PUBLIC SERVICE ASSOCIATION, TE PŪKENGA HERE TIKANGA MAHI v TE WHATU ORA – HEALTH NEW ZEALAND [2023] NZCA 492

PUBLIC SERVICE ASSOCIATION, TE PŪKENGA HERE TIKANGA MAHI v TE WHATU ORA –HEALTH NEW ZEALAND [2023] NZCA 492 [11 October 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA226/2023[2023] NZCA 492BETWEEN PUBLIC SERVICE ASSOCIATION,TE PŪKENGA HERE TIKANGA MAHIApplicantAND TE WHATU ORA – HEALTHNEW ZEALANDRespondentCourt: Brown and Wylie JJCounsel: P Cranney for ApplicantS L Hornsby-Geluk for RespondentJudgment:(On the papers)11 October 2023 at 11.30 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The applicant applies under s 214(1) of the Employment Relations Act 2000(the ER Act) for leave to appeal against a decision of the Full Court of the EmploymentCourt (Full Court) concerning the legality of proposed strike action.1 Leave is thereby1 Te Whatu Ora – Health New Zealand v Public Service Association, Te Pūkenga Here TikangaMahi [2023] NZEmpC 56 [Full Court judgment].also sought to appeal two prior judgments of Judge Corkill in respect of an applicationfor an interim injunction.2[2] Leave to appeal may be granted if, in the opinion of this Court, the proposedappeal involves a question of law which, by reason of its general or public importanceor for any other reason, ought to be submitted to this Court for decision.3Background[3] At the time of the events giving rise to these proceedings the formerDistrict Health Boards (DHBs) and the applicant were party to two Multi-EmployerCollective Agreements (MECAs) which were due to expire on 31 October 2020. TheMECAs cover the Allied Health, Public Health, Technical and Scientific workforceswhich provide a range of therapy, diagnostic, public health and technical services andother support to patients and clients. The applicant represents approximately 10,000of the total Allied, Scientific and Technical (AST) staff who are employed by therespondent.[4] Contemporaneously the parties and another union, the Association ofProfessional and Executive Employers (APEX), were in the process of progressing theAllied Scientific and Technical Pay Equity Claim (AST pay equity claim) inaccordance with the Equal Pay Act 1972 (the EP Act).4 It appears that the AST staffwere frustrated that their pay equity claim was not being advanced under a timetablesimilar to that which applied to nurses and midwives who were pursuing pay equityissues under the EP Act.[5] By two separate notices dated 1 September 2020 the applicant initiatedbargaining under the ER Act in order to settle new collective agreements to replacethe expiring MECAs. A Bargaining Process Agreement was agreed between theparties and bargaining progressed through to August 2021.2 Capital & Coast District Health Board v Public Service Association, Te Pūkenga Here TikangaMahi [2022] NZEmpC 32; and Capital & Coast District Health Board v Public ServiceAssociation, Te Pūkenga Here Tikanga Mahi [2022] NZEmpC 33.3 Employment Relations Act 2000, s 214(3).4 The AST Pay Equity Claim is a consolidated claim, incorporating claims raised in 2018 and 2020by the applicant and in 2020 by APEX.[6] In August 2021 in the context of the collective bargaining process the applicantformally raised matters relating to the AST pay equity claim. The DHBs' bargainingteam declined to negotiate matters relating to the AST pay equity claim as part of thecollective bargaining, contending that the appropriate place to address such matterswas the pay equity process which was underway.[7] The applicant notified strike action. Given that the DHBs considered the onlyoutstanding matters between the parties related to pay equity matters they filed anurgent interim injunction application seeking to have the strike injuncted on the basisthat it did not relate to collective bargaining and was therefore unlawful.[8] The strike was injuncted. The substantive matter was subsequently heard bythe Full Court. The application for leave to appeal relates to those decisions.The Full Court judgment[9] Central to the respondent's case in the Employment Court was s 83 of theER Act which relevantly provides that participation in a strike is lawful if the strikerelates to bargaining for a collective agreement that will bind each of the employeesconcerned. As the Full Court noted, at the heart of the respondent's submissions wasthe proposition that strike action in support of pay equity-related claims could neverbe lawful under s 83 since such action could not relate to "bargaining for a collectiveagreement".5[10] It was common ground that pay equity settlement processes and collectivebargaining processes are separate processes.6 The Full Court noted that Parliamentcould have provided for pay equity claims to be advanced within collective bargainingbut significantly did not do so.7[11] After analysing the separate regimes the Full Court observed that in theabsence of agreement between parties engaged in collective bargaining to also discusspay equity matters, there