| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 206/10 |
| Hearing date | 22 Jul 2010 |
| Determination date | 11 November 2010 |
| Member | J Crichton |
| Representation | A McKenzie ; G Pollak |
| Location | Hokitika |
| Parties | The New Zealand Dairy Workers' Union v Westland Co-Operative Dairy Company Ltd |
| Summary | COMPLIANCE ORDER - Applicant sought compliance with s69T(b) Employment Relations Act 2000 (“ERA”) - Parties had collective employment agreement (“CEA”) containing bargaining fee clause – Several of applicant’s members (“employees”) resigned membership of applicant – For various periods of time until signed individual employment agreements (“IEA”) with respondent employees continued to be covered by CEA – Employees refused to consent to deduction of bargaining fee in accordance with CEA – Respondent refused to deduct bargaining fee without employees’ consent - Respondent initially claimed bargaining fee clause in CEA could not override employees’ rights as provided for in Wages Protection Act 1983 (“WPA”) – Respondent subsequently accepted that s69W(b) ERA made clear bargaining fee clause overrode WPA - Respondent then claimed bargaining fee clause in CEA did not comply with requirements in s69P(d) ERA, therefore clause unenforceable – Section 69P(d) ERA required bargaining fee clause to provide that employees' terms and conditions of employment comprised terms and conditions of employment specified in collective agreement – Authority found clause in CEA stated workers who paid bargaining fee entitled to terms and conditions of CEA – Authority satisfied clause met requirements of s69P(d) ERA – Authority did accept respondent’s contention that once employees not only ceased union membership but also entered into alternative contractual arrangements then bargaining fee clause no longer applicable – Once employee covered by IEA that was different from CEA no longer deriving benefit of terms and conditions bargained for by union - Found applicant entitled to receive bargaining fee pro rated for period from date of resignation to date employees signed IEAs - Applicant submitted effect of s69S ERA was to effectively require that any employee was covered by bargaining fee clause if were within coverage clause of CEA, not union member, had not advised employer of wish not to pay bargaining fee and either entitled to vote in secret ballot or employed immediately after secret ballot held but before collective agreement came into force - Authority found applicant’s logic flawed - Found on applicant’s interpretation employees would have no free choice because as long as coverage clause applied would be required to pay bargaining fee - Found correct interpretation of s69S ERA must read that section as being subject to definition of bargaining fee clause contained in s69P ERA - Compliance ordered - Pursuant to s69T ERA respondent to pay applicant pro rata bargaining fee payable to applicant for period between date of resignation of employees from applicant and date employees’ signed IEAs |
| Result | Compliance ordered ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | ERA Part 6B;ERA s69P;ERA s69P(a);ERA s69P(b);ERA s69P(c);ERA s69P(d);ERA s69S;ERA s69T;ERA s69T(b);ERA s69W;ERA s69W(b);Wages Protection Act 1983 |
| Cases Cited | NZ Dairy Workers Union Inc v New Zealand Milk Products Ltd [2004] 1 ERNZ 376 |
| Number of Pages | 8 |
| PDF File Link: | ca 206_10.pdf [pdf 27 KB] |