Commissioner of Police v New Zealand Police Association CA240/98 [1999] NZCA 334; [1999] 2 NZLR 741; [1999] 1 ERNZ 624; (1999) 5 NZELC 95,958 (10 May 1999)

Last Updated: 14 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND CA240/98

CA17/99

BETWEEN COMMISSIONER OF POLICE Appellant

AND NEW ZEALAND POLICE ASSOCIATION

Respondent

Hearing: 13 April 1999

Coram: Richardson P Gault J

Henry J

Thomas J Blanchard J

Appearances: B J Banks and J C Mossop for Appellant

D J Goddard and K M Drysdale for Respondent

Judgment: 10 May 1999

_{JUDGMENT OF THE COURT DELIVERED BY GAULT J}

[1] This appeal relates to the scope of the power of the Commissioner of Police to fix conditions of employment for sworn members of the New Zealand Police by general instructions and without agreement by negotiation with the Police Association as the appropriate service organisation.

[2] The statutory provisions at the centre of the dispute are ss30 and 67 of the

Police Act 1958 (the Act) which read:

30. GENERAL INSTRUCTIONS--

(1) The Commissioner may from time to time issue general instructions, not inconsistent with the provisions of this Act or

regulations made thereunder, and all members of the Police shall obey and be guided by those instructions.

(1A) In any such general instructions, the Commissioner may, in respect of sworn members of the Police, fix any conditions of employment that are not for the time being fixed under section 67 of this Act.

(2) Every general instruction shall remain in force until cancelled by the Commissioner.

(3) A general instruction is deemed to have been communicated to a member of the Police when the instruction has been--

(a) Published in the Police Gazette; or

(b) Published in a Police magazine that is published under the authority of the Commissioner and distributed to all members; or

(c) Published in a manual of general instructions issued by the

Commissioner to all members; or

(d) In the case of a member of a particular group of Police, published in a manual of instructions issued by the Commissioner to members of that particular group; or

(e) Brought to the personal notice of the member.

(4) The production at any inquiry or investigation under this Act of a copy of any of the publications referred to in paragraphs (a) to (d) of subsection (3) that purports to contain a copy of any general instruction is sufficient evidence of the making, publication, and content of that general instruction.

...

67. CONDITIONS OF EMPLOYMENT OF SWORN MEMBERS OF THE POLICE--

(1) Except as otherwise provided in this Act or in any agreement under this section, the conditions of employment of sworn members of the Police shall be fixed in accordance with this section.

(2) The conditions of employment to which this section applies for any group or class of sworn members of the Police shall be contained in a single agreement.

(3) The conditions of employment that may be fixed under this section for any group or class of sworn members of the Police shall be -

(a) The remuneration of such members of the Police:

(b) The terms and conditions upon which relieving, travelling, lodging, meal and other allowances and expenses including clothing allowances and allowances payable in respect of work warranting payment, may be granted:

(c) The rates of any such allowances or expenses:

(d) Such other conditions of employment as may be agreed to by the Commissioner and the appropriate service organisation.

(4) Every agreement under this section shall include only such conditions of employment as may be agreed by negotiation between the Commissioner and the appropriate service organisation and, before entering into any such negotiations, the Commissioner shall consult with the State Services Commission over the conditions of employment to be negotiated. The Commission may at any time, either before or during the negotiations, indicate to the Commissioner that it wishes to participate with the Commissioner in the negotiation or continued negotiation of the conditions of employment of sworn members of the Police, and the Commissioner shall allow the Commission to so participate in the negotiations.

(5) Once a condition of employment has been included in an agreement under subsection (3) of this section it shall remain in the agreement until the Commissioner and the service organisation agree that it shall cease to be so included in the agreement.

(6) Where the Commissioner and the service organisation are unable to reach a voluntary settlement of any claim made by one party upon the other for an agreement under this section then the procedures prescribed in the Third Schedule to this Act shall be used to fix the conditions of employment of sworn members of the Police.

(7) Notwithstanding anything in this section or section 67A of this Act, the Commissioner may make it a condition of employment of all sworn members of the Police who are not members of the Government Superannuation Fund Police Sub-Scheme (as defined in section 27 (9) of this Act), or of any class of such persons, that those persons contribute to a State services superannuation scheme.

