New Zealand Public Service Association and anor v Asure New Zealand [2006] NZCA 86 (15 May 2006)

Last Updated: 1 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA15/06

BETWEEN NEW ZEALAND PUBLIC SERVICE ASSOCIATION
First Appellant

AND BRYAN MAX SANERSON AND 14 OTHERS
Second Appellants

AND ASURE NEW ZEALAND
Respondent

Hearing: 15 May 2006

Court: William Young P, Glazebrook and Robertson JJ

Counsel: B Banks and T Kennedy for the Appellants
J M Appelyard and J M Pearson for the Respondent

Judgment: 15 May 2006

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The appellants are to pay the respondent costs of $1,500 and usual disbursements.

REASONS

(Given by William Young P)

Introduction

[1]

This is an application for leave to appeal against a judgment of the Employment Court. In issue is whether Asure New Zealand (which provides meat inspection services to the meat industry) is required to ensure that its inspectors have access to separate ablution, lockers, change and smoko/dining facilities at the Horotiu meat processing plant (which is owned and operated by AFFCO). The plant has recently been rebuilt without such facilities. The decision to dispense with separate facilities was made by AFFCO and not Asure. Prior to this, meat inspectors had enjoyed separate facilities at that plant for some 80 years.

[2]

The meat inspectors (who along with their union, the Public Service Association, are the appellants) maintained in the Employment Court that their use of separate facilities is:

(a) An entitlement based on custom and practice in the industry and an associated implied term in their employment agreements;

(b) Necessary if Asure is to meet its health and safety obligations under the Health and Safety in Employment Act 1992 and the relevant collective agreement.

[3]	In the Employment Court, Judge Couch found that there was no entitlement as alleged. He could not see how the provision of separate facilities by AFFCO and its predecessors could logically lead to an implied terms between Asure and its employees that such facilities must be provided. He also saw no relevant threat to the safety of the meat inspectors if required to use shared facilities.
[4]	The first and second grounds of appeal challenge the significance which the Judge attributed to the fact that separate facilities had in the past been provided by AFFCO and its predecessors. The next ground involves a complaint that the Judge did not separately address health and safety obligations under the collective agreement. The final ground of appeal addresses the health and safety factual findings of the Judge (albeit dressed up in "no evidence" format).
[5]	We see nothing in the first and second grounds of appeal. On the facts of the case (which include the realities that Asure has never itself provided facilities, that such facilities could not be provided without the agreement of AFFCO, agreement which has not been forthcoming, and that shared facilities are not uncommon in meat works), the argument in the Employment Court for the existence of an implied term was hopeless and related arguments have no prospects of success in this Court.
[6]	As to the next ground relied on by Mr Banks, it is true that the Judge focused primarily on the provisions of the Act and that the collective agreement is expressed in different language. But the Judge’s factual findings as to safety for the purposes of the Act are equally applicable to the collective agreement.
[7]	The final ground of appeal involves what in substance is a challenge to the factual findings of the Judge. The suggestion that there was "no evidence" to support the Judge’s conclusions is untenable.
[8]	Accordingly, we see none of the proposed grounds of appeal as disclosing a genuinely arguable of law, let alone one which would warrant the grant of leave to appeal. Leave to appeal is accordingly declined. The appellants are to pay costs of $1,500 and usual disbursements.

Solicitors:
PSA, Wellington for Appellants
Chapman Tripp, Christchurch for Respondent