
| PDF File Link: | wa 31_08.pdf [pdf 40 KB] |