New Zealand Professional Firefighters Union v New Zealand Fire Service Commission Nzempc Wn
| Jurisdiction | New Zealand |
| Judge | GL Colgan |
| Judgment Date | 08 July 2011 |
| Court | Employment Court |
| Docket Number | WRC 21/11 |
| Date | 08 July 2011 |
IN THE MATTER OF proceedings for injunction orders removed from the Employment Relations Authority and for compliance orders
[2011] NZEmpC 80
WRC 21/11
IN THE EMPLOYMENT COURT WELLINGTON
Application for order that union comply with mediation requirements of Bargaining Process Arrangement or Agreement (BPA) — determination as to whether proposed strike action by employees in non-emergency activities should take place — strike was lawful but parties were party to BPA which contained mediation requirements — collective bargaining for new collective agreement stalled — whether union members entitled in law to begin strike action by giving statutory notice without first having attempted to settle new terms and conditions of employment in mediation.
Peter Cranney and Anthea Connor, counsel for plaintiff
Geoff Davenport and Guido Ballara, counsel for defendant
JUDGMENT OF CHIEF JUDGE GL Colgan
This judgment determines whether proposed strike action by employees of the New Zealand Fire Service Commission in some non-emergency activities of the New Zealand Fire Service, should take place. The case turns on whether members of the New Zealand Professional Firefighters' Union are entitled in law to begin such strike action by giving statutory notice of it without first having attempted to settle new terms and conditions of employment in mediation.
In all other respects, including compliance with statutory provisions for advance notice of strike action and other bargaining related thresholds, there is no question about the lawfulness of the proposed strike action. Rather, the case focuses on the content and effect of provisions in the parties' Bargaining Process Arrangement or Agreement 1 (the BPA), a statutorily recognised document 2 in their collective bargaining for a new collective agreement.
The relevant parts of the BPA dated 6 December 2010, and signed by the parties representatives, include the following (with the particular provisions in issue being underlined):
4. BARGAINING PRINCIPLES
Bargaining will be undertaken in good faith. The parties to the bargaining commit:
a) To conducting the bargaining in an orderly, effective and efficient manner, and in accordance with this Agreement.
…
(i) To not undermining or doing anything that is likely to undermine the bargaining, or the authority of the other party to the bargaining.
…
10. PROCESS TO APPLY WHERE AGREEMENT CANNOT BE REACHED
a) If agreement cannot be reached in the course of bargaining the parties will discuss ways to address this, including consideration of the extent to which setting aside the point of disagreement could still leave the parties with an overall settlement agreement sufficient to meet their joint interests.
b) If bargaining ceases to make progress then the parties will, prior to giving notice of, or taking, industrial action, attend mediation providing that the mediation can occur within a reasonable timeframe (a reasonable timeframe would normally be considered to be 14 days). The parties will agree on the mediation service and mediator to be used, and on the issues to be discussed.
…
11. APPLICATION OF THIS AGREED PROCESS FOR COLLECTIVE BARGAINING
a) This agreed process shall bind the parties to this agreement.
b) Where a party believes there has been or may be a breach of this agreed process or of the obligations of good faith set out in the Employment Relations Act, or any applicable Code of Good Faith issues pursuant to the Act, the party shall, wherever practicable, notify the other party of their concerns at any early stage so as to enable the defaulting party to
remedy the situation or provide an explanation for the action or inaction in question.
On 2 May 2011 the parties, not having reached agreement in the course of their collective bargaining commenced in late 2010, discussed ways to address this as required by cl 10(a) of the BPA. It was agreed that the Commission would prepare its form of collective agreement which the Union would put to a vote of members. As a matter of law, this would not have been a ratification vote because the parties had not settled a collective agreement and indeed had not agreed upon its contents. This “draft” collective agreement was provided to the Union by the Commission on 2 May 2011. It was also forwarded directly to Union members on 3 May 2011 and, on the same day, was given by the employer to other employees who are not Union members. As a result of this, the Union took objection to these communications in a letter dated 10 May 2011 addressed to the Commission and the Union subsequently issued proceedings in the Employment Relations Authority alleging breach of the BPA. In any event, the draft agreement was voted on by Union members and rejected with the results of that vote being announced on 14 June 2011.
Despite some earlier exchanges between the parties about potential dates for mediation to take place, this was not either agreed to or undertaken and, on 16 June 2011, the Union delivered notices of intended strike action to take effect 14 days later. As already noted, no objection is taken with the lawfulness of those notices or of the intended strike action except on the point of non-compliance by the Union with the BPA.
Although mediation assistance was offered by the Chief Executive of the Department of Labour (albeit apparently almost at the end of the notice period as the strike was about to start), the Commission declined to attend unless the Union's strike notices were withdrawn. Mediations have, however, taken place on 23 and 30 June 2011 and, according to the Union, some progress in collective bargaining has been made at these.
After a mediation session on 30 June 2011, the Union gave the Commission fresh strike notices which were materially identical to those given on 16 June 2011 except as to the strike commencement date which is 16 July 2011, immediately after the end of the intended strike notified on 16 June 2011.
Whether the instrument in which cl 10(b) appears is an “arrangement” or an “agreement” was the subject of prolonged and repeated disagreement between the parties including at the hearing. Although, ultimately, this may be more about form than substance so that the case will not turn on any distinction, I conclude that the document is an agreement for the following reasons.
Although the good faith obligation of parties to collective bargaining under s 32(1)(a) requires them to “…use their best endeavours to enter into an arrangement, as soon as possible after the initiation of bargaining, that sets out a process for conducting the bargaining in an effective and efficient manner …”, that subsection is not prescriptive as to the form of arrangement that may be reached. Whilst, in many cases and as this Court has recognised, parties' arrangements will simply be just that, I consider that what was entered into pursuant to s 32(1)(a) in this case was an “agreement” as that is recognised by s 32(3)(b). Section 32(3) sets out a number of matters that are relevant to whether a union and an employer bargaining for a collective agreement are dealing with each other in good faith and includes at s 32(3)(b) “the provisions of any agreement about good faith entered into by the union and the employer”.
The form and content of the instrument entered into by these parties are comprehensive and are in the nature of an agreement that is intended to have legal rights and obligations and to be enforceable. However, because it is unnecessary to so determine for the purpose of this case, and although I am inclined to think that the instrument falls short of constituting a contract as that term is known both in employment law and under the Act and at common law, I do not decide that issue.
As noted above, however, whether the instrument constitutes an agreement or some presumably lesser form of “arrangement” may be less about substance and effect than about form or even label. In either case, the instrument sets out the parties' mutually agreed rights and obligations of conducting their collective bargaining in good faith and the statute both requires good faith conduct in such a relationship (ss 4(4)(a) and 32) and provides that this can be enforced (s 137).
The Union's position is that the mediation referred to in cl 10(b) of the BPA is a single mediation that may be satisfied by a s 92 facilitated mediation after notice of intended strike action has been given. The Union submits that in this case the s 92 facilitated mediation carried by the parties is the single mediation which satisfies clause 10(b). Alternatively, the Union's case is that the statutory right to undertake otherwise lawful strike action must trump the BPA's requirement under cl 10(b) for mediation before notice of intended strike action is issued.
One possible interpretation of cl...
To continue reading
Request your trial
-
Nz Professional Firefighters Union v Nz Fire Service Commission Coa
...to the contrary in any contract or agreement. 1 New Zealand Professional Firefighters Union v New Zealand Fire Service Commission [2011] NZEmpC 80. 2 Employment Relations Act 2000, s 32. This is set out in the Appendix at [49] 3 At [23]. 4 Set out at [2] above. 5 These sections are set out......