FINAU V ATLAS SPECIALTY METALS LTD CA CA600/2008

FINAU V ATLAS SPECIALTY METALS LTD CA CA600/2008 7 August 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA600/2008 [2009] NZCA 348BETWEEN KEN FINAU, OKA MAIAVA, MARK REYNARD, NIKO ALIOSIO, CHRISTOPHER DOWNS, LYLE SMITH AND LEON MAKARA Appellants AND ATLAS SPECIALTY METALS LIMITED Respondent Hearing: 30 April 2009 Court: Glazebrook, Chambers and Ellen France JJ Counsel: R E Harrison QC and J A Wilton for Appellants T P Cleary for Respondent Judgment: 7 August 2009 at 3 pmJUDGMENT OF THE COURT A The appeal is allowed. B The question of law – What is the meaning of the words "the work of a striking or locked out employee" as used in s 97 of the Employment Relations Act 2000? is answered thus: Those words mean "the work a striking or locked out employee would probably have been performing had he or she not been striking or locked out".C The Employment Court's opinion on the question of law is quashed. D Costs are reserved. REASONS OF THE COURT(Given by Chambers J)Table of ContentsPara NoStrike-breaking [1]The procedural history [6]The essential facts [12]The relevant statutory provisions [18]What is the meaning of the words "the work of a striking or locked out employee" as used in s 97?Our interpretation [19]Why we think the Employment Court's construction of s 97 was wrong [33]Mr Cleary's alternative argument [45]Result [51]Strike-breaking[1] The essential issue in this appeal is when an employer can lawfully employ strike-breakers. Some members of the New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc (the union) went on strike. Other members did not. But when some non-strikers were asked by their employer to do the work of their striking colleagues, they refused. The employer then suspended them, on the basis that, by their refusal to follow instructions, they had become parties to the strike. Later, after the strike was settled and the suspensions were lifted, some of those suspended for refusing to be strike-breakers took a case to the Employment Relations Authority (ERA), seeking a declaration that their suspensions had been unlawful and arrears of wages. For reasons we shall shortly explain, that proceeding remains unresolved. [2] As the case has developed, what we have to pronounce upon is the meaning of s 97 of the Employment Relations Act 2000. Subsection (2) provides that "[a]nemployer may employ or engage another person to perform the work of a striking or locked out employee" only in circumstances which are outlined later in the section. The Employment Court, in the judgment under appeal, considered "there [were] two alternative constructions available" for those words: Finau v Southward Engineering Co Limited [2007] 1 ERNZ 522 at [24]. On one construction, one focuses on the particular task that, but for the strike, the striking worker would have been doing at the time in question. If the employer wants to employ another person to perform that particular task, the employer must comply with the requirements set out in the section. One of those requirements is that the substitute employee can be required to do the striking worker's work only if the substitute worker agrees. On the other construction, one focuses on "the type of work usually done by [the striking] worker". If the non-striking worker normally undertakes work of that type as well, then instructing the non-striking worker to do that type of work does not engage s 97 at all, as the non-striking worker is simply being required to perform his or her normal duties. [3] The Employment Court preferred the latter construction. They (Chief Judge Colgan and Judges Shaw and Couch) concluded at [30]:We prefer the "type of work" approach which would enable employers to direct non-striking employees to do particular tasks within the range of work they normally perform but would require the agreement of those employees to do work they do not normally perform.[4] On this appeal, the union disputes the Employment Court's conclusion and, through Dr Harrison QC, argues that the former construction of s 97(2) is to be preferred. [5] Which interpretation is right is the essential issue we need to determine. Before we turn to our answer to that issue, we set out: (a) The procedural history of this appeal; (b) The essential facts upon which the appeal proceeds; and (c) The relevant statutory provisions.The procedural history[6] As we have indicated, some of those suspended for refusing to be strike-breakers, namely the appellants, took a case against their employer, Atlas Specialty Metals Limited, the respondent, formerly called Southward Engineering Co Limited, to the ERA. They sought a declaration that their suspensions had been unlawful and arrears of wages. The appellants' union filed a statement of problem, as required by the Employment Relations Authority Regulations 2000, reg 6. The problem was assigned to Denis Asher, a member of the ERA. [7] On 26 September 2006, Mr Asher decided to refer a question of law to the Employment Court under s 177. The reference set out the facts as he had found them; the essential facts are set out in the next section of these reasons. Mr Asher sought the court's opinion on the following question of law:Can employees, who are union members and who will be bound by the collective agreement being bargained for, who do not agree under s 97 to do the work of striking employees, and which is not the work that they are principally employed to perform, be suspended under s 87 even though the work in question is part of their normal duties to which they can be required to perform by way of transfer through the provision of their employment agreement?