is nothing in the reforms enacted in either the EP Act or the5 Full Court judgment, above n 1, at [120].6 At [137].7 At [138].ER Act which would require parties to "bargain" about pay equity issues in the contextof a collective bargaining process.8 The Court stated:[152] In summary, Parliament has not ruled out the ability of the parties toengage in pay equity discussions during collective bargaining if they chooseto do so, but equally there is nothing in either statute that would allow oneparty or the other to insist on this occurring. Forcing the issue would becontrary to the carefully prescribed process of obtaining and assessinginformation relating to historic undervaluation of female work, by referenceto a set of principles that will in due course allow the parties to reach aconclusion themselves; but if this does not prove possible, then with theassistance of the prescribed dispute resolution provisions.[154] In this particular case, there was consensus between the parties toa pay equity issue being addressed in bargaining, namely, the resourcing forthe PSA's pay equity claims. The parties were, however, at odds on back payentitlements. The DHBs took the view that the separate processes of theEP Act should be followed given the work that had yet to be undertaken toadvance the pay equity claims. We consider that as a matter of law, the DHBswere permitted to decline to engage in discussions about possible back pay asencroaching on the equal pay process.[12] Because the Full Court concluded that the second limb under s 83(b) was notsatisfied, it followed that the intended strike could not satisfy the statutory test oflawfulness.9 The Full Court declared that the applicant and its members intended toparticipate in strike action which was unlawful because it related to a pay equitysettlement claim and not to bargaining for a collective agreement.10 The Full Courtdismissed the applicant's application for a declaration that the proposed strikes werenot unlawful.11The application for leave to appeal[13] The notice of application specifies three grounds of appeal:(a) The Full Court erred in granting the respondent's application for adeclaration that the intended strike action was unlawful.8 At [151].9 At [172].10 At [184].11 At [185].(b) The Full Court erred in dismissing the applicant's application for adeclaration that the respondent was not entitled to refuse to bargainabout the pay equity matters raised.(c) The Full Court erred in dismissing the applicant's application for adeclaration that the intended strike action as not unlawful.[14] In its application the applicant proposed two questions of law:(i) Whether the Full Court erred in its conclusion that bargaining aboutpay equity during collective bargaining is unlawful without theemployer's consent?(ii) Whether the Full Court erred in concluding that strike action relatingto pay equity issues raised in collective bargaining is unlawful?Submissions[15] In its written submissions the applicant contended that the Full Court'sconclusions weakened collective bargaining, gravely undermined workers' rights andtipped the balance in collective bargaining heavily against the female works involved.It was submitted that this could well undo the beneficial effects of Terranova Homes& Care Limited v Service and Food Workers Union Nga Ringa Tota Inc.12[16] Mr Cranney, counsel for the applicant, submitted that this Court should grantleave for the following reasons:a. There are very large groups of female employees (many tens ofthousands) who rely on collective bargaining, being in the main eitherdirect or indirect employees of the State — teachers, nurses, childcareworkers, clerical and administrative workers, rest home workers andmany others; andb. the effect of the Court's judgment is:12 Terranova Homes & Care Limited v Service and Food Workers Union Nga Ringa Tota Inc[2014] NZCA 516, [2015] 2 NZLR 437.i. to severely limit the right of female employees to bargaincollectively about wage increases, by excluding any right tobargain or strike about gender-based wage inequality;ii. to weaken collective bargaining on a gendered basis;iii. to alleviate pressure on mainly State employers to pay wageincreases to rectify gender-based wage inequality relating to largefemale workforces in ordinary collective bargaining;iv. to remove any obligation on employers to bargain about gender-based wage inequality in individual or collective bargaining(whether or not a pay equity claim has been raised under theEPA);v. to eliminate union rights to bargain about gender-based wageinequality in collective bargaining; andvi. to discourage the raising of pay equity claims under the [EP Act].[17] At the conclusion of his submissions the questions of law were reformulatedin the following form:a. whether the passing of the Equal Pay Amendment Act 2020 limitedcollective bargaining rights in the manner determined by theEmployment Court;b. whether the passing of the Equal Pay Amendment Act 2020 limitedthe right to strike in the manner determined by the Employment Court;c. what is the correct legal relationship between the rights conferred bythe [ER Act] and those conferred by the [EP Act].