[3] The circumstances originally giving rise to the proceeding seem now of less significance to the parties than the issue of principle of wider import. The

background therefore can be set out quite briefly. The Government announced an independent review of the New Zealand Police in April 1998. In the course of that review the Commissioner came to the view that it might result in termination of the service of a considerable number of sworn members of the Police for redundancy. There were no provisions for redundancy in the prevailing conditions of employment of sworn members, so the Commissioner obtained the necessary financial approval and formulated draft provisions for redundancy which, after consultation, he proposed to introduce by way of a general instruction. At the time there were ongoing negotiations with the Police Association to agree a new collective contract with sworn members, the previous agreement having expired on 31 August 1997. The Association wanted the redundancy provisions to be included within these negotiations but the Commissioner disagreed. Eventually the new collective agreement was settled by the applicable final offer arbitration process (as prescribed in the Third Schedule to the Act) without any provisions for redundancy.

[4] The review proceeded and it emerged that there was overall an increase in the number of sworn positions so that redundancies among sworn members at inspector level and below (the relevant members) would not result from the review.

[5] The Commissioner has said that he remains of the view that it is desirable to have redundancy compensation provisions available for sworn members as a matter of general policy though they are unnecessary in order to achieve the outcomes of the review. He has undertaken not to terminate the service of relevant members for redundancy while there are no redundancy compensation provisions in place.

[6] The issue is simply whether, in these circumstances, the Commissioner can introduce conditions of employment governing redundancy by unilateral instruction with or without consultation, or whether he can be required to negotiate such provisions with the Association.

[7] The Association applied to the Employment Court seeking judicial review of the decision of the Commissioner withholding his agreement under s67(3)(d) to conditions of employment governing redundancy being fixed under that section. It was common ground that s96 gave the Employment Court jurisdiction to entertain

that application, though it would not have had jurisdiction to consider an application to review the Commissioner’s decision to proceed by way of general instruction under s30.

[8] The circumstances at the time the matter was proceeding in the Employment Court were not static. The matter was given priority because of the perceived urgency to have redundancy provisions in place to meet the expected results of the review. The collective contract negotiations were continuing though drawing to a close and moving into the arbitration process. That was determined shortly before the first hearing in the Employment Court which meant that any negotiations thereafter on redundancy would be by way of variation to which the binding final offer arbitration procedure would not apply (s70). Further, in terms of the financial approval he had obtained, the Commissioner’s proposed redundancy provisions were intended to operate only for 12 months.

[9] In a judgment delivered on 9 September 1998 the Employment Court (Judge Travis) accepted the argument presented on behalf of the Association that the power in s30(1A) for the Commissioner to fix conditions of employment by general instruction, when read against the policy and scheme of the Act, can be used by the Commissioner only “for the operational purposes of the Police”. He also accepted the submission that on analysis the Commissioner’s decision not to agree under s67(3)(d) to negotiate redundancy provisions was based on a range of non- operational considerations, and in particular fiscal impacts and the desire to have them in place urgently to facilitate early implementation of the review. Relying on Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997, the Judge concluded that to permit the Commissioner to invoke s30(1A) would be to thwart or run counter to the policy and objects of the Act and to render nugatory a safeguard the legislature intended the sworn members should have.

[10] The Judge concluded that the Commissioner’s decision to refuse to subject the issue to the s67 procedures, was based on a misdirection of his powers under s30(1A) and could not stand. He said:

If the Commissioner had been approached by the association with a claim to negotiate redundancy provisions and had decided, after consultation with the SSC, that such provisions were not required, there might be real difficulty in challenging such a decision.

...

I accept Mr Goddard’s main submission that as the Commissioner is desirous of having redundancy provisions in the sworn members’ contracts of employment and because he cannot invoke his powers under s30(1A) to achieve that result, it would appear to follow that the Commissioner ought to have agreed to negotiate these terms and conditions under s67(3)(d). His decision to refuse to negotiate in the present circumstances was therefore an invalid exercise of his statutory power of decision.

[11] Having ruled in these terms the Judge reserved the question of remedies to allow the parties to consider their positions.

[12] The case resumed before the Employment Court on 9 December when the Association sought orders in light of announcements by the Minister of Police and the Commissioner of a timetable for implementation of the review. An appeal from the earlier judgment already had been filed. By this time the impact of the review on established positions was seen to be upon sworn members of the rank of Assistant Commissioner and Superintendent who were not within the class of relevant members and would not be covered by an agreement negotiated under s67 (see s76). To the extent that the review would require reassignment of sworn members the Association did not wish to interfere.

