New Zealand Professional Firefighters Union Incorporated v Fire and Emergency New Zealand

• Jurisdiction: New Zealand
• Judge: French J
• Judgment Date: 11 March 2021
• Neutral Citation: [2021] NZCA 60
• Court: Court of Appeal
• Docket Number: CA720/2020
• Date: 11 March 2021

Between

New Zealand Professional Firefighters Union Incorporated

Applicant

and

Fire and Emergency New Zealand

Respondent

[2021] NZCA 60

Court:

French and Goddard JJ

CA720/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Employment, Statutory Interpretation — application for leave to appeal a decision in the Employment Court which held that s30 Fire and Emergency New Zealand Act 2017 conferred a benefit on all employees of the respondent that they enjoyed preference for re-deployment opportunities in the event of redundancy — whether the question of law proposed was seriously arguable

Counsel:

C R Carruthers QC and P Cranney for Applicant

V E Casey QC and G C Davenport for Respondent

• A The application for leave to appeal under s 214 of the Employment Relations Act 2000 is declined.

• B The applicant must pay the respondent costs on a standard application for leave with usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by French J)

Introduction

1 The New Zealand Professional Firefighters Union Inc (the union) seeks leave under s 214 of the Employment Relations Act 2000 to appeal a decision of Chief Judge Inglis in the Employment Court. 1

2 The decision concerned the interaction between s 30 of the Fire and Emergency New Zealand Act 2017 (the Act) and the provisions of a collective agreement. The Judge held there was an inconsistency between the two in relation to re-deployment obligations in the event of redundancy and that s 30 must prevail. 2

Background

3 The respondent employer, Fire and Emergency New Zealand (FENZ) is currently embarking on a restructuring exercise. Its view is that by virtue of s 30, it is obliged to offer any suitable vacant positions to employees whose existing position is being made redundant.

4 The applicant union does not represent any employee who has been classified as an affected employee under the restructuring. However, it contends that FENZ's approach to the restructuring is contrary to its obligations under its collective agreement with the union and will negatively impact on the union's membership.

5 The collective agreement in question contains a clause, cl 1.21.8, that states:

Whenever vacancies or any new positions occur in the Service, not less than 14 days' notice shall be posted inviting applications from the workers for the filling of such vacancies and such applications shall receive full consideration.

6 In addition to this clause, the collective agreement also annexes a number of what are described as “core employment policies”. These policies relevantly include an appointments policy and a review of appointments policy. Both policies pre-date the Act and refer to its predecessor the now repealed Fire Service Act 1975.

The appointments policy provides for appointments to be made on merit. The review of appointments policy provides that any employee has the right to challenge an appointment and to utilise a review process

7 According to the union, the combined effect of cl 1.21.8 and the policies is that their members are entitled to be considered for all and any vacancies that arise and that FENZ is not bound by the Act to give preference to employees whose positions have been made redundant. Instead, in accordance with the collective agreement, it must notify the vacancy and appoint the person best suited to the position.

8 As for the Act, that contains a statutory framework for appointments with provisions similar to the policies annexed to the collective agreement. The Act requires FENZ to make appointments on merit (s 26), to notify all FENZ employees of vacancies and appointments (ss 27 and 28) and to establish an appointments review process (s 29).

9 However, s 30 states that ss 26 to 29 do not apply to appointments of FENZ employees in certain circumstances. The full text of the section, which is at the heart of this case, is as follows:

30 Sections 26 to 29 do not apply to appointments of FENZ employees in certain circumstances

Sections 26 to 29 (which relate to standard procedural steps in relation to appointments to FENZ) do not apply to the appointment of a person as a FENZ employee if—

• (a) the person is a current employee of FENZ; and

• (b) that FENZ employee has received a notice of redundancy; and

• (c) before that FENZ employee's employment has ended, the employee—

  • (i) is offered and accepts another position in FENZ that—

    • (A) begins before, on, or immediately after the date on which the employee's current employment ends; and

    • (B) is on terms and conditions of employment (including redundancy and superannuation conditions) that are no less favourable to the employee; and

    • (C) is on terms that treat service within FENZ as if it were continuous service; or

  • (ii) is offered an alternative position in FENZ that—

    • (A) begins before, on, or immediately after the date on which the employee's current employment ends; and

    • (B) is a position with comparable duties and responsibilities to those of the employee's current position; and

    • (C) is in substantially the same general locality or a locality within reasonable commuting distance; and

    • (D) is on terms and conditions of employment (including redundancy and superannuation conditions) that are no less favourable to the employee; and

    • (E) is on terms that treat service within FENZ as if it were continuous service.

10 In the Employment Court, the union argued that correctly interpreted, s 30 is permissive. It does not impose any obligation on FENZ to complete the steps outlined in s 30(c). In particular, it does not preclude FENZ from issuing a notice of redundancy and then proceeding to make the affected employee redundant without more. It was thus open to FENZ and the union to agree to a different process than that contained in s 30 for appointments to vacancies in redundancy situations.

11 The Chief Judge rejected that interpretation and declined to grant the union's application for declarations. She held that correctly interpreted s 30 conferred a benefit on all FENZ employees, namely that they enjoy preference for re-deployment opportunities in the event of redundancy. 3 It would, the Judge considered, be contrary to the express intention of Parliament were FENZ and the union to be able to contract in a way which removed this benefit. 4 As for safety concerns, the Judge considered this a weak argument. She noted that Parliament must

be taken to have been aware that it was enacting s 30 into a safety-focused piece of legislation and further that there was no authority for the proposition that common law obligations of re-deployment should not apply or apply more weakly in safety sensitive industries. 5

The application for leave to appeal

12 The right of appeal to this Court from a decision of the Employment Court is limited to appeals on questions of law and is subject to a leave requirement. 6 Under s 214(3) of the Employment Relations Act, leave may be granted if in the opinion of this Court the proposed question of law is one that by reason of its general or public importance or for any other reason ought to be submitted for determination.

13 A further...