| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 175A/08 |
| Hearing date | 24 Jul 2008 |
| Determination date | 01 October 2008 |
| Member | R A Monaghan |
| Representation | T Williams ; J Holden |
| Location | Auckland |
| Parties | Dotse Staff Association Inc v Chief of Defence Force |
| Summary | DISPUTE - Dispute as to interpretation of coverage clause in collective employment agreement (“CEA”) - Parties had changed wording of clause from previous CEA - Respondent offered job applicant “research leader” position - Respondent claimed position outside of CEA’s coverage clause - Applicant claimed position feel within coverage clause so person covered by CEA - Authority found parties interpretations of coverage clause concerned two sentences setting out exclusion in respect of employees on Individual Management Agreements (“IMA”) - Applicant claimed second sentence limited scope of phrase “under coverage of IMA” in first sentence and amounted to closed category of exclusions - Claimed for research leader position to fall within category of exclusions would have to have been expressly listed, and as was not remained within coverage clause - Applicant claimed particular salary band was retained within coverage clause - Claimed individual or position could not be “under coverage of an IMA” if issue was whether or not IMA could be offered in first place - Respondent claimed research leader position was position “under coverage of an IMA” - Claimed were positions in particular salary band which were not management positions, and those positions were not “under coverage of an IMA” so salary band not excluded from coverage clause - Authority found some meaning had to be given to reference to not “under coverage of an IMA” as had not been in previous CEA - Authority did not accept applicant’s submission second sentence listed closed category of exclusions - Found beyond that, attempts to ascertain meaning of “under coverage of an IMA” resulted in series of circular arguments - Authority construed coverage clause by saying applied to individuals who, when CEA signed, had agreed to enter into IMAs or to other individuals already employed on IMAs - Found research leader position covered by CEA at commencement of employment for so long as position graded at particular salary band, but could opt out of coverage by moving to an IMA after initial 30-day period if IMA offered and accepted - Found appointment of person to research leader position should have been addressed in that way - GOOD FAITH - Applicant sought penalty for breach of good faith - Respondent denied breach - Applicant claimed respondent attempted to deceive it by excluding particular salary band from coverage under CEA in knowledge applicant did not agree to exclusion - Authority found while considerable inconsistency in respondent’s position about salary band no evidence of wilful attempt to deceive - No breach of good faith |
| Result | Questions answered in favour of applicant ; Application dismissed (Good faith) ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s4;ERA s62;ERA s63 |
| Cases Cited | Dotse Staff Association Inc v Chief of Defence Force unreported, R A Monaghan, 13 May 2008, AA 175/08 |
| Number of Pages | 9 |
| PDF File Link: | aa 175a_08.pdf [pdf 31 KB] |