Pacific Flight Catering Ltd v Service & Food Workers' Union Nga Ringa Tota Inc.
| Jurisdiction | New Zealand |
| Judge | GL Colgan |
| Judgment Date | 18 April 2012 |
| Court | Employment Court |
| Docket Number | ARC 1/12 |
| Date | 18 April 2012 |
In The Matter Of a Challenge to a Determination of the Employment Relations Authority
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[2012] NZEmpC 61
ARC 1/12
IN THE EMPLOYMENT COURT
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.
Anthony Drake and Rosemary Childs, counsel for plaintiffs
Tim Oldfield, counsel for defendant
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 to
airlines 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 notEven 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-
(a) to a determination, or part of a determination, about the procedure that the Authority has followed, is following, or is intending to follow; and
(b) without limiting paragraph (a), to a determination, or part of a determination, about whether the Authority may follow or adopt a particular procedure.
188 Role in relation to jurisdiction
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(4) It is not a function of the court to advise or direct the Authority in relation to-
(a) the exercise of its investigative role, powers, and jurisdiction; or
(b) the procedure-
(i) that it has followed, is following, or is intending to follow; or
(ii) without limiting subparagraph (i), that it may follow or adopt.
The defendants submit that, although there can be no argument that the Authority was empowered to join parties under s 221 of the Act, the companies' complaint is really about how it went about exercising that power and is, therefore, a matter of the Authority'procedure which is beyond the reach of the Court.
The defendants rely on the judgment of this Court in Pivott v Southern Adult Literacy Inc. 3 That was a challenge to a decision of the Authority declining to join together for investigation two separately filed proceedings (albeit with different parties) affecting the same matter.
The defendants say that, as with the Pivott case, the circumstances of this challenge are those which Parliament sought to address in ss 179(5) and 188(4) by preventing such challenges from frustrating the speedy and informal resolution of employment relationship problems.
In support of the existence of jurisdiction to entertain the challenge, the plaintiffs rely upon another judgment of this Court, Neill v Schmidt and Paul. 4 In the course of a challenge to an Authority determination, that judgment decided, as a preliminary issue, who should be the defendant partiesto the challenge. The plaintiff applied to the Court to join two persons who, although they had been named as original parties in the Authority, were not named in the statement of claim bringing the challenge to this Court. In the course of its investigation, the Authority had unilaterally changed the parties to its proceedings to delete those two persons whom the plaintiff wished to have identified as her employer. The Court determined that the Authority was wrong to have deleted unilaterally the names of parties to proceedings before it, thus depriving the plaintiff of an opportunity to challenge that determination, at least without those persons being added back in as parties by the Court.
In the course of the judgment in Neill, the Court addressed an argument that the Authority'determination about the identity of the plaintiff'employer was a matter of its procedure and, therefore, pursuant to s 179(5), unchallengeable. It concluded: 5
I do not agree that a decision about the identity of a party to litigation against whom relief is sought, resulting in the inclusion within, or exclusion from, those proceedings, is “a determination, or part of a determination, about theprocedure that the Authority has followed, is following, or is intending to follow …”. It is difficult to imagine a matter that is less procedural and more substantive than this and I conclude that the point is without merit.
The point in Neill was whether the Authority was...
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