Unions will win court battle but lose war
UPDATE: The Ports of Auckland v Maritime Union Employment Court hearing has been adjourned following the death of PoAL QC John Haigh. No new date has been set and PoAL have not found a new lawyer.
The port says a new court date would not be set until the facilitated bargaining process was finished, which has at least two weeks left.
The Maritime and Meat Workers unions may win their Employment Court battles this week but ultimately they will lose the war, according to employment law experts.
The Ports of Auckland and the Maritime Union’s full Employment Court hearing starts this Wednesday and will be heard before three judges at Auckland’s Employment Court.
Meatworkers do battle with the Talley family-owned AFFCO on the same day.
The waterfront dispute is entering its ninth month and although a return to work has been negotiated, a new collective agreement has not.
The strike has cost the port more than $32 million in lost revenue and at times has deteriorated into a nasty mud-slinging match.
In the meat-workers dispute, industrial action began in December after 18 months of tension and in February Talley’s locked out more than 700 meat workers at plants across the country.
Associate University of Auckland law professor and founding member of the arbitrators and mediators institute Bill Hodge told NBR ONLINE the port company has "put several feet wrong".
He says its public statements through the media appeared to be addressing individual employees, inviting them to apply for jobs with contractors Allied Workforce and Drake, which was illegal.
While the court may rule in the union's favour, Employment Court judges only had the power to penalise breaches of the rules and could not force a conclusion on the parties.
“It is one of the odd things about employment law remedies in this area. It's more process based than it is substantive outcome based.
"A judge can’t say 'here’s a three-year contract and agreement terms'.”
The maximum a party can be fined is $20,000 but a judge could decide to fine them for each individual breach, which was unlikely, Professor Hodge says.
The union needs to get on board with PoAL’s proposed 160-hour roster over 28 days if the dispute is going to reach a negotiated conclusion, he says.
It remains to be seen what effects recent PoAL board changes will have on the negotiations and if the new board will continue to pursue its contracting out proposal.
There is a general lesson for directors involved in employment disputes to keep their mouths shut, Professor Hodge says.
In the Talley's case, he says there are some “peculiarities”, and even though they had been smarter about making public comments they could still be found to have breached process.
“You can’t lock out one union person, so they may have made some mistakes, but I am not sufficiently familiar with the facts,” he says.
Partner at specialist employment law firm Cullen Law, David Burton, says it is likely the ports would be found in breach of a number of duties.
The court may find it breached a duty to be constructive and maintain a good relationship with employees by “effectively making these workers contractors”.
But, ultimately, the union will lose out because the port cannot be stopped from contracting out.
He says the port may conclude the negotiations after the hearing and then pursue the contracting out proposal, which is a perfectly legitimate business strategy.
“I suspect any concluded agreement won’t have any undertakings in relation to contracting out, and once that’s out of the way it’s simply a process the port needs to follow if they think it’s the best business model for the workforce.”
He does not think courts need to be given powers to force a decision on arguing parties.
“The PoAL and AFFCO disputes are fairly unique in our industrial landscape these days. Generally, I think the legislation works really well.”
In the Talley’s dispute he thinks the union will be worn down because its members have families to feed and they are not getting paid.
But as a consequence, there would be a disgruntled workforce, Mr Burton says.