IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-590
[2022] NZHC 308
BETWEEN
IDEA SERVICES LTD
Applicant
AND
ATTORNEY-GENERAL in respect of the Minister of Workplace Relations
First Respondent
ATTORNEY-GENERAL in respect of the Chief Executive of Ministry of Business Innovation and Employment
Second Respondent
E TU INCORPORATED
Third Respondent
Hearing:
14 and 15 February 2022
[Further submissions received 17 February 2022]
Counsel:
A S Butler and P A McBride for Applicant
K Stephen and R Thornley for First and Second Respondent P Cranney, and E Griffin for Third Respondent
S R Mitchell and G V A Iddamolgoda for New Zealand Council of Trade Unions Intervener P T Kiely and A M Kamphorst for Business NZ Intervener
Judgment:
28 February 2022
JUDGMENT OF ISAC J
[Application for judicial review]
IDEA SERVICES LTD v ATTORNEY-GENERAL in respect of the Minister of Workplace Relations [2022] NZHC 308 [28 February 2022]
Table of Contents
Para Nos
Introduction
[1]
Employment Relations Act 2000
[7]
Epidemic Preparedness Act 2006
[11]
Parliament was concerned to limit the duration of emergency powers in the Act
[20]
An Immediate Modification Order is made [33]
The present case [44]
Grounds of review [51]
First cause of action: is s 53(3) a “requirement or restriction”? [54]
The parties’ cases [54] Consideration [59]
Second cause of action: impossible or impractical to comply with s 53(3)? [72]
The parties’ cases [72] Consideration [81]
Third cause of action: did the Order go further than reasonably necessary?
[100]
The parties’ cases [100] Consideration [108]
Fourth cause of action: an unjustified infringement on freedom of
association? [112]
The parties’ cases [112] Consideration [119]
Does IDEA Services have a right to be free from association with E tū?
[119]
Does s 15(3) impose a complete ban on modification? [127]
Is any limitation demonstrably justified? [131]
Fifth cause of action: an implied requirement to review the Order? [134]
The parties’ cases [134]
Consideration [139]
Relief? [148]
Consideration [153]
Conclusion and orders [157]
Introduction
[1] This case raises an important question about the duration of emergency powers exercised by the executive branch of Government. In contrast to a number of recent decisions of this Court examining the legality of the Government’s response to the COVID-19 pandemic, its focus is not on vaccine mandates.1
[2] In 2006, Parliament passed the Epidemic Preparedness Act 2006. The Act provides ministers with the power to modify or suspend requirements contained in statute as part of a response to an epidemic.
[3] In April 2020, the Minister for Workplace Relations and Safety recommended to Cabinet that an immediate modification order should be made under the Epidemic Preparedness Act suspending a 12-month sunset provision in s 53(3) of the Employment Relations Act 2000. In simple terms, the effect of the order was to maintain collective employment agreements that would have otherwise expired until revocation of an epidemic notice issued by the Prime Minister. As the Prime Minister has consistently renewed the epidemic notice every…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Idea Services Ltd v Attorney-General [2022] NZHC 308
Case
[2022] NZHC 308
Decision Date
CaseChat Overview and Summary
IDEA Services Ltd (IDEA) brought proceedings against the Attorney-General in respect of the Minister of Workplace Relations and the Chief Executive of the Ministry of Business, Innovation and Employment, and E tū Incorporated (E tū). IDEA sought declarations that clause 8 of the Epidemic Preparedness (Employment Relations Act 2000—Collective Bargaining) Immediate Modification Order 2020 (the Order) was invalid and that the collective employment agreement between IDEA and E tū had expired on 18 October 2021. IDEA argued that the Order was not authorised by the Epidemic Preparedness Act 2006 (the Act) as it went beyond what was reasonably necessary to address the effects of the COVID-19 pandemic. IDEA also submitted that the Order infringed its right to freedom of association guaranteed by the New Zealand Bill of Rights Act 1990 (BORA). The respondents argued that the Order was authorised by the Act and was proportionate to the effects of the pandemic. The respondents also submitted that IDEA had no right under BORA to be free from association with E tū. IDEA Services Ltd v Attorney-General in respect of the Minister of Workplace Relations and Safety [2022] NZHC 308. The High Court held that the Order was not invalid. The Court found that clause 8 of the Order was authorised by the Act as it was a requirement to conclude negotiations within a defined period. The Court found that the Minister had sufficient information before him at the time the Order was made to conclude that compliance with clause 8 of the Order was impossible or impracticable. The Court found that the Order did not go beyond what was reasonably necessary to address the effects of the pandemic. The Court held that IDEA did not have a right to be free from association with E tū and, if it did, the Order was a reasonable limitation of that right. The Court held that the Order was invalid to the extent that it was not subject to a periodic review of its ongoing necessity against the statutory requirements in the Act. The Court directed the respondents to reconsider the Order against the requirements of s 15 within 14 days of the date of the judgment.