Airways Corporation of New Zealand Ltd v New Zealand Air Line Pilots' Association Industrial Union of Workers Incorporated CA251/95 [1996] NZCA 59; [1996] 2 NZLR 622; [1996] 1 ERNZ 126; (1996) 5 NZELC 98,387 (24 April 1996)

Last Updated: 13 February 2014

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A. 251/95}

UNDER the Employment

Contracts Act 1991

IN THE MATTER of an appeal against a decision of the

Employment Court

BETWEEN THE AIRWAYS CORPORATION

OF NEW ZEALAND LIMITED a duly incorporated company having its registered office in Wellington

Appellant

A N D NEW ZEALAND AIR LINE

PILOTS' ASSOCIATION INDUSTRIAL UNION OF WORKERS INCORPORATED a duly incorporated company having its registered office at Auckland

First Respondent

A N D DALLAS RICHARD BEAN

of Christchurch, Air

_{Traffic Controller AND 326 OTHERS}

_{Second Respondents}

Coram: Cooke P. (5.12.95) Richardson J.

Gault J. Henry J. Thomas J.

Hearing: 5 and 6 December 1995

Counsel: J.E. Hodder and G.A. Crozier for Appellant

P.J. Dymond and Emma C. Huston for Respondents

_{Judgment: 24 April 1996}

JUDGMENT OF LORD COOKE OF THORNDON

This is an appeal under the Employment Contracts Act 1991, s.135, from a judgment of Chief Judge Goddard in the Employment Court, delivered on 14 November 1995, granting an injunction against the Airways Corporation of New Zealand (Airways) at the suit of the present respondents (the union known as Alpa and 327 of its members). The Chief Judge found that two newsletters from Airways for Air Traffic Control managers and staff, entitled ATC Update and dated respectively 11 and 25 September 1995, were issued in breach of s.12(2) of the Act, which provides:

12. Authority to represent -

...

(2) Where any employee or employer has authorised a person, group or organisation to represent the employee or employer in negotiations for an employment contract, the employee or employer with whom the negotiations are being undertaken shall ... recognise the authority of that person, group or organisation to represent the employee or employer in those negotiations.

It is important to stress at the outset that appeals under s.135 are limited to the ground that the decision appealed from is erroneous in point of law. (There is a further limitation excluding from the right of appeal decisions on the construction of any individual employment contract or collective employment contract; but that is not relevant to the present case.) On the standard approach to such provisions, a right of appeal on points of law will extend to a case of findings of fact not reasonably capable of being reached on the evidence before the Employment Court. Thus a recent example of a case in which an Employment Court judgment has been reversed on appeal on such a ground is Talbot v. Air New Zealand Ltd [1996] 1 N.Z.L.R. 414. That apart, Parliament has refrained in cases such as this from granting a right of appeal against findings of fact, so the jurisdiction of the Court of Appeal under s.135 is much more limited than, for instance, its jurisdiction under the Judicature Act 1908, s.66, on appeals from the High Court. The limitation in s.135 to points of law reflects a legislative policy. There is an exception to this policy in certain tort proceedings related to strikes or lockouts: see ss.73 and 132, and Conference of the Methodist Church of New Zealand v. Gray, in which case the decision of this Court is being delivered on the same date as the present judgment. But the general policy of Parliament is that the specialist Employment Court's

decision, within its jurisdiction as broadly defined, will be final on questions of fact. It is easy to see that otherwise employment litigation in general could be even lengthier than it can already be, and the Court of Appeal could be flooded with appeals on questions of fact.

The union was the authorised negotiating agent of most of the air traffic controllers. The argument turns on the duty imposed on the employer by s.12(2) to recognise the authority of the union to represent the authorising employees in negotiations for an employment contract. In common, as I had understood it, with all the Judges of this Court who have sat in the present case and the companion case of New Zealand Fire Service Commission v. Ivamy, I consider that the judgment of Hardie Boys J. concurred in by the other two members of the Court in Capital Coast Health Ltd v. New Zealand Medical Laboratory Workers Union Inc. [1996] 1 N.Z.L.R. 7,

18-19, should continue to be accepted as stating the scope of the duty so far as it can be laid down as a matter of law: that is to say as a matter of the true interpretation of the statute. If, however, the view of the other members of the Court amounts in substance to an implied alteration of the law as stated in Capital Coast Health, I consider that this is not justified.

