Archive
Weak Comments of the Week – 31 March
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This week, two comments by public figures vie for top placing as the Foot in Mouth, Weak Comment of the Week. Both are so unbelievably unconvincing that it speaks volumes about how these people view the public as fools…
Candidate #1: Tony Gibson, CEO of Ports of Auckland Ltd (POAL)
” However, Ports of Auckland chief executive Tony Gibson said the back down was an attempt to reduce pressure on the supply chain, where the company was “acutely aware” that customers and businesses were hurting. ” – Source
” POAL has listened to the wishes of the Court, as well the views of the Mayor and all other stakeholders”, Gibson said. ” – Ibid
Oh gosh, Tony, you think ?!
The port workers collective employment agreement expired on 30 September 2011, and formal negotiations had been ongoing since 5 August 2011 – over half a year!
In that time, POAL announced an agenda to casualise the workforce ; contract out jobs; workers have been forced to resort to strike action to secure their jobs and conditions; and the company exacerbated the crisis with needless, expensive lockouts.
Even the Employment Court found that the port workers had an “arguable case“.
In all that time, as weeks turned into months, and the intransigence of POAL Board and management worsened, importers and exporters were bleeding money,
” Weekly trade worth around $27 million – and $90,000 to $100,000 a week for the port – will instead be rerouted through the ports of Tauranga and Napier from the end of the month.” – Source
Has it taken six months for Tony Gibson to recognise that ” customers and businesses were hurting “?
Nah, rubbish.
Gibson, Pearson, et al, have endured an embarressing bollicking from the Employment Court decision that their lockout was illegal; they had most likely broken the law (vis-a-viz the Employment Relations Act) in terms of bargaining in good faith; and that the Maritime Union had an “arguable case”.
Claiming to be suddenly concerned for the welfare of Auckland businesses and that ” the back down was an attempt to reduce pressure on the supply chain ” is disingenuous.
And just a little bit darkly cheeky.
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Candidate #2: Michelle Boag, ex National Party President
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This one is a ‘classic‘, and I think most folk will understand why I had a tough time trying to determine whether Gibson or Boag’s comments merited the most derision,
” One of her advisers, anticipating that a confidential settlement might be reached, said it would be wise to include all the people who were aware of the dispute so that if any of them asked afterwards, Bronwyn would not be accused of breaching confidentiality. ” – Source
The comment refers to Bronwyn Pullar’s letter to her insurance company Sovereign, seeking $14 million in compensation for a head accident she suffered ten years ago. (I make no judgement on this matter. Personal experience with other individuals has shown me that head injuries can create long-lasting mental and emotional effects.)
However, in Ms Pullar’s letter – which yet again was leaked to the media (TVNZ’s “Close Up” programme) – she listed twentyeight people as members of her supposed “support/advisory team” including Prime Minister John Key, ex-Prime Minister Jenny Shipley, National Party fundraiser Selwyn Cushing, and ex-minister Wayne Mapp.
John Key has steadfastly denied any involvement in being included in the list.
Wayne Mapp and Selwyn Cushing have admitted involvement.
Now, for Ms Boag to suddenly claim that ” it would be wise to include all the people who were aware of the dispute so that if any of them asked afterwards, Bronwyn would not be accused of breaching confidentiality ” – is simply bizarre. It makes no sense. It is clutching at straws and offering the most feeble excuse imaginable to explain why Ms Pullar’s letter required 28 high-powered New Zealanders to have their names included in her letter.
In short; bollicks.
Anyone with two inter-connected, firing, neurons would understand that listing 28 prominent individuals would be done for one reason only; to add weight to Ms Pullar’s claim against Sovereign Insurance. In effect, she’s saying, “Look here! I know all these High Ups! Don’t mess with me or they may do ‘XYZ’ to you! So gimme the cash and I’ll go away.”
That would tie in with allegations (unsubstantiated) that she requested two years’ worth of benefits from ACC “to move forward”.
So, no, Ms Boag. Your rational for why those 28 names were included in Ms Pullar’s letter is nonsense. More than that, it’s an insult to our intelligence.
If you’re going to bullshit us, can you at least make it convincing?
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Right Way the Wrong Way
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There is a war for the soul of Auckland.
The declaration for that war may have been made in October 2010, when Len Brown was elected the first mayor of the new amalgamated supercity. Or in September 2009 when legislation forming the super-city was enacted. Or in November 2008, when ACT MP Rodney Hide – the author of the Local Government (Auckland Council) Act – was elected to Parliament.
I call the date today; 30 March 2012, with a media statement released by Christine Fletcher of the so-called “Citizens & Ratepayer (C&R) group,
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Auckland To Become Unaffordable, Not More Liveable
Thursday, 29 March 2012, 2:18 pm
Press Release: Christine FletcherAuckland To Become Unaffordable, Not More Liveable
News that a majority of councillors voted not to include affordability in the context of costs imposed by council for the Auckland Plan will make Auckland unaffordable, said C&R Leader Christine Fletcher, and Cr Cameron Brewer, representing key independent councillors.“The Mayor has set out a vision for Auckland as most liveable city – but his vision will actually hurt the ability of people, especially those on fixed incomes like the retired to stay in their homes. Already massive rates rises are coming, and future generations of Aucklanders will suffer too. When you add the prospect of higher regulatory fees, toll roads to pay for the Mayor’s rail plans, and user-pays rubbish, it’s going to get very expensive to live in Auckland,” said Cr Brewer.
“We all agree that the Auckland Plan is a far-reaching, profound document for our city. But without the principle of affordability to help guide it, it sends a message that rates and fees will be massively hiked to pay for all the big ideas within. That’s wrong – there are many people who simply can’t afford big rises in rates and fees,” said Cr Fletcher.
“C&R along with key independents proposed an amendment by way of addition that the Auckland Plan does have regard to affordability as a principle. It was defeated 12-9. City Vision, Labour and the left have embarked on a 30 year program of spending, but only providing a 10 year long term plan for budgeting”, said Cr Fletcher.
