General Manager in the firing line for breaching union access rights | Employment Law Update|bossed

In addition to ordering an employer to pay penalties for breaching union access rights, the Employment Relations Authority also ordered penalties against the General Manager for his involvement.

The determination followed changes to the Employment Relations Act 2000 (the Act) which came into effect on 12 December 2018 which removed the requirement to obtain consent for union access provided that there is an existing collective agreement in place covering employees or where collective bargaining has commenced (s 20A). The determination related to three separate occasions of union access. On 10 February 2019, Mr O’Brien (legal advisor for the union) and Mr Matsuoka (founding President and Secretary of the union and part-time employee of the employer) attended the workplace while a strike was taking place. The General Manager told them to leave because the General Manager believed the strike was unlawful and because Mr O’Brien was not wearing shoes which met the employer’s safety requirements.

The Authority found that irrespective of whether the strike action was unlawful, union representatives were entitled to access the workplace for other legitimate purposes such as meeting with members and observing compliance with the Act. While an employer is entitled to insist upon its health and safety requirements being met, the necessary safety equipment was in an office which the General Manager could have accessed within a matter of minutes. The Authority found that the General Manager’s request that Mr O’Brien and Mr Matsuoka leave the worksite was a breach of ss 20 and 21 of the Act.

The employer refused access to Mr Uppal, another employee and union member, on 28 March 2019 and 1 April 2019. At the time, Mr Uppal had been suspended from work following serious misconduct allegations. On both occasions, Mr Uppal arrived at the workplace wanting access to discuss the bargaining and an upcoming mediation with members. Being concerned about the situation, the General Manager suggested that Mr Uppal go and get a coffee while the matter was sorted out between Mr O’Brien and the employer’s legal advisor. Mr Uppal then left the workplace but did not return. When Mr Uppal again sought to obtain access on 1 April 2019, the General Manager initially denied him access. However, the General Manager then told Mr Uppal he could have access but that he [the General Manager] would accompany him and be present for the duration of his visit. The General Manager advised Mr Uppal that he would have to make an appointment to access the workplace as he (the General Manager) was not available at that time to accompany him. The employer advised that Mr Uppal could access the workplace provided he contacted the General Manager with at least 24 hours’ notice. The employer advised Mr Uppal that, depending on the time he wished to attend the workplace, he may be asked to speak with union members in a designated area of the workplace or he may be accompanied by a management employee who would observe him while he spoke to members on union business.

The Authority cited a Court decision (Service Workers Union v Southern Pacific Hotel Corp [1993] 2 ERNZ 513) in saying that to delay entry and to impede it is to refuse entry in breach of s 20 of the Act. The Authority found that asking Mr Uppal to go for coffee on 28 March 2019 delayed Mr Uppal’s access which was a breach of s 20. Further, the Authority found that the conditions imposed on entry for Mr Uppal were in excess of what was required for safety and security under s 21(1)(c) and were as good as access denied. The Authority ordered penalties against the employer of $5,762.40 and of $2,881.20 personally against the General Manager (s 25 allows penalties against every person in relation to union access rights breaches).

See Aviation Workers United Incorporated v Gate Gourmet New Zealand Ltd

Information reproduced with permission of Wolters Kluwer