NORTHLAND DISTRICT HEALTH BOARD and 20 OTHERS v NEW ZEALAND RESIDENT DOCTORS' ASSOCIATION Inc. NZEmpC
| Jurisdiction | New Zealand |
| Judge | G L Colgan |
| Judgment Date | 20 January 2011 |
| Court | Employment Court |
| Docket Number | WRC 49/09 |
| Date | 20 January 2011 |
In the Matter of Proceedings Removed from the Employment Relations Authority
[2011] NZEmpC 3
WRC 49/09
IN THE EMPLOYMENT COURT AUCKLAND
Reasons for decision dismissing the plaintiff's challenge to the defendant's initiation of collective bargaining — defendant's notice initiating bargaining under s42 Employment Relations Act 2000 (how bargaining initiated) was signed by an employee of contractor to the defendant union — whether notice signed by the union or employer — whether there was an implied power of delegation under s42 — whether the defendant could ratify the notices — whether the Court should validate any informality under s219 Employment Relations Act 2000 (validation of informal proceedings).
Hamish Kynaston and Andrea Pazin, counsel for plaintiffs
Bill Manning and Anna Paton, counsel for defendant
REASONS FOR JUDGMENT OF CHIEF JUDGE G L Colgan
These are the reasons for dismissing the plaintiffs' proceedings in an oral judgment delivered at the end of the hearing on 10 February 2010. 1 That was done on a clear view of the merits of the proceeding, to allow the parties to get on with collective bargaining at the earliest available opportunity, and because of pressure of other judicial work requiring urgent decisions. I regret the subsequent delay in the provision of these reasons.
The question of law which caused this proceeding to be removed by the Employment Relations Authority for hearing at first instance in this Court concerns how a union may sign a notice initiating bargaining under s 42 of the Employment Relations Act 2000 (the Act). In this case, the defendant's notices initiating collective bargaining with district health boards were signed by an employee of a contractor to the Union, for and on behalf of (“pp”) the Union's General Secretary. The plaintiffs say that this does not meet the requirement in s 42(2)(a) of the Act that a compliant notice initiating bargaining “… is in writing and signed by the union or the employer giving the notice or its duly authorised representative …”.
A second issue raised by the defendant was whether, even if the plaintiff is right that the bargaining initiation notices had not been signed lawfully, these had been validated retrospectively by the Union.
There was also a third issue, also raised by the defendant, in the event that the Court might decide in favour of the plaintiffs on either or both of the first two issues. This was whether, under s 219 of the Act, the Court is entitled to, and if so should, validate any informality in the notices initiating bargaining.
The significance of what might be seen as esoteric questions lies in the order in which bargaining has been lawfully initiated. The plaintiffs sought to have a very different bargaining agenda from the defendant's. The statute gives unions the first opportunity to initiate bargaining and the case law 2 means that if this opportunity is taken lawfully, an employer cannot counter-initiate bargaining on its terms. So if the district health boards could have had the Union's purported initiation of bargaining declared invalid, then the employers' purported initiation of bargaining would have moved to the front of the queue and the Union would have borne the disadvantage experienced by the employers, of having the initial bargaining agenda set for it.
Deborah Powell is the General Secretary of the defendant. Dr Powell is also the majority shareholder in and director of Contract Negotiation Services Limited
(CNS). The defendant contracts with CNS for advocacy services in negotiating collective agreements, representation and advice in employment relations disputes on behalf of the Union's members, for Dr Powell's services as the Union's General Secretary, and for the administration of the Union's business. The Union has no employees or other full-time staff of its own although it does, of course, have a president and other elected officers and an elected executive. All administrative operations of the Union are carried out by CNS, one of whose employees is a solicitor, Carisse de BeerFollowing ballots of its members which approved the negotiation by the defendant of a number of different collective agreements, on 16 November 2009 Dr Powell instructed her staff to prepare, check, sign, and send notices initiating collective bargaining for those agreements. Dr Powell was unable to sign the notices herself because she was absent on business in Christchurch. Accordingly, each notice was signed by Ms de Beer on Dr Powell's behalf.
