| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 400 |
| Hearing date | 19 Apr 2011 |
| Determination date | 15 September 2011 |
| Member | D King |
| Representation | P Carrucan ; J Douglas |
| Location | Auckland |
| Parties | NZ Professional Drivers and Transport Employees Association Inc v Transportation Auckland Corporation Ltd |
| Summary | BARGAINING – Application for reference to facilitation – Applicant claimed referral should be made on grounds set out in s50C(1)(a) and s50C(1)(b) Employment Relations Act 2000 (“ERA”) - Respondent did not oppose application but claimed only s50C(1)(a) provision applicable - Applicant sought order under s50J ERA that collective employment agreement (“CEA”) provisions be fixed if facilitation unsuccessful – Applicant sent revised prospective CEA to respondent and told respondent would take CEA to ratification next week – Respondent replied areas of CEA not agreed to and was premature to ratify – Respondent appointed new bargaining representative (“G”) to assist respondent’s general manager (“K”) with bargaining – Applicant’s previous advocate replaced by union secretary (“C”) due to ill health – C met with G and was asked to provide signed authorisation was new representative – G claimed prior to first meeting with C became aware applicant only had 15 members and requested list from C to ensure union properly constituted and C had authority to represent members – C sent G authority from 13 members that C to act as advocate and identified applicant’s bargaining team – Parties met two months later – Applicant claimed negotiation sidelined as respondent delayed until had renegotiated new collective – K claimed had been brief discussion about applicant’s members moving to individual employment agreements as previous advocate ill and few members but respondent had accepted applicant wished to continue collective bargaining – Respondent suggested preferable for applicant to operate as association and have individual employment agreements – Applicant claimed parties agreed on wages and respondent later reneged on agreement – G claimed had agreement in principle but relevant date for back pay outstanding and would formalise offer by way of letter – C replied week later, claimed back pay offer unacceptable and considered act of bad faith as disadvantaged members – Parties attended mediation – Authority found respondent had not breached obligation to be responsive and communicative as both parties changed negotiating teams causing delay – Found respondent did not fail to recognise C’s authority instead sought clarification – Found respondent did not undermine, mislead applicant or backtrack on agreement as no agreement had been reached – Found facts did not satisfy s50C(1)(a) ERA – Found remedy of fixing CEA’s provisions unavailable to applicant as s50J ERA provisions not satisfied – Found since prospective CEA sent to respondent parties had few meetings – Authority did not accept respondent had failed to comply with good faith obligations or that failure was serious, sustained and had undermined bargaining – Found although bargaining protracted not unduly protracted and efforts to reach resolution not extensive – Application for referral to facilitation dismissed |
| Result | Application dismissed ; Costs reserved |
| Main Category | Bargaining |
| Statutes | ERA s3(a)(iii);ERA s4;ERA s4(1)(b)(i);ERA s4(1)(b)(ii);ERA s4(1A)(b);ERA s32(1)(d)(i);ERA s32(1)(d)(iii);ERA s50A;ERA s50C(1)(a);ERA s50C(1)(b);ERA s50J |
| Cases Cited | McCain Foods (NZ) Ltd v Service and Food Workers Union Nga Ringa Tota Inc [2009] ERNZ 28;NZ Meat Workers and Related Trades Union v Crusader Meats NZ Ltd unreported, E Robinson, 24 May 2007, AA 157/07;PMP Print Ltd v New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc (2005) 7 NZELC 97,778 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_400.pdf [pdf 27 KB] |