Jeffrey Reginald Mcculloch v New Zealand Fire Service Commission
 NZEmpC 160
IN THE EMPLOYMENT COURT AUCKLAND
IN THE MATTER OF a declaration of jurisdiction
Peter Cranney, counsel for plaintiffs
Geoff Davenport, counsel for defendant
Judgment determining whether the Employment Court had exclusive jurisdiction in respect of the parties' dispute over the New Zealand Fire Service Commission's (“Commission”) policy of permitting operational firefighters to temporarily undertake higher ranked, managerial duties (“acting-up”) — The Commission proceeded in tort against a union in the High Court after it sought to prevent union members from taking up their “acting-up” roles; proceedings at High Court were stayed pending Employment Court's determination on whether it had exclusive jurisdiction — whether actions of the union amounted to a strike; consideration of the meaning of strike under s81 Employment Relations Act 2000 (“ERA”); consideration of what was the correct test for determining whether proceedings resulted from a strike/threatened strike under s99(1)(a) ERA (the Employment Court's jurisdiction in relation to proceedings founded in tort).
The issues were: whether dissuasive acts amounted to a strike; what was the meaning of “discontinuing that employment… or reducing the normal performance of it” and “… reducing their output or their normal rate of work” under s81(1)(a)(i) and s81(1)(a)(iv) respectively; and what was the correct test for determining whether proceedings resulted from a strike under s99(1)(a) of the ERA.
Held: On the Commission's argument that the dissuasive acts did not amount to acts which discontinued employment or reduced the normal performance of it, it would not be correct to characterise the opportunity to seek to act-up as constituting an entirely different role altogether to escape the ambit of s81(1)(a)(i). The two firefighters who initially sought and accepted acting-up roles remained in the employment of the Commission and it was implicit that at the conclusion of their respective terms, they would return to their previous role and conditions. In any event, the more important point was that the ban on accepting acting-up roles was directed to a reduction of the normal performance of employment by unionised firefighters, i.e. in expressing interest in and accepting acting-up roles when offered. In effect by banning acting-up, the union, as a collective of employees, threatened to strike. The definition of a strike must be taken from the broad definition of striking provided by Parliament in s81 and it was irrelevant that unionised firefighters could not be compelled to seek and accept acting-up roles.
On the other hand, the Commission was correct in noting that the ban on acting-up and other impugned actions by the union and officers concerned did not trigger s81(1)(a)(iv) as members of the union were not usually employed in managerial roles/acting-up roles.
The Commission's attempts at claiming that the proceedings focussed mainly on the dissuasive acts and was unrelated to the overall ban issued by the union was artificial as even the amended statement of claim at the High Court (admitted by consent) was clearly wider in ambit. More importantly, the Commission's submission that the Employment Court ought to apply High Court authorities that more narrowly interpreted the meaning of “related” under the ERA in interpreting s99, was unpersuasive. Those authorities arose under s161(1)(r) ERA (jurisdiction of the Employment Relations Authority) and in any event High Court authorities were not binding on the Employment Court.
A broad and liberal interpretation of whether there existed the necessary nexus between the proceedings and strike action complained of was required by s99 and in this case the nexus was clear since the dissuasive action by the union and its officers caused two of its members from continuing in the acting-up roles at the foundation of the proceedings in tort.
The Employment Court, therefore, found that it had exclusive jurisdiction to determine the parties' dispute.
The issue for decision is whether the Employment Court has exclusive jurisdiction to hear and determine proceedings between the New Zealand Fire Service Commission (the Commission), on the one hand, and the New Zealand Professional Firefighters Union (the union) and two of its officials, on the other. The Commission has issued its proceedings in tort in the High Court at Auckland. Those have been stayed by the High Court until the issue of exclusive jurisdiction is decided by this Court. For this purpose, the union and its officials have instituted pro forma proceedings here for a declaration of exclusive jurisdiction. These proceedings are opposed by the Commission. By agreement, the case has been heard by reference to the statements of claim and defence in the High Court proceedings, affidavit evidence filed in the High Court proceedings, some further affidavit evidence filed by the Commission in this Court, and by submissions made by counsel for the parties.
There have been two judgments issued by the High Court, both in proceedings known as . 1 The first was the oral judgment of Bell AJ delivered on 10 May 2010. The second was the judgment of Lang J on a review of the Associate Judge's judgment issued on 20 October 2010. The outcome of the two judgments is that the High Court has stayed the Commission's proceedings there on the basis that there should be no progress of them until this Court has determined whether it has exclusive jurisdiction to hear and determine them. Although by a different process with a different outcome, the arguments in the High Court and before this Court have been essentially the same and I have been assisted considerably by both judgments in that court.
As already noted, the High Court allowed for some affidavit evidence in its considerations of these jurisdiction issues and, at the Commission's insistence, some additional affidavit evidence has been admitted in this Court. However, the jurisdictional issue is a preliminary one that is to be decided primarily on the pleadings. For self-evident reasons, it would be inappropriate for the Court to embark upon a hearing and determination of contested evidence going to the substance of the alleged torts to decide the court in which the proceedings should be filed.
As Lang J pointed out in his judgment in this matter, the proper course for the union and its officers would have been to enter an appearance in the proceeding in the High Court with an objection to jurisdiction rather than, as they did, filing a comprehensive statement of defence before moving to stay or strike out. It would, however, now be artificial for this Court not to have the benefit of that statement ofdefence in determining the issue of exclusive jurisdiction at this stage. Together with the amended statement of claim, it assists in clarifying the nature of the issues between the parties.
Messrs McCulloch and Raines and the union are the plaintiffs and the Commission the defendant in this proceeding. In the present High Court proceedings and in any proceedings that may be issued in this Court if it has full and exclusive jurisdiction, those current roles are or would be reversed. To avoid confusion I will refer to the parties by their names or abbreviations thereof.
Messrs McCulloch and Raines were, at relevant times, firefighters employed by the Commission and office holders in the union. The union's predominant membership consists of Commission employees and firefighters in particular. Most Commission firefighters are members of the union. Managerial employees of the Commission are not covered by the union or its collective agreement with the Commission.
The proceedings result from an employment practice known as “acting-up” by which an employee may undertake temporarily, higher ranked duties. Actings up may take place in circumstances of absences from duty or vacancies or for other special purposes. Acting-up has a statutory basis under s 66(1) of the Fire Service Act 1975. The Act empowers the chief executive of the Commission to authorise any member (employee) to perform all of the functions and duties and exercise all of the powers of any rank or position higher than his or her own or may appoint any member of the Fire Service temporarily to any higher rank or position.
From time to time, although not frequently, the Commission has temporary vacancies including within its managerial structures. In these circumstances it invites expressions of interest from lower ranked staff to act up temporarily in the higher position. The Commission's case is that any acceptance by an employee of an acting role will be entirely voluntary and that there is no expectation, lawful or practical, that any employees will seek consideration for acting-up positions. There is no dispute about this.
Although relevant at this stage only to the preliminary question, it appears that firefighters who are union members, but are promoted temporarily on acting-up arrangements, fall outside the coverage of the collective agreement for that interim period of secondment. That absence of coverage may also affect their status as union members but, as already noted, it is unnecessary to determine that question at this point.
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