“It is especially disappointing that Cr Penny Webster, the Chairman of Finance from Rodney District, has abandoned her duties to be fiscally responsible, and voted for this big spending plan without appropriate fiscal prudence. I guess it’s easy for Len Brown to spend billions of dollars when he’s got a Penny in his pocket”, said Cr Fletcher.
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Councillors who voted to support an affordability principle in the Auckland Plan include:.
Chris Fletcher (Leader C&R)
George wood (Deputy leader C&R)
Des Morrison (C&R)
Dick Quax (C&R)
Noelene Raffills (C&R)
plus the following independent councillors:
Cameron Brewer
Calum Penrose
Sharon Stewart
Sir John Walker
ENDS
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Firstly, a bit about the C&R group.
C&R states on it’s website that they “are not affiliated with any central government political party“. However a cursory examination of that claim yields some interesting revelations.
Citizens and Ratepayers leadership consists of the following individuals;
Councillor Chris Fletcher, Caucus Leader
Ms Fletcher was an ex-National Party MP, serving three consecutive terms in Parliament, from 1990 to 1999. Ms Fletcher held Ministerial roles of Local Government, Women’s, Cultural and Youth Affairs
Mark Brickell, President
Mr Brickell served as electorate campaign manager for National MP and Welfare Minister, Paula Bennett, in last year’s general election.
Alastair Bell, Vice President
Mr Bell has been a Board Member of the National Party since 2009, to present. He was a senior advisor to Prime Minister Jenny Shipley, from 1999 to 2000.
Edgar Henson, Vice President
Mr Henson managed ACT’s election campaign in 2008. He will be attending ACT’s Annual Conference & AGM on 21 April.
Leigh Morrow, Treasurer / Secretary
National Party supporter in last year’s general election, according to this entry on Ms Morrow’s Facebook page,
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Jim Stevens, Corporate Services / Administrator
(No party affiliation found.)
As the above information shows, C&R is anything but a neutral entity. It is an unofficial arm – a political ‘creature’ – of the National Party. The NZ Herald article, “Ex-National MPs deluging Citizens & Ratepayers card “, also recognised C&R as such.
As for the so-called “independent” Councillors who also appended their name to the 29 March Media Release, above,
Cameron Brewer
Mr Brewer was a one-time National Party candidate for the Tamaki Electorate.
Calum Penrose
Mr Penrose is a centre-right Councillor who endorsed National MP Judith Collins in last year’s election campaign.
Sir John Walker
Sir John Walker is a centre-right Councillor who also endorsed National MP Judith Collins in last year’s election campaign.
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Why does all this matter?
Because the Media Release issued by C&R on 29 March is the first shot fired in a campaign by right wing city Councillors – many with Party affiliations to National or ACT – to unseat Len Brown at the next local body elections.
For C&R and their fellow-travellers, the election campaign has begun in earnest, and expect either Christine Fletcher or Cameron Brewer to be nominated as the Right’s mayoral candidate. Expect the coming campaign to be nasty, as Cr Fletcher’s comments indicated,
“It is especially disappointing that Cr Penny Webster, the Chairman of Finance from Rodney District, has abandoned her duties to be fiscally responsible, and voted for this big spending plan without appropriate fiscal prudence. I guess it’s easy for Len Brown to spend billions of dollars when he’s got a Penny in his pocket.”
Cr Webster was not impressed, as she made her feelings known in a Radio NZ/Morning Report interview on 30 March,
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http://www.radionz.co.nz/audio/remote-player?id=2514238
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Cr Cathy Casey – not one to suffer fools or right wingers who bend the truth to suit their hidden agendas, replied on her Facebook page,
“This C&R media release yesterday was online yesterday by 2pm while the Governing Body was still in session. It caused mayhem when it was discovered! It must have been written ahead of time therefore the amendment and speeches by Councillor Fletcher and Councillor Cameron Brewer were clear political posturing. Radio NZ has just said it will be reporting on it on Morning Report after 8am this morning.
… It was pointed out yesterday to Councillors Fletcher and Brewer that there is already an affordability principle in the Auckland Plan (p.19) “Make the best use of every dollar spent.” It states that we will “act prudently and commit to projects and initiatives that achieve the best value result without compromising quality, affordability, or stifling creativity and innovation. Focus on achieving long-term benefits and intergenerational equity.”
This is party politics of the worst kind! ” – 30 March
It appears that right wingers in Auckland Council are getting up to mischief?
An interesting exchange then took place on Facebook between Cr Casey and at least two C&R members
Cr Cathey Casey: “ Hi George Wood, You are a member C&R so I presume you signed off this media release? ”
George Wood: ” No Cathy, the role of making media releases is delegated to the leader of C&R, Cr Fletcher, and in this case the leader of the independent councillors that work with C&R, Cr Cameron Brewer has also had input to this document. “
Interesting that a nominally “independent” councillor and a de facto National Party councillor are working together on what appears to be very clear stategy.
The FB conversation continued,
Cr Cathy Casey: ” Hi George, So now that you’ve read it what do you think of the content and the fact that it was sent out of the meeting at 2pm, two hours before we had even completed our deliberations on the Auckland Plan? “
At which point another C&R member jumped in, with a rather weak attempt at derision and deflection,
Michael Williams: ” Big deal. Affordability is a huge issue. That’s the point here. Why protest against someone saying that? ”
Cr Cathy Casey: ” Hi Michael, You are a member of C&R, are you are saying the process engaged in by Councillors Fletcher and Brewer on your behalf yesterday is kosher? And that it is okay for C&R to publicly malign Councillor Penny Webster? “
Williams then responded with the usual “no biggie” approach,
Michael Williams: ” There’s always a bit of rough and tumble in politics. If we all checked each others press releases nothing would get anything published. Individual members have to take personal responsibility for what they say in public and how they say it. As for C&R, we all agree that Affordability is a key issue. “
Cr Casey persevered,
Cathy Casey: ” Hi Michael, Maybe I wasn’t clear. Let me try again. As a member of C&R, are you are saying the process engaged in by Councillors Fletcher and Brewer on your behalf yesterday is kosher? YES or NO And that it is okay for C&R to publicly malign Councillor Penny Webster? YES or NO. ”
Michael Williams: ” I see your angle, you are inviting me to take sides against a member of my own team.”