The relevant passage from the judgment of Hardie Boys J. is as follows: The Employment Contracts Act must be seen as essentially

^{practical legislation designed to deal with everyday practical situations.}

It is not appropriate to subject it to esoteric analysis or to draw fine distinctions in its application. As Gault J said in Eketone [Eketone v. Alliance Textiles (NZ) Ltd [1993] 2 E.R.N.Z. 783] it is a matter in each case of striking a balance between the competing rights of the parties - those of the employer under s.14 of the Bill of Rights Act, and those of the employee under s.12 of the Employment Contracts Act. It is not a case of one prevailing over the other, but of both being given sensible and practical effect. That can be done by allowing s.12 to speak for itself. I do not think that its meaning is greatly assisted by devising tests, whether they be of motive, either dominant or secondary, or of effect, either intended or incidental.

Section 12(2) is predicated on the basis that negotiations for an employment contract are under way between the employer and the employees' authorised representative. Negotiations are as I have said a process of mutual discussion and bargaining, involving putting forward and debating proposal and counter-proposal, persisting, conceding, persuading, threatening, all with the objective of reaching what will

probably be a compromise that the parties are able to accept and live with. Once that process is under way with an authorised representative participating, the process may not be conducted directly with any party so represented. The provision of factual information does not impinge on that process. But anything that is intended or is calculated to persuade or to threaten the consequences of not yielding does. Whether any words or actions are of that kind is a question of fact to be determined on an overall view of what was said or done and the context in which it was said or done.

Attempts to undermine the authority of the agent may be in breach of s.8(1), but will also be in breach of s.12(2), because it is for the particular parties to choose their representative. It is their right to have that person act on their behalf without interference. But again the provision of factual information, relevant to the matter in hand, cannot be interference. And again, the same kind of overall assessment must be made to determine on which side of the line particular facts fall.

The judgment now under appeal is lengthy and I do not think it helpful to examine all the nuances of the reasoning. The heart of the judgment is what is important. This is to be found where, after referring to Capital Coast Health and other cases, the Chief Judge sets out seven numbered conclusions. The first three are:

1. Soliciting feedback from employees, as the defendant did, was an invitation to personal negotiation or something close to it, and as such an interference in the representation. Now that negotiations are underway, it should not happen again. There should be no more feedback forms or soliciting or facilitation of feedback in any other way except through the representative.

2. It is also an interference with the first plaintiff's representation to report to the employees represented by it what it has said or done on their behalf. There is too great a risk that such a reportage will be inaccurate, misleading, and selective. There should be no more of this activity either. However, the employer can report in a factual way to its staff what it has said so long as what it says is factual and is not intended or calculated to persuade. Neither of the Updates issued since

7 September passes that test. The only reason for them was to persuade the employees of the benefits, advantages, or necessity of accepting the employer's views.

3. This restriction applies only between the start of negotiations and ratification. Before and after that period, the employer can persuade, or try to do so. It is only during negotiations that restraints exist.

The third conclusion is uncontroversial.

I have had the advantage of reading in draft the judgment prepared in this case by Gault J. and understand that it enjoys the agreement of the other members of the Court. With my brother's propositions that issues three and four of the newsletter must speak for themselves and that evidence as to their meaning is of no assistance, I entirely agree, assuming of course that the newsletters are to be seen in the context in which they were issued. But I am reluctantly compelled to think that it is going beyond the bounds of an appeal confined to points of law for a Judge to give effect to what the newsletters convey to him, his own view of them and how they strike him, in preference to the assessment reached in the Court below. The question is not, as I see it, my own impression of the employer's conduct in sending the newsletters, but whether it was reasonably open to Chief Judge Goddard to reach the conclusions that he did. As pointed out in Capital Coast Health, whether any words or actions are of a kind transgressing s.12(2) is a question of fact to be determined on an overall view of what was said or done and the context in which it was said or done.

