Open Country Cheese Co Ltd v NZ Dairy Workers Union Inc

IN THE SUPREME COURT OF NEW ZEALAND

SC 33/2011
[2011] NZSC 59

BETWEEN OPEN COUNTRY CHEESE COMPANY LIMITED
Applicant

AND NEW ZEALAND DAIRY WORKERS' UNION INCORPORATED
Respondent

Court: Blanchard, McGrath and William Young JJ

Counsel: I R Millard QC for Applicant
R E Harrison QC for Respondent

Judgment: 2 June 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed with costs of $2,500 to the respondent.

REASONS

The proposed appeal is on a question of law involving s 97(2) of the Employment Relations Act 2000, which forbids an employer from employing or engaging another person to perform the work of a striking or locked out employee. The applicant’s employees went on strike. The applicant’s parent company then sent some of its employees into the plant of the applicant to operate it, but their salary or wages continued to be paid by the parent company and they continued to be its employees and under its direction. However, their activities required the cooperation of staff of the applicant who were involved in training and familiarising parent company employees with the operations of the applicant.
The Court of Appeal, correctly in our view, took the view that the words “employ” and “engage”, when read in the light of the purpose of s 97(2), refer to the employer’s use of other persons, irrespective of its legal relationship with them; and that in law the work done by the employees of the parent company was the applicant company’s work which those on strike normally undertook for it. The work enabled the applicant to satisfy its contractual obligations. That constituted an employment or engagement by the applicant.
We find the Court of Appeal’s conclusions to be unimpeachable and accordingly we are not satisfied that it is necessary in the interests of justice for this Court to hear and determine the proposed appeal.

Solicitors:
Solutions Law Office, Nelson for Applicant
Oakley Moran, Wellington for Respondent

CaseChat Overview and Summary

Open Country Cheese Co Ltd applied to the Supreme Court for leave to appeal against a decision of the Court of Appeal that found the company had contravened section 97(2) of the Employment Relations Act 2000 by employing or engaging other persons to perform the work of striking employees. The Court of Appeal held that the company's use of employees from its parent company to operate its plant amounted to an employment or engagement, even though the parent company continued to pay their wages and they remained its employees. The Supreme Court dismissed the application for leave to appeal, finding that the Court of Appeal's reasoning and conclusions were correct. The Supreme Court held that the purpose of section 97(2) is to prevent an employer from using other persons to perform the work of striking employees, regardless of the legal relationship between the employer and those other persons. In this case, the work done by the parent company employees enabled the company to satisfy its contractual obligations, which constituted an employment or engagement by the company. The Supreme Court found that the Court of Appeal's conclusions were unimpeachable and that it was not necessary in the interests of justice for the Supreme Court to hear and determine the proposed appeal. The Supreme Court ordered the applicant to pay costs of $2,500 to the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established