William Tan v Lsg Sky Chefs New Zealand Ltd NZEmpC Ak
| Jurisdiction | New Zealand |
| Judge | B S Travis |
| Judgment Date | 14 March 2013 |
| Court | Employment Court |
| Docket Number | ARC 20/11 |
| Date | 14 March 2013 |
In The Matter Of Proceedings Removed
[2013] NZEmpC 35
ARC 20/11
IN THE EMPLOYMENT COURT AUCKLAND
Application by plaintiff that he was entitled to transfer his employment to the defendant pursuant to subpart 1 Part 6A Employment Relations Act 2000 (“ERA”)(continuity of employment if employees' work affected by restructuring) — plaintiff employed by company which provided food catering services for the aviation sector — contract subsequently awarded to defendant — plaintiff's main role was to supervise airline equipment and train staff — defendant declined to accept his transfer on the grounds he was not involved in food catering services pursuant to Schedule 1A ERA (employees to whom subpart 1 of Part 6A applies) — whether plaintiff was involved in “food catering services” — whether Part 6A was only intended to cover “vulnerable workers” by virtue of s274A(4) ERA (amendments to Schedule 1A — restructuring of an employer's business occurred frequently: restructuring tended to undermine the employees' terms and conditions and employees concerned had little bargaining power).
Rob Towner, counsel for plaintiff
Garry Pollak, counsel for defendant
JUDGMENT OF JUDGE B S Travis
The first issue before the Court was whether the plaintiff, Mr Tan, was entitled to elect to transfer his employment to LSG Sky Chefs New Zealand Limited (LSG), pursuant to subpart 1 of Part 6A of the Employment Relations Act 2000 (the Act) because, allegedly, the nature of his duties at his previous employer, PRI Flight Catering Ltd (PRI), was providing food catering services for the aviation sector. The second issue was to determine the terms and conditions of his employment if he was so entitled.
The matter was removed to the Court by a determination of the Employment Relations Authority (the Authority) on 23 March 2011. 1 It was agreed by counsel that the Court would issue an interim judgment determining the two issues and the issue of remedies was reserved.
The issuing of this judgment was delayed by the linkage of this case to other litigation in this Court involving LSG and previous employees of PRI and Pacific Flight Catering Ltd (PFC) its associated company through which it traded and by the High Court proceedings brought by LSG against PFC and PRI. 2 The most recent judgment in the proceedings Mr Matsuoka brought against LSG was issued on 21 December 2012. 3
The Supreme Court decision in Service and Food Workers Union Nga Ringa Tota Inc v OCS Ltd, 4 which set aside orders made by the Court of Appeal on issues of continuity of employment under Part 6A of the Act, was issued on 9 August 2012 and I considered it had relevance to the issues which were required to be determined in the present matter. Counsel were provided with the opportunity to make further submissions on the applicability of the Supreme Court decision and did so. These have been taken into account in this judgment. This all, however, contributed to the delay in resolving this matter.
Mr Pollak, in his closing submissions on behalf of the defendant, accepted that the evidence led on behalf of Mr Tan as to his duties, was not the subject of any disagreement and was not challenged. Mr Tan was not cross-examined on his brief of evidence. The following summary is derived from Mr Tan's evidence.
Mr Tan described himself as an “airline equipment and supply supervisor”. He had almost 19 years' experience in airline catering at Auckland International Airport. He had worked fulltime for P&O Flight Catering and Services NZ Ltd (P&O) as an airline equipment supervisor from September 1991. In 1996, PRI bought the flight catering business from P&O and Mr Tan continued as an employee with PRI until 22 February 2011. He was employed as airline equipment and supply supervisor. He stated that the change in his job description, by the inclusion of the words “and supply” did not mean there was any change in his duties. He worked at
In an addendum, dated 19 September 2005, to Mr Tan's individual employment agreement, the first schedule of his P&O individual employment agreement, was replaced with the following:
… Your duties will encompass, but not necessarily be restricted to the following:
a) To supervise all inward airline equipment and liaise with airlines to ensure a smooth supply of airline equipment
b) To supervise airline equipment stock takes
c) To ensure appropriate systems are used to monitor and keep track of airline equipment
d) To ensure speedy communication with airlines regarding any equipment issues
e) To supervise that airline equipment is issued correctly on the floor
f) To raise any misuse or waste of airline equipment with senior management
g) To train and supervise staff dealing with airline equipment as necessary
h) To implement and supervise the Singapore Airlines Equipment management system
i) To report as necessary to the Managing Director
Clause 8 of the individual employment agreement was amended by the addendum to state that the employee had the sole right to decide to take on an instructor/auditor role, in lieu of his current role, at any time the employee saw fit. This role involved educating, coaching and training staff and auditing equipment management practices, stock takes, use and storage. Mr Tan said he never decided to take on an instructor/auditor role.
