Affco's application for judicial review an 'abuse of process', Appeal Court says

The judgment said the judicial review proceedings were an abuse of process.

Affco New Zealand's application for a judicial review of an Employment Court ruling that it unlawfully locked out meat workers when collective bargaining was taking place has been rejected by the Court of Appeal, which says the proceedings were "an abuse of process".

The application harks back to the opening of the 2015/16 killing season when Affco invited people who had worked for the company in the previous season to attend presentations for new individual employment contracts that differed from their previous collective agreement. While that agreement had expired, the union had begun bargaining for a new collective agreement and was subsequently successful in two claims against Affco in the Employment Court under the Employment Relations Act by not negotiating a new collective agreement in good faith and locking out workers.

That decision was significant in finding that seasonal workers were engaged by Affco on employment agreements of indefinite duration rather than ending when the season ended. Affco unsuccessfully challenged that in the Court of Appeal, whose ruling last October had something to displease both sides. The appeal court found the Employment Court had erred in finding seasonal workers were on employment agreements of indefinite duration but it upheld the lower court's finding that the workers were "employees" for the purposes of the lock-out.

Both parties subsequently obtained leave to appeal to the Supreme Court, with a hearing set for June, but separately, even before the Court of Appeal had delivered its decision, Affco filed its judicial review proceedings, arguing there was a breach of natural justice in that 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. In response, the Meatworkers Union applied to have the judicial review proceedings struck out.

The two sides presented their arguments before Justices Tony Randerson, Christine French and Raynor Asher in March, with the judgment given on April 12 and posted on the Ministry of Justice website this week. Justice French set out the reasons why Affco's application for a judicial review was dismissed and the company ordered to pay costs to the union.

She said the bench held that conclusions in the 2011 decision of Parker v Silver Fern Farms - that the intent of the law was to impose a narrow limit on judicial review - still held and the Court of Appeal didn't have jurisdiction to consider Affco's application.

But the judgment goes further, commenting on the union's alternative ground, that the judicial review proceedings were an abuse of process. The bench said it would have struck out the proceedings on that basis.

"The fact these proceedings were not brought at the same time as the appeal (under s214), seek to raise the same issues on which leave was declined and were served on the union after this court had delivered its judgment, undermines the administration of justice and the principle of finality," Justice French said in the decision. "It has resulted in a separate proceeding running in tandem with a Supreme Court appeal addressing the same dispute."


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