Well, actually, no – I thought Cr Casey was asking a perfectly responsible, straight-forward question. At this point it should be made clear that Michael Williams is a C&R member as well as the Chairperson of the Auckland Council’s Howick Local Board. In which case, Cr Casey had just cause to be asking Williams these questions – especially considering he had voluntarily joined the conversation on Cr Casey’s FB page.
Cr Casey continued,
Cr Cathy Casey: ” Hi Michael, Depends on whether it is a YES or a NO. I am inviting you to bring some integrity into the way your own team does its political busness. I note in the release Councillor George Wood is listed as “Deputy Leader, C&R” but he says he had no input. ”
Michael Williams: ” Life is not Black and White Cathy. “
?!?! And the point of that statement was —?
Obviously by now, Williams is having difficulty answering a straight question with a commensurately straight answer.
By this time others have entered the conversation, and they are not happy with C&R’s obfuscation.
Cr Casey continues to push her line of questioning,
Cr Cathey Casey: ” Still waiting for an answer from George Wood too. Dick Quax is also a member of C&R. Dick do you support the process of sending out a media release during the council meeting yesterday? Do you support the content of the media release especially in relation to remarks about Penny Webster? “
Williams then responded with a deflection-non-sequitur combo,
Michael Williams: ” You people should read your own posts, they are every bit as offensive as the throw away comment you are referring to. “
Which is laughable, as Williams earlier had stated, ” There’s always a bit of rough and tumble in politics.” Evidently “rough and tumble” is ok if it’s from the Right – but a naughty no-no if it comes from anyone else. Damn, I keep forgetting their funny rules and ways…
Williams did not respond, but C&R Deputy Leader George Wood did,
George Wood: ” … the situation really is that C&R and other like minded councillors are spending hours of time working through the myriad of issues around affordability and the make up of the 10 year budgets. It is no easy task but we are getting explanations to specific questions. We also went out to the community through radio adverts and have been getting good feedback. We are running things along the lines of how we did things when I was mayor of North Shore City although I’m more in an opposition role. Things seem to be progressing well. “
That statement is interesting in it’s own right, and raises several more questions,
- If ” C&R and other like minded councillors are spending hours of time working through the myriad of issues around affordability and the make up of the 10 year budgets ” – then why are they issuing vitriolic Media Releases – and abusing other councillors in the process? What is the gain in such actions?
- ” It is no easy task but we are getting explanations to specific questions. ” – What questions? The ones asked above seemed fairly straight forward. Does it require a collective mind-set from the entire C&R Team to respond to simple questions on a social media?!
- ” We also went out to the community through radio adverts and have been getting good feedback. ” – ??? Is that normal Council procedure, for factions in the Council to pursue ad hoc means to seek public feedback on issues? Surely there are more professional, traditional means of seeking responses from the public. In fact, I’m certain of it – they are usually called “Making a Submission to the Draft Annual Plan”!
- ” I was mayor of North Shore City although I’m more in an opposition role. ” Why are you in an “opposition” role, Mr Wood? Do you consider the Auckland Council to be Parliament? And just what are you ‘opposing’?
The FB conversation ended with Mr Wood’s posted statement.
But it does in no way end the matter of C&R’s unprovoked, ad hominem slur against Cr Penny Webster, suggesting that she is “in the pocket of the mayor”.
One can only assume that the Right Wing in Auckland are starting to panic. They have lost another ‘battle’ in the ports industrial dispute, and the National Government is under siege from multiple directions from scandals, cronyism, and unpopular ideologically-based policies.
It is not a happy time to be a right winger.
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As I started this piece with; there is a war for the soul of Auckland.
For the Right Wing, there is unfinished business to settle; Rodney Hide’s Master Plan to privatise Auckland Council’s assets, and to strip away any services that the Right consider “non essential” or “non-core business”.
All this was supposed to have been taken care of soon after the founding of the supercity, Auckland Council. John Banks was to have been elected mayor; along with a bevy of barely-restrained free-marketeers; and with Central Government’s nodding agreement, the Firesale of the Century would have ensued. Anything not nailed down would have been flogged off to “mum and dad” investors (ie; corporate interests).
Except, it didn’t quite go the way things were planned.
Aucklanders elected a centre-left mayor, and C&R and their fellow travellers were a neutered minority.
Default to Plan B.
(There is always a Plan B.)
Port workers were due for a renegotiation of their Collective Employment Agreement (CEA). The Agreement had expired on 30 September 2011, and formal negotiations had been ongoing since 5 August 2011.
However, POAL Board and management were in no mood to settle, and plans were afoot to casualise the workforce. A secret POAL memo leaked to the Maritime Union confirmed suspicions that POAL management were up to no good.
The Port dispute worsened as management became more and more intransigent. As the industrial dispute became a crisis, and workers were locked out, public pressure was brought to bear on Mayor Len Brown.
As the mayor elected on a centre-left platform, port workers; centre-left councillors; and many other Aucklanders looked to him to intervene and bring the crisis to a head. It was only after the 5,000+ strong street march on 10 March that Brown offered to mediate.
By then, the damage was done – Brown’s reputation and credibility with the Left had been shredded. He was seen as ineffectual at best – and kowtowing to the Right at worst.
The Left began openly discussing an alternative mayoral candidate to Brown for the next upcoming local body elections. Every left-wing blogger (including this blogger) expressed frustration at Brown’s inaction and wanted change. If Brown couldn’t stand up to the New Right – then by golly, we’ll find some who could!!
On 30 March, on his TV blog-show, “Citizen A”, Bomber Bradbury asked his panellists,
” Will the Left stand a different candidate against Brown for the mayorlty, and if they would, who would it be? “
Unfortunately for us, the Right were paying attention – very close attention – to what the left were openly debating on various blogs. To paraphrase H.G. Wells,
“And yet, across the gulf of the political divide, minds immeasurably greedier to ours regarded these assets with envious eyes; and slowly, and surely, they drew their plans against us.”
You bet they did.
The Right are counting on the Left putting up an alternative candidate to Len Brown. And if Brown stands again – we end up splitting the centre-left vote.