[13] After hearing argument the Judge made the following orders:

(a) The Commissioner’s decision to refuse to negotiate under s67 (and where applicable, s70) in respect of redundancy procedures and compensation terms applicable to constables, sergeants, senior sergeants, inspectors and any superintendent, not for the time being appointed to a position to which s76 applies, is hereby set aside.

(b) I direct the Commissioner to forthwith reconsider that decision.

[14] There are appeals by the Commissioner against both judgments (though the first appeal is really superseded by the second). The Association has cross-appealed against the refusal of the Judge to make the further orders sought by way of directions to the Commissioner.

[15] The words of the material sections of the Act provide the appropriate starting point. Section 67 requires that the conditions of employment to which that section applies are to be fixed in accordance with the procedures it provides. Those conditions are specified in subs(3) as remuneration, allowances and expenses and “[s]uch other conditions of employment as may be agreed to by the Commissioner and the appropriate service organisation”. It is common ground that conditions governing redundancy can be brought within the section only by agreement under para (d). The conditions to which the section applies must be in a single agreement which can include only such conditions as are agreed (subject to the final offer arbitration procedure prescribed in subs(6)). The agreement must specify an expiry date and continues in force until that date (s69) with the possibility of variation by agreement (s70).

[16] Section 67A permits individual employment contracts not inconsistent with the applicable collective contract under s67. Members of the Police holding the rank of Inspector have individual employment contracts.

[17] Plainly s67(3) is not exhaustive of the ways in which conditions of employment can be fixed for sworn members of the Police. Section 67(7) empowers the Commissioner to impose a condition requiring contributions to a superannuation scheme. Section 64 authorises regulations dealing with matters which could constitute conditions of employment (e.g. duties, discipline and control, ranks, promotion, medical fitness). The Act itself lays down a range of terms which have the effect of conditions of employment including the Commissioner’s powers of appointment and removal of members (ss5 and 5A) misconduct inquiries (s12) resignations (s14) retirement (ss27 and 28) fitness (ss24A-28D) political activities (s31) suspension (s32) and pensions on death or disablement (s42).

[18] The imposition of these terms by statute reflects the nature of the police force as a command service, as does s30 which empowers the Commissioner to issue general instructions not inconsistent with the Act and Regulations. It was into that section that subs(1A) was introduced by amendment in 1989. That provides that in such general instructions the Commissioner may, in respect of sworn members, fix conditions of employment “that are not for the time being fixed under s67 ...”.

[19] The only express limits on this power are that the conditions of employment fixed by the Commissioner must be in a general instruction not inconsistent with the provisions of the Act or regulations and are not for the time being fixed under s67. There is clear contemplation that such conditions may be fixed under s67 so that the two sections are not mutually exclusive of the kinds of conditions that might be fixed under them. This suggests that s30(1A) confers a residuary power to fix conditions of employment not otherwise imposed or fixed under the Act or regulations. That would avoid gaps where there emerges a need for particular conditions which cannot be met in other ways.

[20] Section 15 was relied upon and should be set out in full.

15. POWER TO TRANSFER MEMBERS WITHIN THE POLICE--

(1) Where the Commissioner at any time finds in respect of any duties being carried out by the Police--

(a) That those duties are no longer to be carried out by the Police; or

(b) That a greater number of members of the Police is employed on those duties than is considered by the Commissioner to be necessary for the efficient carrying out of those duties,-

the Commissioner may, without complying with sections 8 and 9 of this Act, but subject to the provisions of any agreement under section 67 or section 75 of this Act and to subsections (2) and (3) of this section, appoint to other positions in the Police any or all of the members who are carrying out those duties.

(2) The only appointments that may be made under this section shall be--

(a) The appointment of any sworn member of the Police to a sworn position; and

(b) The appointment of any non-sworn member of the Police to a non- sworn position.

(3) Before making an appointment under this section, the Commissioner shall consult with the member about the proposed appointment.

(4) Nothing in section 11 of this Act applies in relation to any appointment made under this section.

[21] This section recognises that there may be conditions of employment which impact upon the power of the Commissioner to reassign members whose positions become surplus. There cannot be inferred from that a duty upon the Commissioner to negotiate redundancy conditions under s67. It may simply recognise the possibility of the Commissioner agreeing to negotiate under s67 conditions of employment which might impact upon reassignment. It does not show that the s30(1A) power cannot be invoked upon restructuring which might include redundancy. We see nothing in the point that s15 does not state expressly that any appointment made under that section is to be subject to any general instruction issued under s30. The Commissioner can be expected to act consistently.

