NEW ZEALAND PROFESSIONAL FIREFIGHTERS UNION INCORPORATED v FIRE AND EMERGENCY NEW ZEALAND [2021] NZCA 60

NEW ZEALAND PROFESSIONAL FIREFIGHTERS UNION INCORPORATED v FIRE AND EMERGENCYNEW ZEALAND [2021] NZCA 60 [11 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA720/2020[2021] NZCA 60BETWEEN NEW ZEALAND PROFESSIONALFIREFIGHTERS UNIONINCORPORATEDApplicantAND FIRE AND EMERGENCYNEW ZEALANDRespondentCourt: French and Goddard JJCounsel: C R Carruthers QC and P Cranney for ApplicantV E Casey QC and G C Davenport for RespondentJudgment:(On the papers)11 March 2021 at 9 amJUDGMENT OF THE COURTA The application for leave to appeal under s 214 of the EmploymentRelations Act 2000 is declined.B The applicant must pay the respondent costs on a standard application forleave with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] The New Zealand Professional Firefighters Union Inc (the union) seeks leaveunder s 214 of the Employment Relations Act 2000 to appeal a decision ofChief Judge Inglis in the Employment Court.1[2] The decision concerned the interaction between s 30 of the Fire and EmergencyNew Zealand Act 2017 (the Act) and the provisions of a collective agreement.The Judge held there was an inconsistency between the two in relation tore-deployment obligations in the event of redundancy and that s 30 must prevail.2Background[3] The respondent employer, Fire and Emergency New Zealand (FENZ) iscurrently embarking on a restructuring exercise. Its view is that by virtue of s 30, it isobliged to offer any suitable vacant positions to employees whose existing position isbeing made redundant.[4] The applicant union does not represent any employee who has been classifiedas an affected employee under the restructuring. However, it contends that FENZ'sapproach to the restructuring is contrary to its obligations under its collectiveagreement with the union and will negatively impact on the union's membership.[5] The collective agreement in question contains a clause, cl 1.21.8, that states:Whenever vacancies or any new positions occur in the Service, not less than14 days' notice shall be posted inviting applications from the workers forthe filling of such vacancies and such applications shall receive fullconsideration.[6] In addition to this clause, the collective agreement also annexes a number ofwhat are described as "core employment policies". These policies relevantly includean appointments policy and a review of appointments policy. Both policies pre-datethe Act and refer to its predecessor the now repealed Fire Service Act 1975.1 New Zealand Professional Fire Fighters Union v Fire and Emergency New Zealand [2020]NZEmpC 197 [Employment Court judgment].2 At [25].The appointments policy provides for appointments to be made on merit. The reviewof appointments policy provides that any employee has the right to challengean appointment and to utilise a review process.[7] According to the union, the combined effect of cl 1.21.8 and the policies is thattheir members are entitled to be considered for all and any vacancies that arise andthat FENZ is not bound by the Act to give preference to employees whose positionshave been made redundant. Instead, in accordance with the collective agreement, itmust notify the vacancy and appoint the person best suited to the position.[8] As for the Act, that contains a statutory framework for appointments withprovisions similar to the policies annexed to the collective agreement. The Actrequires FENZ to make appointments on merit (s 26), to notify all FENZ employeesof vacancies and appointments (ss 27 and 28) and to establish an appointments reviewprocess (s 29).[9] However, s 30 states that ss 26 to 29 do not apply to appointments of FENZemployees in certain circumstances. The full text of the section, which is at the heartof this case, is as follows:30 Sections 26 to 29 do not apply to appointments of FENZemployees in certain circumstancesSections 26 to 29 (which relate to standard procedural steps in relationto appointments to FENZ) do not apply to the appointment of a personas a FENZ employee if—(a) the person is a current employee of FENZ; and(b) that FENZ employee has received a notice of redundancy; and(c) before that FENZ employee's employment has ended,the employee—(i) is offered and accepts another position in FENZthat—(A) begins before, on, or immediately afterthe date on which the employee's currentemployment ends; and(B) is on terms and conditions of employment(including redundancy and superannuationconditions) that are no less favourable tothe employee; and(C) is on terms that treat service within FENZ asif it were continuous service; or(ii) is offered an alternative position in FENZ that—(A) begins before, on, or immediately afterthe date on which the employee's currentemployment ends; and(B) is a position with comparable duties andresponsibilities to those of the employee'scurrent position; and(C) is in substantially the same general locality ora locality within reasonable commutingdistance; and(D) is on terms and conditions of employment(including redundancy and superannuationconditions) that are no less favourable tothe employee; and(E) is on terms that treat service within FENZ asif it were continuous service.