Secret Recordings
The matter involved the Amalgamated Workers’ Union and Fletcher Concrete (trading as Golden Bay Cement). The disputed clause related to the selection, training, and promotion procedures onsite, and preferred those members of the Union who were covered by the applicable collective agreement. Those employees had conditions which other employees did not.
The Employment Relations Authority previously determined in 2015 that the particular clause in the collective agreement conferred an unlawful preference on members of the Union and was therefore unlawful. The Union challenged the Authority’s Determination. The Court invited other parties as interveners, which included Business New Zealand, the CTU, and the EMPU.
We were invited to act for the EPMU. The Employment Court overturned the Authority’s Determination and held that the preference for the clause in question had a long history and had been negotiated in good faith. The Court held Section 9 specifically permitted such a term in a collective agreement, which was intended to recognise the benefits of a collective agreement.
The Full Bench of the Employment Court considered the history of the legislation and emphasised that the Employment Relations Act provided for productive employment relations and promoted collective bargaining and that unions and employers were free to negotiate terms and conditions which might otherwise amount to preference provisions. The Court held that Parliament had been “content to allow parties to have virtually a free hand when it comes to negotiating terms and conditions of a collective agreement”.
This Judgment is a culmination of a long series of Court Judgments about what constitutes an unlawful preference.
We were very pleased to act for one of the invited intervening parties.
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