[8] By the time the matter came to be argued before the Employment Court (16 November 2006), both sides appear to have agreed that the issue had not been correctly framed by Mr Asher. The Employment Court, with the parties' agreement, reframed the issues as follows (at [12]):(1) What is the meaning of the words "the work of a striking or locked out employee" as used in s 97? (2) Does an employee who does not agree under s 97(3) to perform the work of a striking employee thereby become a party to the strike and liable for suspension? (3) Does an individual member of a union become party to a strike solely be reason of that membership?[9] No argument was presented before us as to the Employment Court's jurisdiction to reframe questions of law posed by the ERA. In any event, it is those three issues on which the court expressed its opinion. What would have happened,but for this appeal, is that the ERA would then have continued its investigation in accordance with the Employment Court's opinion: s 177(3). [10] That has not happened, however, because of the appeal to this court. On 15 October 2007, this court granted leave to appeal: [2007] NZCA 575. The union, having obtained leave, then failed to file a notice of appeal. On 15 April last year, the union filed an application seeking an extension of time in which to appeal. On 27 August last year, Arnold J granted that extension. Yet a further extension was granted on 24 September last year. The appeal was eventually filed on 30 September last year. The sole issue before us is the first of the three questions the Employment Court set out. [11] We heard this appeal at the same time as another appeal which raises similar issues, namely New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air Nelson Limited CA206/2008. Counsel for the employer in that case, Air Nelson Limited, was Mr Toogood QC. He advanced the principal "employer's" argument with respect to both appeals. Mr Cleary, counsel for Atlas in this appeal, adopted Mr Toogood's argument and added an additional argument of his own. The decision in the related appeal is also being released today: [2009] NZCA 349. We have treated this case as the principal case simply because Finau has been treated in employment law circles as the leading decision. In Air Nelson, the Employment Court simply followed their own earlier decision.The essential facts[12] We take the essential facts from Mr Asher's reference under s 177(2). Mr Asher, for the purposes of that reference, concentrated on two of the seven employees who were parties to the application to the ERA. They were Lyle Smith and Leon Makara. Counsel before us also concentrated on the facts surrounding Messrs Smith and Makara. The other employees were in a similar position to these two. [13] The appellants were in September 2005 employed by Atlas and members of the union. At that time, the union and Atlas were engaged in collective bargaining.Union members resolved to take strike action, which consisted of union members refusing to perform certain work functions when instructed by the company. [14] On 22 September 2005, two union members, Messrs Iaveta and Ngati, who were engaged as machinists under the collective agreement, refused to operate a coil slitter. As a result, Atlas suspended them as striking workers under s 87 of the Employment Relations Act. [15] The following day, Messrs Smith and Makara, both designated as machinists under the agreement, were at work. Mr Makara was operating the tubemill and Mr Smith was checking rafts for faults. Because Messrs Iaveta and Ngati had been suspended, Atlas instructed Messrs Smith and Makara to operate the coil slitter. They refused, saying they did not want to perform the work of their colleagues, Messrs Iaveta and Ngati. Atlas then purported to suspend Messrs Smith and Makara under s 87, on the basis that they were parties to the strike. Messrs Smith and Makara remained suspended until 5 October 2005. [16] A relevant term of the collective agreement reads as follows:For the purpose of meeting the needs of the Company it may require an employee to transfer from his or her normal job to another job within the scope of the Company's operation, provided that the transfer will be subject to the employee's skills and competency [17] So far as the balance of the relevant facts are concerned, we quote from the "agreed facts" section of Mr Asher's reference:19. Of the list of machines that a machinist is engaged to operate Iaveta and Ngati were capable of operating the coil slitter. When they were at work they would normally operate the coil slitter. 