New Zealand Professional Firefighters Union v New Zealand Fire Service Commission Nzempc Wn
 NZEmpC 80
IN THE EMPLOYMENT COURT WELLINGTON
IN THE MATTER OF proceedings for injunction orders removed from the Employment Relations Authority and for compliance orders
Peter Cranney and Anthea Connor, counsel for plaintiff
Geoff Davenport and Guido Ballara, counsel for defendant
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.
At issue was whether Union members were 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.
Held: The BPA was an agreement entered into pursuant to s32(1)(a) Employment Relations Act 2000 (“ERA”) (good faith in bargaining for collective agreement), as recognised by s32(3)(b) ERA. Regardless of whether the BPA was an agreement or some lesser form of “arrangement”, it set out the parties' mutually agreed rights and obligations of conducting their collective bargaining in good faith and was enforceable under s137 ERA (power of Authority to order compliance).
There were differences between “mediation” referred to in cl10 of the BPA and s92 ERA (Chief Executive to ensure mediation services provided). Under s92 ERA the obligation was to facilitate mediation, but there was no requirement for the parties' attendance and a statutory mediator was provided. The BPA did require attendance of the parties at mediation and permitted the parties to have a mediator of their choosing. The requirement to attend mediation was dependent on the parties ceasing to make progress in the bargaining, not upon the giving of notice to any party. The BPA specified a 14 day period within which mediation should be undertaken if the parties failed to come to an agreement. The ERA specified in s90(3)(a)(i) (strikes in essential services) that no lawful strike action could be undertaken without at least 14 days' notice. The coincidence of the two 14 day periods tended to indicate that the parties intended the BPA mediation to be conducted before any strike notice was given rather than simply before a strike commenced. It was therefore the intention of cl10 BPA that after the bargaining ceased to make progress and before a party gave a statutorily-required notice of strike or lockout, the parties were required to attend mediation to attempt in good faith to resolve the issues. The Union breached that requirement.
It was in the interests of justice to require the Union to attend mediation before notice of strike action was issued. The consequences of the Union's breach could not be side stepped by simply asserting that the strike action was lawful and that the right to a strike trumped a breach of good faith. This was not a case of constraining a right to strike, but rather holding the parties to their agreement that the right would be postponed for a period in the interests of good faith dealing and for the prospect of achieving a collective agreement.
Order that the Union to comply with the intention of cl10 BPA as defined.
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 toremedy 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...
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