Electrix Ltd v Nzaepmu Ak
 NZEMPC 70
IN THE EMPLOYMENT COURT AUCKLAND
In The Matter Of an application for interim injunction
Rob Towner and Liz Coats, counsel for plaintiff
Anne-Marie McInally, counsel for defendant
Application for an injunction against a union on the grounds that the strike action threatened in a notice issued by the union on behalf of its members would be unlawful under s86 Employment Relations Act 2000 — whether the fact that some of the members who were named in the strike notice were not present at the meeting where the decision to strike was made invalidated the strike notice.
Held: Whilst the union rules provided that every member shall be bound by the Rules and the policy of the Union and by lawful decisions of the Union and whilst the rules technically provided that even a minimal attendance at the meeting where the vote to strike was taken would be sufficient for the purposes of the rules, as a matter of practicality a union would be unlikely to proceed with strike action until it had called a significant representation to support the proposed action.
As a matter of democratic process the majority decision would prevail so it would bind those who attended a meeting but had voted against the proposal to strike. The similar democratic principles would also apply to those who had not attended the meeting. To require the union to canvass those persons would be to breach the express rule that any ballot for strike action should be conducted in secret. It would also place an intolerable burden on the union.
There was no reason for a distinction between a resolution binding all those present at the meeting, even if they had no present intention of striking, and yet not binding those who for whatever reason did not attend the meeting. This would disadvantage union members who wanted to speak against and vote against a resolution to strike because if they attended the meeting they would then be bound by the outcome. It would advantage those members who preferred to be on the sidelines and not attend the meeting. That would not encourage the democratic process.
A common sense interpretation of the Union Rule 37.7 (that the rules should be interpreted and applied without undue technicality and in a commonsense and practical manner) meant that when there had been a secret ballot held of those members who would become party to the strike if it proceeded, a resolution to strike would be a lawful decision of that part of the union which applied to the member, whether or not that member attended the relevant meeting. There was no serious issue to be tried as to whether the strike notice was validly issued. Application for the issue of an interim injunction declined.
ORAL INTERIM JUDGMENT OF JUDGE B S Travis
The plaintiff has applied for an injunction against the defendant union on the grounds that the strike action threatened in a notice issued by the union on behalf of its members would be unlawful under s 86 of the Employment Relations Act 2000. The plaintiff sought and obtained urgency for this hearing as the strike is to commence at 12.01am on Wednesday 2 June 2010.
There is no issue between the parties that the threatened strike action will cause significant disruption to the plaintiff's business and will be contrary to the public interest. Employees of the plaintiff who are members of the defendant union are employed in an essential industry, namely the supply of electricity. It is also common ground that 14 days notice of strike action was required to be given and the proposed strike action was in support of the bargaining for a collective agreement. The issue for determination by the Court is whether there is a serious case to answer that the strike notice that was given by the defendant on 18 May 2010 was defective and invalid and therefore the proposed strike action would be unlawful.
There was no issue between the parties that in addition to establishing that there is a serious issue between the parties for determination at the substantive trial, the Court must then decide where the balance of convenience lies in the interim period, whether other remedies other than an injunction would be adequate, and where the overall justice of the case lies.
The plaintiff (Electrix) is contracted to provide Vector Limited with all field services such as maintenance, faults and services required to maintain the northern network electricity lines. Electrix's distribution division employees 182 personnel of whom approximately 77 are members of the defendant union. All of the distribution division employees are employed on individual employment agreements because no collective agreement has ever been in place between Electrix and any union in recent years. The majority of the distribution employees are trained as linesmen but the division also employs electricians, engineers, administrators and managers. Line work makes up the majority of the work carried out and includes work on specific projects at particular locations. The standard working hours for linesmen are 7.30am until 4pm. At 7am each morning one employee from each crew of three comes to the main office to pick up a truck and the equipment required for that day. The time worked between 7am and 7.30am is classed as overtime. Overtime work is time worked in excess of 40 hours per week in terms of the standard individual employment agreements.
Some 30 distribution employees are engaged as fault men who work on a continuous roster between 6am and 10pm on weekdays and between 7am and 7pm on weekends. They work out of four depots across the northern network region so that Electrix has sufficient coverage within the region to ensure quick response time. Outside of the 12 hour shifts the fault men are on standby for other hours to deal with faults as they arise.
Bargaining for a collective agreement has been ongoing since 22 December 2009 but the parties have failed to reach an agreement. A strike notice issued by the union on 13 May was withdrawn and the current strike notice issued on 18 May. It states, in part:
This notice of strike action is given by the union on behalf of all employees of the employer who are members of the union and who are covered by the bargaining and whose names appear on the schedule marked “A” and annexed hereto (“the employees”).
The nature of the strike action was a continuous partial withdrawal of labour including a refusal to work overtime or carry out any scheduled work outside ordinary hours or any fault work and a refusal to respond to callouts unless there was an emergency involving consequent danger to life. The employer was given the power to decide whether such an emergency arose. Employees who responded to callouts in the event of an emergency would perform only such work as was necessary to remove the danger to life.
On Monday 10 May 2010 at 7am Mr Gallagher, a union organiser, held a meeting of members of the union at Electrix's premises at Albany. He arranged for two separate text messages to go to each of the union members advising of the time and venue of the meeting. The meeting was attended by 42 union members who then took a secret ballot on whether they were willing to take strike action. They were issued blank slips of paper on which they were asked to record either “Yes” if they supported the proposal to take strike action or “No” if they did not support it. All 42 members present voted and were unanimously in favour of taking strike action.
An issue raised on behalf of Electrix is that the union's strike notice did not comply with the union's rules. Clause 21 of the union rules stated:
SECRET BALLOT ON QUESTION OF STRIKE
No strike shall take place unless the question has been submitted to a secret ballot of those members who would become parties to the strike if it proceeded.
A further union meeting was conducted on 27 May at Electrix depot at Albany at 7am. Fifty five members attended that meeting and unanimously rejected Electrix's proposal for settlement. A further secret ballot was conducted, according to Mr Gallagher's evidence, to gauge the current level of support for, or opposition to the proposed strike action to commence on 2 June and continuing thereafter. Members were asked to vote “Yes” if they supported the strike action and “No” if they did not. All 55 present voted and the result was unanimously in favour of the strike action proceeding.
There is an issue as to whether some of the members of the union whose names are included on the strike notice were not present at the meeting of 10 May and may not support the strike action. Notices of intention to resign from the union of three members who are Electrix employees has been acknowledged as having been received by the union but not in writing s required by...
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