Nz Tramways and Public Passenger Transport Employees Union v Wellington City Transport Ltd

 
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[2011] NZEmpC78

IN THE EMPLOYMENT COURT WELLINGTON

WRC 35/10

In The Matter Of An Application For Special Leave To Remove Authority proceedings

BETWEEN
NZ Tramways and Public Passenger Transport Employees Union
First Applicant

And

Christopher Rupapera
Second Applicant

And

Faaiuaso Pakau
Third Applicant
and
Wellington City Transport Limited
Respondent
Appearances:

Ms Tanya Kennedy, counsel for the applicants

Mr Bernard Banks, counsel for the respondent

Application pursuant to s178(3) Employment Relations Act 2000 for special leave to remove an employment relationship problem from the Employment Relations Authority to the Employment Court on the grounds that important questions of law (s178(2)(a)) were likely to arise in the matter other than incidentally and that the case was of such a nature and of such urgenc(s178(2)(b)) that it was in the public interest that it be removed immediately to the Court — issue surrounded interpretation of a collective employment agreement (“CEA”) — whether the case involved a “routine matter of contractual interpretation” of particular clauses in the CEA and as they were a well settled area of law, not appropriateto require transfer to the Employment Court under s178.

At issue was: whether the questions were important because they would be decisive or strongly influential in bringing about a resolution of the dispute between the parties and were of significance to at least 49 other employees in similar positions; what was the relevance of age in relation to the interpretation of the word “retirement” or whether the case involved a “routine matter of contractual interpretation” of particular clauses in the CEA and as they were a well settled area oflaw, not appropriate to require transfer to the Employment Court under s178.

Held: The legal principles relevant to applications for special leave to remove were well established in McAlister v Air New Zealand Ltd.

The first three questions would not arise in the manner presented or have the importance contended for by the applicants. The issue that would arise was the meaning to be given to those particular words as used by these particular parties, in the context of this particular collective agreement. The interpretation exercise would, therefore, involve a consideration of the collective as a whole, an evaluation of the intention of the parties in the context of their employment relationship and evidence in relation to past practices under the provisions in question which were long-standing, having been carried over through successive collectives. As the Court of Appeal recently noted in Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc, historical considerations such as the way in which the parties had approached particular provisions in past CEAs could be used to assist in their construction.

The final three questions of law posed by the applicants related to an alleged policy by the respondent not to pay out a retirement gratuity to any employee who ceased employment prior to the attainment of the age of 65. Whether such a policy existed would be a matter of evidence. Given this factual dispute, the Court could not properly conclude, as it was required to do before removal, that the last three proposed questions of law were “likely to arise”.

There was no public interest in these proceedings because they were “a private concern to the particular parties”. The possibility that the outcome might affect some of the respondent's other employees sometime in the future should not carry any weight as that was speculative. A finding in relation to one or other of the elements making up a ground for removal to the Court under s178(2) should be based on credible evidence rather than speculation.

The Court was not satisfied that the six proposed important questions of law were likely to arise and the matter was not of such a nature and urgency that it should be removed, so it was not required to consider the residual discretion not to remove even if one of the categories in s178(2) was made out.

Application declined.

JUDGMENT OF JUDGE A D Ford

The application
1

The applicants have made application, pursuant to s 178(3) of the Employment Relations Act 2000 (the Act), for special leave to remove an employment relationship problem from the Employment Relations Authority (the Authority) to this Court. The first applicant is the New Zealand Tramways and Public Passenger Transport Employees Union (the union) and the second and third applicants are two affected members of the union. The stated grounds for the application are that important questions of law (s 178(2)(a) of the Act) are likely to arise in the matter other than incidentally and that the case is of such a nature and of such urgency (s 178(2)(b)) that it is in the public interest that it be removed immediately to the Court. The respondent, Wellington City Transport Limited, previously traded as “Stagecoach Wellington” and presently trades as “Go Wellington”. It opposes the removal.

2

Application for the matter to be removed to the Court was initially made to the Authority but, in a determination 1 dated 28 October 2010, the Authority declined the application for removal concluding on the facts that nothing had emerged from its investigation to suggest that an important question of law was likely to arise otherthan incidentally and that it had not been shown there was any identifiable public interest and urgency.

3

When the Authority declines to remove any matter to the Court, the party applying for removal may, pursuant to s 178(3), seek special leave of the Court for removal and in that event the Court must apply the same criteria as that which applied to the Authority apart from that criterion contained in s 178(2)(d).

The background facts
4

Prior to 1 July 1991, bus drivers in Wellington were employed directly by Wellington City Council under terms and conditions of employment agreed between the council and the union. Their employment was also covered by the Wellington City Council Employee Regulations which prescribed certain resignation and retirement gratuities. In 1991 local authorities ceased to have the power to conduct passenger transport services but they were able to continue to be involved in the industry through a local authority trading enterprise.

5

In July 1991, Wellington City Council established the respondent company, Wellington City Transport Limited, as a local authority trading enterprise. All resignation and retirement gratuities contained in the earlier regulations were

retained. The statement of problem filed on behalf of the applicants records subsequent developments:

All subsequent agreements with Wellington City Transport Limited (both under Wellington City Council and private ownership as Stagecoach & Infratil) through to the current agreement, contained the same wording as the current clauses 79 and80. These clauses reflect the entitlements that existed as at 30 June 1991 under the WCC Employee Regulations and were frozen at that point.

6

The relevant “current agreement” referred to in [5] is the Go Wellington Collective Employment Agreement 2008 – 2010 (the CEA). Under cl 79 of the CEA there is provision for a discretionary retirement gratuity. The clause reads:

79 Retiring Gratuities for Employees Employed Prior to 1 July 1991

On retirement of any employee who had continuous service with Wellington City Council up to 30 June 1991, the Company may pay to that employee by way of a gratuity, an amount calculated in accordance with the following scale:

Three weeks? pay increasing by one week for each additional year's service after 10 years until a maximum of twenty six weeks? pay is reached after thirty three years? service.

7

Clause 80 provides for a discretionary resigning gratuity:

80 Employees Employed Prior to 1 July 1991 Resigning for Private Reasons

Employees employed by the Company as at 1 July 1991, who resign for private reasons may, at the discretion of the Company, be granted resigning leave on full pay as follows:

After ten years' continuous service

-

3 weeks

After fourteen years' continuous service

-

4 weeks

After seventeen years' continuous service

-

5 weeks

After twenty years'continuous service

-

6 weeks

8

Up until their retirement in 2010, the second and third applicants were bus drivers employed by the respondent and its predecessor. During their employment they were both members of the union employed under the relevant agreement or CEA. The second applicant, Mr Rupapera, was employed as a bus driver for 20 years from 7 May 1990 until 8 May 2010 when he retired. The third applicant, Mr Pakau, was employed as a bus driver for 20 years and seven months between 18 September 1989 and 8 May 2010 when he retired. Mr Rupapera and Mr Pakau contend that they should have been paid 19 weeks? pay...

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