SPOTLESS SERVICES (NZ) LTD V SERVICE AND FOOD WORKERS UNION NGA RINGA TOTA INC AND S D ABURN & ORS CA 704/07

SPOTLESS SERVICES (NZ) LTD V SERVICE AND FOOD WORKERS UNION NGA RINGA TOTA INC AND S D ABURN & ORS CA 704/07 17 March 2008IN THE COURT OF APPEAL OF NEW ZEALAND [2008] NZCA 63 CA704/07BETWEEN SPOTLESS SERVICES (NZ) LIMITED Applicant AND SERVICE AND FOOD WORKERS UNION NGA RINGA TOTA INCORPORATED AND STEPHEN DEAN ABURN & ORS RespondentsCA710/07AND BETWEEN SERVICE AND FOOD WORKERS UNION NGA RINGA TOTA INCORPORATED AND STEPHEN DEAN ABURN & ORS Applicants AND SPOTLESS SERVICES (NZ) LIMITED RespondentCA434/07AND BETWEEN SPOTLESS SERVICES (NZ) LIMITED Applicant AND SERVICE AND FOOD WORKERS UNION NGA RINGA TOTA INCORPORATED Respondent Hearing: 17 March 2008 Court: William Young P, Ellen France and Baragwanath JJCounsel: C H Toogood QC and K J Burson for the Applicants P Cranney and T Oldfield for the Respondents Judgment: 17 March 2008ORAL JUDGMENT OF THE COURT A Leave to appeal is granted on the question whether the following conclusions of the Chief Judge were erroneous in law: 1. That the lockout was unlawful and not within s 82 of the Employment Relations Act; 2. That the subsequent notices to employees issued by Spotless in any event invalidated the lockout; and 3. That the employees' financial relief should be calculated on the basis that were it not for the lock-out notices they would have been on strike pursuant to strike notices given by the union. B Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by William Young P)Introduction[1] In issue before us are challenges to two judgments of the Employment Court (Chief Judge Colgan): the first was announced on 23 July 2007, with reasons subsequently delivered on 27 July 2007 (Service and Food Workers Union Nga Ringa Tota Inc v Spotless Services (NZ) Ltd EmpC AK AC 43D/07 ARC 39/07 27 July 2003), and the second delivered on 26 November 2007 (Service and Food Workers Union Nga Ringa Tota Inc v Spotless Services (NZ) Ltd EmpC AK AC 50A/07 ARC 48/07 26 November 2007). [2] The first judgment addressed the lawfulness of lockout notices given by Spotless Services (NZ) Ltd the purpose of which was to reinforce demands bySpotless of the Service and Food Workers Union Nga Ringa Tota Inc and its members to provide cover at hospitals for striking union members. In this judgment, the Chief Judge held that the lockout was not within s 82 of the Employment Relations Act 2000 because the demand, which was reinforced by the lockout notices, was not lawful as it was inconsistent with the rights of the union and its members to strike. [3] The second judgment addressed wage claims made by the employees who had been locked out. In this judgment, the Chief Judge declined to revisit his earlier conclusion that the lockout was unlawful and found that there was an additional basis for the same conclusion (namely confusing and inconsistent post-lockout advice given by Spotless to its employees). This judgment, however, was in the result substantially in favour of Spotless because the Chief Judge awarded financial remedies which were premised on the assumption that but for the unlawful lockout the employees would have been on strike for approximately 11/12ths of the period covered by the unlawful lock-out notices. [4] Spotless sought leave to appeal against the first judgment, an application which we adjourned to await the result of the claim for financial relief: Spotless Services (NZ) Ltd v Service and Food Workers Union Nga Ringa Tota Inc [2007] NZCA 514. Spotless and the employees both seek leave to appeal against the second judgment. [5] In the result we think it right to grant leave to appeal on the question whether the following conclusions of the Chief Judge were erroneous in law: (a) That the lockout was unlawful and not within s 82 of the Employment Relations Act; (b) That the subsequent notices to employees issued by Spotless in any event invalidated the lockout; and(c) That the employees' financial relief should be calculated on the basis that were it not for the lock-out notices they would have been on strike pursuant to strike notices given by the union. We reserve costs.Solicitors: Simpson Grierson, Auckland, for Applicants Oakley Moran, Wellington, for Respondents