[10] In the Employment Court, the union argued that correctly interpreted, s 30 ispermissive. It does not impose any obligation on FENZ to complete the steps outlinedin s 30(c). In particular, it does not preclude FENZ from issuing a notice ofredundancy and then proceeding to make the affected employee redundant withoutmore. It was thus open to FENZ and the union to agree to a different process than thatcontained in s 30 for appointments to vacancies in redundancy situations.[11] The Chief Judge rejected that interpretation and declined to grant the union'sapplication for declarations. She held that correctly interpreted s 30 conferreda benefit on all FENZ employees, namely that they enjoy preference forre-deployment opportunities in the event of redundancy.3 It would, the Judgeconsidered, be contrary to the express intention of Parliament were FENZ and theunion to be able to contract in a way which removed this benefit.4 As for safetyconcerns, the Judge considered this a weak argument. She noted that Parliament must3 At [27].4 At [27].be taken to have been aware that it was enacting s 30 into a safety-focused piece oflegislation and further that there was no authority for the proposition that common lawobligations of re-deployment should not apply or apply more weakly in safetysensitive industries.5The application for leave to appeal[12] The right of appeal to this Court from a decision of the Employment Court islimited to appeals on questions of law and is subject to a leave requirement.6 Unders 214(3) of the Employment Relations Act, leave may be granted if in the opinion ofthis Court the proposed question of law is one that by reason of its general or publicimportance or for any other reason ought to be submitted for determination.[13] A further limit on the right to appeal is that a party cannot appeal a decision ofthe Employment Court relating to the construction of an individual employmentagreement or a collective employment agreement.7[14] In this case the Chief Judge found that cl 1.21.8 of the union's collectiveagreement (obligation to notify vacancies) must be read as applying in situations otherthan where the pre-conditions set out in s 30 have been met.8 As regards the contract'sannexation of policies which referred to repealed legislative provisions, the Judge saidone possible explanation was that no agreement was able to be reached.9[15] No doubt conscious of the inability to directly challenge findings aboutthe interpretation of contractual documents, the union's proposed question of lawfocuses on the interpretation of s 30 itself. The proposed question is thus formulatedin the following terms:"whether s 30 properly interpreted operates to defeat the employmentagreement entitlements".5 At [24].6 Employment Relations Act 2000, s 214(1).7 Section 214(1).8 Employment Court judgment, above n 1, at [25].9 At [22].[16] The wording reflects the union's central contention which is that the Judgeerred in her interpretation of s 30 by "finding that [FENZ] and [the union] cannotcontract in a way which removes the benefit of s 30 from some employees of FENZ,so as to protect the entitlement of the great majority to long established careerprogression right[s] and the right of any firefighter to challenge potentially unsafeappointments."[17] Although the union emphasises the importance of the contractual rights atissue, it does not however seek to argue that in the event of a conflict betweena statutory provision and an employment agreement, the contract must prevail.And nor could it because of s 54(3)(b)(i) of the Employment Relations Act whichstates that a collective agreement must not contain anything contrary to law. But whatin effect the union does seek to argue is that there is no direct conflict between statuteand agreement in this case because s 30 does no more than confer a power on FENZ.It does not require FENZ to exercise the power. Thus it follows, so the argument runs,that it was open to the parties to agree a different process for appointments in the eventof redundancy which they did in the policies.