Service and Food Workers Union Nga Ringa Tota Incorporated & Public Service Association Te Pukenga Here Tikanga Mahi Incorporated v Pact Group Charitable Trust
 NZEmpC 148
IN THE EMPLOYMENT COURT CHRISTCHURCH
In the Matter of an application for an injunction to restrain a lockout
Tim Oldfield, counsel for first plaintiff
Catherine McNamara, counsel for second plaintiff
Nic Soper, counsel for defendant
JUDGMENT OF Judge A A Couch
Under the Employment Relations Act 2000 (the Act), 14 days notice is required of any intention to strike or lockout workers in an essential industry. The industries declared to be essential include the operation of a “residential welfare institution”. On 20 October 2011, the defendant purported to lock out employees in a range of its operations without notice. The principal issue in this case is the extent to which those employees were involved in the operation of a residential welfare institution and therefore entitled to notice of any lockout. Another important issue is the extent to which the reasons for a proposed lockout, and what is required to end it, must be communicated to affected employees.
The matter came before Chief Judge Colgan on 21 October 2011 as an urgent application for an interim injunction. After hearing counsel for all parties, he issued an interim injunction restraining the defendant from locking out any of its employees who are members of the first and second plaintiff unions without the 14 days notice required by s 91 of the Act. The parties subsequently agreed that the substantive hearing of the matter should be conducted on the papers with evidence in the form of affidavits and submissions by memoranda.
Strikes and lockouts are governed by Part 8 of the Act. Broadly speaking, such industrial action is lawful where it relates to collective bargaining in which the parties are involved. There are, however, some additional conditions which apply in certain circumstances. Section 91 provides:
91 Lockouts in essential services
(1) No employer engaged in an essential service may lock out any employees who are employed in the essential service—
(a) unless participation in the lockout is lawful under section 83 or section 84; and
(b) if subsection (2) applies,—
(i) without having given to the employees' union or unions and to the chief executive, within 28 days before the date of commencement of the lockout, notice in writing of the employer's intention to lock out; and
(ii) before the date specified in the notice as the date on which the lockout will begin.
(2) The requirements specified in subsection (1)(b) apply if—
(a) the proposed lockout will affect the public interest, including (without limitation) public safety or health; and
(b) the proposed lockout relates to bargaining of the type specified in section 83(b).
(3) The notice required by subsection (1)(b)(i) must specify—
(a) the period of notice, being a period that is—
(i) no less than 14 days in the case of an essential service described in Part A of Schedule 1; and
(ii) no less than 3 days in the case of an essential service described in Part B of Schedule 1; and
(b) the nature of the proposed lockout, including whether or not it will be continuous; and
(c) the place or places where the proposed lockout will occur; and
(d) the date on which the lockout will begin; and
(e) the names of the employees who will be locked out.
(4) The notice must be signed either by the employer or on the employer's behalf.
The term “essential service” is defined as being a service specified in Schedule 1 of the Act. 1 That schedule includes in Part A:
14 The operation of a residential welfare institution or prison.
The case for the plaintiffs is that the defendant is engaged in the operation of residential welfare institutions which, by definition, are essential services. Accordingly, the defendant may not lock out its employees without 14 days notice given in accordance with s 91.
The plaintiffs' second cause of action is that the lockout notices issued by the defendant were not sufficiently clear.
The defendant says that the facilities it operates and the services it provides do not amount to a residential welfare institution and that it is therefore free to lock out its employees without notice.
The defendant also says that s 91 does not apply because the proposed lockout would not have affected the public interest as required by s 91(2).
The relevant facts are very largely undisputed.
The defendant provides support to about 800 people with intellectual or other disabilities or those recovering from mental illness. Those services are provided in Otago, Southland and the West Coast of the South Island. The defendant's programmes and services are funded under numerous headings by the Ministry of Health and the Ministry of Social Development.
The defendant currently has 327 employees whose employment is relevant to this matter. They are engaged in four positions. I was provided with a very detailed position description for each role but they are very largely generic and aspirational. The essential nature of each role appears to be:
(a) Community Support Worker – providing support to people with mental illness or an intellectual disability who live in their own homes within the community. The worker is mobile and provides clients with assistance in maintaining and improving their independent living skills.
(b) Supported Accommodation Support Worker – providing practical support services to clients who live in accommodation provided by the defendant. The worker is directly involved with the clients and is responsible for supporting their emotional, physical and personal well-being.
(c) Supported Accommodation Service Co-ordinator – co-ordinating the day to day provision of services by support staff to provide a home for clients in supported accommodation.
(d) Activity Support Worker – assisting clients with intellectual disabilities to acquire and maintain skills which will enable them to participate in the community and fulfil their ambitions. The work is done with individuals or small groups of clients.
The defendant is contracted to provide services which are described as supported accommodation, supported independent living, daytime services and support for people living in their own homes.
Supported accommodation is provided for persons eligible for a residential care subsidy. Such clients are identified through a needs assessment process and are provided with support 24 hours per day. Supported accommodation is provided in houses or flats in the community. The clients live together essentially as “flatmates” with support staff present at all times to provide organisation, supervision, guidance, and security.
The defendant provides accommodation for a very small number of people directed to live in supervised premises under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. The number of these clients is unclear but appears to be only two or three.
The two plaintiff unions and the defendant were parties to a collective agreement which expired on 30 April 2011. In anticipation of that event, they began collective bargaining for a new agreement on 21 February 2011. The parties were unable to agree about several issues. This led to correspondence in which the unions raised the possibility of strike action. This culminated in notice of strike action being given by the first plaintiff on 3 October 2011. That notice was subsequently withdrawn on 5 October 2011, when similar notices of strike action were given by both plaintiffs. Those notices both provided for a refusal by workers to do various types of paperwork from 20 October 2011 onwards.
On 20 October 2011, members of the plaintiff unions were handed notices of lockout when they arrived for work. There were two forms of notice. One was addressed to “Supported Accommodation Service Co-ordinators and Support Workers”. The other was addressed to “Community Support Workers”. In each case, the notice was directed to members of the plaintiff unions “who will take part in the strike notified by the Union on 3 October”.
The lockout of...
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