| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 109 |
| Determination date | 23 March 2011 |
| Member | D King |
| Representation | R Towner ; G Pollak |
| Location | Auckland |
| Parties | Tan 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 Pacific Flight Catering (“PFC”) – PFC’s contract to provide catering services to Singapore Airlines (“SQ”) ended and respondent commenced superseding contract – PFC undertook restructuring – Applicant advised by PFC right to elect to transfer to respondent – Applicant claimed elected to transfer and claimed protected employee – Respondent claimed applicant not entitled to transfer – Parties claimed four 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) Whether applicant an employee entitled to elect to transfer; 3) 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; 4) Whether applicant entitled by law to elect to transfer and what were terms of transfer – High Court previously rejected argument respondent only obliged to accept transfer of employees from PFC to extent of time spent on catering work for SQ – Court found applicant elected to transfer – Applicant’s employer PRI Flight Catering Limited not contracting party that lost SQ contract and not party to Court proceedings – Respondent did not accept applicant entitled to transfer – Respondent offered applicant conditional employment on Authority or EC determining whether applicant entitled to transfer – Authority found no previous cases dealt with above issues – Found in public interest that matters be referred to EC – Matter removed to EC – Airline Equipment Supervisor |
| 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 Part 6A;ERA s178(2)(a);ERA s178(2)(b);ERA s178(d);ERA Schedule 1A |
| Number of Pages | 4 |
| PDF File Link: | 2011_NZERA_Auckland_109.pdf [pdf 18 KB] |