| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 340/08 |
| Hearing date | 21 Jan 2008 - 1 Apr 2008 (3 days) |
| Determination date | 26 September 2008 |
| Member | R A Monaghan |
| Representation | J Robson, P Kumar, D Martin ; J Rooney, L Jenkins |
| Location | Auckland |
| Parties | New Zealand Educational Institute (Inc) and Ors v Vice Chancellor University of Auckland |
| Other Parties | Smith, Parton, Cassrels, Ledger, Mahoney, Barrar, McCauley, White |
| Summary | DISPUTE - COMPLIANCE ORDER - First applicant registered union representing interests of second applicants (“A”, “B”, “C”, “D”, “E”, “F”, “G”, and “H”) - Second applicants employed on series of fixed term employment agreements (“EA”) – Applicants claimed EAs breached s66(2)(a) Employment Relations Act 2000 (“ERA”) as no genuine reasons based on reasonable grounds for fixed terms – Respondent claimed had genuine reasons based on reasonable grounds – Claimed reasons based on funding arrangements with Ministry of Education (“Ministry”) - Authority found second applicants’ positions funded through series of contracts between respondent and Ministry – Found Ministry’s funding model determined amount of funding available to pay for services – Found level of funding affected by Ministry’s policies and priorities – Found some contracts contestable so respondent not guaranteed to get contract and therefore funding - Applicants did not directly allege respondent motivated by reasons in s66(3) ERA – Authority found respondent had genuine reasons for entering fixed term agreements - Applicants claimed respondent employed 150 facilitators on fixed term agreements – Claimed wholesale fixed term employment unlawful under s66 ERA – Authority found to extent each position had to be assessed on own facts wholesale approach not appropriate – Applicant claimed respondent exaggerated nature and extent of uncertainty of funding – Claimed positions ongoing and need for them constant - Authority found evidence established ongoing and constant need for B, D, E, F, G, and H’s positions – Authority not persuaded were reasonable grounds for fixed term agreements – Found breach of s66(2)(a) ERA – Authority found C’s position different due to way funded – Found needed more information – Found A’s position no longer existed – A and C’s circumstances referred to mediation - Applicants claimed EAs breached s66(2)(b) ERA as no, or inadequate, reasons for fixed term provided – Respondent claimed provided reasons for fixed term to applicants - Authority found A, B and C received adequate advice about reasons for fixed term – Found no breach of s66(2)(b) ERA – Found initial appointments of D, E, F, G and H in breach of s66(2)(b) ERA as inadequate information provided – Found subsequently provided with sufficient information but initial breach remained - Authority found compliance order sought by applicants not appropriate remedy – Found failure to comply with s66 ERA gave employee ability to elect to treat provision terminating fixed term employment as ineffective – Found A had made that election and so referred matter to mediation – C also referred to mediation – Authority found finding of breaches of s66 ERA did not prevent B, D, E, F, G and H from seeking mediation – Found premature to make any orders - Applicant claimed respondent failed to meaningfully engage in discussions about alleged ongoing breaches of s66 ERA - Authority found no evidence respondent failed to engage in meaningful discussions – ESTOPPEL - Respondent raised issue of estoppel claiming first applicant endorsed or approved use of fixed term agreements by agreement to include wording of s66 ERA in collective employment agreement – Authority found first applicant’s agreement to inclusion of wording of s66 ERA not endorsement of use of fixed term agreements to extent applicants estopped - Found applicants not estopped from bringing claims |
| Result | Questions answered in favour of applicants ; Application dismissed (compliance order) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | Education Act 1989 s217(5)(b);Education Act 1989 s217(9);ERA s66;ERA s66(2)(a);ERA s66(2)(b);ERA s66(3);ERA s66(4);ERA s103(1)(b) |
| Cases Cited | Actors Variety etc IUOW v Auckland Theatre Trust Inc [1989] 1 NZILR 463;Canterbury Westland Free Kindergarten Association (t/as Kids First Kindergartens) v NZEI [2004] 1 ERNZ 547;National Westminster Finance New Zealand Limited v National Bank of New Zealand Limited [1966] 1 NZLR 548;Norske Skog Tasman Limited v Clarke [2004] 1 ERNZ 127;Saint Kentigern Teachers Association Inc v Saint Kentigern Trust Board [2005] ERNZ 1001 |
| Number of Pages | 32 |
| PDF File Link: | aa 340_08.pdf [pdf 86 KB] |