Lawful strike notice does not require end date
03 September 2024In Auckland One Rail Limited v Rail and Maritime Transport Union the Court turned down the employer’s application for an interim injunction to stop proposed strike action.
There were a number of causes of action cited, including a claim the description of the strike action was unclear, a challenge to the secret ballot and unlawful interference with trade.
Here we focus on the notice requirements.
Under s93(2) of the Employment Relations Act 2000, a strike notice must specify:
- the period of notice, being a period of not less than 24 hours;
- the nature of the proposed strike, including whether or not the proposed action will be continuous;
- the particular passenger road service or passenger rail service that will be affected by the strike;
- the date and time on which the strike will begin; and
- the date and time on which, or an event on the occurrence of which, the strike will end.
The Court held that the description of the strike was clear. In essence the members would refuse to work any overtime or any shift alteration that varies from the Master rosters.
There was an argument about whether the end of the strike was clear. In essence the end of the strike was described as being the time the refusal to work is withdrawn by written notice.
The question was whether that description constituted an “event” as required under s93(2).
The Court considered “there was some force in the defendant’s argument that the word ‘event’ refers simply to any occurrence and on the face of the legislation is not restricted in any way. In a sense, a broad meaning to the word “event” contemplates not only the resolution of the industrial action by for example, agreement, or perhaps intermediate steps such as attending mediation, but any other step the union considers to be appropriate to advance its member’s interests. Parliament did not enact, as it could have done, any definition of “event” or some limitations such as specifying that the withdrawal of a notice under s 95AA was not an event of a sort referred to in s 93(2)(e)”.
The Court concluded that the employer had “an arguable cause of action, but the case for it is very weak”.
The Court took into account “the employees’ rights to strike, the weakness of the plaintiff’s argument and the other factors which support the union’s position, including the incompleteness of the information provided by the employer and the lack of alternative remedies available to the union’s members if they were to be restrained from striking”, and decided the balance of convenience favoured the union.
As to the overall justice of the case, “stepping back to look at this matter, the court was not satisfied that an order ought to be made. At best the only argument available to the employer is an extremely weak one and it is offset by the balance of convenience factors just described”.
The application was dismissed.
In short, it is not necessary to specify an end date on a strike notice; and it would appear that an “event” can be interpreted to have a very broad meaning, including the time at which the union gives written notice that the strike will end.
For further information contact: Tony Teesdale 021 920 323, Justine O'Connell 021 920 410 or Michelle Battersby 021 993 735.