R v Jarden

[2008] NZCA 69

IN THE COURT OF APPEAL OF NEW ZEALAND

CA657/07
[2008] NZCA 69

BETWEENNEW ZEALAND AMALGAMATED ENGINEERING PRINTING & MANUFACTURING UNION INC

Applicant

ANDAIR NELSON LIMITED

Respondent

Hearing:17 March 2008

Court:William Young  P, Ellen France and Baragwanath JJ

Counsel:J A Wilton for Applicant

C H Toogood QC for Respondent

Judgment:19 March 2008 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.

B This appeal is to be heard in conjunction with the appeal in CA419/07.

CCosts are reserved.

REASONS OF THE COURT

(Given by Ellen France J)

[1]       This is an application for leave to appeal under s 214 of the Employment Relations Act 2000 (the ERA).  The application relates to the decision of a Full Court of the Employment Court on the approach to s 97(4) of the ERA:  (2007) 5 NZELR 20.

[2]       Section 97 applies if there is a lockout or lawful strike and limits the situations in which an employer can require non-striking or non-locked out employees to perform the work of the locked out or striking workers.  In terms of s 97(4) an employer cannot employ or engage new workers to perform that work except for health and safety reasons.

[3]       In determining the meaning of the words “the work of a striking or locked out employee” in s 97(4) in the present case, the Employment Court applied the interpretation of those words in s 97(3) that the Court had adopted in Finau v Southward Engineering Co Ltd (2007) 4 NZELR 557.

[4]       This Court has granted leave to appeal against the decision in Finau on the question of the approach to be taken to the interpretation of s 97(3): [2007] NZCA 575. On that basis, the respondent did not oppose leave in the present case. We are satisfied that leave to appeal should also be granted in this case because similar issues of interpretation arise and the Court will benefit from considering those issues in the context of s 97 as a whole.

[5]       Leave to appeal is granted on the question of whether the construction of s 97(4) applied by the Employment Court was erroneous in law.  Both parties agree that this appeal should be heard in conjunction with the appeal in CA419/07 and we make an order accordingly.

[6]       Costs are reserved.

Solicitors:

Kiely Thompson Caisley, Auckland for Respondent