[18] The union further points out that the collective agreement which is binding onboth the union and FENZ was entered into after s 30 came into force. FENZ couldhave incorporated s 30 into the collective agreement but chose not to.Our view[19] A question relating to the interpretation of a statutory provision — as distinctfrom a question relating to the interpretation of an employment agreement — isa question of law within the purview of this Court's jurisdiction. It is also correct thatthe union's argument is of general importance in the sense that it relates to a significantnumber of people and the functioning of an important public organisation.[20] However, in order to qualify as a question of law that ought to be submitted fordetermination by this Court, the question must also be a seriously arguable question.And in our view the question which the union seeks to raise in this proceeding is not.[21] That is because the union's argument stands and falls on an excessively literaland narrow interpretation of s 30 which in our view is untenable. It is not supportedby the wording of the section, its underlying purpose and the legislative history.In fact, it would render the section pointless. That is because the contractualprovisions relied upon purport to apply to all vacancies arising within FENZ andtherefore if those provisions prevent FENZ from offering vacancies to potentiallyredundant employees without having to go through a selection and review process,the section would seldom if ever have any work to do.[22] Yet, as the Judge noted, s 30 is at its heart a protective provision andthe introductory words of s 30 could not be plainer.10 They make clear that the threeprocedural steps — advertising, merit-based selection and review — that usually applyto all appointments do not apply to re-deployment on redundancy. The question thusarises why would Parliament having deliberately conferred that benefit permit it to beabrogated by a contract reinstating those very same standard procedural steps.[23] As the Judge also noted, the context is important. Section 30 was part ofreforming legislation designed to change the way in which fire services wereorganised.11 Those reforms included bringing several disparate fire organisationstogether under the one umbrella of a newly created entity (FENZ). Restructuringwould have been in contemplation. And hence the perceived need for the protectionof a re-deployment provision.[24] That contention is supported by a Supplementary Order Paper issued whilethe Fire and Emergency New Zealand Bill that was to become the Act was passingthrough Parliamentary processes. The Paper states that the provision which was tobecome s 30 was inserted for the benefit of any FENZ employee who may be affectedby redundancy and who may be given preference over others for appointment to anyother relevant position in FENZ.1210 At [17] and [20].11 At [20].12 Supplementary Order Paper 2017 (262) Fire and Emergency New Zealand Bill 2016 (148-2)(explanatory note) at 3.[25] If it had been Parliament's intention to render s 30 subject to any employmentagreement, it is reasonable to expect there would have been an express statement tothat effect. It would have been an easy thing for Parliament to have done that as it hasin fact done in provisions under the Public Service Act 2020.13 The absence of anysimilar wording in s 30 is thus significant.[26] Like the Judge, we also consider it telling that although the repealedFire Service Act did contain provisions similar to ss 26 to 29 of the new Act, it did notcontain a provision equivalent to s 30.14 The way s 30 is formulated reflectsdevelopments in the common law that have taken place in the intervening yearsrelating to an employer's re-deployment obligations.15 As the Judge put it, it can safelybe inferred that the Parliament was alive to the particular employment context whichexisted within the fire service and the common law surrounding redundancy andre-deployment at the time it decided to overhaul the legislation.16 Section 30 ensuresthat the Act is in harmony with the current common law principles.[27] Drawing all those threads together, the Judge's conclusion that the union'sinterpretation was inconsistent with the intent of the legislation and would underminethe legitimate rights and interests of non-union members was in our view unassailable.Outcome[28] There being no seriously arguable question, the application for leave to appealis accordingly declined.[29] The application having failed, the applicant must pay the respondent costs asfor a standard application for leave with usual disbursements.Solicitors:Oakley Moran, Wellington for ApplicantFire and Emergency New Zealand, Wellington for Respondent13 Public Service Act 2020, ss 86(2) and 89.14 Employment Court judgment, above n 1, at [23].15 See Wang v Hamilton Multicultural Services Trust [2010] NZEmpC 142, [2010] ERNZ 468; andJinkinson v Oceana Gold (NZ) Ltd (No 2) [2010] NZEmpC 102, (2010) 7 NZELR 677.16 Employment Court judgment, above n 1, at [23].