| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 480 |
| Hearing date | 19 Oct 2011 |
| Determination date | 07 November 2011 |
| Member | A Dumbleton |
| Representation | S Mitchell ; G Malone |
| Location | Auckland |
| Parties | New Zealand Meat Workers and Related Trades Union Inc v AFFCO New Zealand Ltd |
| Summary | BREACH OF CONTRACT – Applicant claimed respondent unreasonably refused applicant access to work premises – Applicant given permission to attend workplace during smoko breaks on specified day with conditions – Applicant declined attending workplace as permitted by respondent – Authority found withholding consent for applicant to enter workplace reasonable – Found important for applicant to keep first day of split shift free from distraction – Found reasonableness present in offer of alternative entry date only two days later – Found other avenues for applicant to address breach regarding split shifts – Found effect of breach did not make otherwise reasonable refusal of entry unreasonable – Found no breach by respondent – CEA provided for consultation between parties – Applicant claimed no consultation in relation to split shifts – Respondent claimed consultation not necessary because applicant aware of intention to run split shifts and terms of employment not affected – Found consultation required – Found major change involved in introduction of split shifts – Found respondent acknowledged introduction of split shifts was significant change when refused to allow applicant to visit on first day of change – Applicant claimed seniority rights or entitlements breached by respondent – Found no breach in manning split shifts – Found no evidence any worker engaged or disengaged out of seniority – COMPLIANCE – Respondent claimed large increase in number of grievances and disputes filed in Authority by applicant without adequate information having been provided to respondent or without proper opportunity to resolve matter at early stage – Respondent claimed caused increased time and money to be spent and caused unnecessary friction between respondent and employees – Respondent claimed applicant repeatedly failed to follow disputes procedure of collective employment agreement (“CEA”) – Respondent sought compliance with CEA – Found respondent’s complaint about misuse of process unjustified in relation to consultation about split shifts – Found respondent effectively sought injunction to stop applicant from making application to Authority – Found injunction could not be granted – Found Authority had no jurisdiction to make order in anticipation of particular employment relationship problem – Found difficulties in supervising compliance – PENALTY – Found penalty appropriate for failure to consult on shift splits – Found failure to consult was breach of fundamental substantive right of party to employment agreement - $4,000 penalty appropriate or 20 percent of new maximum penalty able to be imposed |
| Result | Applications dismissed (breach of contract) (compliance) ; Applications granted (breach of contract) (penalty) ; Penalty ($4,000)($2,000 payable to Crown)($2,000 payable to applicant) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s4;ERA s4(1A);ERA s20;ERA s21;ERA s135;ERA s137;ERA s159 |
| Cases Cited | Wellington International Airport Ltd v Air New Zealand Ltd [1993] 1 NZLR 671 |
| Number of Pages | 12 |
| PDF File Link: | 2011_NZERA_Auckland_480.pdf [pdf 57 KB] |