20. The Company says that Iaveta and Ngati are qualified welders and when required they are engaged to weld racks for tube and also to pack tube that had been manufactured. If Iaveta and Ngati were required to do welding and packing tube, Smith and Makara would operate the coil slitter. 21. The parties agree that Iaveta and Ngati described themselves as "coil slitter operators". 22. Smith and Makara described themselves as "tube mill operators". However they also accepted in giving evidence at the investigationhearing that they might also be considered "relief coil slitter operators" (emphasis added). 23. The EPMU says, and the Company accepts, that an employee classified as a machinist could also be described by reference to the machine he normally operated, for example "coil slitter operator". 24. The parties agreed that Smith and Makara both accepted while giving evidence to the Authority that they are trained and capable of operating the coil slitter. 25. Smith and Makara also accepted that refusing a lawful instruction from their employer to do such work which is part of their job description and within the scope of their duties could make them subject to disciplinary action. 26. Makara and/or Smith operated the coil slitter, or assisted in its operation when Iaveta and/or Ngati were absent on holiday or through sickness. 27. Makara estimated that he was engaged in operating the coil slitter about 20 percent of his working time. Makara stated that when he is operating the coil slitter he is assisted by Smith, although not on every occasion. Smith accepted that when he is engaged to work on the coil slitter he assists Makara and had done so on occasion before 23 September 2005. 28. Had Iaveta and Ngati not been on strike on 23 September the Union says they would have been operating the coil slitter, the Company uses the term "more than likely would have been operating, etc".The relevant statutory provisions[18] For convenience we set out the statutory provisions relevant to this appeal:80 Object of this PartThe object of this Part is – (a) to recognise that the requirement that a union and an employer must deal with each other in good faith does not preclude certain strikes and lockouts being lawful (as defined in this Part); and (b) to define lawful and unlawful strikes and lockouts; and (c) to ensure that where a strike or lockout is threatened in an essential service, there is an opportunity for a mediated solution to the problem.Interpretation81 Meaning of strikeIn this Act, strike means an act that – (a) is the act of a number of employees who are or have been in the employment of the same employer or of different employers – (i) in discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it; or (ii) in refusing or failing after any such discontinuance to resume or return to their employment; or (iii) in breaking their employment agreements; or (iv) in refusing or failing to accept engagement for work in which they are usually employed; or (v) in reducing their normal output or their normal rate of work; and (b) is due to a combination, agreement, common understanding, or concerted action, whether express or implied, made or entered into by the employees. Suspension of employees during strikes87 Suspension of striking employees(1) Where there is a strike, the employer may suspend the employment of an employee who is a party to the strike. (2) Unless sooner revoked by the employer, a suspension under subsection (1) continues until the strike is ended. (3) The suspension under this section of all or any of the employees who are on strike does not end the strike and those employees do not, by reason only of their suspension under subsection (1), cease to be parties to the strike. (4) An employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of suspension. (5) On the resumption of the employee's employment, the employee's service must be treated as continuous, despite the period of suspension, for the purpose of rights and benefits that are conditional on continuous service. Performance of duties of striking or locked out employees97 Performance of duties of striking or locked out employees(1) This section applies if there is a lockout or lawful strike. (2) An employer may employ or engage another person to perform the work of a striking or locked out employee only in accordance with subsection (3) or subsection (4). (3) An employer may employ another person to perform the work of a striking or locked out employee if the person – (a) is already employed by the employer at the time the strike or lockout commences; and (b) is not employed principally for the purpose of performing the work of a striking or locked out employee; and (c) agrees to perform the work. (4) An employer may employ or engage another person to perform the work of a striking or locked out employee if – (a) there are reasonable grounds for believing it is necessary for the work to be performed for reasons of safety or health; and (b) the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health. (5) A person who performs the work of a striking or locked out employee in accordance with subsection (3) or subsection (4) must not perform that work for any longer than the duration of the strike or lockout. (6) An employer