AFFCO New Zealand Limited v New Zealand Meat Workers and Related Trades Union Incorporated [2016] NZCA 603 (14 December 2016)

Last Updated: 6 January 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA700/2015 [2016] NZCA 603
BETWEEN	AFFCO NEW ZEALAND LIMITED Applicant
AND	NEW ZEALAND MEAT WORKERS AND RELATED TRADES UNION INCORPORATED AND ORS Respondent

Hearing:	On the papers
Court:	Ellen France P, Harrison and Toogood JJ
Counsel:	P F Wicks QC and G P Malone for Applicant P Cranney and S R Mitchell for Respondent
Judgment:	14 December 2016 at 9.30 am

JUDGMENT OF THE COURT

A The application to recall is declined.

2. The applicant is ordered to pay costs to the respondent of $750 with usual disbursements.

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REASONS OF THE COURT

(Given by Harrison J)

[1] In a judgment delivered on 6 October 2016^[1] this Court dismissed an appeal by AFFCO New Zealand Ltd (AFFCO) against a decision of the Employment Court that it had unlawfully locked out workers,^[2] who are members of the New Zealand Meat Workers and Related Trades Union Inc (the Union), from its seasonal processing plants in late 2014.
[2] AFFCO has applied for leave to appeal to the Supreme Court, and also applied to this Court to recall its judgment to correct what it says is an error in this paragraph:

[10] As noted, a lockout requires proof of two elements: (a) an act by the employer in refusing or failing to engage employees for any work “for which the employer usually employs employees”; and (b) the act must be carried out with a view to compelling employees to accept terms of employment or comply with demands. Mr Wicks QC for AFFCO accepts, as he did in the Employment Court, that the second element was satisfied here. The contest relates to the first element: do the seasonal meatworkers fall within the meaning of employees as it is used in s 82(1)(a)(iv)?

(AFFCO’s emphasis.)

[3] By way of brief background, AFFCO was granted leave to appeal to this Court on a question of law which was limited to the first of the two statutory elements of an unlawful lockout in s 82(1)(a) of the Employment Relations Act 2000^[3] — that is, whether the Employment Court erred in finding that AFFCO had refused or failed to engage employees for any work “for which the employer usually employs employees”. The question on which leave to appeal was granted did not extend to the Employment Court’s finding that AFFCO had breached the second element of an unlawful lockout — that its acts were carried out with a view to compelling employees to accept terms of employment or comply with its demands.
[4] The transcript of argument in this Court discloses that Mr Wicks QC advised correctly that he was not in a position to challenge the Employment Court’s finding on the second element of an unlawful lockout, which AFFCO was bound to accept as final. While [10] of our substantive judgment may have overstated Mr Wicks’ advice, that is of no moment because the question was not live on appeal. As a result of our finding against AFFCO on the first element, the Employment Court’s decision was upheld.
[5] Against this background, we do not accept Mr Wicks’ submission that a correction to [10] of our judgment is necessary as a matter of justice. AFFCO has not satisfied us that there is a very special reason for recalling a judgment.^[4] Its application is declined.
[6] The Union filed a memorandum in opposition to AFFCO’s application. AFFCO is ordered to pay costs to the Union of $750 with usual disbursements.

Solicitors:
C L Pidduck, AFFCO, Hamilton for Applicant
Oakley Moran, Wellington for Respondent

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^[1] AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2016] NZCA 482, (2016) 10 NZELC 79-067.

^[2] New Zealand Meat Workers and Related Trades Union Inc v AFFCO New Zealand Ltd [2015] NZEmpC 204, (2015) 10 NZELC 79-057.

^[3] AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2016] NZCA 121.

^[4] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, affirmed in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].