| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 360/09 |
| Hearing date | 16 Sep 2009 - 6 Oct 2009 (2 days) |
| Determination date | 12 October 2009 |
| Member | A Dumbleton |
| Representation | L Yukich ; G Service, B Kight |
| Location | Auckland |
| Parties | Electrical Union Inc and Ors v Transfield Services (New Zealand) Ltd |
| Other Parties | Croft |
| Summary | COMPLIANCE ORDER - Compliance sought with clause allowing release on pay of union delegates for union business in collective employment agreement (“CEA”) made between New Zealand Engineering, Printing and Manufacturing Union (“EPMU”) and respondent - First applicant requested release of second applicant (“C”) to assist with preparation for bargaining for CEA between first applicant and respondent - C previously member of EPMU but revoked membership to join first applicant - At time request for release made C employed on individual employment agreement (“IEA”) based on CEA - Respondent declined request as first applicant had no CEA with respondent covering C - Authority rejected applicants’ claim clause migrated from CEA to C’s IEA with first applicant being substituted for EPMU - Found clause not generic but specifically referred to EPMU - Found Authority statutorily prohibited from deleting reference to EPMU as would amount to fixing new terms and conditions of employment between C and respondent - Found clause ceased to apply to C when left EPMU - Authority found could not issue compliance order as no current situation of non compliance - Found respondent’s rejection of request to release C on pay was complete action and no further requests made - Found threat of future breach could not found making of compliance order - Applicants claimed respondent’s failure to allow C same terms and conditions as provided by CEA amounted to conferring preference because of membership or non-membership of union - Authority found s9 Employment Relations Act 2000 had no application - Found respondent had not treated C or anyone else preferentially - Application for compliance declined - Applicants sought compliance with clauses in CEA that respondent consult over implementation of GPS system and desist from implementation until consultation concluded - Authority found CEA required respondent to consult with EPMU and members before implementing GPS technology - Found respondent breached clauses in CEA by failing to properly consult with C, six other employees and EPMU - Found appropriate case to order compliance - Authority exercised power to order compliance of its own motion for persons who were not party to claim - Respondent ordered to comply with clauses in CEA - Parties directed to attempt further mediation to resolve issue - Compliance order suspended until specified date to allow for mediation |
| Result | Application dismissed (Compliance order)(Breach of CEA) ; Application granted (Compliance order)(Failure to consult on using GPS) ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | ERA s9;ERA s56;ERA s61(2)(a);ERA s137;ERA s137(2);ERA s138(1)(a);ERA s159;ERA s161(2)(b) |
| Cases Cited | Castle v Rongotai College Board of Trustees [1997] ERNZ 505;Communication & Energy Workers v. Telecom [1993] 2 ERNZ 429;NZ Dairy Workers v NZMP [2002] 1 ERNZ 361;United Food Workers v Talley [1993] 2 ERNZ 360 |
| Number of Pages | 15 |
| PDF File Link: | aa 360_09.pdf [pdf 54 KB] |