| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 150/08 |
| Hearing date | 20 Dec 2007 |
| Determination date | 23 April 2008 |
| Member | D King |
| Representation | P Cranney ; S Wilson |
| Location | Auckland |
| Parties | Association of University Staff v Vice-Chancellor University of Auckland |
| Summary | BARGAINING – Respondent offered pay increase to non-union staff on individual employment agreements (“IEA”) without advance notice to or input from applicant – Applicant claimed respondent undermined bargaining and authority of union, breaching s32 Employment Relations Act 2000 (“ERA”) – Respondent offered pay increase to employee on IEAs before collective bargaining initiated with plaintiff – Authority found offer impacted on collective bargaining, but issue was whether offer was prohibited by statute or contract – Section 5 ERA definition of bargaining included “interactions that relate to the bargaining” - Authority found definition only included interactions which occurred after bargaining initiated – Found pursuant to s32, offers to IEA staff could not undermine applicant or bargaining as parties not begun bargaining – Also found evidence did not establish intention to undermine – Authority found respondent not prohibited from making offers to non-union staff before bargaining initiated, nor any entitlement for applicant to have prior knowledge of offers – Claim dismissed - GOOD FAITH – Applicant claimed respondent breached good faith obligations under s4 and s32 ERA – Claimed not advising applicant of pay rise in advance breached good faith - Authority found no obligation to disclose in advance - Found as gesture of good faith, respondent advised applicant of offer simultaneously with advising IEA staff – No breach of good faith - Applicant claimed respondent’s behavior in meeting misleading and deceptive as respondent failed to advise applicant of upcoming offer – Authority found no legal obligation to disclose intention, nor anything deceptive or misleading in conduct – No breach of good faith – Applicant claimed breach of good faith when some union members received respondent’s letters of offer – Authority found communications inadvertent and unintentional – Found number of letters sent in error very low and respondent advised in letter that union members should return letter – No breach of good faith – Applicant claimed breach of good faith as felt compelled to accept pay rise offer without further negotiations – Found claim not supported by evidence – No breach of good faith – Respondent sent letter after first 30 days of employment to staff who had not joined union to advise of pay increase – Applicant claimed letter breach of good faith – Authority found union had first 30 days to communicate with new staff – No breach of good faith - BREACH OF CONTRACT – Applicant claimed Umbrella Agreement (“UA”) created obligation to give applicant advance notice of pay offer to IEA staff – Parties to UA were government, eight universities and eight unions – Authority found no express obligation for respondent to advise union in UA – Found no obligations created, UA simply understanding for other purposes and terms of UA not part of collective agreement - Authority noted understood impact of actions on collective bargaining but noted inevitable tension between respondent’s obligations to applicant and to non-union staff – No breach of contract |
| Result | Application dismissed ; Costs reserved |
| Main Category | Good Faith |
| Statutes | ERA s3;ERA s4;ERA s4A;ERA s4(1A);ERA s4(1)(b);ERA s5;ERA s32;ERA s59C |
| Cases Cited | Association of University Staff Inc v The Vice-Chancellor of The University of Auckland [2005] 1 ERNZ 224;Carter Holt Harvey Ltd v National Distribution Union Inc. [2002] 1 ERNZ 239;Christchurch City Council v Southern Local Government Officers Union [2007] 1 ERNZ 37;Epic Packaging Ltd v New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc [2006] 1 ERNZ 617;National Distribution Union Inc v General Distributors Ltd [2007] 1 ERNZ 120;The New Zealand Fire Service Commission v Ivamy and Ors [1996] 1 ERNZ 85;Toll New Zealand Consolidated Ltd v Rail & Maritime Union Inc and Ors [2004] 1 ERNZ 392;Waikato District Health Board and Ors v The New Zealand Public Service Association Inc and Ors [2008] 1 ERNZ 80 |
| Number of Pages | 18 |
| PDF File Link: | aa 150_08.pdf [pdf 63 KB] |