WAITEMATA DISTRICT HEALTH BOARD V NEW ZEALAND PUBLIC SERVICE ASSOCIATION CA CA118/05

WAITEMATA DISTRICT HEALTH BOARD V NEW ZEALAND PUBLIC SERVICE ASSOCIATION CA CA118/05 1 December 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA118/05BETWEEN WAITEMATA DISTRICT HEALTH BOARD Appellant AND NEW ZEALAND PUBLIC SERVICE ASSOCIATION Respondent Hearing: 9 November 2006 Court: Glazebrook, Chambers and Ellen France JJ Counsel: H Fulton and A Russell for Appellant B J Banks and A R Dallas for Respondent Judgment: 1 December 2006 at 3pmJUDGMENT OF THE COURT A The appeal is dismissed for want of jurisdiction. B Costs of $1,500 plus usual disbursements are awarded to the respondent on the application for leave to appeal. C Costs of $6,000 plus usual disbursements are awarded to the respondent in relation to the appeal.____________________________________________________________________REASONSGlazebrook and Ellen France JJ [1] Chambers J [30]GLAZEBROOK AND ELLEN FRANCE JJ(Given by Glazebrook J)Table of ContentsPara NoIntroduction [1]Did the Employment Court err in principle in finding liability for payment of the clothing allowance in default of an express direction to wear civilian clothing? [8]Was the Employment Court wrong in law to hold the Board liable, in the absence of evidence of therapeutic requirements or patient care/rehabilitation? [24]Result and costs [27]Introduction[1] The New Zealand Public Service Association (PSA) claims that the Waitemata District Health Board breached the collective employment agreement covering its employees by not paying a clothing allowance to employees of the Mason Clinic, a forensic psychiatric unit in Auckland. [2] The clothing allowance, in terms of cl 8.4.2 of the agreement, is payable only where:because of therapeutic requirements or in the interests of patient care/rehabilitation, an employee is directed by the employer to wear civilian clothing instead of the normal uniform. Provided that this allowance shall not be payable to staff who, with the employer's permission elect to wear civilian clothing on duty.[3] In the Employment Court, in a decision now reported as New Zealand Public Service Association v Waitemata District Health Board [2005] 1 ERNZ 253, Judge Shaw turned first to the proviso to cl 8.4.2. She held that an election can only be made where there are real alternatives available. Because uniforms were not available, the employees who wore civilian clothing had no real alternative. They therefore had not made an election to wear civilian clothing under the proviso. Shewent on to consider whether the Board had directed the employees to wear civilian clothing. In this regard, she adopted the Employment Authority's definition of direction:as being capable of including action or inaction on the part of the employer which has the effect of giving an employee no choice but to wear civilian clothing.[4] Using that definition, she held that, although there had been no express direction to staff to wear civilian clothing, the following was tantamount to a direction: the combination of the March 1999 clothing policy (which defined acceptable clothing without any reference to uniforms) and the unavailability and inaccessibility of uniforms. Liability to pay the clothing allowance under cl 8.4.2 was therefore, in her view, proved. [5] On 4 October 2005, this Court granted leave to appeal on the following questions:1. Whether the Employment Court was correct to find liability for payment of the clothing allowance under clause 8.4.2 arises in default of a specific direction given for the purposes of the contract. 2. Whether the Employment Court was wrong in law to hold there is liability in the absence of therapeutic requirements or patient needs.[6] Leave was granted on the basis that the Court had not determined whether the first question relates to a decision on the construction of a collective employment agreement, which s 214 of the Employment Relations Act 2000 precludes from review in this Court. It is common ground that s 214 will apply unless any error is one of principle going beyond the particular terms of the contract. [7] The issues for determination in this appeal therefore are: (a) Did the Employment Court err in principle in finding liability for payment of the clothing allowance in default of an express direction to wear civilian clothing?(b) Was the Employment Court wrong in law to hold the Board liable, in the absence of evidence of therapeutic requirements or patient care/rehabilitation?Did the Employment Court err in principle in finding liability for payment of the clothing allowance in default of an express direction to wear civilian clothing?