Jetstar Airways Limited v Greenslade

[2014] NZCA 331

IN THE COURT OF APPEAL OF NEW ZEALAND

CA125/2014
[2014] NZCA 331

BETWEEN	JETSTAR AIRWAYS LIMITED Applicant
AND	RICHARD GREENSLADE Respondent

Court:

Stevens, Harrison and Miller JJ

Counsel:

D J Goddard QC and M W O'Brien for Applicant
R E Harrison QC and R R McCabe for Respondent

Judgment:

(On the papers)

17 July 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted on the following questions of law:

Did the Employment Court err in finding that:

(a)the requirement for rest periods under the Australian Civil Aviation Order 48 exemption was not a requirement for a rest break for the purposes of s 69ZH(2) of the Employment Relations Act 2000, having regard to the text of s 69ZH(2) of the Employment Relations Act?

(b)the requirement to take a rest break under an Australian regulatory instrument (Civil Aviation Order 48 exemption) that was required to be complied with pursuant to a New Zealand enactment (Civil Aviation Act 1990) was not a requirement “under another enactment” for the purposes of s 69ZH(2) of the Employment Relations Act?

(c)cl 19 of the respondent’s Individual Employment Agreement fell within s 69ZG of the Employment Relations Act and was not an unlawful contracting out of s 69ZH(2) of the Employment Relations Act that was precluded by s 238 of the Employment Relations Act?

BCosts on the application are reserved.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

1. In accordance with French J’s minute of 1 April 2014, we have determined on the papers this application for leave to appeal under s 214 of the Employment Relations Act 2000 against a decision of the Employment Court.[1]

   [1]Greenslade v Jetstar Airways Ltd [2014] NZEmpC 23.

2. The respondent does not oppose leave to appeal being granted,[2] though he does not accept the proposed grounds of appeal have any validity.  Despite the respondent’s lack of opposition, this Court is still required by s 214 to satisfy itself that the questions of law are appropriate questions on which to grant leave.

   [2]By memorandum filed on 24 March 2014.

3. We are satisfied that the proposed appeal involves questions of law of general and public importance relating to the interpretation and application of the Employment Relations Act.  We have reframed the grounds of appeal submitted by the applicants so that they are questions, as the Act only allows leave to be granted on questions of law.  The questions of law on which we grant leave are:

   Did the Employment Court err in finding that:

   (a)the requirement for rest periods under the Australian Civil Aviation Order 48 exemption was not a requirement for a rest break for the purposes of s 69ZH(2) of the Employment Relations Act, having regard to the text of s 69ZH(2) of the Employment Relations Act?

   (b)the requirement to take a rest break under an Australian regulatory instrument (Civil Aviation Order 48 exemption) that was required to be complied with pursuant to a New Zealand enactment (Civil Aviation Act 1990) was not a requirement “under another enactment” for the purposes of s 69ZH(2) of the Employment Relations Act?

   (c)cl 19 of the respondent’s Individual Employment Agreement fell within s 69ZG of the Employment Relations Act and was not an unlawful contracting out of s 69ZH(2) of the Employment Relations Act that was precluded by s 238 of the Employment Relations Act?

4. As we have not heard from the parties on the question of the costs on this application, costs are reserved.

Solicitors:
Kensington Swan, Auckland for Applicant
New Zealand Airlines Pilots Association Inc, Auckland for Respondent