who fails to comply with this section is liable to a penalty imposed by the Authority under this Act in respect of each person who performs the work concerned.What is the meaning of the words "the work of a striking or locked out employee" as used in s 97?Our interpretation[19] We see this case in rather simple terms. We think the wording of s 97 is clear and that the union's interpretation is correct. That is to say, the section requires the parties, and in the event of dispute the courts, to focus on the work that, but for the strike, the striking employee would have been doing at the time in question. Weshall set out our view of the section and shall then explain why, with respect, we do not agree with the interpretation of the Employment Court, which Messrs Toogood and Cleary supported. [20] Subsection (1) makes clear when this section applies. It applies if there is a lockout or lawful strike. Like counsel, we put to one side for current purposes the situation of a lockout; this is for convenience only. The interpretation we support will apply to a lockout as to a lawful strike. We emphasise that the section will apply only if the strike is "lawful". The section imposes no restrictions on employers faced with an unlawful strike. [21] The correct interpretation of the section becomes clear, in our view, if one thinks about its purpose. What an employer faced with a lawful strike wants to know is: can I employ someone else to do the work which, but for the strike, the striking workers would have been doing? Non-striking employees for their part want to know in particular whether they can be made to do the work of their striking colleagues. Parliament must have intended these questions to be answered easily, based on information readily available to both employer and employee at that time. As we shall see, the interpretation we favour best meets that Parliamentary purpose. [22] Subsections (3) and (4) set out the only circumstances in which an employer may employ or engage another person to perform the work of a striking employee. In the normal case, where safety or health is not in issue, another person may be employed to do the work of the striking employee only if three criteria are fulfilled. First, the substitute employee must already be employed at the time the strike commences: subs (3)(a). An employer cannot circumvent a lawful strike by employing new employees or engaging contractors as strike-breakers. Secondly, the substitute employee must not have been employed "principally for the purpose of performing the work of a striking employee": subs (3)(b). This requirement was obviously enacted to prevent employers getting round the first requirement by employing strike-breakers immediately before the strike was due to commence. Thirdly, the substitute employee must agree to perform the work the striking employee would otherwise have been doing: subs (3)(c).[23] Subsection (4) provides greater leeway where strike-breaking is necessary "for reasons of safety or health". In those circumstances, the employer is permitted to employ new employees, if necessary, to do the work of striking employees. In addition, independent contractors may be engaged, if necessary. Existing employees can be required to do the work of their striking colleagues, but only: (a) if such is permitted by their conditions of employment; and (b) to the extent necessary for reasons of safety or health (subs (4)(b)); and (c) for no longer than the duration of the strike (subs (5)). [24] In working out what "work" a striking employee would have been doing but for the strike, the employer, the proposed substitute employee and the relevant union, if one is involved, must deal with each other in good faith: see s 4. Good faith requires the application of common sense and the avoidance of nit-picking. Clearly Parliament cannot have intended the counterfactual scenario of what the striking employee would have been doing to involve a minute by minute, or even an hour by hour, analysis, except perhaps in cases of strikes of short duration. Employees normally work in periods of, say, six hours, eight hours, ten hours a day. If an employee goes on strike, he or she will generally be away for that period, that working day, however long it is. What the parties need to focus on is what, in general terms, the striking employee would have been doing over that work period. If the employer wants another employee to undertake that work or part of that work and if that other employee would not have been asked to do such work but for the strike, then s 97 is engaged. See further on this topic our discussion in Air Nelson at [21]-[24].