| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 97 |
| Determination date | 11 March 2011 |
| Member | D King |
| Representation | R Towner ; G Pollak |
| Location | Auckland |
| Parties | Matsuoka v LSG Sky Chefs New Zealand Ltd |
| Summary | PRACTICE AND PROCEDURE – Joint application for removal to Employment Court (“EC”) – Applicant claimed entitled to be transferred to respondent from PRI Flight Catering (“PRI”) – PRI’s contract to provide catering services to Singapore Airlines ended and respondent commenced superseding contract – PRI undertook restructuring – Applicant advised by PRI right to elect to transfer to respondent – Applicant claimed elected to transfer and claimed protected employee – Respondent claimed applicant not entitled to transfer – Parties disagreed on nature of applicant’s duties – Parties claimed seven important questions of law: 1) Identity of applicant’s employer and whether or not employer was contracting party for purposes of Part 6(A) Employment Relations Act 2000 (“ERA”); 2) Applicant significant shareholder of investment owner of contracting party and in effect employer which gave rise to conflict of interest and whether respondent obliged by law to employ applicant; 3) Whether applicant entitled to elect to transfer irrespective of employment conditions, seniority, and relationship with legal employer and shareholders; 4) Whether employee could be employee affected by restructuring and must be provided with opportunity to exercise right to make election under ss69F and 69G ERA, regardless of whether employer and “person B” in definition of “subsequent contracting” were same legal entity; 5) Whether an employee identified by employer as affected by restructuring entitled to elect to transfer to new employer, regardless of matters referred to in 1, 2 and 3 above; 6) Whether employee who was entitled to elect to transfer to new employer became employee of new employer regardless of matters referred to in 2 and 3 above; 7) What terms of transfer were if applicant entitled by law to transfer – Found no previous cases had dealt with similar issues – Found in public interest matters be referred to EC – Matter removed to EC – Senior Ground Steward |
| Result | Application granted ; Matter removed to Court ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s69A;ERA s69B;ERA s69C(4);ERA s69F;ERA s69G;ERA s69I(1);ERA s178(2) ERA;ERA Part 6A;ERA Schedule 1A |
| Number of Pages | 5 |
| PDF File Link: | 2011_NZERA_Auckland_97.pdf [pdf 20 KB] |