Pacific Flight Catering Ltd v Service & Food Workers' Union Nga Ringa Tota Inc.
 NZEmpC 61
IN THE EMPLOYMENT COURT
In The Matter Of a Challenge to a Determination of the Employment Relations Authority
Anthony Drake and Rosemary Childs, counsel for plaintiffs
Tim Oldfield, counsel for defendant
Challenge to Employment Relations Authority determination which added parties at the union'request — cross-challenge by union that it was not entitled to require its members to disclose wage records — first plaintiff lost airline supply contract to competitor — employees transferred to competitor to perform same airline work on same terms and conditions — union sought copies of terms and conditions its members had been employed on from first plaintiff which declined to provide records on grounds it was not the employer of union members — Authority added additional parties at union'request — whether challenge was as to Authority'procedure and outside Employment Court'jurisdiction — whether Authority breached natural justice as plaintiffs did not have reasonable opportunity to be heard on joinder — whether union entitled to request member records.
The issues were: whether the EC had jurisdiction to hear the challenge; whether the Authority had breached natural justice by not giving the plaintiffs a reasonable opportunity to be heard on the joinder application; and, whether the union wasentitled to request member records from their employer.
Held:A jurisdictional challenge by the union could not succeed. The Authority'investigativepowers were set out in s157 ERA (role of Authority) and included the requirement to comply with natural justice. Section 179(5) and s188(4) ERA had to be interpreted in light of s157. A challenge to a decision on the grounds that the statutory requirement of natural justice had been breached had to be able to be heard and therefore could not fall within the prohibitions in s179(5) ERA.
This was so despite the existence of an independent remedy of judicial review in the EC. It was also relevant that s160(1)(f) ERA provided that in investigating any matter, the Authority might follow whatever procedure it considered appropriate. Read together, the provisions meant that the Authority had a very broad ability to determine its own procedure that was largely unreviewable, but it was still subject to a requirement to act in accordance with the principles of natural justice, the exercise of which was reviewable.
The plaintiffs' reliance on a breach of natural justice (s127(2)(a) ERA) and the need to uphold and enforce this fundamental obligation meant that their challenges were able to be heard on their merits. The Authority was clearly entitled to join parties without an application to do so from any of the existing parties or anyone else (s221 ERA, joinder, waiver, and extension of time). The substantive correctness of the decision to join the parties was not challenged and there was no natural justice requirement in the circumstances to give Pacific an opportunity to be heard on the joining of the additional applicants or PRI. There was no sustainable ground of breach of natural justice.
The union was not entitled for itself to make a request under s130(2) ERA (wages and time record) but it could do so on behalf of a member employee if authorised to represent the employee under s236 ERA (representation). The right to access time and wage records was not part of a collective interest, but rather it was a right that was individual and personal to the employee. This meant s18(3) ERA (union entitled to represent members' interests) was engaged and the union required authority to represent the employee. The plaintiffs were entitled in law to satisfy themselves reasonably of the union'authority from its members to seek the records.
JUDGMENT OF CHIEF JUDGE GL Colgan
The issues on this challenge and cross-challenge to a determination 1 of the Employment Relations Authority concern the ability and propriety of the Authority joining additional parties to proceedings before it, both applicants and a respondent, and whether a union is entitled in law to have access to the time and wage records held bythe employer of an employee who is a member of that union.
There is a preliminary argument for the Service & Food Workers Union Nga Ringa Tota Inc (the Union) that Pacific Flight Catering Limited’(PFCL's) challenge comes within the ambit of s 179(5) of the Employment Relations Act 2000 (the Act) and so is not able to be brought to the Court. That will have to be decided as a preliminary issue.
The parties have agreed, in the interests of expedition, to forego a hearing and to have the challenge and cross-challenge dealt with on the papers. That is because the Employment Relations Authority is yet to examine the merits of some of the proceedings before it: this challenge and cross-challenge address interlocutory questions in the Authority.
The relevant facts can be gleaned from the Authority'determination issued on 12 December 2011 after investigations conducted by it during June and July last year.
The proceeding arises out of the loss by PFCL of an airline supply contract to a competitor, LSG Sky Chefs New Zealand Ltd (LSG). Pursuant to the provisions of Part 6A of the Act, a number of PFCL'employees transferred to LSG to continue to perform the same airline work. Many of these transferred employees were members of the Union. The law provides that such transferred employees shall be employed by the new employer on the same terms and conditions as they enjoyed with PFCL. 2
Together, both the Employment Relations Act 2000 and the Holidays Act 2003, require employers to keep records of employees' time worked, wages paid, holidays taken, and entitlement to accrued holidays. Employees are entitled to have access to those records (as are labour inspectors) including by an authorised representative.
The plaintiffs say (and the defendant does not disagree) that PFCL is a holding company owned exclusively by PRI Flight Catering Limited (PRIFCL). The former company is said never to have traded or employed any person. The second plaintiff is acknowledged to be in the business of providing catering services toairlines at Auckland International Airport and employed employees who were members of the Union. The nub of the plaintiffs' complaint is that the Union ought to have applied formally to the Authority to join additional partiesbut did not.
Even if the Union had been required to apply formally under s 221 to have the additional parties joined, s 219 enabled the Authority to treat the amended statement of problem incorporating these additional parties as an application to do so and to have validated any informality. Section 219(1) provides in this regard:
219 Validation of informal proceedings, etc
(1) If anything which is required or authorised to be done by this Act is not done within the time allowed, or is done informally, the court, or the Authority, as the case may be, may in its discretion, on the application of any person interested, make an order extending the time within which the thing may be done, or validating the thing so informally done
To assist its members with the transfer of their employment on the same terms and conditions (including as to continuity of employment), the Union sought copies of these records erroneously from PFCL. It did so by writing to the company repeatedly over the months of February, March, April and May 2011 requesting this information on behalf of 12 of its members covering a period of 12 months before their transfer. PFCL declined to provide such records, saying that it was not the employer of the Union members.
The Union then applied to the Authority for an order for compliance and for penalties which, after the parties had been to mediation unsuccessfully, the Authority began to investigate. In the course of the Authority'extended investigation, the Union sought to add four of its individual members as applicants to its claim in the Authority and to add the company closely related to PFCL, PRIFCL, as an additional respondent. The Authority did so at the Union'request.
It is the actions of the Authority in joining formally those persons as parties to the proceeding before it that is the subject of the employer'challenge. In the course of its determination, the Authority concluded that the Union was not entitled to require its members' time, wage and holiday records to be disclosed to it by their employer. That decision is the subject of the Union'cross-challenge.
The first issue, before the merits of the challenge and cross challenge can be considered, is whether the Court is entitled in law to hear these. The defendants submit that it is not because of the provisions of ss 179( 5) and 188(4) of the Act. These sections are as follows:
179 Challenges to determinations of Authority
(5) Subsection (1) does not apply-...
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