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Employment Law
30 May 2010
Supreme Court finds for employer on anti-strike breaking provisions of ERA
Is your business currently bargaining for a collective agreement? Would a strike cause significant damage or disruption? Who would perform the work if your employees went on strike?
A very recent decision from the Supreme Court could be of relevance to you, regarding the anti-strike breaking provisions of the Employment Relations Act 2000 (ERA).
In Air Nelson Limited v The New Zealand Amalgamated Engineering Printing & Manufacturing Union Inc, the Supreme Court found for the employer, Air Nelson, and overturned the findings of the Court of Appeal, which had ruled that Air Nelson breached section 97 of the ERA when it hired engineers to perform the work of striking employees.
By way of background, in June 2007, when line maintenance employees were engaged in a lawful strike, contract engineers were brought in to carry out some routine line maintenance work. The union claimed that by doing so, Air Nelson contravened section 97, which prohibits employers from employing or engaging another person "to perform the work of a striking or locked out employee."
The dispute was heard by the Employment Court, which found in favour of Air Nelson, and held that the limited amount of line maintenance could properly be regarded as the contract engineers' own work rather than that of striking employees. The Employment Court found that the term "work of a striking employee" did not contemplate examining the 'particular task' that, but for the strike or lockout, would have been done by the striking employees, but rather that it required an analysis of the 'type of work' usually done by a worker who is on strike. The Court held that section 97 is not intended to cripple a business where only some of the employees are on strike, and that the 'particular task' approach would tilt the balance of interests too much in favour of unions and employees.
The union successfully appealed this decision to the Court of Appeal, which held that the correct approach was to interpret the expression "the work of a striking or locked out employee" as "the work that a striking or locked out employee would probably have been performing had he or she not been striking or locked out".
Air Nelson's appeal to the Supreme Court was successful this week. The Supreme Court held (by a majority) that the approach adopted by the Employment Court was correct. The Supreme Court held that whether a person was or was not performing the work of a striking or locked out employee is essentially a question of fact to be ascertained by analysis of the circumstances of a particular case. If the contractors were doing their own work, they were not doing another person's work, and this is not a question of definition, but rather a question of fact.
This case will be of significance to all employers when deciding whether they are lawfully able to direct non-striking employees to do particular tasks during a strike, and provides some welcome clarity in this area of the law.
Please contact us if you would like to discuss this case, or you would like a full copy of the judgment. We are very happy to assist you in any employment law issues affecting your business.
Authors
Carl Blake
Senior Associate - Dispute Resolution
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Lucy Jenkins
Senior Associate - Employment
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This case will be of significance to all employers when deciding whether they are lawfully able to direct non-striking employees to do particular tasks during a strike, and provides some welcome clarity in this area of the law.
