| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 154/09 |
| Hearing date | 12 May 2009 |
| Determination date | 15 May 2009 |
| Member | R Arthur |
| Representation | R Harrison QC, R McCabe ; C Kimpton, M O'Brien |
| Location | Auckland |
| Parties | New Zealand Air Line Pilots Association Inc & Anor v Jetconnect Ltd & Ors |
| Other Parties | Cookson ; Jetstar Airways Ltd, Qantas Airways Ltd |
| Summary | PRACTICE AND PROCEDURE - Application for removal to Employment Court (“EC”) - First respondent registered subsidiary of third respondent - Third respondent registered as overseas company - Third respondent announced first respondent to stop operating domestic services - Second respondent to provide services instead - First applicant sought removal on two grounds; (1) novel and complex issues involved concerning Part 6A Employment Relations Act 2000 (“ERA”) and “a lifting of the corporate veil”; (2) only EC could order discovery and inspection of documents relating to restructuring - All respondents opposed removal application - Authority found whether changes amounted to restructuring under Part 6A ERA question of fact not law - Ground for removal not made out - Authority found applicants’ argument around “lifting corporate veil” did raise substantial questions of law - Found raised aspects of wider question about extent to which ERA good faith obligations applied to decision-making by entities within a corporate structure, including those overseas - Authority found first respondent’s position to date rested on principle of “corporate separateness”, that is decision made by parent company and that first respondent could not have done more, earlier to meet good faith requirements - However, two directors of first and second respondents also directors of third respondent - Therefore arguable first respondent aware proposal could affect its staff thereby triggering good faith obligations - Important question of law - Ground for removal made out - Found Authority’s powers to call for evidence and information from parties, along with powers to summons witnesses to bring documents, sufficient to ensure all necessary documents available to all parties before investigation meeting - Ground for removal not made out - Authority found importance of question of law raised weighed more heavily in favour of removal than factors against removal - Matter removed to EC - Authority found applicants’ application for interim orders enjoining respondents from proceeding should also be removed to EC - Much of what warranted removal of substantive application would also need to be covered in hearing interim application - Corporate decision making issue central to both interim and substantive matters - Likely to be more efficient to have both aspects of matter dealt with in one forum - EC better placed to both decide and supervise any interim orders made |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s4;ERA s4(1A);ERA s69OI;ERA s160(1)(a);ERA s178;ERA s178(2);ERA s178(2)(a);ERA s178(2)(b);ERA s178(2)(d);ERA Part 6A;ERA Part 6A subpart 3 |
| Cases Cited | Auckland City Council v The New Zealand Public Service Association and Anor [2003] 2 ERNZ 386;Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1;NZ Amalgamated Engineering, Printing & Manufacturing Union Inc v Carter Holt Harvey Ltd [2002] 1 ERNZ 74;NZ Baking Trades etc Union (Inc) v Foodtown Supermarkets Ltd [1992] 3 ERNZ 305;New Zealand Seafarers Union Inc v Silver Fern Shipping Ltd [1998] 3 ERNZ 786 |
| Number of Pages | 12 |
| PDF File Link: | aa 154_09.pdf [pdf 36 KB] |