| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 397 |
| Hearing date | 22 Mar 2011 - 24 Mar 2011 (3 days) |
| Determination date | 22 September 2011 |
| Member | J Crichton |
| Representation | S Mitchell ; G Malone |
| Location | Te Puke;Hamilton;Auckland |
| Parties | New Zealand Meat Workers' Union of Aotearoa Inc v Affco New Zealand Ltd |
| Summary | GOOD FAITH – Applicant claimed respondent failed to meet good faith obligations in taking actions which undermined agreement between parties – Applicant claimed not available to respondent to make terms and conditions of employment on individual employment agreement (“IEA”) so attractive as to make it unlikely worker would choose to be engaged under collective employment agreement (“CEA”) – Authority found difficult to see how respondent’s behaviour consistent with statutory obligation – Found IEA significantly more beneficial to workers than CEA – Found respondent intended to simply provide choice of agreements but that was not result – Found remuneration under IEA more attractive to most workers in most circumstances than equivalent provisions under CEA – Found CEA provided for significantly less satisfactory period of employment than IEA – Found respondent’s intention to maximise number of workers covered by IEA and minimise number of employees covered by CEA – Found respondent breached good faith obligations – BREACH OF CONTRACT – Applicant claimed respondent failed to comply with seniority provisions of CEA in place between parties – Employment Court previously found all staff covered by seniority rule – Found respondent unable to market IEA as not being subject to seniority rules spelt out in CEA – Applicant claimed laid-off workers should not have to re-apply for positions at start of new season due to seniority provisions – Applicant claimed satisfactory drug test at start of new season not in conformity with CEA – Applicant claimed laid-off workers had rights analogous to employees because they were workers intending to work – Found seniority rule to be applied strictly and respondent not to use seasonal re-engagement as means of weeding out unsatisfactory or incompetent workers – Found no right in CEA to require satisfactory drug test as prerequisite of re-engagement – COMPLIANCE ORDER – Applicant sought compliance with seniority provisions – Leave reserved for applicant to reapply for compliance should it consider respondent in default – Applicant sought compliance with terms of agreement in relation to re-engaging laid-off workers – Found respondent precluded from taking any selecting steps on re-engagement to mitigate straightforward operation of seniority rule – Respondent to re-engage workers strictly in accordance with provisions of CEA and not require re-application or drug test – Compliance ordered – Applicant sought compliance with good faith obligations – Found respondent breached good faith obligations – Respondent to provide workers with accurate and balanced information about types of employment conditions on offer and identify real differences between terms and conditions – Compliance ordered |
| Result | Applications granted ; Compliance ordered ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | ERA s3;ERA s3(a)(ii);ERA s3(a)(iii);ERA s3(a)(iv);ERA s4(1A);ERA s4(4)(b);ERA s4(6)(b);ERA s5;ERA s6(1)(b)(ii);ERA s178;Labour Relations Act 1987 s207 |
| Cases Cited | NZ Airline Pilots’ Association Inc v Bilmans Management Ltd (t/a Ansett NZ) [1991] ERNZ 670;New Zealand Meat Workers’ Union of Aotearoa Inc v Richmond Ltd [1992] 3 ERNZ 643;New Zealand Meat Workers’ Union of Aotearoa Inc v Affco New Zealand Limited [2011] NZERA Auckland 75;New Zealand Meat Workers’ Union of Aotearoa Inc v Affco New Zealand Limited [2011] NZEMPC 32;New Zealand Meat Workers’ Union of Aotearoa Inc v Affco New Zealand Limited [2010] NZEMPC 62 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Auckland_397.pdf [pdf 43 KB] |