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

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeFrench J
Judgment Date11 March 2021
Neutral Citation[2021] NZCA 60
Date11 March 2021
Docket NumberCA720/2020

[2021] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

French and Goddard JJ

CA720/2020

Between
New Zealand Professional Firefighters Union Incorporated
Applicant
and
Fire and Emergency New Zealand
Respondent
Counsel:

C R Carruthers QC and P Cranney for Applicant

V E Casey QC and G C Davenport for Respondent

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

The issue was whether the proposed question of law was one that by reason of its general or public importance or for any other reason should be submitted for determination.

The Court held that the proposed question relating to the interpretation of a statutory provision, as distinct from a question relating to the interpretation of an employment agreement, was a question of law within the purview of the Court of Appeal's jurisdiction. The Union's argument was of general importance in the sense that it related to a significant number of people and the functioning of an important public organisation. However, the question must also be a seriously arguable question and the question which the Union sought to raise was not.

The union's argument was based on an excessively literal and narrow interpretation of s30 the Act which was untenable. It was not supported by the wording of the section, its underlying purpose and the legislative history. It would render the section pointless because the contractual provisions relied upon purported to apply to all vacancies arising within FENZ and therefore if those provisions prevented FENZ from offering vacancies to potentially redundant employees without having to go through a selection and review process, the section would seldom if ever have any work to do.

Section 30 the Act was a protective provision and the introductory words to the section made it clear that the three procedural steps, advertising, merit-based selection and review, that usually apply to all appointments did not apply to re-deployment on redundancy. If Parliament had intended to render the section subject to any employment agreement, there would have been an express statement to that effect.

The application for leave to appeal was declined.

  • 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...

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