Chief Executive, Unitec Institute of Technology v Tertiary Education Union

IN THE COURT OF APPEAL OF NEW ZEALAND

CA270/2011
[2011] NZCA 207

BETWEEN CHIEF EXECUTIVE, UNITEC INSTITUTE OF TECHNOLOGY
First Appellant

AND CHIEF EXECUTIVE, WHITIREIA COMMUNITY POLYTECHNIC
Second Appellant

AND CHIEF EXECUTIVE, NORTHLAND POLYTECHNIC
Third Appellant

AND CHIEF EXECUTIVE, BAY OF PLENTY POLYTECHNIC
Fourth Appellant

AND CHIEF EXECUTIVE, WAIKATO INSTITUTE OF TECHNOLOGY
Fifth Appellant

AND TERTIARY EDUCATION UNION
Respondent

Hearing: 17 May 2011

Court: Arnold, Stevens and Wild JJ

Counsel: S Cook and A Harlowe for Appellants
P Cranney for Respondent

Judgment: 20 May 2011 at 2.30 pm

JUDGMENT OF THE COURT

ALeave to appeal is granted under s 214 of the Employment Relations Act 2000 in relation to the following question of law:
Did the Employment Court err in its interpretation of s 47 of the Employment Relations Act and in its application of s 47 to the agreed facts? In particular, did the Employment Court err in concluding that:
(1)The negative ballot of the respondent union’s members meant that the parties were not permitted to continue bargaining pursuant to the applicants’ initiation notice of 7 December 2010;
(2)The respondent union’s initiation of bargaining with each of the applicants individually on 9-11 February 2011 was proper?

BCosts on the application are reserved.

REASONS OF THE COURT
(Given by Arnold J)

We grant leave to appeal under s 214 of the Employment Relations Act 2000 on the following question of law:
Did the Employment Court err in its interpretation of s 47 of the Employment Relations Act and in its application of s 47 to the agreed facts? In particular, did the Employment Court err in concluding that:
(1)The negative ballot of the respondent union’s members meant that the parties were not permitted to continue bargaining pursuant to the applicants’ initiation notice of 7 December 2010;
(2)The respondent union’s initiation of bargaining with each of the applicants individually on 9-11 February 2011 was proper?

As is our usual practice, we do not give reasons.

Both parties seek an urgent fixture. The Court is able to offer a half day fixture on 8 June 2010. The parties are to advise the Registry by 4pm on Monday 23 May 2010 whether that date is acceptable.
The parties indicated that events since the Employment Court’s judgment have given rise to another question, which involves the interpretation of s 46 of the Employment Relations Act. That issue has not yet been put to the Employment Court for decision, however. Given the short time frame, it seems unlikely that any progress will be made in relation to that matter prior to 8 June 2010.
Costs on this application are reserved.

Solicitors:
Buddle Findlay, Auckland for Appellants
Oakley Moran, Wellington for Respondent

CaseChat Overview and Summary

The case of Chief Executive, Unitec Institute of Technology v Tertiary Education Union involved several educational institutions in New Zealand, which were the appellants, and the Tertiary Education Union, which was the respondent. The appellants contested the Employment Court’s interpretation and application of sections 46 and 47 of the Employment Relations Act 2000. Specifically, the appellants challenged the Employment Court's conclusion that the negative ballot of union members barred further bargaining under their initiation notice and that the union's subsequent individual bargaining with each institution was valid.

The central legal issues before the Court of Appeal were whether the Employment Court erred in its interpretation of sections 46 and 47 of the Employment Relations Act and in its application of these sections to the agreed facts. The appellants argued that the negative ballot did not preclude further collective bargaining, and that the union’s individual negotiations were improper. The Court of Appeal granted leave to appeal to address these questions, reserving costs for later determination.

The Court of Appeal, in its judgment, acknowledged the significance of the legal questions raised and granted leave to appeal, focusing on the statutory interpretation issues. The Court noted that the matter involved recent events that introduced an additional question concerning section 46 of the Act, though it was not yet before the Employment Court. The Court opted to address the specified issues related to sections 46 and 47, scheduling a half-day fixture for 8 June 2010 to expedite the appeal process. The parties were instructed to confirm their acceptance of this date by a specified deadline. The Court reserved the issue of costs pending further proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established