My reasons for regarding conclusions 1 and 2 as reasonably open to the Chief Judge are these. I put them in my own words, although this is only an alternative way of expressing the same ideas. Both the newsletters deal solely with the negotiations. What they purport to update is the state of the negotiations. When, without the consent of the union, the employer party to employment contract negotiations takes it upon itself to report on the state of the negotiations directly to the employees who have authorised the union to represent them, there is abundant room for the inference that the employer lacks confidence in any reporting by the union to its own principals. An implicit attempt may readily be seen to have been made to persuade the employees to accept both the employer's account of the negotiations and the reasonableness of the employer's stance as distinct from that attributed to the union. It would be shutting one's eyes to the realities of industrial bargaining to deny the likelihood of that purpose. Such a communication is naturally likely to be intended or calculated to persuade. There is nothing in the content or surrounding circumstances of these newsletters making it unreasonable to see them in that way.

The liberty recognised in Capital Coast Health to provide factual information exists, but care is needed to avoid going further. In this case it might be hard to say with a straight face that the newsletters were intended to do no more than provide factual information. And in at least two specific respects they can reasonably be seen as attempts to undermine the authority of the union.

First, the newsletter of 25 September explicitly states that Alpa was asked to contribute its own summary of proposals but had declined as it did not wish to participate in a joint communication process in which each contributed to a newsletter to employers. Yet the newsletter proceeds to give a summary of Alpa's proposals 'in its [Alpa's] own words'. That can reasonably be seen as an attempted undermining of the union as negotiating representative by insinuating (rightly or wrongly) that it preferred to keep its members in the dark or to avoid comparisons, and that they should rely on the employer to keep them better informed.

Secondly, there is a further element, namely feedback forms. The fact that in both newsletters feedback by entry on an incorporated form was solicited from the employees can easily be seen as the offering of opportunities to put forward suggestions, otherwise than through the union, for the employer's consideration in the negotiations. An invitation to by-pass the union may be said to be plainly there. It is true that in the event only minimal feedback was obtained in that way. Still, the attempt to create some direct employee input can reasonably be seen as inconsistent with recognition of the authority of the representative.

Accordingly I think that a finding of breach of s.12(2) was reasonably open to the Chief Judge. It is unnecessary to examine some additional reasons given by him for his finding. I express no opinion on them. The injunction granted, although detailed, was not undesirably so and is sufficiently supported by the conclusions that I consider reasonably open to him.

Consequently I would dismiss the appeal, but in accordance with the opinion of the majority it will be allowed and the injunction discharged. As to costs in this Court, the appellant will have against the respondent an award of $5000 together with reasonable disbursements including the cost of preparing the case. Costs in the Employment Court stand reserved and should now be fixed in that Court in the light of the decision of this Court.

Solicitors:

Chapman Tripp Sheffield Young, Wellington, for Appellant

Office Solicitor, New Zealand Airline Pilots' Association, Auckland, for

Respondents

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.251/95}

BETWEEN THE AIRWAYS CORPORATION OF NEW ZEALAND LIMITED

Appellant

AND NEW ZEALAND AIR LINE PILOTS’ ASSOCIATION INDUSTRIAL UNION OF WORKERS INCORPORATED

First Respondent

_{AND D R BEAN and 326 OTHERS}

_{Second Respondents}

Coram: Cooke P

5.12.95 Richardson J Gault J Henry J Thomas J

_{Hearing: 5 and 6 December 1995}

Counsel: J E Hodder and G A Crozier for Appellants

C J Dymond and E C Huston for Respondents

_{Judgment: 24 April 1996}

_{JUDGMENT OF RICHARDSON P, GAULT AND HENRY JJ DELIVERED BY GAULT J}

Airways Corporation of New Zealand Ltd a State Owned Enterprise employs the second respondents who are air traffic controllers and who authorised the first respondent Association (ALPA) as their representative in negotiations for a new collective employment contract to replace that expiring on 30 October 1995. The Corporation appeals against an Employment Court decision given on 14 November 1995 in which it was held to have breached its obligation under s

12(2) of the Employment Contracts Act 1991 to recognise the authority of ALPA as the employees’ bargaining agent and was restrained by a quite detailed injunction from communicating in certain respects with the controllers.

