| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 399/10 |
| Hearing date | 11 Jun 2010 |
| Determination date | 06 September 2010 |
| Member | K J Anderson |
| Representation | H White ; A Russell |
| Location | Hamilton |
| Parties | Unite Union Inc. v Waikato District Health Board |
| Summary | BARGAINING – GOOD FAITH – PENALTY – Parties engaged in bargaining for new collective employment agreement – Negotiations reached impasse and mediation failed to resolve issues – Respondent became aware of march through hospital premises on day of impending strike – Respondent claimed hospital premises not unrestricted public place and respondent reserved right to trespass unauthorised people – Respondent claimed would investigated any Union member participating in strike action – Respondent claimed only legitimate reason for striking staff member to be on premises would be to access emergency medical attention – Respondent claimed if applicant encouraged march respondent would review its cooperation – Respondent claimed march breach of good faith because misleading and deceptive, in breach of obligations to be active and constructive and responsive and communicative – Respondent claimed breach deliberate because applicant instructed not to access premises – Respondent claimed breach serious because disrupted hospital – Respondent claimed breach sustained because continued after security personnel stated march unauthorised and contrary to instructions – Respondent claimed march undermined employment relationship because in contravention with direct instructions – Respondent claimed breached code of good faith for public health sector – Applicant argued outside Authority’s jurisdiction as trespass tortuous action – Authority found applicant’s actions related to good faith and within Authority’s jurisdiction – Found no proof applicant misleading or deceiving – Found applicant breached obligations to be active and constructive and responsive and communicative – Found actions not deliberate or serious and actions did not undermine employment relationship – No penalty awarded – Respondent notified of further strike and agreed could engage contractors to carry out role of attendants – Respondent claimed applicant did not act in reasonable way while accessing premises – Found unreasonable workers subjected to inquiry and having photos taken without consent – Found applicant failed to act in reasonable way having regard to normal business operations – Found applicant’s actions did not meet relatively high threshold of wilful failure to comply – COUNTERCLAIM – BARGAINING – BREACH OF CONTRACT – GOOD FAITH – Applicant argued contractor undertook work normally carried out by striking attendant and not necessary for contractor to carry out work for health and safety reasons – Found no breach – Found respondent did not contract out services with view to undermining or influencing collective bargaining – Applicant claimed respondent refused to participate in mediation before strike action announced and breached Bargaining Process Agreement – Found respondent breached Bargaining Process Agreement – Found parties considered and responded to proposals and not required to mediate – Applicant claimed respondent failed to be responsive and communicative as failed to answer questions relating to use of contractors – Found applicant dissatisfied with respondent’s response – Found respondent’s actions did not constitute breach of good faith – COSTS – Costs to lie where they fall |
| Result | Applications granted (good faith) ; Applications dismissed (penalty) (counterclaim) ; Costs to lie where they fall |
| Main Category | Bargaining |
| Statutes | ERA s3(a);ERA s4;ERA s4(1);ERA s4(1A)(1)(b);ERA s4A;ERA s4A(a);ERA s4A(b)(iii);ERA s20;ERA s21(2);ERA s25;ERA s32(2);ERA s97;ERA s97(4);ERA s99;ERA s100A(4);ERA s100C;ERA s100D(4);ERA Schedule 1B cl4;ERA Schedule 1B cl4(1)(a);ERA Schedule 1B cl4(1)(b);ERA Schedule 1B cl4(2)(a);ERA Schedule 1B cl4(2)(b);ERA Schedule 1B cl3;ERA Schedule 1B cl4(4);ERA Schedule 1B cl9(d);ERA Schedule 1B cl10(2);ERA Schedule 1B cl12;ERA Schedule 1B cl23(a);ERA Schedule 1B cl23(b);ERA Part 8A |
| Cases Cited | Air Nelson Limited v New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc [2010] NZSC 110;Waikato District Health Board v The New Zealand Public Service Association Inc and Ors [2008] ERNZ 80 |
| Number of Pages | 20 |
| PDF File Link: | aa 399_10.pdf [pdf 76 KB] |