| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 272/09 |
| Hearing date | 16 Jul 2009 |
| Determination date | 11 August 2009 |
| Member | M Urlich |
| Representation | H White ; G Malone |
| Location | Auckland |
| Parties | The New Zealand Dairy Workers Union (Inc) v Open Country Cheese Company Ltd |
| Summary | DISPUTE - Applicant notified respondent of intention to visit site - Respondent’s general manager (“S”) wrote to applicant setting out conditions for site entry - Next day applicant attempted to access site but denied access because S not present - Applicant gave respondent letter refusing respondent’s proposed conditions placed on site entry - Following day applicant initially given permission to access site but upon arrival at site informed access denied as applicant commenced legal action against respondent over access issue - Standoff between parties - Applicant’s offer to withdraw legal proceedings if access allowed rejected - S called police but police refused to remove applicant’s organisers from site - Respondent’s security guards escorted applicant’s organisers from site - Applicant’s attempts to access site four days later also blocked - Authority found respondent denied applicant access on first occasion because S absent - Found S’s absence not reasonable ground to decline access - No evidence S normally received all visitors to site - Authority found first denial of access was reaction to applicant’s attempt to exercise access rights and was not reasonable - Found on next two occasions access denied because applicant commenced legal proceedings - Authority found legal proceedings not reasonable ground to deny access - Found access rights conferred by statute and proceedings to enforce rights did not have effect of suspending rights - Parties sought guidance as to future site access - Authority found absent existing business operations requiring precise prior advice respondent’s conditions on notification of site visits went beyond statutory access notice requirements and were unreasonable - Authority found respondent could not deny access to critical hygiene areas if access reasonable - Found reasonableness to be judged on purpose and compliance with normal business operations - Authority found unreasonable for respondent to refuse to provide applicant with practical necessaries to safely access critical hygiene areas - Found unreasonable for respondent to refuse applicant operational necessaries to enable access - Found who accompanies union representative during access may impact on efficacy of access to extent of being an effective denial of access - PENALTY - Applicant sought penalty for refusal to allow access to workplace - Authority found while initial denial of access may have been motivated by concern to clarify scope of access, by time of second denial scope of access clarified - Found not consistent with respondent’s good faith obligations to resile from agreement because legal proceedings issued - Authority found breach compounded by incorrect assertion applicant’s organisers refused to undertake necessary health and safety induction, and by posting of security guards to prevent third access attempt - Authority found breaches made in full knowledge of applicant’s position in relation to site access - Authority accepted breaches damaging to parties’ relationship - Penalty warranted |
| Result | Questions answered ; Penalty ($1,000)(Payable to Crown ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s20;ERA s21;ERA s21(2);ERA s21(5);ERA s25;ERA s25(a);ERA s25(c) |
| Cases Cited | Carter Holt Harvey v National Distribution Union Inc [2002] 1 ERNZ 239 |
| Number of Pages | 8 |
| PDF File Link: | aa 272_09.pdf [pdf 27 KB] |