[22] The general instructions issued under s30 must be of a kind that members of the Police can “obey and be guided by”. But it would be surprising if any entitlement to be made available in return for obedience and guidance (such as special leave, counselling and the like) could not form part of such a general instruction because it could not be said to be obeyed or used for guidance. We see no reason to regard the language indicating the effect of any general instruction as precluding conditions of employment which confer entitlements.

[23] Similarly, that general instructions may relate to all members of the Police, whereas conditions of employment can be fixed only for sworn members does no more than recognise the different regimes applicable to the employment of sworn and non-sworn members of the Police.

[24] The Commissioner, a statutory office-holder, is given general control of the Police (s3). He is not in fact the employer of sworn members (Auckland Unemployed Worker’s Rights Centre v Attorney-General [1994] 3 NZLR 720,726) but s5(5) states that except as otherwise expressly provided in the Act he should have all the rights, duties and powers of an employer in respect of all members of the Police. He is required by s7 to operate a personnel policy that complies with the principle of being a good employer by following, subject to the Act, as closely as possible the provisions of s56 (fair and proper treatment) and s58 (equal opportunities) of the State Sector Act 1988.

[25] Mr Banks for the Commissioner accepted that the good employer obligation would be a mandatory consideration in the exercise of the Commissioner’s discretion under s67(3)(d). So it would in considering a condition of employment under s30(1A).

[26] While s96(1) of the Act states that except as otherwise expressly provided in the Act nothing in the Employment Contracts Act 1991 shall apply to any persons employed as members of the Police, by s75 non-sworn members are brought within Part VI of the State Sector Act 1988 which makes applicable the provisions of the Employment Contracts Act 1991. That leaves sworn members outside the Employment Contracts Act except as expressly provided. A different employment regime for sworn members is clear. Nevertheless it is the case for the Association that the scheme and objects of the Act, apparent from the legislative history, indicate a contractually based regime for sworn members and the intention to assimilate sworn and non-sworn members as far as is practicable. Section 30(1A), it is said, is to be seen as a special power which must be linked to the limited purpose for which it was conferred.

[27] Significant amendments to the Act were made first in 1989 in harmony with the restructuring of the state sector by the State Sector Act 1988 and secondly in

1991 when the Employment Contracts Act was introduced. It was in 1989 that non- sworn members of the Police were separately provided for and made subject to the State Sector Act. There is no dispute in relation to that. But there is a gulf between the parties as to the significance of the 1989 amendments as they affected sworn

members. For the Commissioner it was contended that the amended s67 as it was then introduced effectively continued the previous methods by which conditions of employment could be fixed. On the other hand Mr Goddard for the Association submitted that the changes were revolutionary in the treatment of sworn members’ conditions of employment.

[28] Prior to 1989 s66A provided for the commissioner to issue determinations prescribing salaries, allowance and expenses. The scope of that authority was substantially the same as appears in paras (a), (b) and (c) of the current s67(3). Subsection (4) of s66A provided:

Except as otherwise provided in this Act, the remuneration and conditions of employment of members of the Police shall be prescribed by the Commissioner by determination under this part of this Act, and not otherwise.

[29] The related provisions (ss66B, 66C, 66F and 66G) established a process by which negotiations with the appropriate service organisation preceded the issue of determinations which were subject to review by the Police Staff Tribunal and to maximum levels of remuneration fixed by Order in Council.

[30] The Police Regulations in force in 1989 included a range of conditions of employment including disciplinary provisions and leave entitlements.

[31] The Police Amendment Act 1989 introduced the current s67 which retained for sworn members the right to negotiate and have fixed independently remuneration and allowances. At the same time s64(2)(f) authorising regulations “prescribing any matter relating to the conditions of service of the Police” was repealed and there were introduced s67(3)(d) and s30(1A). These amendments indicate that the power to prescribe conditions of employment other than remuneration allowances and expenses was substituted by the powers of the Commissioner to fix conditions under s30(1A) except in so far as he should be prepared to agree to negotiate them under s67(3)(d). That represented something of a reduction in the right of representative service organisations to engage in negotiating conditions of employment

[32] Bearing in mind these amendments preceded the enactment of the Employment Contracts Act, we do not see in them any fundamental shift to a contract based regime for the fixing of all conditions of employment of sworn members subject only to a special power for the Commissioner to fix conditions for operational purposes.

