| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 175/08 |
| Determination date | 13 May 2008 |
| Member | R A Monaghan |
| Representation | T Williams ; J Holden |
| Location | Auckland |
| Parties | Dotse Staff Association Inc v Chief of Defence Force |
| Summary | PRACTICE AND PROCEDURE – GOOD FAITH – In earlier statement of problem, applicant alleged breaches of good faith in relation to bargaining – Authority directed parties to mediation – Memorandum of agreement concluded in mediation and resulted in earlier statement of problem being withdrawn – In letter to Authority withdrawing earlier statement of problem, applicant claimed was placed under duress during mediation, in that respondent threatened to “negate” terms of settlement and so had no option but to accept respondent’s interpretation of terms and withdraw claims – In present statement of problem applicant sought Authority investigation of earlier breaches of good faith because of concerns regarding mediation – Respondent claimed statement of problem raised matters that were resolved in mediation, therefore could not be raised again – On face of memorandum matters resolved in mediation – Authority did not accept argument that because good faith not discussed in mediation that could be raised again to render parts of memorandum unenforceable – Seemed applicant claiming some or all terms of memorandum entered into under duress – Authority considered scope of s148 Employment Relations Act (“ERA”) – Authority outlined position of Court of Appeal in Just Hotel Limited v Jesudhass [2007] NZCA 582 – Court found “all communications ‘for the purposes of mediation’ attracted statutory confidentiality, except where public policy dictated otherwise” – Authority found allegations went to heart of discussions concerning settlement, therefore difficult to say communications not “for the purposes of mediation” – Any evidence relevant to allegations not admissible – Applicants also claimed evidence admissible under s148(5) ERA as mediation undertaken with intent of resolving disagreement regarding new terms and conditions of employment – Argument under s148(5) ERA dismissed – Mediation concerned interpretation and application of new terms already agreed not with negotiation of new terms and conditions – Applicant did not address Authority on law of duress but simply asserted respondent’s actions amounted to duress – Elements of duress outlined in Pharmacy Care Systems Limited v Attorney General (CA 198/03) – Authority declined to take allegations of duress further in absence of admissible evidence or legal argument regarding presence of duress – Matters already resolved in mediation in terms of memorandum of understanding could not be relitigated |
| Result | Orders accordingly |
| Main Category | Practice & Procedure |
| Statutes | ERA s148;ERA s148(5);ERA s159(1) |
| Cases Cited | Just Hotel Limited v Jesudhass [2007] NZCA 582;Pharmacy Care Systems Limited, Unreported, 16 August 2004, CA 198/03 |
| Number of Pages | 8 |
| PDF File Link: | aa 175_08.pdf [pdf 28 KB] |