The Corporation is committed to modern management techniques which include an open communications policy with its employees. In August 1995 it commenced a series of newsletters entitled “ATC Update”. The first two issues were prepared and distributed to air traffic controllers prior to the commencement of negotiations for the new employment contract and are material only as background. The first, issued on 21 August 1995, explained the nature and purpose as follows:

The Airways Collective Employment Contract team has decided to put out a newsletter on a regular basis in order to inform ATC managers and staff of our approach to renewal of the collective employment contract. This newsletter, ATC UPDATE, is for information only and is not intended to replace or pre- empt negotiation with your authorised representative.

The introductory paragraph was repeated in the second issue of 1 September. Each referred to the approaching negotiations with ALPA. Both also incorporated a final paragraph reading:

We have included a feedback form on this newsletter and solicit your questions or comments anonymously by fax. If appropriate, and unless you indicate otherwise on your feedback form, we will print answers to your questions and your comments in the next newsletter.

This was followed by a form giving a confidential fax number to which comments could be sent. In this regard the second issue said:

We received some feedback forms from our last newsletter, most which were stamped with the “Don’t Talk to Us Talk to ALPA” stamp. Again, we think it is important to restate that the purpose of this newsletter is to communicate with staff, and solicit their opinions, not to circumvent ALPA. All of the feedback from the last newsletter was from Auckland or Christchurch - what about controllers in other regions?

Issue three was distributed on 11 September. This followed the first negotiating meeting between representatives of ALPA and the Corporation which was held on 7 September. It contained only four paragraphs followed by the feedback form. It read:

Airways ATC negotiating team met with ALPA’s ATC negotiating team on

Thursday 7 September.

Although the meeting had been sought by ALPA as the first of our negotiating meetings ALPA was not in a position to provide Airways with the list of those whom it represented.

ALPA asked Airways to refrain from communicating directly with controllers. It based its request upon recent decisions of the Chief Judge of the Employment Court. Airways noted that the Chief Judge’s view of the law is being tested on appeal. Airways has decided to respect ALPA’s request in the meantime and thus is not in a position to report of the progress of the negotiations to you.

In keeping with Airway’s open communication policy and consistent with our obligations under the Official Information Act, to disclose matters of wider interest to others, Airways will be providing information to other stakeholders in the company about the negotiations. This will include putting out circulars to other staff particularly about those aspects of those negotiations which could impact upon them.

It is common ground that the decision of the Chief Judge of the Employment Court referred to was that in Ivamy v New Zealand Fire Service Commission WEC44/95, W13/95 judgment 14 July 1995.

The communication of this newsletter direct to air traffic controllers after the negotiations had commenced was complained of as constituting failure on the part of the Corporation to recognise the authority of ALPA as the bargaining agent of the controllers as required by s 12(2). It was found by the Chief Judge to do so and in relation to it he said:

Update 3 contained a disparaging statement about the first plaintiff that although the meeting of 7 September had been sought by it as the first negotiating meeting, it was not in a position to provide the defendant with the list of those whom it represented; there was no point in making this statement except to criticise or ridicule, as the defendant had by then accepted that the first plaintiff was the authorised representative of the bulk of the relevant staff.

The same Update contained a threat to embarrass the employees by providing information to other stakeholders and by putting out circulars to other staff about the negotiations with the plaintiffs; this threat of disclosure was likely to inhibit them from prolonging the negotiations and that is not a proper use of such a threat.

It was said further to be “biased and slanted and could not be described as providing factual information ....”.

Issue four was distributed on 26 September not only to air traffic controllers but also to all of the Corporation’s staff and managers. It began:

OUTLINE OF THE PROPOSALS PUT BY AIRWAYS TO ALPA

The ATC CEC expires on 31 October 1995. Negotiations over a new CEC began on 7 September. Airways put forward a non-traditional approach which has implications for all Airways employees.

ALPA asked Airways not to communicate directly with the controllers it represents. It based its request upon recent decisions of the Chief Judge of the Employment Court whose view of the law is being appealed to the Court of Appeal. Airways initially decided to respect ALPA’s request but that decision was reviewed in the light of a further Employment Court decision which clarified the law. (Judge Colgan AEC 83A/95, 15 September 1995].

