| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 151/08 |
| Hearing date | 11 Jul 2008 |
| Determination date | 13 October 2008 |
| Member | P Cheyne |
| Representation | G Ballara ; S Turner |
| Location | Wellington |
| Parties | Hodge v Toll New Zealand Consolidated Ltd |
| Summary | DISPUTE – Applicant paid in accordance with individual employment agreement (“IEA”) differing materially from collective employment agreement (“CEA”) covering other employees of respondent who were also members of union (“M”) – Authority to determine whether applicant covered by CEA and if rectification of alleged breaches required for application of IEA – Respondent argued applicant offered IEA as alternative to coverage by CEA – Applicant claimed told by respondent CEA applied as “backstop” and would be better off under IEA – Authority found applicant’s work came within coverage of CEA which respondent party to – Found M also party to CEA and applicant member of M – Authority found applicant bound by CEA from commencement of employment – Authority found no scope for argument that employee could opt out of applicable CEA other than by leaving union – Found as applicant did not leave M bound by CEA for entire duration of employment – Applicant claimed subjected to unfair bargaining for IEA – Applicant claimed told by respondent that would be better off under IEA, which respondent denied – Applicant claimed reasonably relied on respondent’s skill, care, and advice and thereby was induced to enter IEA by oppressive means, undue influence or duress – Authority found applicant did not rely on respondent’s skill, care or advice in bargaining for IEA – Authority found applicant’s reliance not reasonable in circumstances – Found no evidence to support oppression or undue influence allegations – UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent breached terms of employment agreement when required to work permanently on night shifts for 18 months – Authority found IEA and CEA permitted respondent to determine roster arrangements – Found doing something specifically permitted by express term of employment agreement (“EA”) could not also amount to breach of same EA – Authority also found no breach of hours of work provision – Authority found no undue influence or duress in relation to applicant’s resignation from M – RECOVERY OF MONIES – Applicant claimed respondent breached CEA by refusing travel privilege – Authority ordered respondent to reimburse applicant for travel costs – ARREARS OF WAGES – Authority found IEA specified lower salary rate than CEA – Found specification of lower rate amounted to an inconsistency under s61 Employment Relations Act 2000 therefore applicant entitled to recover difference – Authority also found applicant may be entitled to payment when recalled without allowance – Authority also found applicant rostered on each year to work 7 more days under IEA when should have been rostered time off under CEA – Found applicant should be paid a day’s pay for each extra day’s work – Authority concluded applicant entitled to benefit of CEA for entire duration of employment as well as benefit of not inconsistent terms of IEA – Ship Master |
| Result | Application dismissed (Dispute) ; Application granted (Arrears of wages) ; Arrears of wages (Quantum to be determined) ; Interest 9% ; Recovery of monies (Travel expenses) ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s53;ERA s56;ERA s61;ERA s238;ERA s130(3);ERA s63A |
| Cases Cited | APN NZ Limited v NZ Amalgamated Engineering, Printing & Manufacturing Union Inc [2004] 2 ERNZ 281;New Zealand Amalgamated Engineering Printing & Manufacturing Union Inc v Energex Ltd [2006] ERNZ 749 |
| Number of Pages | 11 |
| PDF File Link: | ca 151_08.pdf [pdf 37 KB] |