[25] Employment relationships are so variable that it is impossible for the legislative drafter to come up with a form of words dealing with strike-breaking which will apply seamlessly in every case. Employment law is a paradigm example of the need for a purposive approach to statutory interpretation: see the Interpretation Act 1999, s 5. The key to understanding our approach is the creation of the counterfactual scenario. The parties, faced with a strike, need to imagine what thestrike-affected part of the workplace would probably have looked like were the strike not taking place. As we have said, this mental picture is not to be constructed on a snapshot basis or in painstaking detail; the mental picture is more broad brush than that. Having constructed that mental picture, the employer must ask himself or herself: am I asking my non-striking employee to place himself or herself in that scene when, but for the strike, he or she would not have appeared in it? If the answer is "yes", then it is likely s 97 is engaged and the employer will need to seek the non- striking employee's consent to doing the work. [26] We accept that our approach will sometimes be difficult to apply. But the present case, as it happens, is one where our interpretation is reasonably easy to apply. One does not need to know any of the "agreed facts" Mr Asher sets out other than fact 28: see above at [17]. Even on Atlas's case, Messrs Iaveta and Ngati would probably have been operating the coil slitter on 23 September, but for being on strike. That is to say, in the imaginary counterfactual picture, Messrs Iaveta and Ngati would probably have been at work on the coil slitter, an imaginary picture which Atlas then asked Messrs Smith and Makara to enter. They could not be required to operate the coil slitter in the place of Messrs Iaveta and Ngati without their consent, which they did not give. In those circumstances, Atlas was not entitled to suspend Messrs Smith and Makara. [27] Note that there is no need to investigate exactly what the terms of employment of Messrs Iaveta and Ngati were or how often they were engaged in operating the coil slitter as opposed to other activities within the plant – information which might very well not be available to Messrs Smith and Makara when having to decide whether to comply with their employer's demand to operate the coil slitter. Nor is it relevant how often Messrs Smith and Makara might have operated the coil slitter in the past. All that matters is whether Messrs Smith and Makara were being asked to do work which, but for the strike, Messrs Iaveta and Ngati would probably have been doing on the day in question. [28] Dr Harrison took us to the Parliamentary history, which he submitted strongly supported his interpretation. We agree that it does. We need refer only to the commentary to the report from the Employment and Accident InsuranceLegislation Committee following its hearings. The committee, in that commentary, referred to confusion as to whether the clause (which became s 97) as originally drafted prevented employers using existing employees at all to perform the duties of striking workers. The committee set out what "the intention of the clause" was and then referred to its redrafting so as to make that intention clearer (at 24-25):The intention of the clause is to prevent an employer from ordering other employees not affected by the relevant industrial action to do the work of employees who are lawfully striking or who have been locked out. There is the pressure on both sides to confront the issues in dispute and negotiate a resolution. An employer is not prevented from using existing employees to do the work of affected employees, so long as those employees are requested to do the work (being free to choose not to) and agree to do the work. We noted submitters' concerns and recommend this clause is redrafted to clarify that while an employer cannot order an existing employee to do the work, it is permissible for an existing employee to agree to work and that restrictions exist in respect of the employer's ability to hire new replacement employees or to contract out the work of affected employees. Existing employees in this context will not include any employee who has been principally employed simply to cover the eventuality of a strike or lockout.[29] There is no suggestion there that s 97's engagement depended in any way on an assessment of what employees, whether strikers or potential strike-breakers,normally did. [30] One of the reasons the Employment Court rejected the interpretation we prefer was that they considered it "would tilt [the] balance very much in favour of the employees and unions engaged in a strike" and "would render s 97 essentially prohibitory and very largely rob it of any efficacy for employers subject to strike action": at [29]. [31] We make two comments on that. First, the provision must be seen in context. That context is that the restrictions on utilising alternative labour apply only where the strike is lawful. Within that context, the purpose of the section is to restrict the use of strike-breakers and to ensure employee choice whether to function in that role, except where health and safety issues are involved. Another part of the context is the situation where an essential service is involved. There, s 90 plays a role in restricting the use of the strike weapon and thereby restricting lawful striking in relation to those services.