| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 121 |
| Determination date | 29 March 2011 |
| Member | Y S Oldfield |
| Representation | P Cranney ; G Tayler |
| Location | Auckland |
| Parties | National Distribution Union and Ors v Bridgeman Concrete (Auckland) Ltd |
| Other Parties | Banton, Hawkins, Johnson, Morey, Patterson, Rhind, Taraare, Tautuku, Walters, Wills |
| Summary | DISPUTE – RECOVERY OF MONIES - Applicants sought order requiring respondents repay union fees deducted by it with interest and penalties - Respondent had refused to remit union fees deducted from second applicants’ wages to first applicant - Parties’ collective employment agreement (“CEA”) contained clause stating union fees would be deducted from wages of union members and remitted to union on monthly basis – Clause consistent with requirements of s55 Employment Relations Act 2000 (“ERA”) - Respondent acknowledged had obligation to pay fees to first applicant – Respondent claimed withholding fees to satisfy debt owed by first applicant in respect of losses said to have been incurred during lockout – Respondent claimed first applicant’s members blocked respondent’s vehicle exit path preventing delivery of product to customers, resulting in ruined concrete, and loss of $1,464 – Respondent claimed applicants’ actions amounted to breach of statutory duty of good faith and claim for damages arising from breach could be claimed in Authority and set off in defence of applicants’ claim - Respondent asked Authority to accept defence of set-off and dismiss applicants’ claims – First applicant acknowledged respondent entitled to assert owed money and to pursue claim in respect of that assertion – However, claimed by not remitting union fees respondent misappropriated workers wages which was expressly prohibited by Wages Protection Act 1983 - Parties agreed Authority would firstly determine whether respondent’s cross claim could be set off against obligations owed under CEA and s55 ERA – If Authority found could be no set off would proceed to make orders for respondent to pay sum owing - Authority found equitable set-off permitted setting off of unliquidated claims but required connection between two claims to be such that were in effect interdependent, with judgement in one unable fairly to be given without regard to other – Found claim was to recover membership fees deducted from first applicant’s members’ wages and held by respondent pending remittance to first applicant – Found cross claim was for unliquidated damages for alleged breach of good faith which had no connection to applicants’ claim except insofar as some of fees may have been deducted from wages of union members involved in action alleged to have caused loss – Found clear claim and cross claim not intrinsically linked – Authority satisfied cross claim not one capable, even if made out, of being set off against claim for remittance of union fees – Respondent ordered to repay first applicant $1,491 being union fees due for payment pursuant to CEA - Question of penalties reserved |
| Result | Questions answered in favour of applicants ; Penalty application reserved ; Costs reserved |
| Main Category | Dispute |
| Statutes | ERA s55;Wages Protection Act 1983 |
| Cases Cited | Grant v NZMC Ltd [1989] 1 NZLR 8;Harrison v Tuckers Wool Processors Ltd [1998] 3 ERNZ 418 |
| Number of Pages | 7 |
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