Accordingly, the information in this memo is being circulated to controllers, and in terms of our open communication strategy, to other employees. [Couling v Carter Holt Harvey Ltd]

There followed a summary of proposals for the scope and framework of the negotiations that had been put forward on behalf of the Corporation at the 7 September meeting. There followed:

ALPA’S PROPOSALS

ALPA was asked to contribute its own summary of its proposals but has declined as it does not wish to participate in a joint communication process in which we each contribute material to a newsletter for employees. The following is a summary of ALPA’s proposals, in its own words. A full account of its proposals may be available from ALPA members.

There was then what purported to be a summary of similar length to that of the

Corporation’s proposals.

The newsletter ended with:

The next step is for Airways to analyse ALPA’s proposals and to provide written feedback in advance of the next negotiating meeting on 3 and 4

October.

There was the same feedback form at the end.

The delivery of this newsletter number four also was held by the Chief Judge to contravene the employers obligation under s 12(2). Of this he said:

In Update 4, belittling the representative’s request as capable of being overridden without consultation with it or the employees.

Attempting to apply pressure to employees by distributing Update 4 to staff other than the employees involved in the negotiations.

This too was found “biased and slanted”.

Of the inclusion of the feedback forms the Chief Judge said:

Soliciting feedback from employees, as the defendant did, was an invitation to personal negotiation or something close to it, and as such an interference in the representation. Now that negotiations are underway, it should not happen again. There should be no more feedback forms or soliciting or facilitation of feedback in any other way except through the representative.

It was further held that:

It is also an interference with the first plaintiff’s representation to report to the employees represented by it what it has said or done on their behalf. There is too great a risk that such a reportage will be inaccurate, misleading, and selective.

He held that the employer can report in a factual way to its staff what it has said so long as what it says is factual and not intended or calculated to persuade. Here, on the interpretations he gave them, there were attempts to persuade in issues three and four.

The Chief Judge also made a similar point to that he had made in his earlier judgment in Ivamy v New Zealand Fire Service Commission that there is a right not to receive communications to be implied from the freedom of expression guaranteed by the New Zealand Bill of Rights Act

1990. He said that not to accede to requests by employees or bargaining agents that there be no communications direct with the employees was inconsistent with the employer’s duty under s 12(2).

While he found the Corporation had breached its statutory obligation, the Chief Judge expressly refrained from deciding whether the communications have undermined ALPA’s ability to represent the controllers. We take that to be a finding in respect of actual undermining as contrasted with that being a risk so as require restraint. He also declined to extend the terms of the injunction he granted to communications to persons other than air traffic controllers although he indicated that in cases where it appeared that this was done as a “dubious evasion” of the statutory obligation restraint might be required.

The judgment under appeal was given as a matter of some urgency. It was determined that an application for interim injunction would not be dealt with but instead the matter would be tried substantively at an early fixture. This took place before the delivery of the judgment in this Court in Capital Coast Health Ltd v New Zealand Medical Laboratory Workers Union Inc [1996] 1

NZLR 7. After that became available counsel were given an opportunity to make supplementary submissions and the judgment took account of them. The Chief Judge expressly referred to the fact that his decision in Ivamy v New Zealand Fire Service Commission and that of Judge Colgan in Couling v Carter Holt Harvey Ltd were soon to be considered on appeal in this Court. He was perhaps anxious to deliver his judgment before yet another decision of this Court required to be dealt with. In any event the condensed timetable of the proceedings and the perceived urgency with a long judgment delivered within seven weeks of the issue of the fourth newsletter may have led to a less than fully considered evaluation of the decision of this Court in the Capital Coast Health Ltd case. The Chief Judge was at some pains to point out that he did not find it to be consistently helpful to him in deciding this case. He further said that if the law had been left to stand as it was declared by the full Court of the Employment Court in Adams v Alliance Textiles (NZ) Ltd [1992] 1 ERNZ 982 he would have decided the present case in favour of the Corporation.