End game result: a C&R mayor sneaks through.
Or, if the Left does not engage an alternative candidate and simply turns our collective back on Brown – his vote will collapse (as it did for Labour generally, last year).
End game result: the C&R mayor’s support stays firm, and beats Brown at the ballot box.
The Left needs to be more clever abour this.
Instead of showing Len Brown the door, and all but guaranteeing a C&R victory for the mayorlty, we may have no choice but to hang on to him. All passions aside – do we really want to see Cameron Brewer as mayor?!?!
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The best way to deal with this situation? We need to re-think our strategy.
Instead of dumping Brown – the Left must work damn hard to build on our electoral support in the community, and get more centre-left candidates elected! With more centre-left councillors, the Left will be in a stronger position to “support” and “encourage” Len Brown when it comes to those awkward “minty moments”.
‘Cos sure to goodness, getting rid of Brown and inadvertantly letting a centre-right mayor win office would be an own-goal of incredibly dumb proportions.
So, fellow Aucklanders. Take note of Cr Fletcher’s Media Release. Class war is upon us. Our mission – should we choose to accept it – is to be more cleverer than them.
Game on.
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Related Blogpost
Additional
Scoop.co.nz: Auckland To Become Unaffordable, Not More Liveable
NZ Herald: C&R leader offers to quit after debate turns heated
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Of mice and men (and much, much, money)
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Lombard Finance was one of fortynine finance companies that’ve collapsed since 2006. An estimated $8.5 billion of investor’s funds was affected. Many of the directors of companies such as Lombard, Hanover, Dominion Finance Group, Bridgecorp, etc, have appeared in Courts on various charges – usually centering around making untrue statements in their respective investment prospectuses.
Of those who lost money, many were the real “mum & dad” investors whom John Key invokes when his Party talks of privatisation of state owned assets.
Many of these “mum & dad” and “grandma & grandpa” investors have lost their life savings due to the actions of finance companies.
Those who are ultimately responsible are the directors. There is no one “above” them in terms of accountability.
As a certain US president once stated,
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Quite simply, if Directors are not responsible – then who is? And why – if Directors are not responsible – are they signing prospectus and being paid generous directors’ fees?
According to Stephen Franks – ex ACT Member of Parliament and unsuccessful National Party candidate – the Directors of Lombard and other companies should not have been prosecuted under the Crimes Act. In an interview on Radio New Zealand’s Morning Report, with Geoff Robinson today, Franks said,
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RNZ: “… so was it appropriate to have a criminal case?”
Franks: “No, I think it’s very wrong that the criminal law gets in here because it leads even someone as experienced as you [Robinson] to say something that’s false. They weren’t convicted of making false statements, they were convicted of making untrue statements. But quite reasonably you’re treating it as false. Untrue because the thing didn’t require any conscious intention or even knowledge. If it wasn’t true it was untrue, but we usually use the term false meaning someone’s, you know, deliberately -“
RNZ: (interuption)]
Franks: “… knowingly made an untrue statement. But because this has become a criminal law matter, people feel, not unfairly, that they should be able to use the more extravagant language of wrong-doing, wickedness, thief, theft.
If you look at the blogs you’ll see people are foaming and I don’t blame them. I think the criminal law should deal with bad people. But the problem is it’s got involved in an area where as the judge clearly said, this was just a mis-judgement…”
[abridged]
“… I’m not condoning poor judgement, I think the law should be easier to enforce as a civil action, but I don’t like seeing the criminal law misused against people who aren’t dishonest.”
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There are several aspects to Stephen Franks’ comments which require a response.
Whilst I am not a lawyer, criminal law takes into account negligence as well as dis-honesty.
- A driver who causes a crash, with injury or loss of life, can be charged and tried under the Crimes Act. The driver was not dis-honest in any manner – but their negligence was seen as criminal because of consequences that affected others.
- Negligence can have severe consequences, as much as a deliberate act such as selling drugs or robbing a bank.
- The investors in failed finance companies can indeed take civil action against former Directors of failed finance companies. But to what end? Often the assets of Directors is buried away in family trusts – as were some of the Lombard Four. So no compensation is possible.
- Civil action is a costly process, with the legal bills being met by the plaintiff. Even legal aid is not the “blank cheque” that is commonly believed by the public. Legal Aid is a loan, not a grant, and the State may demand it be repaid, in full, or in part, at the earliest opportunity.
Stephen Franks may be on solid ground when he splits legal hairs by defining the difference between “untrue” and “false”.
But I doubt if the “mums/dads” and “grandma/grandpas” will appreciate the finer points between the two terms.
It astounds me that Stephen Franks could suggest that company directors not be prosecuted under the Crimes Act, and that creditors be forced to resort to private civil prosecutions. Many of the creditors are no longer in any financial position or even fit mental state to pursue errant directors through the Courts.
An elderly person who has lost his/her life savings to the dodgy dealings of finance companies is most likely a broke person – both financially and emotionally. Franks wants the victims of these companies to take on more responsibilies to pursure justice?
In what possible manner is that even remotely fair???
I am reminded of Stephen Franks’ original political ‘home’, the ACT Party,
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ACT and other right wing parties and their adherents make a Big Thing about responsibility.
It appears that this concept of responsibility may not apply to company directors, responsible for flushing approximately $8 billion in other peoples’ money down the proverbial toilet? Responsibility for some, but not for others?
By comparison, if I robbed someone of $20, that would be Strike One against me, and time spent in jail . The Three Strikes law – courtesy of the ACT Party.
I have no wish to see the Lombard Four or other failed finance company directors end up in jail. Wasting $90,000 p.a. to throw middle aged or elderly men behind bars, who are otherwise no threat to society, seems pointless.
But at the very least, the “mums/dads” and “grandma/grandpas” who lost their savings should know that those responsible are held to account.
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Additional
Radio NZ: Securities lawyer analyses sentencing of lombard directors (interview)
Shark Patrol: Failed or Collapsed Finance Companies
NZ Treasury: Claims or Repayment Process Retail Deposit Guarantee Scheme
NZ Herald: Finance Company Collapses (and court cases)
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Is this what Dear Leader meant…
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… when he pledged to raise wages to match Australia?