Mr Tan said he performed a broad range of duties which were accurately summarised in the first schedule of his amended employment agreement set out above. His role involved supervising all equipment and inventory at PFC's premises and liaising with airlines about equipment by email to ensure a smooth supply of airline equipment at PFC at all times. The purpose of his job was to ensure that all parts of the business had the equipment in stock that was needed to provide catering to all of the different airlines with which PFC had contracts.
Mr Tan explained that with flight catering there are two different types of equipment: rotables and consumables. “Rotable” equipment means reusable materials, such as plates, cutlery, cups and trays. “Consumable” equipment means disposable items such as plastic lids used for meals, aluminium foil, plastic cups, paper napkins, condiments and tea and coffee. Condiments, tea and coffee were the only food stuffs Mr Tan was responsible for ordering; the purchasing officer in the kitchen was responsible for ordering all other food items. Both rotables and consumables items were used in providing in-flight meals for airlines; without the correct equipment, PFC could not provide the airlines' requirements. Most of the rotable equipment went from the store area to the kitchen, where it was used for preparing meals for airlines. Some rotable equipment was packed straight onto planes by the ground stewards, without going through the kitchen first. This was the equipment used for first and business classes on some airlines as sometimes meals were plated on the flights rather than in PFC's kitchen. Several of the consumable items were used in the kitchen, for example, the plastic lids and aluminium foil were used to cover meals before they were packed onto the trolleys that were taken onto the planes. Other consumable items such as disposable napkins and condiments were packed by the ground stewards directly into the trolleys without going through the kitchen first.
Each of the airlines for which PFC performed work had different equipment needs and therefore it was important to have an accurate system within PFC's stores to ensure that the inventory levels could be checked and further equipment ordered when that was necessary. The main storage area of PFC was divided into aisles for six different airlines, with rotables on one side and consumables on the other. Some airline equipment was also stored outside the main store area to make it more accessible for staff that needed to use it.
Mr Tan continually checked the stock levels for all of the equipment for the airlines serviced by PFC. At the end of each month, he would assist with a stock take, enter his results on his computer and send the results to each airline. He would also send each airline an order for the equipment which was running low.
Sometimes he was required to send orders for stock during the month when equipment that had previously been ordered had not arrived or when PFC was running low on equipment and needed it urgently. Orders placed during the month were known as “cabin load requests” because they would be loaded into a cabin on the next available flight to Auckland by the particular airline.
Mr Tan liaised with the airlines by email, which were sent on the computer in Mr Tan's office. Mr Tan had his own office with a computer and printer for his use during all of the time of his employment with PRI. He used his computer daily but did not spend much time in his office, apart from when he needed to use the computer. He was responsible for the training, support and supervision of another staff member employed as the airline equipment officer by PFC and who acted as his assistant.
Cathay Pacific was the only airline which sent its equipment, which Mr Tan had ordered, by shipping container. With the assistance of the airline equipment officer and other store persons, the container would be unloaded and the equipment placed in the storeroom. Mr Tan was “an accredited person” for Ministry of Agriculture and Fisheries (MAF) purposes. This authorised him to open containers from Cathay Pacific when they arrived at PFC's premises and did not require MAF personnel to be present. Mr Tan was required to check the container for unwanted pests and...
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