Auckland Dhb & 20 Other Dhb Named in the Attached Schedule v Nz Resident Doctors Assoc

JurisdictionNew Zealand
CourtEmployment Court
JudgeG L Colgan,Judge A A Couch
Judgment Date03 November 2010
Docket NumberARC 54/08
Date03 November 2010

[2010] NZEMPC 148



Chief Judge G L Colgan and Judge A A Couch

ARC 54/08

In the Matter of a challenge to a determination of the Employment Relations Authority

Auckland District Health Board and 20 Other District Health Boards Named in the Attached Schedule
New Zealand Resident Doctors Association

Hamish Kynaston and Mark Donovan counsel for the plaintiffs

Bill Manning and Anna Paton counsel for the defendant

Peter Cranney counsel for NZ Council of Trade Unions as intervener

Tim Cleary counsel for Business New Zealand as intervener


As part of the duty of good faith, the Employment Relations Act 2000 (the Act) requires parties engaged in collective bargaining to provide certain information to each other on request. This decision concerns the scope and application of those provisions.


The New Zealand Resident Doctors Association (the RDA) is a union representing doctors employed in public hospitals known as Resident Medical Officers (RMOs). For some years, the RDA has been party to a series of multi employer collective agreements (MECAs) with the plaintiffs who are District Health Boards operating public hospitals and employers of RMOs (the DHBs). The parties began bargaining for a new MECA in May 2007. In the course of bargaining, the RDA invoked the parts of the Act relating to the provision of information for the purposes of bargaining. The RDA was dissatisfied with the DHBs' response and alleged that, as a result, they were in breach of their statutory duty in several respects. The DHBs denied any such breach.


This dispute was investigated by the Employment Relations Authority which gave a determination 1 in favour of the RDA. The Authority found that the DHBs were in breach of the duty of good faith in two respects and issued a compliance order requiring the DHBs to remedy one of those breaches. The DHBs challenged the whole of the Authority's determination and the matter came before the Court in a hearing de novo.


This is the first occasion on which the Court has been asked to consider these particular provisions of the Act. For that reason, and because of the potential for the decision to affect other parties engaged in collective bargaining, a full Court was convened and we invited Business New Zealand and the New Zealand Council of Trade Unions to seek leave to be heard as interveners. Both chose to do so and we have been assisted by the submissions made on their behalf.


When the Chief Judge convened the full Court, he nominated Judges C M Shaw and A A Couch as members to sit with him. When the matter came on for hearing, Judge Shaw was unavailable and the remaining two members sat as a quorum as permitted by s 210(1) of the Act.


We initially heard the parties on 4 and 5 September 2008. At that time, bargaining was still in progress and the issues raised by the proceeding remained alive. When the Court reconvened on 15 September 2008 to hear further

submissions, we were informed that agreement had been reached and bargaining concluded. As the principal remedy sought by the RDA was a compliance order, settlement effectively left the proceedings without any practical significance. The parties nevertheless asked us to decide the issues before us on the basis that it would assist them and others in future collective bargaining. We agreed to that request but with the qualification that other cases would have priority.
Statutory provisions

The sections of the Act giving rise to the issues in this case are:

32 Good faith in bargaining for collective agreement

  • (1) The duty of good faith in section 4 requires a union and an employer bargaining for a collective agreement to do, at least, the following things:

    • (e) the union and employer must provide to each other, on request and in accordance with section 34, information that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes of the bargaining.

  • (5) This section does not limit the application of the duty of good faith in section 4 in relation to bargaining for a collective agreement.

34 Providing information in bargaining for collective agreement

  • (1) This section applies for the purposes of section 32(1)(e).

  • (2) A request by a union or an employer to the other for information must-

    • (a) be in writing; and

    • (b) specify the nature of the information requested in sufficient detail to enable the information to be identified; and

    • (c) specify the claim or the response to a claim in respect of which information to support or substantiate the claim or the response is requested; and

    • (d) specify a reasonable time within which the information is to be provided.