[32] Secondly, our interpretation in fact preserves a reasonable degree of flexibility for employers. While Messrs Smith and Makara could not be required to operate the coil slitter in the place of Messrs Iaveta and Ngati, it was still open to Atlas to find other employees (X and Y) to operate it. If X and Y agreed to operate the coil slitter, then Atlas could have required Messrs Smith and Makara to do the work X and Y would otherwise have been doing, provided, of course, the work X and Y would otherwise have been doing was within Messrs Smith and Makara's "skills and competency": see the term of the collective agreement set out at [16] above. We accept this may not provide as much flexibility as employers would like, but that is intentional: Parliament recognised s 97 would cause employers difficulty, but, as the Select Committee said, such pressure would, they hoped, lead to both sides confronting the issues in dispute and negotiating a resolution leading to the strike being called off.Why we think the Employment Court's construction of s 97 was wrong[33] We shall now explain why we think the Employment Court's construction of s 97 was wrong. [34] First, it is clear that the Employment Court's construction requires words to be read into s 97, whereas our interpretation does not. It is unclear to us, however, exactly what words the Employment Court has to read in: they did not attempt the exercise. But read in they must. After all, it is indisputable that the section applies, as there was a lawful strike: subs (1). What is also indisputable is that, but for the strike, Messrs Iaveta and Ngati would have been doing something and would probably have been operating the coil slitter. Atlas instructed Messrs Smith and Makara to operate the coil slitter. In making that demand and not accepting Mr Smith's and Mr Makara's refusals, Atlas concedes it did not comply with subs (3). It also accepts subs (4) is inapplicable. It has to argue it is outside the section altogether, an argument which, depending on the facts, the Employment Court is prepared to countenance. In order to countenance that the section might not bite at all, the Employment Court has in effect grafted onto the section a further subsection along the following lines:Nothing in this section prevents an employer requiring an employee to perform work which the employee normally performs even if, but for the lockout or lawful strike, the employee would not have been required to perform that work on that occasion.[35] In actual fact, as we shall shortly show, further qualifications to that phantom subsection would be needed in order to comply with the Employment Court's requirements. This is enough to show, however, that a substantial modification is required in order to achieve the interpretation supported by that court. While at times courts do have to read words into statutes so that they make sense or achieve their obvious purpose, such judicial legislation cannot be sanctioned here where the section does make sense on its face and indeed seems entirely consistent with its Parliamentary purpose. [36] Secondly, as Dr Harrison submitted, the Employment Court's interpretation simply does not work in the case of a subs (4) situation, namely a "safety or health" situation. In that situation, the "replacement" does not have to be an existing employee. The "replacement" will not necessarily therefore "normally perform" any work for the employer. Take this example. Suppose a particular piece of machinery is not permitted to be operated, for safety reasons, without a safety inspector being present. The company's safety inspector goes on strike. The company engages another safety inspector for the duration of the strike; this person has not previously worked for or been engaged by the company. It is not possible to look at the type of work he or she "normally" performs for the company, as he or she has never before done so. Since the phantom subsection would not bite, the section clearly would apply, with the consequence that the contractor's engagement will be lawful only if subs (4) is complied with. The effect is, as Dr Harrison submitted, that the Employment Court's interpretation necessarily leads to the words "may employ or engage another person to perform the work of a striking or locked out employee" having different meanings within the same section. Clearly that cannot be right. It is noteworthy that the Employment Court did not attempt to apply their interpretation to the subs (4) situation. Had they done so, we suspect their error would have become apparent.[37] Subsequently, the Air Nelson case did potentially raise a subs (4) situation. As we note in our judgment in that case, the Employment Court's concept of what an employee normally does shifted somewhat, so as to take the law even further from the plain meaning of subss (2)-(4): see Air Nelson at [15]-[16]. [38] Thirdly, the court's interpretation would be difficult to apply in practice. For instance, presumably, although this is not entirely clear, the court's interpretation requires an investigation of what work the striking employee normally does. (We say this is not entirely clear as the court's discussion begins with a focus on the normal work of the striking employee – see [24] and [28], first sentence – but then shifts to focus on the normal work of the replacement employee. Dr Harrison referred to this as "a leap in reasoning" by