The notices initiating bargaining are all materially identical for the purpose of this case. They are under the letterhead of the defendant which includes its logo. The letters refer to the defendant's initiation of collective bargaining. They are signed as follows:
Yours sincerely
Dr Deborah Powell General Secretary
After a challenge to the validity of the execution of the notices by the plaintiff, the defendant's National Executive, at a quarterly meeting on 14 December 2009, resolved to ratify the bargaining initiation notices sent to the District Health Boards on 16 November 2009. The resolution so passed was to the following effect:
That the notices of initiation for bargaining for a collective employment agreement as attached (being notices issued in respect of a single employer collective agreement with each Auckland DHB, Counties Manukau DHB and Waitemata DHB; and one multi-employer collective agreement with the other 18 DHBs), signed “pp” by Carisse de Beer for the General Secretary, should be ratified by the National Executive as having been signed by or on behalf of NZRDA in accordance with section 42 of the Employment Relations Act 2000.
Section 42 of the Act refers to the mode of giving notice of commencement of collective bargaining as follows:
42 How bargaining initiated
(1) A union or employer initiates bargaining for a collective agreement by giving to the intended party or parties to the agreement a notice that complies with subsection (2).
(2) A notice complies with this subsection if-
(a) it is in writing and signed by the union or the employer giving the notice or its duly authorised representative; and
(b) it identifies each of the intended parties to the collective agreement; and
(c) it identifies the intended coverage of the collective agreement.
The Union is, as all such bodies must be, an incorporated society. As such, its actions are governed by the Incorporated Societies Act 1908 and by its registered rules, as well as by relevant provisions of the Act.
Rule 25.4 (“Duties and powers of the General Secretary”) of the defendant's rules provides:
It shall be the duty of the General Secretary to carry out all lawful instructions that may be given by the National Executive and Generally to perform all the duties required under the [Employment Relations] Act and usually appertaining to the offices of Secretary …
Rule 46 (“ Legal Documents”) of the rules provides:
Contracts, agreements and other instruments other than contracts and agreements made in Court shall be made in such mode as The National Executive may determine and shall be executed by the President or Secretary or in the absence of either or both of them by any two members of the Executive appointed for the purpose.
As the oral judgment of 10 February 2010 sets out, there are three issues for the Court. The first is whether the s 42 notices were signed lawfully in the form they were originally given.
The second is that if they were not, whether the defendant nevertheless validated them retrospectively.
The third, if the plaintiffs succeed in either or both of the first two issues, is whether, under s 219 of the Act, the Court is entitled to, and if so should, validate any informality of the notices initiating bargaining.
The Incorporated Societies Act makes no express provision about how a society is to give statutory notices such as that required by s 42 of the Employment Relations Act. That is a matter left to the rules.
The first question is whether the Union's rules dictate how bargaining initiation notices must be given and, in particular, who may sign these. Rules 25.4 and 46 set out above are the only express provisions that might possibly deal with the issue under the rules. Rule 46 is the more specific provision and is indeed that which the plaintiffs claim was both applicable to the giving of bargaining initiation notices and was breached by the defendant, making the notices invalid.
The plaintiffs' case was that the notices were not signed by an employee or officer of the Union. The plaintiffs say that Ms de Beer was not empowered under the Union's rules, expressly or implicitly, to sign the notices. Rather, they say, the power to sign s 42 initiation notices rested exclusively with Dr Powell (the Union's Secretary), its President or, in their absence two members of the National Executive. The plaintiffs say that that power was not able to be delegated. It follows, in the plaintiffs' argument, that the notices could not be validated retrospectively by the National Executive as it purported to do, and cannot and should not be validated by the Court.
The plaintiffs say that r 46 of the Union's rules governs the signing of bargaining initiation notices. The Union, on the other hand, says that a s 42 notice is not a legal document covered by r 46.
I deal first with whether the bargaining initiation notices can be said to have been “legal documents” as defined by r 46 of the Union's rules set out at paragraph
of this judgment. Most obviously, they are statutory notices required to be given to...
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