[8] Mr Fulton, for the Board, submitted that the Employment Court erred by: (a) allowing the proviso to cl 8.4.2 to dominate the interpretation of the clause; (b) holding that the only way to avoid paying the allowance was to provide uniforms, in the absence of an express term to that effect and without implying such a term into the agreement; (c) imposing the Judge's own view of liability (based on it being unjust to allow employees no effective choice) rather than construing the agreement; (d) finding an implied direction to wear civilian clothing but, at the same time, finding there was no intention to give a direction; (e) incorrectly applying the agreement; and (f) making a finding of deliberate avoidance of payment of the allowance, in the absence of evidence and in the absence of any such allegation having been made by the PSA. [9] As indicated above, s 214 of the Employment Relations Act will preclude this Court's jurisdiction unless the Judge made an error of principle that transcends the particular contract - see Tisco Ltd v Communication & Energy Workers Union[1993] 2 ERNZ 779 at 781 (CA) per Cooke P for the Court and Sears v Attorney- General [1995] 2 ERNZ 121 at 125 (CA) per Richardson J for the Court. Such anerror of principle may arise where irregular or unorthodox construction techniques are used - see Secretary for Education v Yates [2004] 2 ERNZ 313 (CA). As McGrath J said in that case, at [18], the Employment Court retains primacy in relation to the construction of contracts but this is subject to the supervisory appellate function of this Court in relation to the law of contractual interpretation. [10] All three Judges in Yates, however, cautioned against too readily coming to the conclusion that there has been an error of principle. McGrath J, at [20], said that a conclusion that what the Employment Court had done does not in law amount to an orthodox interpretation of the contract will not lightly be reached. Glazebrook J, at [30], said that it is important that this Court resist the temptation of turning errors of interpretation into errors of principle merely because it sees the result reached as wrong. William Young J said, at [98], that he was alert to the need to avoid a conclusion that the Employment Court must have erred in law as to the proper interpretative technique because the result differs so markedly from this Court's preferred interpretation. [11] William Young J identified the error of principle in Yates as being the failure to identify the true issue raised by the case and thus a failure even to attempt to resolve that issue by interpreting the contract. Indeed, in William Young J's view, the Judge had not construed the contract at all and thus in no true sense could the decision have been one of construction of a contract - see at [87], [98] and [99]. William Young J also identified a subsidiary error; using the terms of a subsequent contract to elucidate the meaning of the contract at issue - see at [93]. McGrath J agreed with the reasoning of William Young J - see at [23]. Glazebrook J agreed that a failure to construe a contract could amount to an error of principle but considered that the Employment Court had construed the contract by accepting the Employment Tribunal's construction of the contract - see at [43] - [44]. [12] TLNZ Auckland Ltd v Neenee CA67/06 22 August 2006 provides a recent example of s 214 operating to preclude an appeal to this Court. In that case, this Court, at [12] - [13], held that, although it considered the Judge's construction of the contract to be wrong, no irregular or unorthodox construction techniques were apparent from the Judge's reasoning. There was therefore no jurisdiction to hear theproposed appeal. The Court refused to entertain a proposition that the Judge's construction was so wrong that he must have adopted an inappropriate construction technique as that would involve negating the statutory limitation on the Court's jurisdiction under s 214. [13] We now assess each of Mr Fulton's points, as set out above at [8], in accordance with the above principles. [14] Mr Fulton's first point is that the Judge was wrong to use the proviso to construe cl 8.4.2. There is, however, no principle of contractual interpretation that precludes this. Whether the Judge's approach would lead to a correct interpretation will depend on the wording of the particular contract. Even if it led to an incorrect interpretation, however, that would be an error of construction, precluded from review by s 214. [15] In any event, we do not consider that the Judge utilised the proviso to cl 8.4.2 to interpret the clause. It is true that she began by ascertaining whether the proviso applied by examining whether the employees had made an election to wear civilian clothing. This was, however, because that was where the Board's argument had directed her. It was an important part of the Board's case that the employees had elected to wear civilian clothing and an adverse decision on the election point would have meant the PSA's case failed. There was thus logic in beginning with the