Judgments of note 2022

[2022] NZEmpC 192 E Tū Inc v Rasier Operations BV [PDF, 483 KB] (Judgment of Chief Judge Christina Inglis, 25 October 2022) APPLICATION FOR DECLARATION OF EMPLOYMENT STATUS - whether defendants are mere facilitators of marketplace or employers - defendants exercise significant control over drivers - drivers cannot realistically be said to run their own businesses - IDENTITY OF EMPLOYER - defendants are sufficiently connected to constitute joint employer - application granted.

[2022] NZEmpC 141 E Tū Inc and ors v Carter Holt Harvey LVL Ltd [PDF, 356 KB] (Judgment of the Full Court, 15 August 2022) MATTER REMOVED FROM EMPLOYMENT RELATIONS AUTHORITY – Holidays Act 2003, ss 18 and 19 – annual holidays directed to be taken during COVID-19 Alert Level 4 lockdown – whether “unable to reach agreement” – no attempt to engage with individual plaintiffs or union –  cannot say defendant was unable to reach agreement – section 19(1)(a) Holidays Act did not apply – STANDING – E Tū may represent members concerning individual rights but that does not extend to bringing present proceeding in its own name – union does not have standing.

[2022] NZEmpC 138 Pilgrim v Attorney-General [PDF, 247 KB] (Interlocutory Judgment of Chief Judge Christina Inglis, 3 August 2022) APPLICATION FOR RECUSAL – apparent bias – the number of factual findings and their significance do not warrant recusal – not satisfied a fair-minded observer would consider any more than a remote risk – application declined.

[2022] NZEmpC 134 CultureSafe NZ Ltd v Employment Relations Authority [PDF, 211 KB] (Judgment of Judge J C Holden, 1 August 2022) APPLICATION FOR JUDICIAL REVIEW –Employment Relations Act 2000, s 236 – Authority determined CultureSafe had not established authority to represent – Authority administratively closed file – Authority had jurisdiction to consider question of authority to represent – application declined. 

[2022] NZEmpC 123 CSN v Royal District Nursing Service New Zealand Ltd [PDF, 376 KB] (Judgment of Judge B A Corkill, 11 July 2022) DECLARATION – ss 5 and 6 Employment Relations Act 2000 – COVID-19 Public Health Response (Vaccinations) Order 2021 – CSN was not a care and support worker under the Vaccinations Order – CSN remained employee for relevant period – CSN also a homeworker – declaration accordingly – NON-PUBLICATION – permanent non-publication of name and identifying details of plaintiff, brother and son.

[2022] NZEmpC 118 New Zealand Post Primary Teachers’ Association v Board of Trustees for Rodney College [PDF, 519 KB] (Judgment of Judge Kathryn Beck, 4 July 2022) CHALLENGE – DISPUTE – application and interpretation of collective agreement – “not open for instruction” means before 8.30 am and after 4.30 pm on days during school term, on weekends, public holidays, Easter Tuesday and vacations – challenge allowed – post-primary teachers.

[2022] NZEmpC 78 Vulcan Steel Ltd v Manufacturing & Construction Workers Union [PDF, 409 KB] (Judgment of the Full Court, 11 May 2022) INTERPRETATION OF COLLECTIVE AGREEMENT - IMPLICATION OF TERM - DRUG TESTING - whether term should be implied to allow employer to select method of drug testing - parties cannot be understood to have agreed on the correct approach - term sought is not so obvious it goes without saying - implication of term is not appropriate.

[2022] NZEmpC 77 Courage v Attorney-General [PDF, 435 KB] (Judgment of Chief Judge Christina Inglis, 10 May 2022) NATURE OF EMPLOYMENT – religious community – family relationship – plaintiffs were working and the work could not be described as chores – minors have legal capacity to enter into employment relationship – plaintiffs were rewarded with necessities of living and thus not volunteers -  plaintiffs were employees.

[2022] NZEmpC 75 Tranzurban Hutt Valley Ltd v New Zealand Tramways and Public Passenger Transport Employees Union Wellington Inc [PDF, 314 KB] (Judgment of Judge B A Corkill, 9 May 2022) REST AND MEAL BREAKS – Employment Relations Act 2000, pt 6D – work period – split shifts – work period is question of fact – whether distinct shifts worked are separate work periods is to be calculated by reference to actual hours an employee is required to perform work duties which include authorised rest and meal breaks in that period and in light of what has been expressly agreed by parties – bus drivers. 

[2022] NZEmpC 52 Fechney v Employment Relations Authority [PDF, 382 KB] (Judgment of Judge J C Holden, 23 March 2022) APPLICATION FOR JUDICIAL REVIEW – Employment Relations Act 2000, s 184 restricts grounds of review for Employment Relations Authority determinations – natural justice not a ground of review – no bad faith by Employment Relations Authority – application declined.

[2022] NZEmpC 48 E Tu Inc v Mount Cook Airline Ltd [PDF, 314 KB] (Judgment of Judge K G Smith, 18 March 2022) MINIMUM WAGE ACT – SLEEPOVER – whether cabin crew staff were working while stationed away from home – no restriction during time away – sleepovers were not work – INTERPRETATION OF MINIMUM WAGE ORDER – whether part-time salaried workers were being paid minimum wage – Minimum Wage Order is clear – part-time salaried workers must receive at least the amount specified in cl 4(d).

[2022] NZEmpC 39 Malcolm v The Chief Executive of the Department of Corrections [PDF, 332 KB] (Judgment of Judge B A Corkill, 9 March 2022) APPLICATION TO STRIKE OUT PROCEEDING – amended statement of claim challenged lawfulness of COVID-19 Vaccinations Order – Employment Court no jurisdiction to determine lawfulness of Order – no reasonably arguable cause of action – application granted.

[2022] NZEmpC 5 VMR v Civil Aviation Authority [PDF, 519 KB] (Judgment of Judge B A Corkill, 24 January 2022) APPLICATION FOR INTERIM REINSTATEMENT – weakly arguable case for unjustifiable dismissal – weakly arguable case for permanent reinstatement – employing unvaccinated workers likely to be in breach of COVID-19 Public Health Response (Vaccinations) Order 2021 – reinstatement would not be appropriate if it would lead to a breach by the employer – balance of convenience weighs against interim reinstatement – application declined - APPLICATION FOR INTERIM NON-PUBLICATION – non-publication granted in other jurisdictions – significant public interest in mandatory vaccinations – application granted.