| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 159/10 |
| Hearing date | 1 Oct 2010 - 7 Oct 2010 (5 days) |
| Determination date | 08 October 2010 |
| Member | A Dumbleton |
| Representation | P Cranney ; P McBride |
| Location | Wellington |
| Parties | Service & Food Workers' Union Nga Ringa Tota Inc v OCS Ltd |
| Summary | PRACTICE AND PROCEDURE – Application under s69O Employment Relations Act 2000 (“ERA”) – Applicant (SFWU – Union) applied to have Authority investigate bargaining for redundancy entitlements and to determine entitlements – Immediate issues for Authority whether to order removal of applicant’s s69O ERA application to Employment Court (“EC”), whether to refer question of law to EC, or whether to stay investigation of bargaining until Court of Appeal (“CA”) judgment on two particular appeals currently before it – If leave to appeal granted by CA its judgment would consider and answer questions of law concerning same parties central to matter before Authority – Noted CA’s answer may determine whether Authority could embark on s69O ERA investigation – Noted decision may also decide scope of determination of redundancy entitlements Authority able to make – Reasons for redundancies situation covered by Part 6A ERA – Following breakdown of bargaining applicant invoked s69O ERA seeking to have Authority investigate bargaining and if necessary determine redundancy entitlements – Respondent (OCS Ltd – Employer) argued Authority should not commence any investigation or make any determination under s69O ERA until CA judgment on appeal and cross appeal filed – Appeals raised question as to application of s69N ERA – Respondent argued Authority should not embark upon investigation of bargaining with view to determining redundancy entitlements – Right of cleaners through applicant to enter into bargaining question of law that may eventually be answered by CA – If right existed further question as to scope of “redundancy entitlements” able to bargain for and whether monetary redundancy compensation included – Authority had jurisdiction to investigate bargaining and determine redundancy entitlements provided circumstances expressed in s69N ERA present – Noted respondent had persuasive argument that until questions of law finally decided, Authority should not proceed with s69O ERA application, in case determination vitiated as result of subsequent CA decision – Authority found at time and before any decision on either of two appeals before CA, important questions of law identified in removal application likely to be determined by EC, if removed there, with same answers that have already been given – Found to extent questions of law likely to arise in matter before Authority, questions had been answered by EC whose answers must be taken as authoritative until CA decision – Authority ordered removal of part of matter under s178(2)(d) ERA – Found EC should if could determine part of matter before Authority requiring final decision as to interpretation of relevant provisions in Part 6A ERA – Found part could be removed able to be separated from part requiring investigation of bargaining and determination of redundancy entitlements by Authority – Found part can be adjourned or deferred by Authority until final decision on removed part given – Authority not removing questions regarding Authority’s role as investigator of bargaining and determiner of redundancy entitlements – Authority declined to refer question of law to EC under s177 ERA as seemed CA would ultimately answer such questions – Found if applicant’s right of access to s69O ERA confirmed then Authority would immediately make arrangements to investigate with urgency redundancy entitlements – Found following final determination by EC or CA, applicant to confirm to Authority intention to proceed with investigation of bargaining and determination of redundancy entitlements – Application under s69O ERA adjourned in meantime |
| Result | Part of matter removed ; Orders accordingly ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s69N;ERA s69N(1)(c);ERA s69O;ERA Part 6A;ERA s177;ERA s178;ERA s178(2)(b);ERA s178(2)(d) |
| Cases Cited | Service and Food Workers Union Nga Ringa Tota Inc.& Ors v OCS Ltd [2010] ERNZ 331 |
| Number of Pages | 7 |
| PDF File Link: | wa 159_10.pdf [pdf 27 KB] |