proviso. The Judge, however, having cleared away the proviso, then went on to examine and interpret the wording of the next part of the clause without reference back to the wording of the proviso (although she did of course refer back to her factual finding as to the absence of choice). [16] Mr Fulton's next point was that the Judge wrongly held that the Board had to supply uniforms. The Judge's view was that cl 8.4.2 is predicated on the assumption that there is an obligation to supply uniforms. There is no principle of contractual interpretation that precludes a finding that a matter is implicit in the wording of a contract. Any error in this regard therefore is an error of construction and not one of principle. In any event, the Judge was clearly right to hold that cl 8.4.2 is predicated on there being a designated uniform. It is difficult otherwise to see how there couldbe a direction to wear civilian clothing "instead of the normal uniform". In addition, the requirement on the Board to supply uniforms is explicit at the beginning of cl 8.4. That part of the clause provides:Where the Employer requires an employee to wear particular protective, or uniform clothing the type and style to be worn shall be determined having fair and reasonable regard to the actual physical working conditions and local climatic conditions. Employees whose duty regularly involves the tuition of remedial exercises shall be supplied with reasonable and sufficient gymnasium clothing. Protective, gymnasium and uniform clothing is to be supplied free of charge by the employer. All items of protective, uniform clothing and gymnasium clothing supplied by the Employer shall be laundered, or drycleaned at the employer's expense, as required and determined by the Employer. All articles of protective, gymnasium and uniform clothing shall be repaired or replaced on a fair wear and tear basis.[17] The structure of the agreement is that the Board can (under the first part of cl 8.4) for any reason require an employee to wear a uniform, although the type and style of that uniform shall be determined having fair and reasonable regard to the physical working and local climatic conditions. Under cl 8.4.2 an employee can be directed by the employer to wear civilian clothing instead of the normal uniform, because of therapeutic requirements or in the interests of patient care or rehabilitation. In the absence of either being directed to wear a uniform or civilian clothing, the employee has a choice as to whether or not to wear a uniform. If there is a direction to wear civilian clothing, then the civilian clothing allowance is payable. Uniforms must be supplied by the Board free of charge to those directed to wear them and to those who choose to wear them. Although the requirement to provide uniforms free of charge is in the part of the clause that relates to the Board's ability to direct employees to wear a uniform, it is not tied to that requirement. [18] Although obviously this would not be determinative of the interpretation of the agreement, we note that the above interpretation appears to be one that both the PSA and the Employee Relations Manager of the Board subscribed to, at least as at 26 September 2002. In a letter of that date to the PSA, the Manager noted that she had agreed with the PSA that there were three options under cl 8.4.2:[T]hat uniform be optional and provided by WDHB for those staff who choose to wear it, in which case the Clothing Allowance does not apply; that staff be required NOT to wear a uniform, in which case the Clothing Allowance does apply; and that staff be required to wear a uniform, in which case that uniform is provided by WDHB and the Clothing Allowance is not paid.[19] Mr Fulton's next submission was that the Judge imposed her own view of liability (based on it being unjust to allow no choice) rather than construing the agreement. It is true that the Judge said that it would be unjust to allow the Board on the one hand to give its staff virtually no choice but to wear civilian clothing but then avoid any financial responsibility under the collective agreement by deliberately not directing them to wear civilian clothing. However, this comment came after she had already held that the March 1999 clothing policy and the provision of no choice was tantamount to a direction and therefore came within the wording of cl 8.4.2. The justice of the situation was undertaken as a check on her interpretation. Particularly in the context of employment agreements (with the good faith requirement between employer and employee) and the equity and good conscience jurisdiction of the Employment Court, there can be no criticism of this approach. [20] Mr Fulton's next argument was that it was inconsistent for the Judge to find an implied direction but also to find that there was no intention to give an express direction. Mr Fulton submitted