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Introduction
Unlike the Court of Appeal's judgement in Three Foot Six Ltd ? Bryson [2004] 2 ERNZ 526, which was successfully appealed to the Supreme Court, the decision in Christchurch City Council v Southern Local Government Officers Union Inc [2007] 1 ERNZ 37 appears to have been received with almost universal acquiescence. This article revisits the decisions by the Employment Court and the Court of Appeal. In particular, it examines the Court of Appeal's findings that "...the parliamentary intent was clearly to prevent communications only to the extent that they undermine or might undermine the bargaining or the union's authority in the bargaining..." (para 43) and suggests that the extrinsic evidence adduced by the Select Committee Report and the Minister's statements might also be argued to support a different view of the parliamentary intention. The article also suggests that the Court's interpretation of the term "bargaining" cannot be supported by a structural analysis of the wording of the definition in the interpretation section of the Act and advances an alternative reading.
The main point at issue in the Court of Appeal's decision in Christchurch City Council v Southern Local Government Officers Union Ine [2007] 1 ERNZ 37 was the interpretation of s32(l)(d)(ii) in Employment Relations Act 2000, as:.
"32. Good faith in bargaining for collective agreement
(1) The duty of good faith in section 4 requires a union and an employer bargaining for a collective agreement to do, at least, the following things:
(d) the union and the employer
(i) must recognise the role and authority of any person chosen by each to be its representative or advocate; and
(ii) must not (whether directly or indirectly) bargain about matters relating to terms and conditions of employment with persons whom the representative or advocate are acting for, unless the union and employer agree otherwise; and
(iii) must not undermine or do anything that is likely to undermine the bargaining or the authority of the other in the bargaining; . . .".
The Court of Appeal found that s32(l)(d)(ii) Employment Relations Act, 2000 prohibits an employer from communicating with its employees only in so far as:
"(1) such communication amounted, directly or indirectly, to negotiation with those employee about terms and conditions of employment, without the...