| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 77A/09 |
| Determination date | 27 August 2009 |
| Member | J Wilson |
| Representation | L Yukich ; G Service |
| Location | Auckland |
| Parties | Eastern Bay Independent Workers Union Inc. and Ors v ABB Ltd |
| Other Parties | Beijerling |
| Summary | DISPUTE – Identity of employer - Whether respondent was applicant union members’ employer – Applicant claimed respondent and third party (“CHH”) in joint-venture and that joint-venture was applicant union members’ employer – Claimed respondent would have had notice of CHH’s decision to cancel contract due to joint-venture relationship – Claimed failure to consult breached good faith obligations – Respondent argued was applicant union members’ employer at all relevant times – Argued had principal-contractor relationship with CHH – Contract between respondent and CHH provided for applicant union members to provide services – CHH cancelled contact before contract expired – Respondent did not consult applicant union before CHH’s decision made – Respondent argued had no notice of decision and matter not within their control - Preliminary determination of employer’s identity important for applicant union’s substantive claim of whether respondent breached good faith obligations – Authority found insufficient common control between respondent and CHH for parties to be in joint-venture – Found respondent solely responsible for applicant union members’ employment – Found CHH expressly excluded from controlling employees – Found relationship between respondent and CHH was principal-contractor – Found respondent was applicant union members’ employer at all material times – Question answered in favour of respondent |
| Result | Question answered in favour of respondent ; No order for costs |
| Main Category | Practice & Procedure |
| Statutes | ERA s4 |
| Cases Cited | Muollo v Rotaru [1995] 2 ERNZ 414;New Zealand Federated Labourers and Related Trades IAOW v Tyndall [1964] NZLR 408;New Zealand Seamen’s Union etc IUOW v Shipping Corporation of New Zealand Limited [1989] 1 NZILR 189;Orakei Group (2007) Ltd v Dogherty [2008] ERNZ 345 |
| Number of Pages | 7 |
| PDF File Link: | aa 77a_09.pdf [pdf 25 KB] |