OPEN COUNTRY CHEESE COMPANY LIMITED V NEW ZEALAND DAIRY WORKERS' UNION INCORPORATED SC SC 33/2011

OPEN COUNTRY CHEESE COMPANY LIMITED V NEW ZEALAND DAIRY WORKERS' UNION INCORPORATED SC SC 33/2011 2 June 2011IN THE SUPREME COURT OF NEW ZEALANDSC 33/2011[2011] NZSC 59BETWEEN OPEN COUNTRY CHEESE COMPANYLIMITEDApplicantAND NEW ZEALAND DAIRY WORKERS'UNION INCORPORATEDRespondentCourt: Blanchard, McGrath and William Young JJCounsel: I R Millard QC for ApplicantR E Harrison QC for RespondentJudgment: 2 June 2011JUDGMENT OF THE COURTThe application for leave to appeal is dismissed with costs of $2,500 to the respondent.REASONS[1] The proposed appeal is on a question of law involving s 97(2) of the Employment Relations Act 2000, which forbids an employer from employing or engaging another person to perform the work of a striking or locked out employee.The applicant's employees went on strike. The applicant's parent company then sentsome of its employees into the plant of the applicant to operate it, but their salary or wages continued to be paid by the parent company and they continued to be its employees and under its direction. However, their activities required the cooperation of staff of the applicant who were involved in training and familiarising parent company employees with the operations of the applicant.[2] The Court of Appeal, correctly in our view, took the view that the words"employ" and "engage", when read in the light of the purpose of s 97(2), refer to theemployer's use of other persons, irrespective of its legal relationship with them; and that in law the work done by the employees of the parent company was the applicantcompany's work which those on strike normally undertook for it. The work enabled the applicant to satisfy its contractual obligations. That constituted an employment or engagement by the applicant.[3] We find the Court of Appeal's conclusions to be unimpeachable andaccordingly we are not satisfied that it is necessary in the interests of justice for this Court to hear and determine the proposed appeal.Solicitors:Solutions Law Office, Nelson for ApplicantOakley Moran, Wellington for Respondent