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After all, he did make these committments to the electorate…
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“We will be unrelenting in our quest to lift our economic growth rate and raise wage rates.” – John Key, Prime Minister, 29 January 2008
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"The driving goal of my Government is to build a more competitive and internationally-focused economy with less debt, more jobs and higher incomes." - John Key, Prime Minister, 21 December 2011
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Or perhaps we just mis-understood what he meant.
I leave the final words to the three articles below…
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Additional
NZ Herald: Kiwi exodus to Aussie at new high
TV3 News: NBR Rich List 2011 – NZ’s wealthy doing just fine
NZ Herald: We’re doing all right, says English, despite GDP slowdown
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Employment Court Upholds Maritime Union Injunction!
Announced today, the Employment Court has judged in favour of the Maritime Court, seeking an injunction against Ports of Employment Ltd’s plans to contract out 297 jobs currently held by union workers,
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MARITIME UNION OF NEW ZEALAND INC V PORTS OF AUCKLAND LIMITED
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NZEmpC AK [2012]
NZEmpC 54 [27 March 2012]
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IN THE EMPLOYMENT COURT
AUCKLAND
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[2012] NZEmpC 54
ARC 13/12
ARC 17/12
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IN THE MATTER OF an application for declaration, proceedings removed from Employment Relations Authority
AND IN THE MATTER OF applications for interim injunctions
BETWEEN MARITIME UNION OF NEW ZEALAND INC Plaintiff
AND PORTS OF AUCKLAND LIMITED Defendant
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Hearing: 27 March 2012 (Heard at Auckland)
Counsel: Mr Carruthers QC, Mr Cranney and Mr Mitchell, counsel for plaintiff Mr Haigh QC, Mr McIlraith and Ms Dunn, counsel for defendant
Judgment: 27 March 2012
Reasons: 29 March 2012
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REASONS FOR ORAL INTERLOCUTORY JUDGMENT
OF JUDGE B S TRAVIS
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[1] These are my reasons for issuing interim injunctions on 27 March 2012 in the following terms:
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(i) The defendant will take no further steps to advance or implement the proposal to make the plaintiff’s members redundant.
(ii) The defendant will not dismiss the plaintiff’s members.
(iii) The defendant will not employ or engage Drake New Zealand Ltd or Allied Workforce Ltd or any other person to perform the work of striking or locked-out employees in breach of s 97 of the Employment Relations Act 2000.
(iv) The defendant will instruct Drake New Zealand Ltd and Allied Workforce Ltd and any other contractor employed or engaged by the defendant to cease any form of advertising, training or recruitment or any form of preparation for those activities on behalf of the defendant or otherwise.
(v) The defendant will not make any statement to, or which could, encourage any union member to seek or accept employment with the contractors identified in (iv) above.
(vi) In the event that the defendant intends to employ or engage any other person to perform work covered by the collective agreement in dispute, it will give the plaintiff 48 hours’ notice to enable the plaintiff to apply for relief.
[8] The defendant will not take any further steps in relation to applications for voluntary redundancy until 5pm on Friday 30 March 2012 or further order of the Court.
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[2] The plaintiff union (MUNZ) has made two applications for interim injunctions against the defendant. The first in time was filed on 13 March 2012 and sought interlocutory injunctions, in broad terms, to prevent the defendant, Ports of Auckland Limited (POAL), from proceeding to contract out stevedoring and other work at the ports of Auckland (the contracting out injunctions). The contracting out injunctions were set down for hearing on 22 March. They were then adjourned on the basis of undertakings offered to the Court by the defendant, which were accepted by the plaintiff on 21 March, and are recorded in a minute of 22 March. It was agreed that the interlocutory application for the contracting out injunctions could be brought on at short notice by either party.
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[3] The plaintiff union applied on 23 March to bring on the contracting out injunctions for hearing. This was on the grounds that the undertakings offered to the Court by the defendant and recorded in the minute of 22 March had been breached. The plaintiff sought more effective oversight by the Court of the defendant’s conduct. The injunction application was therefore set down for hearing on Tuesday 27 March.
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[4] At that hearing, the defendant consented to the plaintiff’s application but the Court was required to be satisfied that it had the jurisdiction to issue the interim injunctions and that this was a proper case for the exercise of its discretion. Mr Carruthers, counsel for the plaintiff, provided his written submissions to the Court and the defendant. These contained references to a schedule of documents from the bundles of documents obtained on disclosure and filed in Court by the plaintiff. It was agreed that I should not have regard to those documents until the defendant had had the opportunity to respond to them, which it would do by midday on Thursday 29 March. As I shall indicate, I was satisfied from the balance of Mr Carruthers’s submissions that this was a proper case for the issuance of the interim injunctions as consented to by the defendant.
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[5] The second application for interlocutory injunctions was to restrain what were allegedly unlawful lockouts imposed by the defendant on 22 March (the lockout injunctions). That application was filed on 23 March and agreed to be heard at the same time as the contracting out injunctions. The second application was adjourned by consent until Friday 30 March 2012 on the basis of the defendant’s offer to pay all permanent and P24 union employees (a category covered by the expired collective agreement) who were available for work, for the period from 3pm on Thursday 22 March when the strike notices were lifted, for their guaranteed shifts under the expired collective agreement, until 3pm on Friday 30 March 2012. To determine which union employees were available for work, those union members would need to present themselves at 3pm on Thursday 29 March 2012 at a place within one kilometre of the Port nominated by the defendant, and which was to be advised to the plaintiff by 9am on Wednesday 28 March.
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Factual background
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[6] The factual background which I am about to set out is not, for the most part, in dispute and is based on the current pleadings. It should be noted, however, that although leave may be required to do so, as the substantive matter has been set down, either party may apply to amend its pleadings so the admissions on which I have relied for present purposes only, may not be those on which the substantive proceedings are heard.