  • (3) A union or an employer must provide the information requested-

    • (a) direct to the other; or

    • (b) to an independent reviewer if the union or employer providing the information reasonably considers that it should be treated as confidential information.

  • (4) A person must not act as an independent reviewer unless appointed by mutual agreement of the union and employer.

  • (5) As soon as practicable after receiving information under subsection (3), an independent reviewer must-

    • (a) decide whether and, if so, to what extent the information should be treated as confidential; and

    • (b) advise the union and employer concerned of the decision.

  • (6) If an independent reviewer decides that the information should be treated as confidential, the independent reviewer must-

    • (a) decide whether and, if so, to what extent the information supports or substantiates the claim or the response to a claim in respect of which the information is requested; and

    • (b) advise the union and employer concerned of the decision in a way that maintains the confidentiality of the information; and

    • (c) answer any questions from the union or employer that requested the information, in a way that maintains the confidentiality of the information.

  • (7) Unless the union and employer otherwise agree, information provided under subsection (3) and advice and answers provided under subsections (5) and (6)-

    • (a) must be used only for the purposes of the bargaining concerned; and

    • (b) must be treated as confidential by the persons conducting the bargaining concerned; and

    • (c) must not be disclosed by those persons to anyone else, including persons who would be bound by the collective agreement being bargained for.


As there is no longer a live issue between the parties, we set out the facts of this case in outline rather than in detail. Those facts now provide an example of the circumstances in which the issues of interpretation and application may arise rather than the basis for any remedies.


As noted earlier, the RDA and the DHBs have had a series of MECAs in recent years. One such MECA expired on 30 June 2007. Collective bargaining for a new MECA began on 2 May 2007. The lead advocate for the DHBs in this bargaining was Mick Prior. The RDA's principal advocate was Deborah Powell.


The DHBs have collective agreements with other unions. Some of these are MECAs, including such a collective agreement with the Association of Salaried Medical Specialists, the union representing senior doctors employed in public hospitals.


In the course of negotiations on 29 April 2008, which were chaired by a statutory mediator, Mr Prior tabled a new offer on behalf of the DHBs which included the following statements:

This offer represents the full extent of the financial parameters available for RMOs and more than the funding available to DHBs.

This offer is consistent with the financial parameters of other health settlements including that of the senior doctors.


One aspect of Dr Powell's response to this document was to ask Mr Prior to provide the financial parameters for the senior doctors' settlement in order that the RDA might properly consider the offer. Mr Prior refused to do so.


This statement became a focus for subsequent correspondence in which Mr Prior avoided the expression “financial parameters” used in the offer tabled on 29 April 2009 by referring to “DHB parameters”. In a letter dated 9 May 2008, Dr Powell referred again to the original statement made in the offer tabled on 29 April 2008 and made a specific request that the DHBs provide their costings of the settlement with senior doctors and all other health practitioners achieved by the DHBs in the preceding 12 months. This request was recorded as having been made pursuant to s 34 of the Act.


Mr Prior responded in a letter dated 20 May 2008 in which he implicitly declined to provide the information sought by the RDA. Various reasons were given including the statement: “We are also concerned that the information could be misused to the detriment of the relationship between DHBs and other employees and unions.” Mr Prior concluded by saying:

Having said that, and to provide independent verification, I am prepared to meet with the mediator to discuss what comparisons there are that may usefully be drawn between the costings of the SMO settlement and the DHBs' current RMO offer. This process will hopefully go some way to satisfy NZRDA that the offer made is consistent with the DHB funding of other health settlements.


In this letter, Mr Prior used the term “DHB funding” rather than the term “financial parameters” used in the original statement. The significance of this difference became apparent to the RDA in June 2008 when Dr Powell read an affidavit by Mr Prior filed in the proceedings which were then before the Authority. What Mr Prior said was that, in addition to their general funding, the DHBs had received special funding from the government which was used to settle some of the collective agreements, including the senior doctors. By referring to...

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