EPMU wins strikebreaking victory

21 August, 2009

The EPMU has won a major victory in the Court of Appeal against employers who use strikebreaking labour to undermine industrial action. 

The Court of Appeal last week ruled in favour of the EPMU's argument that under the Employment Relations Act employers cannot order employees to do the jobs of workers taking lawful strike action.

This ruling overturned a previous Employment Court judgment on the 2005 strike by EPMU members at Southward Engineering (now Atlas Specialty Metals) in Wellington. 

The Court of Appeal also released a judgment in favour of the EPMU's case against the use of strikebreaking labour in the Air Nelson strike of 2007, which centred on the same legal question.

The Court of Appeal said the only question employers and union members needed to ask in relation to strikebreaking labour was effectively "is this work that would be done by striking workers if they weren't on strike?" 

If the answer to the question is "yes" then the employer cannot employ outsiders to do the work and cannot compel non-striking workers working for the same company to do the work.

It doesn't matter if the non-striking workers are capable of doing the work or sometimes do the work. If the only reason they are being asked to do the work on the particular occasion is that workers who would otherwise be doing the work are on strike, then others cannot be compelled to do it. 

The Employment Court had said that if the work was of a type that non-striking workers could do and sometimes did, then they could be compelled by the employer to do it to cover striking workers.

The Court of Appeal said the Employment Court's view was inconsistent with the words of the legislation and that the EPMU's interpretation was more likely to represent what Parliament had intended.