BIDVEST NEW ZEALAND Ltd v FIRST UNION Inc. NZEmpC AUCKLAND
| Jurisdiction | New Zealand |
| Judge | G L Colgan |
| Judgment Date | 21 December 2015 |
| Date | 21 December 2015 |
| Court | Employment Court |
| Docket Number | EMPC 383/2015 |
[2015] NZEmpC 232
IN THE EMPLOYMENT COURT AUCKLAND
EMPC 383/2015
In the Matter of of an application for injunction and declaration
And in the Matter of an application for interim injunction
J Goldstein and L Ryder, counsel for plaintiff
S Parry, counsel for defendant
Application for an interlocutory injunction restraining the defendant and its relevant members from undertaking strike action — on 17 December the defendant union gave notice of its intent to strike for two periods of 24 hours, on 20 December, and on 23 December — the plaintiff said that it was engaged in providing essential services (food deliveries) to aged care facilities, health service providers, hospitals, a prison, and other similar institutions and that the union had failed to give 14 days’ notice as required by s90(3)(a)(i) and sch 1 cl 11 Employment Relations Act 2000 — whether there was an arguable case that the union employees were engaged in an essential service, requiring at least 14 days’ notice of strike action — whether any of the applicant's customers were “a hospital care institution” within the meaning of s58(4) Health and Disabilities Services (Safety) Act 2001 — whether the parties bargaining process agreement was relevant — whether the balance of convenience and overall justice favoured granting the interim injunction.
The issues were: whether there was an arguable case that the union employees were engaged in an essential service, requiring at least 14 days’ notice of strike action; whether any of Bidvest's customers were “a hospital care institution” within the meaning of s58(4) Health and Disabilities Services (Safety) Act 2001 (HDSA); whether the parties bargaining process agreement (BPA) was relevant; and whether the balance of convenience and overall justice favoured granting the interim injunction.
Held: Whether employees were employed in providing services to an essential service was a question of fact and degree in any particular case ( Cunningham Construction (1987) Ltd v New Zealand Labourers Union). Because an employee was not engaged as such by the direct provider of essential services did not mean that an essential services notice did not have to be given. Equally, someone could be engaged so distantly and indirectly in the essential service that he or she could not reasonably be considered as being a part of it. It was a matter of fact and degree where, on that continuum, the particular employees sat.
As well as defining “essential services”, sch 1 ERA dealt with work that was connected to essential services, in two ways. The first was to omit any express reference to indirectly connected work. The second way in which sch 1 Part A dealt with an indirect connection between work and essential service was exemplified by cl 11, which provided that an essential service included the operation of:
-
(a) a hospital care institution within the meaning of s58(4) Health and Disability Services (Safety) Act 2001; or
-
(b) a service necessary for the operation of such an institution.
Also relevant to this case was Bidvest's business in delivering foodstuffs to prisons or welfare institutions. Clause 14 sch 1 Part A said that an essential service included: “The operation of a residential welfare institution or prison.”
Even in cases of essential services where there was not the additional subcl (b), there was coverage of employment in an associated business on a case-by-case basis (Cunningham Construction). Where, as here, the wider net was cast expressly by subcl (b), the argument was arguably stronger, for the inclusion of employees of businesses such as Bidvest.
A “hospital care institution” was defined in s58(4) HDSA as “premises used to provide hospital care”. Where only parts of any premises were used for that purpose, it meant only those parts and any other parts used for “ancillary purposes”.
Bidvest would need to establish at trial the legal status, in terms of the HDSA if any or all of the customers were hospital care institutions. In the meantime, however, in addition to what were clearly and generally recognised public and private hospitals, there were also facilities attached to, or combined with, rest homes and aged care facilities in which the residents of those facilities were assessed and treated for medical or other health-related conditions; i.e. they performed the functions of a hospital.
Bidvest had an arguable case that its operations at and from its Hamilton distribution centre amounted to a service necessary for the operation of a hospital care institution pursuant to cl 11 sch 1 Part A ERA. It was unnecessary, in these circumstances, to determine the associated question of whether deliveries by Bidvest of food and associated products to a prison or other secure custodial institution were also covered by sch 1 Part A.
