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Redirecting work during strike action – the latest from the Supreme Court
Air Nelson succeeded in its recent appeal to the Supreme Court. By using contract engineers to carry out maintenance work during a lawful strike by maintenance engineer employees, the company did not contravene the anti-strike breaking provisions of the Employment Relations Act 2000 (the ERA) (Air Nelson Limited v The New Zealand Amalgamated Engineering, Printing and Manufacturing Union Incorporated).
This land mark decision has important implications for employers in bargaining for a collective agreement, facing possible strike action. The case is of particular significance to employers whose employees rotate or overlap responsibilities and tasks.
The decision does not endorse "carte blanche" substitution of employees to perform the work of striking workers. However, it does permit employers to require existing employees to cover for striking (or locked out) employees provided the work falls within those employees' usual duties and work patterns.
It is what employees do in practice that counts for this purpose – a general "catch all" duties provision contained in the employment agreement will not of itself suffice. Performance by non-striking employees of duties outside their usual tasks and work patterns requires their agreement, and in circumstances of industrial unrest this often is not forthcoming.
The law on possible strike breaking
Section 97 of the ERA provides that if there is a lawful strike, an employer may only employ or engage another person to perform the work of a striking worker in certain specified circumstances. Other than where health and safety reasons apply, an employer may only employ another person to perform the work of a striking worker if the person:
- Is already employed by the employer at the time the strike commences;
- Is not employed principally for performing the work of a striking worker;
- Agrees to perform the work.
The facts
Air Nelson's maintenance work (repairs and servicing of aircraft) was mainly carried out by its maintenance engineers. Contract engineers carried out approximately 1 to 2% of the maintenance work, spending about 5 hours per week of their time on maintenance.
When Air Nelson maintenance engineers commenced a lawful strike, contract engineers carried out particular line maintenance work. The EPMU asserted that by doing so the company breached section 97 of the ERA because this was work of the striking employees.
What is the work of a striking worker?
At the very heart of the dispute was whether "the work of a striking worker" in section 97 should be interpreted by reference to a particular task that but for the strike would have been performed by the striking worker (particular task approach), or the type of work usually done by the striking worker (general type approach). Under the "general type approach", if it was the type of work which came within the normal duties of non-striking employees, then those employees were not being asked to do the work of striking employees.
The Employment Court considered that in strike action by some but not all employees, the "particular task approach" would tilt the balance too far in favour of unions and employees – it would prevent an employer from rearranging rosters to use non-striking workers unless they agreed to the changes. The "general type approach" on the other hand would allow employers to direct non-striking employees to do particular tasks within their normal range of work, and only require employees' agreement to perform work they do not normally perform.
Employment Court found contract engineers performing their own work
The Employment Court favoured the "general type approach" and found for Air Nelson on the basis that in completing the limited amount of maintenance work during the strike, the contract engineers were simply performing their own work i.e. work which they routinely performed, was standard practice and unexceptional rather than work of the striking workers. Therefore, section 97 did not apply.
Court of Appeal took a different view
Then last year, the Court of Appeal allowed the union's appeal preferring the "particular task approach". It held that the focus should not be on what the contract engineers normally did, but rather the words "work of a striking worker" should be taken to mean "the work a striking employee would probably have been performing had he or she not been striking". On this basis the Court of Appeal found the company had breached the ERA by assigning work of striking employees to the contract engineers.
Supreme Court preferred approach of Employment Court
The Supreme Court held that the Employment Court had not erred in its approach, asking whether the contract engineers performed their own work or that of the striking employees. It was essentially a question of fact to be determined by analysis of the circumstances in each case. The use of contract engineers who themselves habitually performed some line maintenance work was not performance of "the work of a striking worker".
A balance was required between one person's right to strike and another's right to work. While it was important not to derogate from the right to strike, this approach should make it less likely that a striking employee could take away the work of a non-striking employee as well.
Where there is a departure from a pattern of work shared among workers, this may indicate section 97 has been contravened. Mutual good faith obligations continue to apply during industrial action, requiring a fair and reasonable approach by both employers and employees.
