Effect given to the recommendations of the committee and the Governing Body - Report No 305, November 1996

Case No 1698 (New Zealand) - Complaint date: 08-FEB-93 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 47. The Committee last requested the Government at its meeting in June 1996 (304th Report, paragraphs 14-17) to keep it informed of any significant judgements handed down concerning the implementation of the Employment Contracts Act (ECA) as well as of the developments in the discussion to be held with the New Zealand Council of Trade Unions (NZCTU) and New Zealand Employers' Federation (NZEF). In communications dated 18 June and 25 October 1996, the Government provided further judicial decisions relevant to issues addressed in the Capital Coast Health case.
2. 48. The Government specifies that two further decisions has been issued by the Court of Appeal relating to communications between the employers and employees during negotiations: New Zealand Fire Service Commission v. Ivamy and Ors, CA 145/95 and Airways Corporation of New Zealand Ltd. v. New Zealand Airline Pilots' Association Industrial Union of Workers Inc. and Dallas Richard Bean and Ors, CA 251/95 (ALPA). In both decisions, the Court of Appeal confirmed the principle that if an employer agrees to negotiate, the latter must do so with the employees' authorized representative, in accordance with its decision in Capital Coast Health. The Court of Appeal, however, overturned the Employment Court's decision in both cases to issue an injunction against the employer reasoning that the subject-matter and target of any attempted persuasion are the significant elements in determining whether direct communication with employees is inconsistent with the employer's obligation under section 12(2) of the Employment Contracts Act. Thus, if the communications in question are simply an attempt to persuade employees as to the reasonableness of the employer's stance on a particular issue which all parties understand is the subject of negotiation between representatives, as was determined in both cases on appeal, then it need not amount to a failure to recognize an authority in contravention of section 12(2). On the other hand, the Court of Appeal confirmed that it would be contrary to the Act if employers attempted to exclude the representative and enter into contracts directly with the employee, to persuade employees to withdraw an authority and to call into question the agent's authority to represent employees. In its examination of cases brought under section 12(2), the Court's determination of whether communications are permissible will depend upon the nature of the employment relationship in question, the general background to, and history of the complaint, and the particular circumstances in which the complaint arose.
3. 49. In its latest communication, the Government further provides two recent Employment Court decisions which touch upon the interpretation of the ECA. The Government also indicates that it has had informal discussions with the central organizations of employers and employees which have included, at a general level, some aspects relating to the statutory bargaining framework. The Government adds that it will keep the Committee informed of the outcome of the discussions.
4. 50. The Committee takes note of this information and requests the Government to continue to keep it informed of any other relevant judgements rendered concerning the implementation of the Employment Contracts Act as well as of any developments in the discussions held with the NZCTU and the NZEF in this regard. Nevertheless, the Committee reaffirms its previous recommendations and requests the Government to take the necessary measures to implement these recommendations.