Justice Wilson’s contribution to the Supreme Court

May 19th, 2010

The Supreme Court has upheld an employer's right to use contractors to do the work striking workers would otherwise have done. The relevant parts of section 97 of the Employment Relations Act read (specially defined terms in blue):

"(2) An employer may employ or engage another person to perform the work of a striking or locked out employee only in accordance with subsection (3) or subsection (4).

(3) An employer may employ another person to perform the work of a striking or locked out employee if the person—

(a)
is already employed by the employer at the time the strike or lockout commences; and
(b)
is not employed principally for the purpose of performing the work of a striking or locked out employee; and
(c)
agrees to perform the work.

( 4) An employer may employ or engage another person to perform the work of a striking or locked out employee if—

(a)
there are reasonable grounds for believing it is necessary for the work to be performed for reasons of safety or health; and
(b)
the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health.

(5) A person who performs the work of a striking or locked out employee in accordance with subsection (3) or subsection (4) must not perform that work for any longer than the duration of the strike or lockout."

The Supreme Court decision accords with common sense, gladdens the heart of employers generally, and upset EPMU's Andrew Little. So it should be welcomed?

Yes on the outcome, no in terms of respect for the Court. The law is wrong. But it would be better changed by the govenment, not the Court.. Theoutcome is uncertainty. The government should restore the simple freedom of employers to hire others when employees announce that they propose to break their employment contracts by not turning up for work.

To my mind the dissenting judge, the embattled Bill Wilson, applied the words of the law as it is written, and the intent of the Labour politicians who put it through in gratitude to their Union financiers after the 1999 election. His judgment offers a better model of judicial restraint.

I was among scores of barristers last evening, at a celebration of Colin Carruthers' 20 years as a QC. Having been away when Thomas J went public with his opinions on Bill Wilson I was curious to know the reactions of colleagues. Interestingly, a common view last night seemed to be that when and if all was revealed it would not reflect well on Thomas. I'm still not sure why they think that.

Filed under Politics

Comments

The government should restore the simple freedom of employers to hire others when employees announce that they propose to break their employment contracts by not turning up for work.
Almost by definition, a strike conducted within the terms of the Employment Relation Act cannot involve an employee breaking their employment contracts. Employees may only strike if their employment agreements have expired – and not even right away then.

You are of course right Graeme, as usual, and I knew I should have qualified that sentence. The “right” to strike is a part of the employment contract by legislative decree, not agreement of the parties. I will replace the contract with ‘agreement’ as concession to your accuracy.