There was really no issue between the parties about what might be called ‘the public interest test’ being satisfied under s90(2) ERA. A strike which could affect the provision of food to a hospital care institution, by limiting or negating the provision of food for consumption by patients, would affect issues of public health and, thereby, the public interest.
The balance of convenience favoured Bidvest's position. The inability of essential service hospital customers, in conjunction with Bidvest, to make provision for non-delivery of foodstuffs and associated products could put in issue Bidvest's contractual arrangements with those services.
The defendant's ability to issue lawful advice of strike action on 14 days’ notice was conceded by Bidvest. Without minimising the importance to the Union of exerting financial pressure on Bidvest, which was an important motivation for strike action to persuade the employer to settle bargaining, that right was not prohibited but only delayed and for a relatively short period. In these circumstances, the balance of convenience between the parties favoured the granting of the interlocutory injunctive orders claimed by Bidvest.
The overall justice of the case followed the balance of convenience. The non-provision of food services to hospital patients who were potentially vulnerable persons and who were not parties to, but were affected by, the proposed strike action, had be taken into account by the Court.
An additional factor was the contents of the BPA. Although this could not trump what would otherwise be the lawfulness of the strike action, it could be a discretionary element in considering whether to grant interlocutory relief. The BPA provided, that the parties would work together to identify barriers to agreement and would actively explore ways to overcome those differences. In addition, if the bargaining process broke down, either party was to call on the assistance of a [mediation] conducted through the MBIE prior to industrial action, strike/suspension/lockout. Despite this requirement, the Union did not explore actively ways of overcoming barriers before resorting to strike action. This was a factor in favour of Bidvest's position.
The parties were directed to mediation pursuant to s188(2) ERA.
Order prohibiting the union and its members employed at the Hamilton branch of Bidvest from undertaking strike action pursuant to the strike notices.
REASONS FOR INTERLOCUTORY JUDGMENT OF CHIEF JUDGE G L Colgan
These are my reasons for the judgment delivered yesterday after hearing the plaintiff's urgent application for an interlocutory injunction restraining the defendant and its relevant members from undertaking strike action scheduled to start at 9 pm last evening, Sunday 20 December 2015.
At the conclusion of the hearing, I announced that there are orders made in terms of the prayer for relief in the plaintiff's application for interlocutory injunction filed on 18 December 2015 (as amended appropriately). These are set out at [44] of these reasons.
Bidvest New Zealand Limited (Bidvest) is a supplier of foodstuffs and associated products to businesses and other undertakings throughout New Zealand. It is regionally based at distribution centres, one of which is in Hamilton, and is that with which this case is concerned. The defendant, FIRST Union Inc (the Union) is a union having, as members, some of the staff at the plaintiff's Hamilton distribution centre who are engaged in warehousing, truck loading and the regular distribution of foodstuffs and associated products to Bidvest's customers throughout the Waikato/King Country region.
Bidvest's operations take place 24 hours per day over six days per week. These hours commence at 9 pm on a Sunday night. The overnight activities undertaken include, principally, the assembly and loading of deliveries to be undertaken by the company's trucks from approximately 6 am on the following day. Union members are involved in both of these categories of activity with Bidvest in Hamilton.
The parties are currently engaged in collective bargaining for a collective agreement covering the work of the Union's members at Bidvest and intended to replace a now expired collective agreement. On 17 December 2015 the Union gave Bidvest separate notices of the intention of its members to take strike action for two periods of 24 hours, the first from 9 pm on 20 December to 9 pm on 21 December 2015, and the second from 9 pm on 23 December to 9 pm on 24 December 2015.
Bidvest's response was to advise the Union that it considered that these notices were defective in that they did not provide 14 days of notice before the intended strike action. That was because, in Bidvest's view, the employees were engaged in an essential service under s 90 of, and sch 1 to, the Employment Relations Act 2000 (the Act). 1 The Union's response was to disagree, to contend that the strike action would be lawful, and to advise of its continued occurrence.
Even although, as...
To continue reading
Request your trial