Commissioner of Police v New Zealand Police Association

[2000] NZCA 53

IN THE COURT OF APPEAL OF NEW ZEALAND CA 43/00

BETWEEN	COMMISSIONER OF POLICE
Appellant

AND	NEW ZEALAND POLICE ASSOCIATION
Respondent

Hearing:	17 May 2000
Coram:	Richardson P Gault J Thomas J
Appearances:	P J Dymond and J C Mossop for Appellant R M Crotty and K M Drysdale for Respondent
Judgment:	17 May 2000

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

1. The Commissioner of Police seeks to appeal the decision of the Employment Court of 28 January 2000 which concerned the meaning of a provision in the material collective employment contract.   In terms of s135 of the Employment Contracts Act 1991 the jurisdiction of this court is confined to appeals from the Employment Court on questions of law, with the further qualification that decisions on the construction of employment contracts are not appealable.

2. The argument for the Commissioner in the present case is that the Judge erred as a matter of law in his approach to the interpretation of the relevant provision of the collective employment contract rather than simply erring in the ultimate construction and, accordingly, that the appeal is not subject to that jurisdictional bar.   Mr Dymond relied on a preliminary passage in the judgment:

   It is no doubt theoretically true that an employment contract, by virtue of being a contract, is subject to the same rules of construction as apply to other contracts, commercial contracts as they are generally called.   While that is theoretically correct and is the received wisdom, if applied too literally the proposition risks ignoring fundamental realities.   The first of these is that an employment contract is basically dissimilar to a commercial contract because it creates not only a bargain between the parties but also a relationship between them bordering upon a status.   Moreover, there is a further fundamental difference between a contract made between two individuals and a contract made collectively by or for a number of individuals.   Effect must be given to its collective nature and its presumed desire to benefit or at least cater for employees collectively as well as in their individual capacities which must, however, sometimes yield to the greatest good of the greatest number.   From the employer's point of view, it too is dealing with a collective workforce.

   Next, it is important to remember by whom and for whom the contract has been written.   It has not been written by lawyers for lawyers but by practical people involved at the coalface of the workplace environment in its dynamic relationships.   What is more, it is unrealistic to speak of the actual intentions as to meaning of the collective workforce as the contract will have been negotiated for them by a small number of negotiators and language used in it may have been settled long ago in predecessor contracts by people whose intentions can no longer be ascertained.

3. However, as is apparent, when the Judge turned to the relevant provisions of the employment contract he applied an accepted principle of construction of contracts.   It is significant that at the end of the passage just cited, the Judge emphasised that as with legislation, the words used are the only reliable guide to the meaning intended.   He continued that it went without saying that as the parties had freely chosen to express the bargain between them in words also of their own choosing, they must be taken to have meant what they said.   Then, in the next section of his decision, he concluded that the crucial expression in the contractual provision, "clear candidate", conveyed the meaning that was likely to be plain to both parties when they signed the contract.

4. We cannot discern any error of law in the Judge's actual approach to the construction of the provision.

5. Mr Dymond next argued that the construction conclusion was wrong and that it must follow that there was an error of law in the Judge's interpretation approach.   But it is well settled that whether or not as a matter of construction we would have reached the same conclusion is not within our jurisdiction on appeal under s135 (Attorney‑General v Grant [1998] 3 ERNZ 259, 267).   In this case there is no patent error of law in the literal interpretation approach the Judge adopted.

6. The proposed appeal is dismissed for want of jurisdiction.   The respondent is entitled to costs on the appeal which are fixed at $3,000 together with any reasonable disbursements fixed, if necessary, by the Registrar.

Solicitors
Crown Law Office for appellant
New Zealand Police Association, Wellington, for respondent