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Peter Churchman – Employment Court

Since his first appearance in the Arbitration Court in November 1980 Peter has established one of the most extensive employment law practices in New Zealand and has appeared in that Court, the Labour Court and the Employment Court in excess of 100 times. Some of the more important reported cases in the Employment Court and its predecessors where Peter has appeared as lead counsel are:

New Zealand Meat Processors etc. Union of Workers v Waitaki NZR Limited [1983] ACJ 569. This case involved important issues relating to the definition of strike and lockout. It subsequently went to the Court of Appeal [1985] ACJ983 and was referred back to the Arbitration Court. The final decision of the Arbitration Court is [1987] NZILR 138.

Waitaki NZ Refrigerating Limited v New Zealand Meat Workers Union [1986] ACJ 402. This case involved an interpretation of shift work provisions and penal payment entitlements of significant consequence for the industry.

New Zealand Meat Workers Union v Waitaki NZ Refrigerating Limited [1986] ACJ 556. This case involved the issue of whether or not workers reinstated were required to be reinstated to the same position or one not less advantageous than their previous one.

Otago Harbour Board v New Zealand Seamen’s Union and New Zealand Merchant Services Guild [1989] 1 NZILR 106. This was an important injunction case involving a ship owned by the New Zealand Shipping Corporation which had been reflagged. Waterfront workers around the country had refused to work the ship and the Otago Harbour Board was the first successful party to obtain injunctions compelling the ship to be worked.

New Zealand Meat Workers Union v Alliance Freezing Company (Southland) Limited [1988] NZILR 1072. This case involved issues of suspension and lockout and the right of employers to suspend workers under section 124 of the Industrial Relations Act.

New Zealand Meat Workers Union v Alliance Freezing Company (Southland) Limited [1988] NZILR 1345. This was a significant case relating to seasonal workers and attempts to lock them out.

New Zealand Meat Workers Union v Prestige Meats Limited [1988] NZILR 1173. This was a dismissal case which established principles relating to the termination of employment of employees on probation.

New Zealand Harbour Workers Union v Port Otago Limited [1993] 1 ERNZ 236. This was a significant case involving the susceptibility of a telephone reimbursing allowance to taxation.

Jennings v University of Otago [1995] 1 ERNZ 229. This was one of the first cases where damages (including exemplary damages) were sought against an employer as a result of an employee contracting occupational overuse syndrome. The decision was an important discussion of the interface between employment law and accident compensation.

Drayton & Nichol v Foodstuffs (South Island) Limited [1995] 2 ERNZ 523. This was a case involving time limits in relation to the raising of a discrimination grievance.

Riddell v Royal New Zealand Plunket Society Inc. [1998] 3 ERNZ 1102. This was one of the first cases which sought to invoke the age discrimination provisions in the Human Rights Act.

Hearn v Fogelberg [1998] 3 ERNZ 673. Together with the case of Obermeyer v Fogelberg [1999] 2 ERNZ 633 this was a landmark decision confirming the right of a University to make tenured academics redundant.

Phipps v Healthcare Otago Limited [1998] 3 ERNZ 269. The case involved significant issues relating to the duplication of statutory and common law proceedings in relation to the same alleged grievance.

New Zealand Resident Doctors Association v Healthcare Otago Limited [1998] 3 ERNZ 657. This was an important case involving the classification of doctors working in public hospitals.

Bunce v Fogelberg [2000] ERNZ 1. This case was a significant redundancy decision relating to selection criteria for redundancy.

Dunedin City Council v Entwisle [2001] 1 ERNZ 27. This was a case on the test for reopening a hearing and admitting fresh evidence.

David v Employment Relations Authority [2001] 1 ERNZ 354. This was the first (and only) time that a five Judge bench of the Employment Court has been constituted. Peter appeared for the New Zealand Law Society which was joined to proceedings which challenged important procedural rules that had been set by the Employment Relations Authority. The challenge was successful leading to an application for leave to appeal to the Court of Appeal and, subsequently, an amendment to the Employment Relations Act.

Fogelberg v Association of University Staff [2003] 2 ERNZ 112. This was a decision of the Full Bench of the Employment Court. It was a test case on the issue of whether or not a strike would be lawful in circumstances where the union kept the details of the strike action secret from the employer. The decision also involved a consideration of whether undertaking a “secret” strike breached the obligation of good faith imposed by Section 4 of the Employment Relations Act. The case was resolved on the facts with the court finding that the plaintiff knew that “rolling stoppages” were in contemplation and was “readily able to ascertain the details of the action to be taken.” The court also held that there was no requirement in the Employment Relations Act compelling a union to provide an employer with information as to the details of intended strike action.

NZ Amalgamated Engineering Printing & Manufacturing Union v Timaru Herald (Fairfax NZ Ltd) [2005] 1 ERNZ 30. This was a successful appearance for an employer in relation to a landmark decision on bargaining and coverage clauses.

Trustees of Family Start Support Services (Invercargill) v W Clark 2 Feb 2007 Couch J This was a successful application for an order staying a reinstatement direction pending disposal of an appeal from a decision of the Employment Relations Authority.

Crook v Sovereign Services Ltd WC34/07 Employment Court, Shaw J 18 December 2007. This was a successful defence of a claim seeking substantial damages for a work related psychiatric illness.

Memo Musa v Whanganui District Health Board, 18/11/08, Judge Shaw, EMC Wellington WC 20/08: WRC 24/08 This was a strike out application which involved novel issues relating to third party liability for breach of duties owed by an employer.

Port Otago Limited v The Maritime Union of New Zealand Incorporated 7/10/09 Judge Colgan, CRC 25/09 This case involved a series of applications for injunctions to restrain an unlawful strike.

NZALPA and anr v JetConnect Ltd, Jetstar Airways Ltd and Qantas Airways Ltd, 27/5/09, Judge Colgan, EMC Auckland, AC 23/09,ARC 33/09 This was a defence of an application where an injunction was sought to restrain Jetstar from commencing operations in New Zealand.

Port Otago Limited v The Maritime Union of New Zealand Incorporated 7/10/09 Judge Colgan, CRC 25/09 This case involved a series of applications for injunctions to restrain an unlawful strike.

Memo Musa v Whanganui District Health Board & Anr, 10/09/10, Chief Judge Colgan, EMC Wellington, WRC 24/08 [2010] NZEMPC 2010 This case involved an alleged breach of terms of a settlement agreement and an application for penalties.

McDonald v Ontrack Infrastructure Ltd and Allied Work Force Ltd, 29 April 2010, Chief Judge Colgan, Judge Travis and Judge Couch, CRC 26/09 [2010] NZEMPC 132. This was a test case where the Employment Court, for the first time, examined the true nature of tripartite employment relationships in the context of a labour hire arrangement.