[33] No do we see any support for the Association’s contention in the provisions in ss80 and 81 prohibiting industrial action by sworn members of the Police. The argument is that there is to be inferred a primacy for the right to have conditions of employment negotiated with binding final offer arbitration as the quid pro quo for the bar on industrial action. But the quid pro quo (if that is what it is) seems more likely to be in the absolute entitlement to negotiate with binding arbitration on remuneration and allowances (s67(3)(a),(b) and (c)) than on matters to which by s67(3)(d) the Commissioner must first agree.

[34] Also references to statements made in Parliament during the passage of the

1989 legislation (if resorted to to aid construction) would not warrant reading into the Police Act provisions a scheme that is not to be found in the provisions themselves. The statement by the Minister of State Services on the second reading of the State Services Restructuring Bill, received particular emphasis. He said (New Zealand Parliamentary Debates Vol 503, p14142):

I outline the main features. The personnel provisions of the State Sector Act – including good employer and equal employment opportunity requirements – and personal grievance provisions of the Labour Relations Act are applied to both non-sworn and, to the extent practicable, sworn police. ...

However, restrictions continue on the particular conditions of employment for sworn police that are negotiable and able to be included in industrial agreements, as opposed to those that are non- negotiable for reasons of operational effectiveness, and are included in orders of the Commissioner. Non-sworn police will continue to have their conditions of employment negotiated under the Labour Relations Act. The prohibition on the right of sworn police to take industrial action is made explicit by the Bill, and provisions based on those of the State Sector Act for access to compulsory final offer arbitration in the event of disputes are applied.

[35] Presumably this statement is the source of the argument for the Association that the employment regimes for both sworn and non-sworn members of the Police were intended to be as close as is reasonably practicable and that non-negotiable conditions of employment for sworn members were restricted to those necessary for operational purposes. But the statement is not inconsistent with the construction we have given to the relevant provisions. There do “continue” to be restrictions on the conditions of employment that are negotiable and able to be included in industrial agreements settled under s67. The powers reserved to the Commissioner to withhold his agreement under s67(3)(d) and to fix conditions of employment under s30(1A) reflect the special nature of the Police as a command service under the general control of the Commissioner. That the reason for maintaining that structure for sworn members is operational effectiveness does not mean that the powers conferred in s30(1A) are to be limited to operational purposes.

[36] Under s67(3)(d), conditions may be fixed if they are conditions which are agreed to by both sides. Mr Goddard submitted that the requirement was met here because the Commissioner has accepted that the conditions of employment should incorporate conditions governing redundancy. We do not accept that is a sustainable construction of the paragraph. What has to be agreed is that the conditions in question be fixed by the s67 process – not merely that they are matters which should be incorporated in an agreement. The conditions which may be fixed under the section are those which the parties agree are to be fixed under the section. In the present case the Commissioner has not agreed to adopt the s67 process in respect of conditions of employment relating to redundancy, and that aspect of the agreement must therefore fall outside the ambit of the section. This highlights the fallacy in Mr Goddard’s basic argument. If s30(1A) is to be construed as confining the Commissioner to fixing conditions which have a significant operational content, there is no way other conditions can be included in an agreement unless the parties agree to the s67 process of fixing them. For example a service organisation could block the inclusion of a redundancy compensation condition (assuming it was “non- operational”). The hiatus would still exist for conditions which the parties did not agree were of the kind which should be incorporated in an agreement even assuming para (d) is to be construed in the way Mr Goddard contended.

[37] In 1991, when the Employment Contracts Act was passed, further amendments were made, first to the State Sector Act which applied to non-sworn members and secondly to the Police Act. In particular s67A was introduced providing for individual employment contracts. No change was made to the manner of fixing conditions of employment for sworn members.

[38] In 1992 the Police Regulations 1959 were repealed and replaced by new regulations which no longer dealt with such matters as leave entitlements. They were subsequently the subject of general instructions issued by the Commissioner.

[39] We do not find in this legislative history, nor in the provisions of the Act, any basis for concluding that it would have frustrated the scheme and objects of the Act if the Commissioner had issued his proposed general instruction to provide for redundancies. We see no scheme to assimilate the positions of sworn and non-sworn members as far as practicable in the fixing of their conditions of employment. We consider the Judge was persuaded to read into the Act more by way of policy shift and objects than is there. The Commissioner’s power under s30(1A) is not fettered by some requirement that it can be used only for operational purposes – an expression neither referred to nor defined in the Act. Accordingly, he did not misdirect himself as the Judge found.