that any direction must at least be a conscious decision. Even if that is so, on the Judge's findings it was a conscious decision on the part of the Board not to provide a uniform and therefore a conscious decision to provide no choice to the employees. This means that there was a conscious decision to give a direction in the sense the Judge interpreted the term. Any error here must, in any event, have been an error of construction and not an error of principle. [21] Mr Fulton next argued that the Judge had incorrectly applied the contract. Even if this were the case, this Court has no jurisdiction on factual matters. [22] Finally, Mr Fulton complained about the Judge's finding that the Board deliberately avoided payment of the allowance. We agree that, given the history of the matter, such a finding might be seen as taking the matter too far. The question of the allowance and uniforms appears to have been one that was addressed by theBoard and by the staff sporadically but, as the Judge recognised, was not at the forefront of concerns on either side. We, however, accept Mr Banks' submission on behalf of the PSA that all the Judge meant was that it was a conscious decision of the Board not to give an express direction and that there can be no moral opprobrium attached to that finding. Even were that not the case, any error in that regard was not essential to the Judge's decision and therefore cannot provide any basis for an appeal. [23] None of Mr Fulton's criticisms identify any error of principle. We can discern nothing in Judge Shaw's decision to suggest that she used other than orthodox contractual interpretation techniques. She looked at the words of the agreement and came to a view on the meaning of those words. In particular, she decided on the meaning of the word "directed" in the context of the agreement. It was open to her as a matter of interpretation to decide that the term included action on the part of the employer which had the effect of giving an employee no choice. There is no principle of statutory interpretation that says that the word "direction" cannot include an implied or effective direction. As a matter of ordinary language, the word "direction" must be capable of including a situation where no choice is given. To take an extreme example, a command given by an armed robber to hand over your wallet or be shot would, to any rational person, be interpreted as a direction to hand over your wallet. The Judge, having come to her interpretation of the agreement on orthodox principles of contractual interpretation then, in orthodox fashion, applied that interpretation to the facts as she found them (and, as we noted at [21], no appeal lies to this Court in relation to her factual findings).Was the Employment Court wrong in law to hold the Board liable, in the absence of evidence of therapeutic requirements or patient care/rehabilitation?[24] Mr Russell, who argued this part of the case for the Board, submitted that there was no evidence before the Court that there were any therapeutic or care or rehabilitation needs that required civilian clothing to be worn. Mr Banks, for the PSA, contended that no evidence was needed on the part of the PSA. If the Board wished to assert that the direction had been given for another purpose then it should have provided evidence to that effect.[25] We accept Mr Banks' submission. While a direction to wear a suitable uniform can be given for any purpose, the only reason a direction to wear civilian clothing can be given under cl 8.4.2 is because of therapeutic requirements or in the interest of patient care/rehabilitation: see at [2] above. In the absence of any evidence on the part of the Board that the direction was given for an improper purpose, as a matter of contractual interpretation, the direction must be assumed to have been given for the reasons set out in the contract. [26] In our view, this is the way that the Judge dealt with the matter. She asked the question whether the staff were directed to wear civilian clothing because of patient needs, obviously a shorthand way of referring to therapeutic requirements or to the interests of care and rehabilitation in terms of cl 8.4.2. She answered this question in the affirmative. She must therefore have been assuming (as she was entitled to do absent evidence to the contrary) that the direction had been properly given under the contract for the purposes set out in that contract.Result and costs[27] For the above reasons, the appeal is dismissed for want of jurisdiction. [28] Costs of $6,000 plus usual disbursements are awarded for the respondent. [29] Costs on the leave application were reserved. As the respondent has been successful in its argument that this Court lacks jurisdiction it is appropriate that it has costs on that application. Costs of $1,500 plus usual disbursements are awarded to the respondent in that regard.CHAMBERS J[30] This case raises yet again this court's jurisdiction on appeals from the Employment Court. Section 214(1) of the Employment Relations Act 2000 says that parties cannot appeal from a decision of the Employment Court "on the construction of an individual employment agreement or a collective employment agreement".