When the Alliance Textiles case reached this Court (sub nom Eketone v Alliance Textiles (NZ) Ltd [1993] 2 ERNZ 783) the members of this Court expressed views obiter on the approach to s 12(2) that had been adopted by the Employment Court. Those views were elaborated upon

judgment in New Zealand Fire Service Commission v Ivamy (CA145/95) to be delivered contemporaneously with the judgment in this case. They do not differ from what was said by the Employment Court in Adams v Alliance Textiles to the extent apparently apprehended by the Chief Judge so far as he sees them as a rejection of a robustness of approach favoured in his Court. The two points on which Cooke P expressed reservations were as to negotiating direct with employees behind the agent’s back and seeking directly to persuade employees to revoke an agent’s authority. Neither point warranted the extensive shift apparent in the judgment of the Chief Judge in Ivamy v New Zealand Fire Service Commission and to some extent in the judgment under appeal. For his part Gault J expressed no greater difference from what the Chief Judge said in the Alliance Textiles case than to make a point he has now recognised, as appears from the judgment under appeal, that there may be communications that do not amount to negotiations but still involve a failure to recognise a bargaining agent’s authority. Such communications could not all be assessed by reference to the test he had propounded of undue influence.

Nothing will be achieved by further reviewing developments through the cases unfortunately complicated by the need for the Employment Court to decide new cases before the outcome of appeals in previous cases were known.

In the present case some statements in the principal judgment of Hardie Boys J in the Capital Coast Health Ltd case have been taken out of context, listed as independent propositions and employed as tests for compliance with s 12(2) in place of the words of the section itself. In particular there has been substituted for the wording of the obligation to recognise the authority of the bargaining agent to represent employees in negotiations for an employment contract the negative obligations not to persuade and not to interfere. Those expressions were used in the Capital Coast Health Ltd case but, as we have endeavoured to explain in our judgment in New Zealand Fire Service v Ivamy, in contexts having regard to the wording in the statute. In adopting these tests as he did the Chief Judge erred in law.

to fail to recognise its authority, the issue is whether the two newsletters three and four constituted negotiation by the Corporation direct with the air traffic controllers or otherwise constituted conduct in all the circumstances inconsistent with its obligation to recognise ALPA’s authority as bargaining agent.

The matter is to be looked at broadly considering the Corporation’s conduct in its context and as a whole. By way of background there are to be taken into account the clear statements in the first two issues that the newsletters were for information only and were not intended to replace or pre-empt negotiation with the authorised agent; that air traffic controllers cannot be said to be lacking in education and organisation so as to be unusually vulnerable to workplace pressure; that such feedback as there was from the newsletters (there were 11 responses in total) made it clear that any attempt by the employer at influencing the negotiations through the newsletters would be futile; that all parties throughout recognised that the new contract would be negotiated between the appointed agent ALPA and representatives of the Corporation.

Issues three and four of the newsletter must speak for themselves. Evidence as to their meaning is of no assistance. Read as a whole they do not convey to us a failure by the Corporation to recognise ALPA as the bargaining agent. They expressly recognise ALPA as such. They do not in our view amount to negotiation or attempted negotiation but rather fall into the category of factual information relating to the negotiations. Nor do they strike us as so disparaging of ALPA as to call in question its authority to represent the controllers.

Referring more particularly to matters specifically pointed to as indicating breach of the statutory obligation on the Corporation we comment as follows:

1. The report in issue three that ALPA was not in the position to provide a list of those represented is no more than a factual statement. It is to read much more into that statement than is there to view it as disparaging of ALPA.

2. The advice that the request of ALPA not to communicate directly with controllers would be respected in the meantime (pending appeal in the Fire Service case) and the subsequent advice of a change of position (because of the Couling v Carter Holt Harvey decision) were statements of the Corporation’s position. It is not tenable to say that this was belittling of ALPA.

3. The stated intention to inform others of developments in the negotiations is neither threatening nor the application of pressure likely to so influence the negotiations as to amount to either attempted negotiation or denial of ALPA’s authority.

4. The requests for feedback left it entirely to employees to respond or not. Those who did gave no indication of negotiating. On the contrary all but one referred the Corporation to their bargaining agent. It might have been an entirely different matter if the Corporation had obtained feedback considered of help to it in the negotiations and then had sought to use that in the negotiations. That plainly would have been inconsistent with recognition of the authority of ALPA to negotiate on behalf of the controllers.

5. The reports of positions taken by ALPA in the negotiations which were included in the newsletters were not such as give concern that ALPA’s authority was not recognised. A reading of the ALPA material purportedly summarised in issue number four does not suggest a serious case of bias or slanting. A risk of inaccuracy cannot constitute a failure to recognise.

