29 Aug 2012
Applying r 53G(5)(b) of the Court of Appeal (Civil) Rules 2005, because the respondent's opposition to the leave application was not shown to be unreasonable and given the delay and only partial success on appeal, costs on the leave application were declined and were to lie where they fell.
9 Mar 2011
Section 97(2) must be read purposively: 'employ' and 'engage' include using or deploying other persons to perform the work of striking employees irrespective of their legal employment relationship; where the employer uses replacement workers to perform its work and gains the commercial benefit, that employer breaches s97(2). On the facts the Cheese Company used replacement workers and therefore breached s97(2).
17 May 2010
A contextual, fact-specific inquiry is required under s 97 to determine whether a non-striking person is performing the work of a striking or locked out employee; courts must examine usual patterns, integration, extent and timing of duties to decide whether the replacement is doing their own work or that of the striker rather than applying a rigid 'but for' test; the Employment Court's approach was correct and the Court of Appeal erred in substituting its factual assessment.
27 Oct 2009
Leave to appeal was granted because the Supreme Court approved as the sole ground the question of the meaning of the words 'the work of a striking or locked out employee' in s97 ERA 2000, a legal issue warranting the Court's consideration.
7 Aug 2009
The Employment Court's construction of s97 was erroneous; the proper enquiry is whether the work performed by the contractor was work that, but for the strike, would probably have been performed by a striking employee, and if so s97 applies and the employer must justify the engagement under s97(4).
4 Dec 2008
The Court granted leave to appeal on two discrete questions of law: (1) whether the employer was obliged to pay wages to drivers who gave notice of intention to strike but did not strike, and (2) whether the respondent lawfully engaged replacement drivers under s 97 of the Employment Relations Act 2000; no substantive determination on those issues was made at this stage.