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[7] Three classic tests are to be applied to the question of whether an interlocutory injunction should issue. The first is whether the plaintiff has an arguable case. The second test is where the balance of convenience lies between the parties before the substantive matter can be heard and determined. Because the grant of interim relief is discretionary, the third test requires the Court to stand back from the detail of the first two tests and to ask where the overall justice of the case lies at the interlocutory stage.
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[8] The plaintiff is a registered union. The defendant was established under the Port Companies Act 1988 and operates the port at Auckland. The defendant employs approximately 297 of the plaintiff’s members (the union members), of whom approximately 235 are employed as stevedores. Others are engineers and tradespersons. The plaintiff and the defendant are engaged in collective bargaining to settle a new collective agreement to replace the collective agreement which expired on 30 September 2011. The expired agreement continues in force, pursuant to s 53 of the Employment Relations Act 2000 (the Act). The bargaining commenced on 6 September 2011.
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[9] One of the issues discussed, but yet to be settled in the bargaining, is a proposal by the plaintiff that work covered by the new collective agreement not be contracted out during the term of the agreement. The expired collective agreement contains a clause which deals with contracting out but there is a dispute as to whether it has been properly complied with by the defendant.
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[10] On 9 January 2012, it is alleged that the defendant issued a public press statement and advised the plaintiff that the defendant proposed the introduction of a contracting out model which might lead to the redundancy of the union members (the contracting out proposal). All subsequent dates refer to events in 2012.
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[11] On 7 March, the defendant informed the plaintiff that it had decided to implement the contracting out proposal and stated that this would result in the termination of the union members’ employment and their reengagement with new employers (the contractors) from whom proposals were being sought by the defendant. The defendant referred to a six week period of consultation prior to the
defendant issuing notices of termination. The defendant alleges that stevedores employed by it, including the union’s members, have the opportunity to apply for employment with the selected contractors, that it has consulted with the union on these matters and alleges that the union has refused to engage on these issues. These matters are in dispute.
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[12] On 9 March, it is alleged that the plaintiff received a media release from the defendant which stated that it had signed contracts with Drake New Zealand Limited (Drake) and Allied Workforce Limited (AWF) following its decision “to introduce competitive stevedoring at its Fergusson and Bledisloe Container Terminal operations” and that a further press release naming the third company that would be working with the defendant was expected shortly.
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[13] The affidavits filed in support of the interim injunction stated that the union has received no information as to the terms of the contracts between the defendant and the selected contractors. The affidavits also deposed that the union understands that its members are going to be encouraged to make applications for positions with the new contractors. In support of those allegations, references were made to statements made by the chairman of the defendant, Richard Pearson, in the media in which he was alleged to have said that the union members needed to apply for jobs with the new contractors.
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[14] Affidavits from three union members have deposed that they are permanent stevedores who have been employed by the defendant for up to 15 years, have economic commitments to their family and are torn between wanting a collective agreement between their union and the defendant and their concerns that they might have no option but to apply for employment with the contractors. The affidavit of Russell Mayn, the secretary/treasurer of the Auckland branch of the plaintiff union, has expressed the view that the union membership will be torn between the need to keep working even with contractors and their wish to be employed under a collective agreement and that since the announcement of 9 January, the collective bargaining has been undermined by the threat of the contracting out proposal. Mr Mayn also deposes that the active recruitment of stevedores for the contracting companies would allow such employees to be engaged to perform the work of striking workers
during the strikes which, at the time the affidavits were sworn, were currently in place and were to continue. The strike notices were withdrawn on 22 March.
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[15] On 21 March, the agreement referred to above (at [2]) was reached between the parties which allowed the application for the lockout injunctions to be adjourned sine die to be brought on at short notice, if sought by either party. It also allowed for the substantive hearing, set down to commence on 26 March for five days, to be adjourned sine die on the same basis. This agreement was reached on the basis of the undertakings given by the defendant in the following terms:
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The defendant makes the following undertakings for a period of one month from Thursday 22 March 2012 and thereafter by agreement or further order of the Court:
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(i) The defendant will take no further steps to implement the proposal to make the plaintiff’s members redundant.
(ii) The defendant will not dismiss the plaintiff’s members.
(iii) The defendant will not employ or engage Drake Personnel Limited or Allied Workforce Limited, or any other person to perform the work of striking employees in breach of s 97 of the Employment Relations Act 2000 and will take steps to instruct Drake Personnel Limited, Allied Workforce Limited and any other potential contractor not to undertake any recruitment or training related to the contracting out of work at Ports of Auckland.
(iv) In the event that the defendant intends to employ or engage any other person to perform work covered by the collective agreement in dispute, it will give the plaintiff 48 hours’ notice to enable the plaintiff to apply for relief.
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[16] The plaintiff’s affidavits set out statements allegedly made by Mr Pearson on 22 March in radio and television interviews to the effect that there had been “no U-turn. You could call it a route deviation if you have to”. He also allegedly stated on television on 22 March that the defendant was:
… encouraging our staff that’s on strike still to come and apply for jobs with the contractors. So there’s no change there. The board, we’ve made no change in our view, of the benefits of contracting and it’s the right decision for the Port.
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[17] Other examples are given, including an interview allegedly given at 7.16am on 22 March on Newstalk ZB Auckland during the Mike Hosking Breakfast programme, in answer to a question as to whether there had been a U-turn, Mr Pearson stated:
… we are encouraging our staff that are actually still on strike, if they want to apply for jobs at the Port, come and apply, there’s no change to that process at all.
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[18] The plaintiff also provided an affidavit which detailed enquiries allegedly made of Drake and AWF which suggested that the staff of those companies, responding to enquiries on 21 and 22 March, were unaware of any instruction from the defendant to cease recruitment of staff for work at the defendant’s premises. I note that Mr Haigh, counsel for the defendant, gave an undertaking in open Court on 27 March confirming that the defendant had instructed both Drake and AWF to cease any form of advertising, training or recruitment or any form of preparation for those activities on behalf of the defendant, as it had undertaken so to do. I unhesitatingly accepted Mr Haigh’s undertaking, as did Mr Carruthers.
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[19] At around midday on 22 March, the members of the union voted to end their strike currently in place, which was to end on 23 March, and voted to end the two week strike that would have commenced on 23 March and have concluded on 6 April 2012. The union immediately wrote to the defendant advising it that the strikes ended immediately and that it was the union’s expectation “that members will be rostered from second shift today commencing at 3pm.”
