Open Country Cheese Company Ltd v New Zealand Dairy Workers' Union Incorporated

JurisdictionNew Zealand
CourtSupreme Court
Judgment Date02 June 2011
Neutral Citation[2011] NZSC 59
Docket NumberSC 33/2011
Date02 June 2011

[2011] NZSC 59

IN THE SUPREME COURT OF NEW ZEALAND

SC 33/2011

BETWEEN
Open Country Cheese Company Limited
Applicant
and
New Zealand Dairy Workers' Union Incorporated
Respondent
Counsel:

I R Millard QC for applicant

R E Harrison QC for Respondent

Application for leave to appeal on a question of law involving s97(2) Employment Relations Act 2000, which forbade an employer from employing or engaging another person to perform the work of a striking or locked out employee-whether the words “employ” and “engage”, when read in the light of the purpose of s97(2), referred to the employer's use of other persons, irrespective of its legal relationship with them

Held: The Court of Appeal correctly took the view that the words “employ” and “engage”, when read in the light of the purpose of s97(2), referred to the employer's use of other persons, irrespective of its legal relationship with them; and that in law the work done by the employees of the parent company was the applicant company's work which those on strike normally undertook for it. The work enabled the applicant to satisfy its contractual obligations. That constituted an employment or engagement by the applicant.

The Court of Appeal's conclusions were unimpeachable and accordingly it was not in the interests of justice for the Supreme Court to hear and determine the proposed appeal.

Application for leave to appeal declined.

JUDGMENT OF THE COURT
REASONS
1

The proposed appeal is on a question of law involving s 97(2) of the Employment Relations Act 2000, which forbids an employer from employing or engaging another person to perform the work of a striking or locked out employee. The applicant's employees went on strike. The applicant's parent company then sent some of its employees into the plant of the applicant to operate it, but their salary or wages continued to be paid by the parent company and they continued to be its employees and under its direction. However, their activities required the cooperation of staff of the applicant who were involved in training and familiarising parent company employees with the operations of the applicant.

2

The Court of Appeal, correctly in our view, took the view that the words “employ” and “engage”, when read in the light of the purpose of s 97(2), refer to the employer's use of other persons, irrespective of its legal...

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4 cases
  • Janet Elsie Lowe v DIRECTOR-GENERAL of Health, Ministry of Health
    • New Zealand
    • Supreme Court
    • 7 August 2017
    ...engaged, were referred by the RHA or Sunderland to persons in need 75 Open Country Cheese Co Ltd v New Zealand Dairy Workers’ Union Inc [2011] NZSC 59 at of care. In the present case the Ministry and the DHB had no role in arranging for Ms Lowe to care for clients and did not even know she ......
  • Open Country Cheese Company Limited v New Zealand Dairy Workers' Union
    • New Zealand
    • Supreme Court
    • 2 June 2011
    ...SUPREME COURT OF NEW ZEALAND SC 33/2011 [2011] NZSC 59 BETWEEN OPEN COUNTRY CHEESE COMPANY LIMITED Applicant AND NEW ZEALAND DAIRY WORKERS' UNION INCORPORATED Respondent Court: Blanchard, McGrath and William Young JJ Counsel: I R Millard QC for Applicant R E Harrison QC for Respondent Judgm......
  • Lowe v Director-General of Health, Ministry of Health & Ors
    • New Zealand
    • 2 March 2015
    ...78 (CA) at [27]. This conclusion was upheld by the Supreme Court in Open Country Cheese Company Ltd v New Zealand Dairy Workers Union Inc [2011] NZSC 59 at which was accepted by counsel for both those parties. This concession was properly made given the similar conclusion reached by the Cou......
  • Janet Elsie Lowe v Director-General of Health, Ministry of Health
    • New Zealand
    • Employment Court
    • 2 March 2015
    ...(CA) at [27]. 14 This conclusion was upheld by the Supreme Court in Open Country Cheese Company Ltd v New Zealand Dairy Workers Union Inc [2011] NZSC 59 at 15 Cashman , above n 4 at 14, 162. 16 At 14, 167. 17 This is emphasised in Turakina Maori Girls College Board of Trustees v Commissione......

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