Jeffrey Reginald Mcculloch v New Zealand Fire Service Commission

• Jurisdiction: New Zealand
• Court: Employment Court
• Judge: GL COLGAN
• Judgment Date: 15 December 2010
• Docket Number: ARC 111/10
• Date: 15 December 2010

IN THE MATTER OF a declaration of jurisdiction

Between

Jeffrey Reginald Mcculloch

First Plaintiff

And

Boyd Gordon Raines

Second Plaintiff

And

New Zealand Professional Firefighters Union

Third Plaintiff

and

New Zealand Fire Service Commission

Defendant

[2010] NZEmpC 160

ARC 111/10

IN THE EMPLOYMENT COURT AUCKLAND

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).

Counsel:

Peter Cranney, counsel for plaintiffs

Geoff Davenport, counsel for defendant

JUDGMENT OF CHIEF JUDGE GL COLGAN

1 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.

2 There have been two judgments issued by the High Court, both in proceedings known as The New Zealand Fire Service Commission v McCulloch & Ors. 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.

3 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.

4 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 of

defence 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

5 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.

6 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.

7 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.

8 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.

9 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.

10 Two managerial vacancies in the Auckland area occurred in late 2008 to early 2009. The Commission sought expressions of interest from staff. The union purported to ban its members from seeking such positions and from occupying them. Two union members, Messrs Chris Best and Chris Scott, defied the union's ban and lodged expressions of interest for these positions. The union and Messrs McCulloch and Raines sought unsuccessfully to dissuade them from doing so. Messrs Best and Scott were appointed temporarily to the acting-up positions and their individual employment agreements with the Commission were no doubt varied accordingly. They subsequently came under pressure from the union and Messrs McCulloch and Raines to relinquish those roles which they did in response to that pressure.

11 At the time of their taking up the new temporary positions, Messrs Best and Scott were senior operational firefighters rostered on shifts or watches that provided for what is known colloquially as 24/7 coverage. Their acting-up positions were different in the sense that they were not based at fire stations, did not crew fire appliances or usually attend fires or other emergency incidents, and they worked normal business hours. They were a part of the Commission's command structure occupying managerial or supervisory based roles. That said, it is inescapable that they were appointed to acting-up positions based upon their skills and experience as senior firefighters and were expected to apply these attributes as well as to acquire new and different skills and experience in command or managerial roles. The acting-up positions were for limited durations of several months at most. It was the expectation of all concerned that after the conclusion of those temporary secondments, Messrs Best and Scott would probably return to their former firefighter roles. They were not replaced in these for the period of their secondments: rather, the Commission covered their absence from their watches by other similarly qualified and experienced firefighters doing more overtime.

12 I agree with both the Associate Judge and the Judge in the High Court that, but for the ban, some firefighters, including union members, would ordinarily seek acting-up positions and, if appointed, would act up following this longstanding employment practice in the Fire Service. Indeed, Messrs Best and Scott did so at that time. At the time the Commission seems to have assumed that the purported prohibition amounted to unlawful strike action. As the Commission's chief executive wrote to the union's Derek (not to be confused with Chris) Best on 20 January 2009 in the course of the events leading to this litigation: “We also consider that your instructions to members not to act up in roles which they would normally apply for constitutes unlawful industrial action.”

13 “[I]ndustrial action” is a longstanding euphemism for a strike. Although the Commission's chief executive's words do not of course amount to a concession on a matter of law that binds the Commission, they are indicative of the normality of the Commission having acting-up roles and union member firefighters applying for those before the union purported to ban its members from doing so in late...