Air New Zealand Ltd v New Zealand Air Line Pilots' Association IUOW Inc (No 2) [2005] NZCA 211; [2005] ERNZ 629 (18 August 2005)

Last Updated: 19 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA113/05

BETWEEN AIR NEW ZEALAND LIMITED
Appellant

AND THE NEW ZEALAND AIR LINE PILOTS' ASSOCIATION INDUSTRIAL UNION OF WORKERS INCORPORATED
Respondent

Court: Glazebrook, O'Regan and Robertson JJ

Counsel: J R F Fardell QC and K M Thompson for Appellant
R E Harrison QC for Respondent
T P Cleary for Intervenor

Judgment (On the papers): 18 August 2005

JUDGMENT OF THE COURT

The application of Business New Zealand to appear and be heard on the appeal is granted on the terms set out below.

REASONS

(Given by Glazebrook J)

[1] This is an application on the part of Business New Zealand to appear and be heard in this appeal. All parties asked that this matter be dealt with on the papers.
[2] Business New Zealand seeks to be heard only on the issue of whether s 44(2) of the Holidays Act 2003 is materially different to s 7A(2) of the Holidays Act 1981. In its submission, the primary issue to be determined in the appeal has significance not only for the immediate parties but also for other employers where similar employment arrangements apply. Business New Zealand advises that it was represented on the Holidays Act Working Group appointed by the Government to assist with issues arising out of the proposed reforms to the Holidays Act 1981 and may be able to assist the Court on issues of general application.
[3] The appellant supports Business New Zealand’s application. It advises that the positions of the appellant and of Business New Zealand do not necessarily coincide. The appellant approaches the appeal with reference to the employment arrangements in place with its pilots. It submits that Business New Zealand will be able to present a more rounded and overall view with possibly a greater emphasis on the development of the particular legislation which may assist in discovering its purpose and intent.
[4] The application is opposed by the respondent on the basis that it is likely that granting leave to Business New Zealand to intervene would impose additional cost for the respondent in replying to the submissions. In addition, if oral submissions are allowed, this would extend the hearing time. Further, in the respondent’s submission, Business New Zealand has no particular status, expertise or knowledge in relation to this matter and all relevant matters are likely to be fully covered by the parties who are both represented by senior counsel.
[5] Given the involvement of Business New Zealand in the Holidays Act Working Group and the importance of the issue to other employers, we consider it appropriate that leave be granted but on a basis that minimises any extra cost involved for the respondent. Accordingly, leave is granted on the following terms:

(a) Business New Zealand would not be entitled to seek costs. This would not preclude a costs award being made against it.

(b) Its submissions would deal only with the issue as outlined at [2] above.
(c) Its submissions would deal only with matters not covered in the appellant’s submissions.
(d) It will be a matter for the Court hearing the appeal whether Business New Zealand will be called upon to make any oral submissions at the hearing.
[6] Under r 41(6) of the Court of Appeal (Civil) Rules 2005, the following timetable is set for the filing of submissions:

(a) The appellant’s written submissions must be filed and served on the respondent and Business New Zealand, no later than 25 working days before the date allocated for the hearing of the appeal.

(b) Written submissions from Business New Zealand must be filed and served on the parties no later than 20 working days before the date allocated for the hearing of the appeal.
(c) The respondent’s written submissions must be filed and served on the appellant and Business New Zealand no later than 10 working days before the date allocated for the hearing of the appeal.

Solicitors:
Company Solicitor, Air New Zealand Limited, Auckland for Appellant
Richard McCabe, NZALPA, Auckland for Respondent
Tim Cleary, Business New Zealand, Wellington for Intervenor