which "the focus of the enquiry [shifted] from the striking employee's work to that of the employee proposed to be used as [a] strike-breaker". He submitted that this "leap in reasoning occurs without any support from the language of s 97". We think, with respect, there is merit in that submission.) If the "normal" type of work of the striking employee is relevant, how is the proposed strike-breaker supposed to evaluate that? He or she will not necessarily know or be entitled to the employment details of the striking employee. Yet his or her decision as to whether to comply with the employer's demand seems, on the Employment Court's reasoning, at least in part, to turn on his or her evaluation of the striking employee's normal work profile. The difficulties inherent in any such enquiry are well demonstrated by the differing stances taken by the union and the employer in the present case: see Mr Asher's attempt to work out what Messrs Iaveta and Ngati normally did. [39] The potential strike-breaker is in similar difficulty when having to evaluate his or her own "normal" employment. What does "normal" mean? The Employment Court attempted a definition, but it is very woolly and would be hard to apply in practice:[31] This construction is based on the concept of what may properly be said to be work which an employee normally performs. We take the view that it comprises tasks which the employee regularly or routinely performs in the course of employment. This would not include tasks an employee might occasionally be required to do pursuant to a "catch all" provision of an employment agreement of the type referred to earlier.[40] The Employment Court's interpretation would, we think, put employers and employees in a tricky situation. If either makes a mistake as to what "normally" means, the consequences can be profound. If the employee considers that he or she does not "normally" perform the work which he or she is being asked to do during a strike, but is later held to be wrong in that assessment, that employee will find he or she has been lawfully suspended. If the employer makes the mistake, it becomes liable to a penalty (s 97(6)) and may also end up facing a claim of the kind Atlas faces here. [41] Fourthly, the Employment Court's interpretation leads to potential abuse. If, as the court finds, the focus is on what employees (both striking employees and their potential "replacements") normally do, there would be a strong temptation for employers to provide for wide job descriptions in employment agreements, so as to increase the chance of avoiding s 97 altogether in the event of a strike. The court recognised this and proposed this solution at [31]:The key is what the employee actually does as a matter of practice, rather than what may be contained in a job description or otherwise be provided in an employment agreement. We therefore reject Mr Cleary's submission that the inclusion of such a general provision in the collective agreement covering the work of the applicants in this case would take them entirely outside the scope of s 97(3).[42] This therefore necessitates a further qualification to the meaning of "normally" in the phantom subsection set out above at [34]. Attention would be focused on what happened in practice rather than the terms of the parties' agreements. In our view, this will further encourage uncertainty. In particular, union secretaries, when called on to advise at short notice, will be put in a difficult position. It will not be enough for them to look at the terms of the collective agreement; they would need to be fully briefed on how this particular workplace operated in practice before they could advise their members whether they were bound to comply with the employer's demand to do the work of striking workers. [43] On our preferred interpretation, this problem does not arise, as all the parties need to focus on is what the striking employees would have been doing but for the strike. Our interpretation does not prevent an employer requiring a non-striking employee during a strike to do a particular job, whether normally done by the non-striking employee or not, provided it is not a job which a striking employee would have been doing. If Messrs Iaveta and Ngati had been rostered for welding and packing tube on 23 September 2005 and Messrs Smith and Makara rostered for the coil slitter, the fact Messrs Iaveta and Ngati had then gone on strike would not have prevented Atlas requiring Messrs Smith and Makara to operate the coil slitter (as rostered), even though they did this work only about 20% of their working time. [44] Fifthly, the Employment Court's interpretation leaves little scope for the application of s 97. It would apply only in cases where the potential strike-breaker is being asked to do work which is not within his or her normal range of work but which is nonetheless within the range of work the employee has agreed to do in his or her employment contract.Mr Cleary's alternative argument[45] Mr Cleary's alternative argument in brief was this. The starting point is the definition of "strike" in s 81. He submitted that "there must be an argument that s 81(1)(a) is met" in this case. He went on:At the very least, ground (a)(i) could be satisfied under the authority's agreed facts because there was a partial discontinuance of employment. Whether that discontinuance was in pursuance of a s 97 refusal is immaterial: s 81(1) is solely an actus reus provision.