(For ease of reference, I shall refer to that qualification on this court's jurisdiction as "the construction privative provision".) A construction privative provision of that sort has long been a feature of employment legislation in this country. The meaning to be attributed to the current provision and its predecessors is rather unclear. There are on that topic numerous decisions of this court, not all reconcilable. What amounts to "construction" has been the subject of such subtle interpretation that no employment lawyer could be confident in advising a client dissatisfied with an Employment Court decision involving the interpretation of an employment agreement whether an appeal to this court was barred by the construction privative provision. [31] What has happened is that resourceful employment lawyers have attempted to push through the loopholes left by this court in its various interpretations of what is or is not caught by the construction privative provision. So, in this case, Messrs Fulton and Russell, for the Board, have submitted that their challenge to the Employment Court's decision falls outside the construction privative provision by reason of one or more of the following errors: (a) An error of law in making findings where there was no evidence of probative value to support those findings; (b) An error of law resulting from a misunderstanding of established and relevant facts; (c) An error of law in reaching conclusions and drawing inferences which do not logically follow from established facts; (d) An error of law in implying terms into the agreement; (e) An error of law in making adverse findings against a party in breach of the principles of natural justice. [32] Messrs Banks and Dallas, for the PSA, on the other hand, contended that none of those alleged errors of law arose in this case; they said that the Board'scomplaint in reality was simply that the Board did not like Judge Shaw's interpretation of the collective employment agreement. [33] It is often very difficult, especially in light of this court's jurisprudence on the topic, to work out on which side of the line a particular attack comes. Proof of that, perhaps, is the fact that the panel which heard the leave application was left uncertain about the side of the line on which the Board's attack fell. Leave was granted only provisionally. [34] After I had read Judge Shaw's judgment and had read and heard the parties' submissions, I instinctively felt that the judgment under appeal was not correct. But I was also unsure as to whether Mr Fulton's grounds of challenge were correct. In order to assess those grounds of challenge, I have found it necessary to analyse the judge's construction of the agreement, even though an appeal on the construction of an employment agreement is not permitted. It is, however, only by undertaking the construction exercise oneself that one can really analyse accurately whether the appellant's attack is in substance (albeit not in form) an attack on construction. [35] I can state my views on construction shortly. Judge Shaw found that the PSA had failed to provide employees of the Mason Clinic with uniforms until September 2002: at [69]. From that finding of fact, she went on to conclude that the Board had thereby breached cl 8.4.2 of the agreement: at [65]. In my view, her conclusion on that point was, with respect to the judge, clearly wrong. The failure to provide a uniform was a breach of the agreement, but not of cl 8.4.2. Rather, it was a breach of cl 8.4 (third paragraph), a provision which I shall term "the free uniform clause":Protective, gymnasium and uniform clothing is to be supplied free of charge by the employer.[36] It is perhaps significant that, when Judge Shaw set out the relevant parts of the agreement she was required to construe (at [12] of her judgment), she did not include the free uniform clause. It may well be that she overlooked it, which is understandable in the forensic circumstances in which she found herself. After all, the PSA had not alleged a breach of the free uniform clause and the Board did notaccept that it was under an obligation to provide a uniform. All legal firepower was concentrated on cl 8.4.2, not the free uniform clause. [37] It is clear why the PSA did not concentrate on the free uniform clause. By the time it filed its statement of matter with the Employment Relations Authority, the breach of the free uniform clause had been remedied. The only remedy available for past breaches would have been a difficult damages claim