Union access in strike confirmed by court

The Council of Trade Unions has hailed as a landmark a Court of Appeal decision confirming union access to workplaces during a strike

Yesterday the Court of Appeal said union officials were entitled to workplace access for union business and to monitor compliance with the Employment Relations Act (ERA).

"We are satisfied the Employment Court was correct," the Court of Appeal said in its written finding yesterday.

Carter Holt Harvey (CHH) appealed against the Employment Court decision that upheld National Distribution Union (NDU) officials' right of access to the company's plant in Wiri, South Auckland, during a strike. CHH refused union officials access to the plant, offering the boardroom instead.

But the Court of Appeal said: "In this case it was entirely appropriate for the union representatives to require access to the plant areas for the purpose of monitoring compliance by the company with the ... [ERA]."

However, it did envisage some exceptions. "Serious risk to health or safety or loss of valuable commercial information are obvious examples."

Of the 80 Wiri staff, more than half were NDU members. They walked off the job on August 17 last year over failed collective agreement negotiations.

A series of events "escalated the tension and emotion of the picket and the concerns of management".

Nevertheless the plant continued production and NDU officials became suspicious.

"They believed there would only have been about five management staff capable of operating the production machinery at the site," the Court of Appeal said.

The ERA says an employer can employ another person to perform the work of a striking worker if:

* The person is already employed by the company at the time the strike or lockout begins and that person is not employed principally to perform the work of a striking or locked-out worker;

* Reasonable safety and health grounds necessitate the work being done and the person "works only to the extent necessary for reasons of safety or health".

Union officials did not know that non-striking workers had received intensive training during the first weeks of the strike so they could undertake the work of the strikers.

They sought access to the workplace to determine if CHH was breaching its ERA obligations, but the firm allowed them access only to the boardroom. Then on August 29, NDU officials tried to get into the plant and were arrested for trespassing.

Council of Trade Unions president Ross Wilson said the Court of Appeal decision was a landmark.

"It is now beyond doubt that Carter Holt was not only in breach of the Employment Relations Act in refusing access to union officials, but there was no legal basis for police arresting the officials for exercising their rights," Mr Wilson said.

Eventually the industrial dispute was settled and work restarted on September 17 last year.

The Court of Appeal consisted of Justices Thomas Gault, Sir Kenneth Keith, Peter Blanchard, John McGrath and Susan Glazebrook.

- NZPA