Affco seeks judicial review of meatworkers ruling after appeal denied

Affco had failed to convince the Court of Appeal of its claim in its earlier appeal, and was attempting to have a "second bite of the cherry."

Affco New Zealand is making another attempt to throw out a ruling that it unlawfully locked out meat workers when collective bargaining was taking place, this time asking the Court of Appeal for a judicial review of the Employment Court's decision.

In November 2015, the Employment Court ruled that the rights of seasonal workers were preserved in the off-season as if they were in continuous employment. The original case covered workers at Affco's Rangiuru, Imlay, and Manawatu plants but the company has accepted any finding would cover all eight of its North Island plants.

Last year, Affco asked the Court of Appeal to overturn that ruling, but this was rejected. Employment Court judgments can only be appealed on questions of law. Affco's application for judicial review heard today centres on the issue of natural justice, as it says the Employment Court made findings on matters that went beyond the agreed statement of facts and it didn't have a fair opportunity to respond to matters that court considered.

The hearing, set down for one day, is part of a series of ongoing legal clashes between Affco and the Meatworkers Union. It was the first under the government's new employment law to apply for an end to bargaining under amendments to the Employment Relations Act which lets firms opt out of multi-employer agreements and removed the duty under good faith bargaining for both sides to reach an agreement. Earlier this month, the Supreme Court gave Affco permission to appeal the Court of Appeal's finding which upheld the Employment Court's decision.

Peter Cranney, representing the Union, said Affco had failed to convince the Court of Appeal of its claim in its earlier appeal, and was attempting to have a "second bite of the cherry" in this application and to broaden the grounds for judicial review.

"What's contended for here is that they would have the right to come to this court from the Employment Court on any matter, at any time six years from the original judgment, on any error of law or any error of fact or any breach of natural justice. That's the effect of what's put up."

Cranney said there had been "all sorts of complications" from the multiple court applications.

"We come to court, we argue in court for an appeal. Unknown to us, there's a new application filed in court between the date of the hearing and the date of the judgment. The judgment comes out, we observe the judicial review application the afternoon the judgment came out. We find ourselves in all sorts of complications, and we may well appeal to the Supreme Court as well," Cranney said.

Affco's barrister Pheroze Jagose said the right of judicial review under the ERA was a standalone cause of action, not necessarily flowing from the Employment Court's decision as an appeal right but a separate claim, though he accepted they could have been brought together. Justice Raynor Asher asked Jagose whether the application was an abuse of procedure, which Jagose denied.

"This is a standalone right of bringing judicial review proceedings against the Employment Court. The appeal is always constrained by the limitations around what leave may be granted. There is a right to bring judicial review proceedings untrammelled by leave," Jagose said. "The point that we wish to be able to argue substantively is the judicial review right is not necessarily limited to the narrow sense of jurisdiction as set out in section 193, but that it is capable of encompassing a BORA (Bill of Rights Act) right to judicial review and a BORA right to natural justice."

"Where the two are differently constrained it cannot be an abuse of process to bring them sequentially. I accept it may not be efficient, I accept it may not be preferable, but it is too far to say it constitutes an abuse."


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