based, presumably, on the costs its members incurred by having to supply their own clothing instead of wearing a Board-supplied uniform. That damages claim would have been very problematic and potentially low-yielding, especially given the lack of complaint at a much earlier stage about the Board's failure to supply free uniforms. Obviously, the PSA decided that it would be better not to allege a breach of the free uniform clause and rather to concentrate on cl 8.4.2, with its guaranteed allowance of $3.04 a day for each employee for a period of six years (or more). The Board appears happy to have joined battle on cl 8.4.2 because it confidently expected a finding that it had not breached that clause. It had never directed Mason Clinic employees to wear civilian clothing "because of therapeutic requirements or in the interests of patient care/rehabilitation". [38] I consider, with great respect to Judge Shaw, that her construction of cl 8.4.2 was wrong. The Board did not "direct" the wearing of civilian clothing in terms of that clause. Rather, what it did was fail to provide a uniform, a breach of the free uniform clause. Even if I am wrong in thinking that "directed" bears its normal meaning, any implied direction (such as the judge found) had nothing to do with the "therapeutic requirements" or "care/rehabilitation" requirements of patients, a phrase effectively given no meaning or recognition in the judge's interpretation of the clause. There were many reasons given as to why the Board had not supplied uniforms (or, on the judge's view, had impliedly directed the wearing of civilian clothing), but Mason Clinic patients' therapeutic or care requirements were not among them. [39] It follows that I respectfully think the judge was wrong to find that an allowance was payable under cl 8.4.2. It is the natural tendency of any appellate court, where it discerns error, to correct that error. But, after careful considerationand despite Mr Fulton's valiant attempt to dress up the Employment Court's error as errors of law not amounting to an error in the construction of the document, I have concluded that the court's error was a construction error, no more, no less. It is an error which we have no jurisdiction to correct. [40] It is for these reasons that I concur in the result proposed by Glazebrook J, namely that this appeal must be dismissed for want of jurisdiction. [41] There are two further points I wish to make. First, it might be said to be unfortunate that we now have an appellate judge set out why he considers the Employment Court to be wrong, only then to say "but there's nothing we can do about it". While I have sympathy with that concern, the answer is that I have really already given. After hearing from Mr Fulton, I thought the Employment Court decision did seem "wrong", but it was only upon construing the employment agreement myself that I realised the error in it was a pure construction error, not one of the errors advanced by Mr Fulton and catalogued above at [31]. [42] Following the lettering of that list, I find: (a) Mr Fulton complained there was no evidence to support a finding that the Board "directed" Mason Clinic employees to wear civilian clothing, still less to support a finding that the "direction" was given "because of patient needs or therapeutic requirements". I happen to agree, but that is solely because my construction of the agreement differs from the judge's. If her construction is right, however, there is evidence to support the view that cl 8.4.2 was breached. Thus, the true nature of the challenge is not "no evidence", but rather is to the judge's interpretation. (b) This ground overlaps with (a). The judge did not misunderstand the facts; all she did, with respect, was misunderstand the contract. (c) Mr Fulton complained that the judge found that the employer "was careful to avoid any such direction" (at [52]), but then held there hadbeen a direction under cl 8.4.2. That was, he submitted, an illogical deduction from established facts. I agree that it appears to be so, and indeed this particular factual finding is one of the facts on which I rely for my view that there was no "direction" in terms of cl 8.4.2. But, again, the apparent illogicality reveals nothing more, in my respectful view, than a misconstruction of the contract. (d) Mr Fulton complained that the judge implied into the agreement a term that the Board was required to supply uniforms. It does appear that the judge concluded that there was such an obligation from her construction of cl 8.4.2. That clause imposed no such obligation. But the free uniform clause did. On this topic, therefore, the judge reached, in my respectful view, the right answer by the wrong route. But Mr Fulton is also wrong: the Board was required to supply uniforms. Mr Fulton's submission completely overlooked the free uniform clause. (e) Finally, Mr Fulton