[40] Mr Goddard presented what he said was an alternative argument that even if the Commissioner’s power in s30(1A) is wider than he had submitted, the Commissioner’s refusals to negotiate redundancy conditions under s67 still were flawed in that no reasonable Commissioner with a proper understanding of the policy and objects of the Act could have reached such a decision. To the extent that this argument rests on the scheme and objects of the Act which we have already found is not as contended for it cannot advance matters.

[41] Mr Goddard reviewed the reasons given by the Commissioner on each of the three occasions he declined requests by the Association to agree to negotiate. His argument was that these were not reasons addressing operational concerns. But that too rests on the primary argument that s30(1A) can be invoked only for operational purposes.

[42] Counsel did not advance any other mandatory consideration the Commissioner was required to, but did not, take into account. It was said that those reasons he did give were irrelevant or incapable of supporting the decision and that he failed to give weight to reasons why he should negotiate. The reasons which the Commissioner gave were summarised in Mr Goddard’s written submissions as:

He is not obliged to negotiate;

Having redundancy provisions in place was urgent, because of the pending review, and negotiations might take too long;

The costs of redundancy would be higher if an arbitrator were to approve more generous provisions. This is put in various ways: it is said that the provisions were generous, that neither he nor Ministers were willing to commit to the proposed provisions for longer than 12 months, that Ministers would not approve such a generous level of compensation if it had to be negotiated, that the process would put the decision in the hands of a third party, and that more generous redundancy compensation might affect the extent of support for operational policing. But all this boils down to: “I did not want to pay more (and Ministers would have been unhappy if I had agreed to any process under which I might have to pay more”);

The provisions are generous, so it is in the interests of members to have these provisions – they would be worse off if they negotiated;

Other terms of employment have in the past been prescribed in general instruction;

He is willing to consult in relation to the proposed terms, though he is not willing to negotiate.

[43] The reasons why the Commissioner should negotiate were said to be:

Most employers negotiate redundancy provisions with their employees;

The Commissioner must negotiate such terms with non-sworn members. There is no reason for sworn police to be treated differently in relation to this issue. It raises no operational concerns peculiar to sworn members of police – it is a common, “plain vanilla” employment issue;

A good employer would seek to negotiate these issues with employees, rather than seeking to impose terms unilaterally and in a manner that enables those terms to be cancelled or varied unilaterally;

The s67 procedure exists to remedy the bargaining disadvantage faced by sworn members due to the prohibition on their taking industrial action. They should not be deprived of this protection without good reason;

The need for such provisions has arisen because the Commissioner has changed his policy on redundancy of sworn members. The policy of no forced redundancies created legitimate expectations which can only be defeated following a proper procedure. In this case, negotiation rather than mere consultation is appropriate;

Quantum of redundancy compensation is closely connected with issues of remuneration, which are determined by negotiation under s67.

[44] We have held that a mandatory consideration was the Commissioner’s good employer responsibility. In addition the requirements of s30 already noted would need to be complied with if subs(1A) of that section is invoked. Plainly the Commissioner must act consistently with his general responsibility of control over the Police. But none of the reasons advanced as requiring negotiation constitute mandatory considerations. They were pressed upon the Commissioner by the Association but he did not accept them.

[45] Taking account of the circumstances in which he made the decision under challenge, we do not accept that the matters he did take into account were irrelevant and incapable of supporting a rational decision. Bearing in mind the test for unreasonableness on judicial review (Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537,545), we are satisfied that the decision made by the Commissioner was open to him and the decision to set it aside must be quashed.

[46] Having reached that view it is unnecessary to deal with the arguments as to what might constitute operational concerns and whether the “procedures” the Association would like to negotiate (there still seems some difference between the affidavit evidence and counsel’s arguments on their scope) impinge upon operational

matters. It is unnecessary also to deal with the arguments on remedies which were presented on the cross-appeal.

[47] The appeal is allowed and the orders of the Employment Court are quashed. The cross-appeal is dismissed.

[48] The appellant is entitled to costs in this Court and in the Employment Court. For the appeal to this Court we fix costs at $5,000 together with disbursements, including the cost of preparation of the case on appeal, as approved by the Registrar. Costs in the Employment Court can be fixed in that Court.

Solicitors

Kathy Drysdale, Wellington, for Appellant

Kiely Thompson Caisley, Wellington, for Respondent