NEW ZEALAND DAIRY WORKERS' UNION INCORPORATED V OPEN COUNTRY CHEESE COMPANY LIMITED CA CA628/2009

NEW ZEALAND DAIRY WORKERS' UNION INCORPORATED V OPEN COUNTRY CHEESE COMPANY LIMITED CA CA628/2009 28 October 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA628/2009 [2009] NZCA 517BETWEEN NEW ZEALAND DAIRY WORKERS' UNION INCORPORATED Applicant AND OPEN COUNTRY CHEESE COMPANY LIMITED Respondent Hearing: 20 October 2009 Court: William Young P, Glazebrook and Robertson JJ Counsel: R E Harrison QC and S R Mitchell for Applicant B W F Brown QC and G P Malone for Respondent Judgment: 28 October 2009 at 3 pmJUDGMENT OF THE COURT A We grant leave to appeal on the questions specified in [5]. B We reserve costs.____________________________________________________________________REASONS OF THE COURT(Given by William Young P) [1] This is an important case and, leaving aside the jurisdictional limitation that appeals from the Employment Court are confined to questions of law, plainly warrants leave to appeal. The only real issue is whether it is possible to identify such questions of law.[2] The Judge was not explicit in his findings as to the legal basis for his conclusion that there has not been a breach of s 97 of the Employment Relations Act 2000. He did not address with the precision the legal basis upon which the Dairy company's workers were engaged in Cheese company's business (including being on the Cheese company's premises and using its plant). Nor are there explicit findings as to whether this has been acquiesced in by the Cheese company and, if so, the nature of that acquiescence. Thus the Judge did not directly address the question whether such acquiescence, assuming it was directed by the Dairy company, amounted to an agreement between the Cheese company and the Dairy company as to the employment and/or engagement of the Dairy company workers as strike- breakers. Associated with this, there is no finding by the Judge as to how the financial implications of what has happened are going to be adjusted as between the two companies. Given that the reasoning process of the Judge on these issues is not completely clear, it is not easy to be specific as to what, if any, errors of law were made. [3] Mr Harrison QC, for the appellant, did not identify specifically the errors of law which he attributes to the Employment Court. Indeed he was unenthusiastic about endeavouring to do so. This is unsurprising for the reasons just given. Nonetheless, the task must be undertaken because if errors of law which are fundamental to the judgment cannot be identified, there can be no basis for a successful appeal. [4] We are of the view that there are arguably relevant errors of law in the judgment. Given that Mr Harrison did not identify them, the responsibility for doing so falls to us, albeit by reference to the way in which Mr Harrison advanced his case. [5] Accordingly, we grant leave to appeal on the questions whether the Judge erred in law: (a) In concluding (apparently) that acquiescence by the Cheese company, presumably under the direction of the Dairy company, in the actions taken by the Dairy company and its workers did not constitute itsemployment or engagement of the Dairy company workers for the purposes of s 97(2) of the Employment Relations Act 2000. (b) In not attributing the actions of the Dairy company to the Cheese company. (c) In not exercising the equity and good conscience jurisdiction. [6] Some qualifications are required. (a) If there is a problem with the judgment, the relevant error may simply have been factual, for instance, a conclusion against the weight of evidence that the Cheese company has not employed or engaged the relevant workers. If so, the appeal will fail. (b) The questions of law which we have identified are, in a sense, provisional and premised on assumptions which we are not in a position to verify. Thus assumptions are built into the first question. Further, whether the second or third questions provide a basis for a successful appeal may depend on the way in which the case was argued in the Employment Court. If attribution (or corporate veil) and equity and good conscience jurisdiction arguments were not advanced by the appellant, it may be – and we have no view on this – difficult to attribute any relevant legal error to the Judge. (c) To put all this another way, our formulation of the questions is not to be taken as a finding that the Judge's reasoning necessarily proceeded on any particular basis. [7] If Mr Harrison wishes to argue any other questions of law, he may seek leave to do so. Any additional proposed questions should be notified to the Court and the respondent 10 days prior to date for the filing of the appellant's submissions. The decision whether to grant leave in relation to such questions will be addressed at the hearing of the appeal.[8] When we heard the application for leave to appeal the case was urgent as a collective agreement had not been settled, the employees were locked out (or on strike) and the Dairy company employees were still in place. In this situation we were prepared to hear the case next month. Counsel have now informed us, however, that a collective agreement has now been signed and although the case remains live, there is no longer urgency in resolving it.Solicitors: Oakley Moran, Wellington for Applicant Solutions Law Office, Richmond for Respondent