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[20] Mr Mayn deposes that the union members had an expectation that some members would be able to return to work at the commencement of the second shift at 3pm on 22 March. He also deposes that since that time, members of the union have not been allowed to return to work and that the defendant invited the plaintiff to attend a meeting to discuss the issue on 23 March. He also deposes that at around midday on 22 March, the defendant served a lockout notice on the plaintiff advising of a complete and continuous discontinuance of employment from 12.01 am on 6 April until its demands were complied with.
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[21] The issues relating to the lockout notice and the defendant’s alleged refusal to allow the union employees to return to work on 22 March will be dealt with in the hearing on 30 March.
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Arguable case
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[22] Counsel for the defendant has advised the Court that, whilst the defendant does not accept that it has breached any of the undertakings recorded in the Court minute of 22 March, it nevertheless consented to the orders sought by the plaintiff in the contracting out injunctions.
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[23] The plaintiff has indicated that it intended to amend its application, in relation to the contracting out injunction, to seek a further order that the defendant not progress any voluntary redundancies. This is based on a letter allegedly sent to members of the union on 23 March by Mr Gibson (Chief Executive of POAL), which refers to the handling of enquiries from employees seeking voluntary severance. Without objection, the plaintiff has been granted leave to amend its contracting out injunctions application to include reference to the allegations about voluntary severance and this matter will be dealt with on 30 March. In the meantime the situation will be covered by the last interim injunction set out in [1] above.
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[24] I find that there is a seriously arguable case that the actions of the defendant in allegedly threatening to and then deciding to contract out the work on which the union employees were engaged under the expired collective agreement whilst collective bargaining was on foot for a new collective agreement was likely to undermine and arguably has undermined the bargaining. It will also, arguably, undermine the bargaining in the future. It is therefore seriously arguable that those actions have breached s 32(1)(d)(iii) of the Act. This section provides that the duty of good faith in s 4 of the Act requires a union and an employer bargaining for a collective agreement to do a number of things. These include the requirement in subsection (d)(iii) that the union and the employer:
must not undermine or do anything that is likely to undermine the bargaining or the authority of the other in the bargaining.
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[25] It is contended by the plaintiff that the proposal and the decision to contract out have caused a fear of dismissals among union members and has created pressure on their families and thereby undermined the bargaining for the new collective. There is evidence in the affidavits before the Court which makes this arguable.
[26] Mr Carruthers’s submissions noted that the issue of mass dismissals of the workforce during bargaining has been addressed only briefly in the s 32(1)(d)(iii) context and was left open by Chief Judge Colgan in Eastern Bay Independent Industrial Workers Union 1995 Inc v Norske Skog Tasman Ltd.1 It was not raised in New Zealand Amalgamated Engineering Printing & Manufacturing Union Inc v Carter Holt Harvey Ltd2 and he submitted that the restructuring in that case was allowed to continue in parallel with bargaining because contracting out was, unlike the present case, not an issue in the bargaining.
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[27] Mr Carruthers submitted that, even under the Employment Contracts Act 1991, mass dismissals for bargaining purposes had been found to be unlawful in McCulloch v New Zealand Fire Service Commission3 and New Zealand Seafarers’ Union Inc v Silver Fern Shipping Ltd (No 2).4
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[28] Next, it has been contended that the dismissal proposals constituted an unlawful lockout. I consider that this is less seriously arguable because there appears to be a lack of the demands which are required to bring the defendant’s alleged actions within the definition of “lock out” in s 82(1)(b)(ii) of the Act.
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[29] It is also contended that the dismissal proposals are contrary to the obligation imposed by s 4(1A)(b) of the Act which requires the defendant to be active and constructive in maintaining a productive employment relationship with the union members of the plaintiff. It is contended that the decision to initiate mass dismissals of the entire bargaining unit was contrary to that duty. There is also an allegation that the defendant has failed to provide information concerning the contracting out proposals in breach of s 4(1A) before any decision was made.
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1 [2010] NZEmpC 165 at [11].
2 [2002] 1 ERNZ 597.
3 [1998] 3 ERNZ 378.
4 [1998] 3 ERNZ 786.
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[30] Finally, there is an issue that by progressing the dismissal proposal and engaging the contractors, their employees will be performing the work of striking employees in breach of s 97 of the Act. That will be equally arguable, even though the strike has ceased, if the dismissal proposals are pursued while the threatened lockouts apply. I find that all these issues are arguable and they will be dealt with in the substantive hearing commencing on 16 May.
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[31] As to the balance of convenience, if the dismissal proposals were allowed to proceed before the issues can be substantively resolved, this arguably would have irretrievable consequences for those dismissed employees. The injunctions sought apply until the substantive hearing and may delay the defendant exercising its contractual rights (which are also in issue). However, to permit the exercise of those rights, which are in dispute in the interim because of statutory requirements, could cause irreversible damage to the plaintiff’s members. I note, in this regard, that the substantive issues would have been addressed in the week commencing 26 March but for the undertakings which arguably have been breached. The Court could have provided an earlier fixture in the week commencing 23 April, but counsel for the defendant advised that the defendant was not available. The date finally allocated was suitable for the parties. In all the circumstances, I was satisfied that the balance of convenience favoured the granting of the injunctive relief sought, in the form to which the defendant consented.
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[32] Standing back from the detail, I was also persuaded that the overall justice of the case required that the defendant be prevented from exercising its dismissal proposals until its right to be able to do so, in light of the statutory requirements, is dealt with by the substantive hearing.
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B S Travis
Judge
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Judgment signed at 11.00am on 29 March 2012
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__________
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Clearly, Judge Travis is thouroughly unimpressed with the behaviour of POAL and has issured his judgement accordingly.
It is reassuring that the Employment Relations Act works in favour of workers and employers cannot ride roughshod over their employees.
Long may this continue.
Nek step: sack the board and CEO of POAL. Their incompetance has cost Auckland millions in lost income. The Auckland Council must address this vital issue, or themselves be accused of gross dereliction of duty.