was concerned that the judge had found that the Board had, to avoid financial responsibility, "deliberately" not directed the wearing of civilian clothing: at [54]. This, Mr Fulton said, had not been put to any of the Board's witnesses and had not been part of the PSA's case. It is perhaps unfortunate that assertion was made, but it was not central to Her Honour's reasoning. On her construction of the agreement, the finding of a "direction" stemmed from the Board's failure to provide uniforms. [43] So all Mr Fulton's alleged errors of law are found to be a consequence of the judge's misconstruction of the agreement. To demonstrate that they are not fundamental but merely consequential, I have had to set out (at least in brief) my construction of the agreement as it is my construction of the agreement which provides my answer to Mr Fulton's complaints. In short, I have had to venture into forbidden territory in order to demonstrate why in essence the Board's complaint is, as it turns out, no more than a complaint about the Employment Court's construction of the collective agreement.[44] The second point I would like to make is that I think that, at some point in the near future, either this court or the Supreme Court will need to review the jurisprudence surrounding s 214. In my view, the difference between "erring as a matter of law in the approach to the interpretation of the relevant provision of the employment contract, which is amenable to review [by the Court of Appeal], and simply erring in the ultimate construction, which is excluded", for instance, is to my mind, very subtle. (That distinction was drawn in Wellington College of Education v Scott [1999] 1 ERNZ 98 at 101 (CA).) McGrath J, in his reasons for judgment inSecretary for Education v Yates, referred to the "deferential approach" which this court adopted towards decisions of the Arbitration Court on interpretation prior to 1991: at [8]. He detected a much less deferential approach following the enactment of the Employment Contracts Act 1991, which brought, as he said, "a fundamental change to the statutory categorisation of the nature of employment": at [9]. It was during the 1990s that this court developed distinctions between pure interpretation (which is not amenable to review) and other errors such as "approach to interpretation" which can apparently be reviewed. I would have to say that, in some of those cases, I think this court may have exceeded its jurisdiction. It could not resist the temptation to correct legal error when it perceived it. I confess to that temptation myself in the present case. Having seen what was in my view error in the Employment Court's approach, I did look to see whether I could categorise that error as an error other than one of construction. In the end, I could not, but I confess I tried. [45] McGrath J reasoned in Yates that Parliament's "substantial repetition of s 135 [of the 1991 Act] in s 214 of [the 2000] Act" could be seen as "an affirmation of this Court's approach to appellate review of interpretation of employment agreements under the 1990 Act": at [19]. That may be so, although one should not overlook two important changes introduced by the 2000 Act. [46] First, the Employment Court's "equity and good conscience" jurisdiction has arguably been significantly increased, if one compares s 189(1) of the 2000 Act with s 104(3) of the 1991 Act. In this regard, it is important to note that s 189(1) does not stand alone but must be interpreted in light of ss 3, 4, and 143 of the 2000 Act, provisions that have no counterpart in the 1991 Act. (Indeed, if we had jurisdiction,I would not rule out the possibility that the "equity and good conscience" jurisdictionmight provide an answer in some way to the conclusion to which orthodox contractual construction leads. But none of this has been the subject of submission.) [47] Secondly, s 216 of the 2000 Act specifically records that, with respect to appeals to this court, the Court of Appeal must have regard to, among other things, the Employment Court's equity and good conscience jurisdiction: see s 216(c). The equivalent provision in the 1991 Act (s 137) made no similar reference to s 104(3), the equity and good conscience provision of the 1991 Act. [48] I do not decide how significant those changes might be; arguably, they might suggest a return in this court to the more deferential approach which McGrath J detected in the pre-1991 decisions. This is not the occasion, however, on which to review this court's jurisprudence on the construction privative provision. We heard no argument on that topic. In any event, it may be that the review is better undertaken in the Supreme Court, where that court will not be constrained by earlier Court of Appeal authority.Solicitors: Mantelli McKegg Wells & Cormack, Auckland for Appellant Keily Thompson Caisley, Wellington for Respondent