[46] He then went on to consider s 81(1)(b):The argument before the authority would be that the appellants' refusal was due to their express or implied combination, agreement, common understanding, or concerted action. As members of the union they had resolved to take industrial action in respect of certain work. fn Whether they refused work in reliance of s 97 would also be immaterial in applying s 81(1)(b) given the resolution to strike. [Mr Cleary's footnote read: Whether personally in favour or not they must be taken, as existing members of the union, to being bound by the resolution to strike.][47] In short, therefore, s 81 trumps s 97. In Mr Cleary's submission, the legislation requires one "first to focus on the question who is on strike and only then apply s 97". He submitted that, if s 81 were interpreted subject to s 97, it wouldmean the definition of "strike" and the common law test for "party to a strike" would be severely constrained. [48] Dr Harrison complained that Mr Cleary's argument was in effect a re-run of issues 2 and (in part) 3 as delineated by the Employment Court: see above at [8]. Both those issues had effectively been decided against Atlas. Atlas did not seek leave to appeal against the Employment Court's findings on those issues. Accordingly, Dr Harrison submitted, Mr Cleary's argument could not be advanced. [49] We agree with Dr Harrison. Mr Cleary has attempted to introduce under the guise of the question of law for which leave was given the argument he ran on issue 2 and part of the argument he ran on issue 3 in the Employment Court. That he cannot do. [50] By way of comment, however, we observe that the argument has no merit in any event. Section 81 is merely a definition section. It is not the starting point. In order to work out whether these employees were entitled to refuse to perform the work Atlas asked them to do, one applies s 97. Messrs Smith and Makara were not on strike at the time the demand was made of them. They did not become parties to the strike by resisting what was an unlawful demand.Result[51] We allow the appeal. [52] The question of law – What is the meaning of the words "the work of a striking or locked out employee" as used in s 97 of the Employment Relations Act 2000? is answered thus:Those words mean "the work a striking or locked out employee would probably have been performing had he or she not been striking or locked out". [53] This is our opinion in terms of s 177(3). It will now be necessary for Mr Asher to continue his investigation in accordance with the opinion of this court. We very much hope, however, that the parties will be able to resolve the dispute between them without troubling Mr Asher any further. Agreed fact 28 seems definitive of what the answer must be at least in so far as Messrs Smith and Makara are concerned. We do not know the precise circumstances of the other appellants' suspensions, but presumably they are in a similar position to Messrs Smith and Makara, which is why Mr Asher, in his reference, chose Messrs Smith and Makara as exemplars. [54] Given our opinion, it is necessary for us to quash the Employment Court's opinion on that same question. The Employment Court's opinions on its questions 2 and 3 were not in issue before us and accordingly stand. It must be appreciated, however, that those opinions need to be read in light of our opinion on the question which was before us. [55] We turn to costs. Effectively the appellant in this case was the Engineering Union, as it is (in its own name) in the Air Nelson case. We heard the two appeals together. Both raised very similar issues. The same counsel appeared for the union in both cases. Mr Toogood's argument for the employers spanned both cases. In those circumstances, it is appropriate for costs on both appeals to be determined in the round. Clearly, where each appeal required that a step in the Schedule 2 time allocations be undertaken separately (eg preparation of case on appeal), each respondent should be liable for that step on its appeal: see Court of Appeal (Civil) Rules 2005, Schedule 2. But where work was done in common for the two appeals (eg preparation for hearing of appeal), the time allocation should be shared. We can indicate that we think a fair allocation for "preparation for hearing of appeal" (step 12) would be somewhat more than band A but something less than band B – say, four days (to be split between Atlas and Air Nelson 50/50). We can also say we think this an appropriate case for a second counsel certificate (step 14).[56] With that guidance, we hope the parties to this appeal and the Air Nelson appeal will be able to resolve costs among themselves. If they cannot, however, we shall receive memorandums and determine costs on the papers. Costs are formally reserved.Solicitors: John Wilton, NZEPMU, Wellington, for Appellants EMA Legal, Wellington, for Respondent