6. The failure by the Corporation to accede to requests by ALPA and by some employees not to continue with the newsletters was seen by the Chief Judge as inconsistent with the right of the controllers not to receive such information. No convincing authority had been advanced for such a general right. But in any event this would have the effect of achieving through a simple request from bargaining agents at the outset of negotiations a complete ban on communications by employers to employees of even factual information which would be quite contrary to the decision of this Court in the Capital Coast Health Ltd case.

7. The Chief Judge was influenced in his assessment of the newsletters by his inability to see any motivation for them except to influence employees and interfere with ALPA’s representation of them. He thereby rejected the Corporation’s stated objective of maintaining a modern and open communications policy. His scepticism could well be justified having regard to the timing of the introduction and specific subject matter of the new newsletter. Certainly it will not avail an employer that they are in furtherance of such a policy if statements are made that on an overall assessment are inconsistent with the statutory obligation. In this case, so far as they went, we are satisfied they were not. The Chief Judge was persuaded to read into them more than they say and then apply to them tests that do not fully conform with the section as it has been construed by this Court.

We would allow the appeal and discharge the injunction granted.

Solicitors

Chapman Tripp Sheffield Young, Wellington, for Appellant

P J Dymond, Office Solicitor, New Zealand Airline Pilots Association, for Respondents

IN THE COURT OF APPEAL OF NEW ZEALAND CA 251/95

BETWEEN THE AIRWAYS CORPORATION OF NEW ZEALAND LIMITED

Appellant

A N D NEW ZEALAND AIR LINE PILOTS' ASSOCIATION INDUSTRIAL UNION OF WORKERS INCORPORATED

First Respondent

_{A N D D R BEAN and 326 OTHERS}

_{Second Respondents}

Coram: Cooke P

5.12.95 Richardson J Gault J

Henry J Thomas J

Hearing: 5 and 6 December 1995

Counsel: J E Hodder and G A Crozier for Appellants

C J Dymond and E C Huston for Respondents

_{Judgment: 24 April 1996}

_{JUDGMENT OF THOMAS J}

I have read the joint judgment of Richardson P and Gault and Henry JJ, and agree with the outcome.

In the course of his judgment, His Honour, Chief Judge Goddard, indicated that, if the law had been allowed to stand as it had been declared by the full Court of the Employment Court in Adams v Alliance Textiles (NZ) Ltd [1992] 1 ERNZ 982, he would in this case have found for the Airways Corporation. The Chief Judge's view was based on his understanding of this Court's decision in Capital Coast Health Ltd v New Zealand Medical Laboratory Workers Union Inc (Unreported, 26 October 1995, CA 216/94). As explained in the majority judgment, however, the views of this Court in the Capital Coast Health case do not differ from what was said in Adams v Alliance Textiles to the extent apparently apprehended by the Chief Judge. Had this not been the case I believe that the Chief Judge would have found for the Corporation.

To my mind, this case gives rise to only one matter which is any cause for concern. That matter is the invitation to employees contained in the Corporation's newsletter to return the feedback form with comments and questions. Generally, I believe, an invitation by an employer to employees who have chosen to be represented by a bargaining agent in negotiations for a collective employment contract to respond directly to it, would amount to a denial of the agent's authority to conduct those negotiations. In such circumstances the employer is seeking to deal with the employees in circumstances and in a manner which has all the hallmarks of negotiating. It would not matter that the employer received, as in this case, a negative or negligible response. The contravention of s 12(2) rests in the invitation.

In this instance, however, the use of the feedback form seems to have been a genuine part of the Corporation's desire to communicate with its staff. Nor, I consider, was it particularly significant in the overall conduct of the Corporation which is under challenge. I agree with the view of the majority that the matter is to be looked at broadly considering the Corporation's conduct in its context and as a whole. When that is done I cannot discern any failure to comply with the requirements of s 12(2).

It goes without saying that I regard this case in an entirely different category from The New Zealand Fire Service Commission v Ivamy and Ors (CA 145/95), judgments in which are also being delivered today. In that case the employer's conduct was such that it amounted to a clear transgression of s 12(2). That is not so here. The border-line lies between the two cases.

I would, therefore, also allow the appeal.