Justice Toogood, Meat Industry Assn survive challenges to grace Affco appeal

Thursday 21st July 2016

Justice Kit Toogood and the Meat Industry Association survived challenges from the New Zealand Meat Workers Union to grace Affco Holdings' Court of Appeal hearing today, where it sought to reclaim the notion that seasonal workers aren't in permanent employment.

The union this week unsuccessfully challenged Justice Toogood's slot on the three-person appeal bench on the basis that as a mere lawyer back in 1992 he represented the meat industry in NZ Meat Workers Union v Richmond, one of the cases that enshrined the idea that seasonal meat workers aren't in continuous employment. That was effectively overturned by the Employment Court last year in a ruling that Affco was granted leave to appeal in April.

The Meat Industry Association also survived a challenge to its application to appear at today's hearing as an intervenor, having argued that the Affco ruling had implications for 75 percent of the beef and lamb processing industry and some 13,000 workers.

Paul Wicks QC, for Affco, told the appeal court that the Employment Court had arrived at an "unjustified factual finding that employment continued in the off-season" which amounted to "a breach of natural justice".

Wicks said the expired Affco agreement was largely similar to earlier awards that the courts had concluded and meant Affco workers were laid off at the end of each season and hired anew when the new season began. That is a crucial point in the case because the union said Affco forced workers to sign up to new contracts when the new season began, even though the union and the company were still in negotiations for a new collective contract - a situation the Employment Court deemed a breach of good faith.

The Meat Industry Association argued that the Affco ruling had ramifications for the wider industry because many collective contracts contained similar clauses and the Employment Court had ignored 25 years of case law that would have been known to all the parties when the Affco contract was signed and failed to consider the context in which it approved.

The Meat Workers Union lawyer, Peter Cranney, who successfully argued what amounts to a landmark victory before the Employment Court, told the appeal court today that clauses in the Affco contract made clear the signatories weren't beholden to any precedent from earlier court cases. That included a "completeness clause" that said the agreement replaced any and all previous accords and/or understandings between the parties.

He said the Affco contract was markedly different in its entirety to other collective contracts across the industry and included residual obligations on the company that spanned the off-season, including recognition of seniority.

Presiding Justice Ellen France, who was given a fond farewell by Justice Rhys Harrison at the conclusion of the hearing today in recognition of her elevation to the Supreme Court, said the justices reserved their judgment. A decision is expected in about two weeks.

The appeal ruling is part of a series of ongoing legal clashes between Affco and the Meatworkers Union, which has achieved a measure of success in the Employment Court. The union’s national secretary Graham Cooke said the win in the Employment Court had been a pyrrhic victory because Affco has continued to block access to its members at processing plants and treated them less favourably in terms of shifts and seniority.

Affco was the first under the government’s new employment law to apply for an end to bargaining under amendments to the Employment Relations Act which lets firms opt out of multi-employer agreements and removed the duty under good faith bargaining for both sides to reach an agreement.

The original case covered workers at Affco’s Rangiuru, Imlay, and Manawatu plants but the company had accepted any finding would cover all eight of its North Island plants.

BusinessDesk.co.nz

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