BEAMSLEY V AFFCO NEW ZEALAND LIMITED CA CA455/07

BEAMSLEY V AFFCO NEW ZEALAND LIMITED CA CA455/07 20 November 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA455/07 [2007] NZCA 522BETWEEN TREVOR JOHN BEAMSLEY Applicant AND AFFCO NEW ZEALAND LIMITED Respondent Hearing: 12 November 2007 Court: William Young P, Glazebrook and Chambers JJ Counsel: C R French for Appellant B W F Brown QC for Respondent Judgment: 20 November 2007 at 3pmJUDGMENT OF THE COURT A The application for leave to appeal is declined. B Costs of $1,500 plus usual disbursements are awarded to the respondent.____________________________________________________________________REASONS OF THE COURT(Given by Glazebrook J)Introduction[1] Mr Beamsley has, since 1999, been employed by AFFCO as a full time company paid union secretary at AFFCO's Imlay plant. In June 2006, AFFCO advised Mr Beamsley that it would no longer pay for a full time union site secretary and that he was required to take up another position elsewhere in the plant doing processing work. He was to have the option to request time off to attend to union duties. [2] Mr Beamsley disputed AFFCO's right to change the conditions of his employment unilaterally and contended that it was in breach of contract. He raised a personal grievance of unjustifiable action under s 103(1)(b) of the Employment Relations Act 2000 (ERA), seeking a compliance order and reinstatement to his former full time site secretary role. [3] The Employment Relations Authority issued a determination on 11 October 2006 declaring Mr Beamsley was entitled to continue to be paid by AFFCO as a full time union secretary. AFFCO successfully appealed that decision to the Employment Court. Mr Beamsley now seeks leave to appeal against the Employment Court decision.Relevant documentation[4] Before the Authority and the Employment Court it was common ground that Mr Beamsley was covered by a collective employment agreement. Clause 38 of the collective agreement provides that "the company may at its discretion allow union representatives reasonable paid time off to represent workers". [5] Mr Beamsley also relied on a document dated 7 February 2006, the "Goldsack memorandum". It was in the following terms:I'll [sic] pleased to formally advise you that the Imlay Management Team have made the decision to provide you with the opportunity to undertake full-time union representation of the Imlay site.We have made the decision to expand the time available to you because we feel that this will not only benefit the people we employ, but also it will allow us both to develop and grow what is already a very positive relationship between us both. Furthermore, we accept and support that due to the nature of the work at Imlay (i.e. triple shift patterns) it will be necessary for you to manage your time across all work activities. This arrangement is in place for the period of your tenure as Site Union Secretary and it should not be assumed that this position would be maintained should a person other than yourself have the role of Union Secretary. We look forward to working together for the betterment of the Imlay site and our employees. Should further clarification be required, please don't hesitate to contact me. Sincerely, Bryan Goldsack Site ManagerDecision of the Employment Court[6] The Employment Court held that Mr Beamsley was covered by the collective employment agreement. Accordingly, he could not rely on the Goldsack memorandum. In the Court's view, the memorandum was, in terms of s 61 of the ERA, inconsistent with cl 38 of the collective employment agreement. [7] The Court also made rulings as to the legal position if, contrary to its finding, Mr Beamsley was not covered by the collective agreement. It held that the Goldsack memorandum amounted to an individual fixed term employment agreement, the term of the contract being the period of Mr Beamsley's tenure as site secretary. The Court held that AFFCO was legally entitled to alter or terminate the fixed term contract prior to its expiry date if AFFCO genuinely considered the position was superfluous to its needs.Mr Beamsley's proposed appeal points[8] Mr Beamsley contends first that the Employment Court was wrong in its interpretation of s 61 of the ERA because it failed to recognise that the exercise of a discretion is not inconsistent with the existence of that discretion. [9] Secondly, he contends that s 61 was not a live issue before the Employment Court and the parties were not given an opportunity to make submissions on the point. For this reason also, Mr Beamsley did not have the opportunity to argue legitimate expectation and estoppel. [10] Thirdly, Mr Beamsley argues that the Employment Court misstated and misapplied the law relating to fixed term contracts and redundancy. Such contracts cannot be terminated early by reason of redundancy unless there is an express redundancy clause. [11] Finally, Mr Beamsley submits that there was no evidence to support the Employment Court's findings that there had been a sufficient change in circumstances since the Goldsack memorandum to justify any redundancy.Discussion[12] With regard to the first proposed ground of appeal, AFFCO submits that the word "inconsistent" in s 61 of the ERA is an ordinary word which has already received consideration by the Court. No issue of statutory interpretation arises. AFFCO's submission is that Mr Beamsley's real complaint relates to the Employment Court's interpretation of the relevant collective agreement and the Goldsack memorandum, a matter over which this Court has no jurisdiction – see s 214(1) of the ERA. Mr Beamsley's response to AFFCO's submission was that the Employment Court must have misconstrued the statutory test as the Goldsack memorandum and the collective agreement can clearly co-exist. [13] In our view, the question of the construction of the collective agreement and the Goldsack memorandum is so entwined with any statutory interpretation pointthat the two cannot be sensibly separated. This means that we accept AFFCO's submission that, subject to the natural justice issue discussed below, we have no jurisdiction in relation to this proposed ground of appeal. [14] With regard to the second proposed ground of appeal, it does appear from the papers filed before the Authority and the Employment Court that Mr Beamsley would have been entitled to assume that possible inconsistency under s 61 of the ERA was not at issue in the proceedings. However, as Mr Beamsley accepted that he was covered by the collective agreement, the question of how the Goldsack memorandum was to be interpreted in light of the collective agreement was clearly at issue. [15] In our view, the Employment Court's reconciliation of the collective agreement and the Goldsack memorandum does not depend on any finding of inconsistency under s 61 of the ERA. The Employment Court held that AFFCO could, despite the terms of the Goldsack memorandum, have recourse to the terms of the collective agreement to determine what work Mr Beamsley performs. The Court held that AFFCO was entitled to take into account that only a small proportion of Mr Beamsley's work as site secretary was, under the changed industrial climate, beneficial to AFFCO. It was therefore entitled in terms of the collective agreement, to require Mr Beamsley to perform other work at the site. Such a reconciliation of the Goldsack memorandum and the collective agreement falls squarely within s 214(1). It involves the interpretation of the contractual provisions, a matter over which this Court has no jurisdiction. [16] Turning to Mr Beamsley's third ground of appeal, the Employment Court held that Mr Beamsley was covered by the collective agreement. This means that Mr Beamsley's employment is not pursuant to a fixed term contract under the Goldsack memorandum. The finding that Mr Beamsley was covered by the collective agreement resulted from the Employment Court's interpretation of the coverage clause of that agreement. As this is a matter of interpretation, no appeal to this Court is possible. This deals with Mr Beamsley's proposed third ground of appeal.[17] As to Mr Beamsley's proposed fourth ground of appeal, we accept AFFCO's submission that the complaint is as to the weight placed by the Employment Court on the evidence. There is therefore no question of law involved.Result[18] The application for leave to appeal is declined. [19] Costs of $1,500 plus usual disbursements are awarded to the respondent.Solicitors: French Burt Partners, Invercargill for Appellant Solutions Law Office, Nelson for Respondent