| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 240/09 |
| Hearing date | 27 Mar 2009 |
| Determination date | 17 July 2009 |
| Member | V Campbell |
| Representation | J Watson ; P Cranney |
| Location | Auckland |
| Parties | Wilson-Busing & Anor v New Zealand Public Service Association |
| Other Parties | Karepe |
| Summary | GOOD FAITH – Applicants (2 union members) claimed respondent (union) breached, good faith obligations, section 51 ERA, clause 3 of respondent’s rules, and bargaining process agreement with District Health Boards (“DHB”) during negotiations for Multi Employer Collective Agreement (“MECA”) – Applicants claimed penalties for breaches, damages for lost earnings, and costs – Respondent denied claims but acknowledged errors made during negotiation of MECA by both DHBs and respondent – Respondent argued acted at all times in good faith – Authority noted applicant and respondent in an employment relationship – Applicants argued respondent made different negotiations from National Terms of Settlement (“NTS”) and MECA and members not notified of differences – Applicants claimed following negotiations placed on incorrect salary scale through breaches of good faith by respondent – Authority found NTS agreed to by respondent’s members never had contract status – Authority found Employment Court (“EC”) had held MECA unlikely to have legal effect as document never ratified – Applicants advised by respondent that role as health promotion officer split over two salary scales – Applicants claimed splitting of salary scales contrary to understanding from NTS discussions held prior to conclusion of MECA – Found changes made to salary scale made between ratification of NTS and signing off of MECA not put to respondent’s members for ratification – DHBs challenged Authority determination – EC made obiter comment that although union member could theoretically sue union for breach of good faith, facts did not meet high tests of bad faith required before penalty imposed – Authority found no breach of good faith when changes to where employees would be on salary scale not discussed with respondent’s members – Authority found in normal circumstances changes would be put to members for ratification but in this case ratification did not occur – Authority found applicants had not shown actions of respondent egregious, deliberate, or undertaken in bad faith – Claim dismissed – PENALTY – Applicants claimed penalty alleging respondents breached s51 ERA – Authority found penalties only recoverable for breaches of ERA where provided for in particular provision in s133 ERA – Found s51 ERA did not provide for imposition of penalty – BARGAINING – Applicants claimed respondent breached clause 3 of own rules when failed to consult with members before agreeing to salary scale change – Authority found rules required respondent to represent members in accordance with policy – Found no evidence bargaining not undertaken in accordance with policy – Authority found applicants could not argue respondent breached obligations as result of breach of bargaining agreement as bargaining agreement only between respondent and DHBs – Claim dismissed – BREACH OF CONTRACT – Applicants claimed damages to recompense reduced earning capacity due to being placed on wrong salary scale under MECA – Authority reiterated EC ruling MECA not valid collective agreement – Authority found applicants placed on correct salary scale following conclusion of bargaining – Found no losses for which damages could be ordered – Application dismissed |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA s51;ERA s4(1A);ERA s133 |
| Cases Cited | NZPSA v Bay of Plenty District Health Board & ors unreported, V Campbell, 3 October 2007, AA 305/07;Waikato DHB & Ors v NZPSA [2008] 1 ERNZ 80;Carter Holt Harvey Ltd v National Distribution Union Inc [2002] 1 ERNZ 239;Waikato DHB v NZPSA unreported, Travis J, 2 May 2008, ARC69/07;NZPSA v Waikato DHB unreported, Travis J, 2 May 2008, ARC72/07 |
| Number of Pages | 6 |
| PDF File Link: | aa 240_09.pdf [pdf 25 KB] |