[18] Mx Hornsby-Geluk first addressed the questions of law proposed in the noticeof application. She submitted that the first question was not a question of law arisingout of the decision of the Full Court, contending that that decision simply concludedthat in the circumstances of the case the employer was entitled to refuse to engage inbargaining on the pay equity issues. With reference to the second question shesubmitted that it was well settled law that the test is one of dominant motive, and therewas no suggestion made by the applicant that that test was not properly applied by theFull Court. There was no genuinely arguable error of law in the approach taken by theFull Court. Rather the proposed appeal comprises a challenge to the application of thelaw to the facts.[19] Turning to the additional three forms of question in Mr Cranney's submissions,in relation to questions (a) and (b) Mx Hornsby-Geluk reiterated her latter submissionabove. In respect of question (c) she submitted it was a theoretical question that wentfar beyond the scope of the Full Court's decision.[20] Responding to Mr Cranney's "severe limitation of right" submission,13Mx Hornsby-Geluk emphasised that the Full Court decision does not preventbargaining in relation to gender-based wage inequality. Rather it provides support forthe two separate statutory processes that exist and safeguards their distinct purposeand integrity.Discussion[21] In NZ Employers Federation Inc v National Union of Public Employees thisCourt observed that the determination of what comprises a question of law and of thequestion of whether that question of law is of general or public importance is not to bediluted.14 The Supreme Court in Bryson v Three Foot Six Ltd reiterated that appealsunder s 214 of the ER Act are limited to significant questions of law.15[22] From our reading of the judgment it appears that the Full Court properlyapplied settled authority in reaching its determination on the dominant purposequestion for the purposes of the s 83(b) analysis. It considered the evidence before itand the available parliamentary materials and undertook a comprehensive analysis ofthe legislative scheme. We do not consider that the judgment is susceptible to criticismas having reached an incorrect legal or factual outcome on the basis of the materialbefore it.[23] In our view, save for the third additional question in the applicant'ssubmissions, the proposed questions of law do not satisfy the stringent requirementsof s 214. Those questions appear to involve either issues of fact or, to the extent they13 At [16] above.14 NZ Employers Federation Inc v National Union of Public Employees [2001] 1 ERNZ 212 (CA)at [27].15 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [19].involve a question of law, they are of insufficient importance to merit considerationby this Court on appeal.[24] That leaves the third of the additional questions in the applicant's submissions.While there is force in the respondent's submission that it is a theoretical question thatgoes beyond the judgment of the Full Court, this Court is not bound by the formulationof the question. It may be possible to identify a narrower question of law more closelytied to the circumstances of the case before the Full Court.[25] However, as the Full Court noted at the outset of its judgment, the proposedstrikes did not take place. There were no outstanding claims in relation to them beforethe Full Court. The Full Court nevertheless elected to proceed to determine theproceeding, observing that it is well established that although a matter may in effectbe moot, the issue could still be of importance in the future. In doing so the Full Courtrelied on the approach taken in this Court's decision in NZ Professional FirefightersUnion v NZ Fire Service Commission16 (where the application for leave and the appealwere heard concurrently).[26] However even if the questions met the general or public importance test ins 214(3) (which in our view they do not), following the approach of this Court inAir New Zealand Limited v Aviation and Marine Engineers Association Inc,17 we arenot satisfied this case is one that warrants an exception to this Court's policy of nothearing appeals in respect of matters that are moot.[27] For these reasons we are not satisfied that the proposed appeal is one whichought to be submitted to this Court for decision.Result[28] The application for leave to appeal is declined.Solicitors:Oakley Moran, Wellington for ApplicantDundas Street Employment Lawyers, Wellington for Respondent16 NZ Professional Firefighters Union v NZ Fire Service Commission [2011] NZCA 595, [2011]ERNZ 359 at [30].17 Air New Zealand Limited v Aviation and Marine Engineer Association Inc [2014] NZCA 172,[2014] ERNZ 61 at [16].