John Hall, NZALPA Solicitor

The process of constituting constructive and productive relationships can be fraught with unexpected trials, but nevertheless it is always unwise to dispense with good faith and resort to force. The COVID-19 Pandemic has brought unparalleled difficulties to our industry, and to many others. But constructive responses have been by no means universal.

Many of the constitutional and social assumptions that our law rests upon arise from the rejection of absolute monarchy and absolute state control that can be traced to the period of the English Civil War. In January 1642, suspecting that Members of Parliament had colluded with Scottish rebels, King Charles I decided to direct Parliament to surrender five MPs to him. Not hearing a response, he took armed guards and marched on Parliament. Arriving at Parliament to find the five MPs having fled, he is reported to have said, “Since I see all the birds are flown, I do expect from you that you will send them unto me as soon as they return hither. But, I assure you on the word of a king, I never did intend any force, but shall proceed against them in a legal and fair way, for I never meant any other”. ¹ This statement was, naturally, inconsistent with his actions and Parliament saw this. Within a week Parliament had seized London and the Civil War began thereafter.

English historian, Antony Beevor, has recently opined that this tumultuous period of his nation’s history gave birth to his nation’s instinct of facing danger with “mass courage” rather than through centralised state problem solving.² Whilst New Zealand has had a fundamentally different approach and experience to the COVID-19 Pandemic, we remain a nation that does not have a written constitution or many of the centralised legal mechanisms that accompany one.

Instead, to a large degree, our law is based on principles. Within the realm of employment law, the central principle is that of good faith.³ It is that principle which animates not only employment relationships but also collective bargaining and the institutions that are used to resolve employment relationship problems. Good faith is not a value unique to our employment law either. It has found a central place in our understanding of the Treaty of Waitangi⁴ , judicial review⁵ and property law⁶.

Employment law requires that parties be active and constructive in establishing and maintaining a productive relationship. That relationship should be characterised by responsiveness and communicativeness. Employers are required to provide access to information relevant to proposals that could impact on employees’ employment and allow an opportunity to comment on that information.

COVID-19 has no doubt been challenging not only for employers but also for employees. However, the obligation to engage transparently and truthfully with each other has not been withdrawn or commuted.

The Employment Relations Authority has found employers who have still been able to conduct consultation even during the high pressure environment of COVID-19.7 However, other employers have opted to attempt to unilaterally alter their contractual arrangements and have found themselves in strife.⁸ Where this has been the case, the absence of consultation has been marked.

Not having a functional and communicative internal culture both at operational and executive level is something that can lead to a breakdown of management systems and indirectly lead to very serious consequences in the aviation sector.⁹ The development of any participant’s safety management system must include consultation with pilot unions.¹⁰ The ongoing improvement and edition of that system also requires consultation.

NZALPA will continue to take consultation in good faith as a key indicator as to whether employers are genuinely attempting to engage with COVID-19 related issues and their consequences. Whether an employer chooses to engage transparently and honestly will often be the determining factor in our assessment of whether any proposal they put forward is worthy of judicial review.

¹ Charles I Stuart, Statement in the House of Commons, 4 January 1642, from the journal of Sir Simonds d’Ewes.

² Beevor Antony (March 2020), I fear mankind is facing a turning point, theworldnews.net (https://theworldnews.net/uk-news/ antony-beevor-i-fear-mankind-is-facing-a-turning-point)

³ Employment Relations Act 2000 s3

⁴ New Zealand Maori Council v Attorney General [1987] 1 NZLR 641, (1987) 6 NZAR 353

⁵ Air New Zealand Ltd v Wellington International Airport Ltd [2009] NZCA 259

⁶ McIntosh v Fisk [2017] NZSC 78

⁷ E Tu Inc v Air New Zealand Regional Maintenance Ltd [2020] NZERA 278 at [74]

⁸ Raggett v Eastern Bays Hospice Trust t/a Dove Hospice [2020] NZERA 266 at [29]. Also see Sandhu v Gate Gourmet New Zealand Ltd [2020] NZERA 259, which appears to be subject to appeal to the Employment Court (see Gate Gourmet New Zealand Ltd v Sandhu [2020] NZEmpC 133)

⁹ Saving Human Lives: Lessons in Management Ethics. Allinson, Robert E. Dordrecht, Springer, 2005 at Chapter 11 at pp 284-287

¹⁰ Doc 9859 Safety Management Manual (4th Edition – 2018), ICAO at [9.3.3]