| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 134/09 |
| Hearing date | 22 Jun 2009 |
| Determination date | 21 August 2009 |
| Member | H Doyle |
| Representation | P Yarral ; M Ryan, A Gray |
| Location | Christchurch |
| Parties | The Manufacturing & Construction Workers Union v Industrial Services Christchurch Ltd & Ors |
| Other Parties | Interclean Ltd, Interclean Industrial Services Ltd, Interclean Industrial Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of respondent – Authority found all four companies to be named as respondent – Found if orders made, to be made jointly or severally – DISPUTE – GOOD FAITH – PENALTY – Applicant claimed respondent refused to abide by collective employment agreement (“CEA”) and induced members to leave union and enter individual employment agreements (“IEA”) while CEA in force – Applicant claimed respondent’s actions breached good faith obligations under Employment Relations Act 2000 (“ERA”) – Applicant sought enforcement of CEA and penalty for good faith breaches – Respondent argued no failure to abide by CEA terms as managers who negotiated and signed CEA did not have authority – Also argued did not induce applicant’s members to enter IEAs – Respondent’s South Island branch manager (“G”) argued instructed by respondent’s general manager (“S”) to enter into negotiations on respondent’s behalf – Bargaining took place between parties and proposed CEA agreed upon – CEA ratified by applicant’s members and signed by applicant’s representative (“Y”) – CEA signed by G on respondent’s behalf and copy sent to respondent’s Auckland office – Subsequently G advised by S that respondent would not abide by CEA – G believed had authority to sign on respondent’s behalf – Authority found G signed CEA within scope of actual authority – Found reasonably and objectively appeared to applicant that G had authority to enter CEA on respondent’s behalf – Authority found enforceable CEA existed from date of G’s signature – Authority satisfied no variation or alteration to CEA in force – Applicant believed most of its members employed by respondent resigned from applicant because entered IEAs with respondent – Found no employees members of union at current time – Authority found difficult for applicant to identify what was owing to whom under CEA – Found given existence of CEA between applicant and respondent, Authority left further enforcement action to applicant – Applicant had met with respondent who indicated would not comply with CEA – Authority found meeting notes indicated respondent stated employees in Christchurch welcome in CEA but would be offered same terms as Auckland branch negotiating own CEA – Respondent offered IEAs at meeting – Found applicant’s notes indicated respondent advised union members present at meeting entitled to same allowances as in CEA – Authority found offering of IEA inducement to union members not covered by Christchurch CEA – Found if genuine concern about G’s authority to sign then should have resolved issue before IEAs offered – Authority found IEA offers not made in honest and open way without ulterior purpose or motivation – Found not good faith actions – Found actions intended to undermine Christchurch CEA and benefit to applicant’s members – Authority satisfied respondent’s actions designed to induce applicant’s members to not be covered by Christchurch CEA by simply ignoring existence or dealing in other than open manner about its existence – Authority found respondent’s actions breached good faith obligations under s4(6)(1) ERA – Authority rejected claim under s59B ERA and damages claim for lost membership fees – Authority satisfied breach of good faith intended to undermine CEA – Found appropriate to impose penalty on respondents either jointly or severally – Found penalty at higher end of scale of $7,000 appropriate |
| Result | Orders accordingly ; Penalty ($5,000 payable to applicant) ($2,000 payable to Crown) ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s4(6);ERA s52;ERA s52(1);ERA s59B;ERA s4A;ERA s4(1);ERA s42;ERA s45 |
| Number of Pages | 10 |
| PDF File Link: | ca 134_09.pdf [pdf 34 KB] |