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Acknowledgement
Helen Kelly
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= fs =
Born to rule…
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Let’s play a guessing game.
‘ Who Dunnit? ‘
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1. The Story So far…
Bronwyn Pullar was having trouble with ACC – due in no small part to National’s current cutbacks and demands for greater “efficiencies” from state owned enterprises.
Ms Pullar is a National Party apparatchik and acquaintance of Nick Smith, a National Party MP, and ex-Minister for ACC. She is also close to other National Party high-ups; Michelle Boag , John Key, et al.
Ms Pullar attends a meeting with ACC officials, to push her case. She also has in her possession, files mistakenly emailed to her by ACC. Attending the meeting as a ‘support person’ is one-time National Party President, Michelle Boag.
Who-said-what at that meeting is contentious – each party accusing the other.
Michelle Boag then sends an email to Judith ‘Crusher’ Collins, regarding the issue.
For reasons of her own, Ms Collins forwards the email to ACC board chair John Judge and chief executive Ralph Stewart.
Soon after, the email is leaked to the media,
“Things came to a crescendo on Sunday March 18, 2012. That morning an article by the Herald’s David Fisher confirmed not only that Bronwyn Pullar was the mystery recipient of the information but that at the support meeting where the negotiation occurred she was supported by former National President Michelle Boag. The source of the information appears to be an email that Boag had sent to Collins.
The blogosphere kicked in. Cameron Slater had a detailed post up by 8 am, complete with historical emails and links. He then posted a further two posts on the subject up that day. I understand that Boag bet Slater’s father for the National Party presidency in 2002. It is apparent that Slater does not like Boag. He certainly appeared to be enjoying the difficult predicament that Boag had found herself in.” – Waitakere News
Who leaked the email?
The candidates are;
- Michelle Boag – the sender of the email and Bronwyn Pullar’s friend and supporter.
- ACC Minister Judith Collins – the recipient of the email who then forwarded it to:
- ACC chief executive Ralph Stewart and his secretary, and:
- ACC chairperson John Judge.
There is also an indication that Ms Pullar’s ACC case manager also viewed the email, as well as one of Ms Collins’ staff.
It’s fairly clear that whoever leaked the email did not forward it directly to the Herald. That would have left an electronic IP-trail*. Instead, it was most likely forwarded to Cameron Slater, who would have ‘stripped’ all IP details with a simply C&P; and then forwarded it to the NZ Herald.
Slater is fairly notorious for being a useful conduit to leak information from National, to the media. Using him as an intermediary removes embarressing electronic IP ‘footprints’.
So – who would have used Slater in this manner?
In playing “Who Dunnit”, it’s worthwhile considering the three componants of any nefarious activity,
- Motive
- Means
- Opportunity
Obviously, all parties to this affair have #2 and #3; Means and Opportunity.
It is #1 – Motive – that counts the most.
Who stood to gain the most by releasing the email?
Who wanted to protect his/her position the most?
Who was potentially most embarressed by the email?
Who has a relationship with Slater and could count on his discretion?
The following is honest opinion…
The last item is perhaps the most critical; whoever forwarded this email to Slater would have needed to be reassured that he would not betray the sender and land him/her in serious hot water.
Slater is National’s “asset”, doing their ‘dirty work’ . When the National hierarchy does not want to dirty their own hands with mud – but still want to make public damaging information to embarress a political opponant – Slater is their go-to man.
Slater’s role in such nefarious activities is even more useful to National after Paula Bennett’s clumsy mis-handling of private information belonging to two solo-mothers, which she disclosed to the media. There is still a complaint pending against Bennett for abusing her position as Minister for Social Welfare.
Somewhere, sometime, a top National Party apparatchik would have instructed each and every minister and MP not to repeat Bennett’s mistake. S/he would have given firm instructions that releasing damaging information to discredit an opponant had to be done surreptitiously, using a Third Party.
That Third Party would be Slater.
That would give National “plausible deniability” when the sh*t hit the fan and fingers were pointed.
In my opinion, Slater’s role in this increasingly bizarre and sordid affair points to who leaked the email.
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2. Prior ‘form’…
As explained in my previous blogpiece, Gerry Brownlee – “In the public interest”, this government is probably one of the leakiest in recent history. Leaking to the media and feral bloggers has become a ‘speed dial ‘‘ form of communication with the public.
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3. Consequential Matters Arising…
Using Third Parties such as Slater, to spread muck has it’s inherent dangers.
Eventually, the entanglements and the copious volumes of information at the hands of someone like Slater creates it’s own risks for his “handler(s)”. Slater will have considerable dirt on those who have leaked information to him. He will have to be “kept sweet”, to deny him cause to go rogue and threaten to disclose information embarressing to those who have fed him material in the past.
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4. A Question…
Isn’t it interesting that John Key acted at near super-sonic speed to lay a police complaint regarding the Teapot Tape. He was only too glad to allege to Police that his privacy had been breached by Bradley Ambrose.
Shouldn’t the release of Ms Boag’s email to the NZ Herald on 18 March, disclosing Bronwyn Pullar’s name and details, also count as a serious breach of privacy?
Why haven’t the Police been called in?
The answer, I suspect, is fairly obvious.
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(* The means by which the email was leaked is mostly irrelevant. I offer one method – there are at least two other means by which a transfer of information could easily occur.
-FM)
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Previous Blogposts
Gerry Brownlee – “In the public interest”
Other Blogposts
Waitakerenews: Was Nick Smith shot by friendly fire?
The Political Scientist: The banality of corruption
IDLE THOUGHTS OF AN IDLE FELLOW: Ms Boag points finger: Will Ms Collins resign?
Additional
National’s Boag was in ACC meeting (first media repeat disclosing Ms Pullar’s identity to the public)
ACC denies leaking information
Speculation rife over ACC leak
Boag angrily denies leaking ACC email
Computers focus of ACC privacy inquiry
Political round-up: Leaks and denials
Collins eyes ACC defamation action
ACC worker re-viewed leaked Smith letter (note; article’s Timeline ‘March 20’ date should read March 18)
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= fs =
