Court ruling on rat
deflating for boss
The Employment Court has given unions the go-ahead to insult employers during wage negotiations.
Workers’ representatives were also within their rights to use giant inflatable rats as part of their protests without fearing they were breaching ‘‘good faith’’ while bargaining.
Kaikorai Service Centre, which trades as Pak’n Save in Invercargill, complained to the court about First Union’s use of a giant inflatable rat in protests after wage negotiations stalled in 2016.
Around the rat’s neck hung a sign reading: ‘‘Don’t be a rat Mr Dobson’’.
Kaikorai Service Centre owner Bryan Dobson claimed that the use of the inflatable rat, and a sign referring to ‘‘Pak’n Slave’’, breached requirements under the Employment Relations Act for negotiations to be conducted in good faith.
But Judge Kerry Smith said the act did not ‘‘regulate, restrict, or confine’’ the way either employers or workers’ representatives communicated.
‘‘While there is likely to be a point where what has been said or done is so offensive or undermining that good faith is breached, the duty does not require bargaining to be undertaken in a courteous way. It does not require using polite language, or to resist robust positiontaking, or avoiding a combative style,’’ Smith said.
The union argued the use of the inflatable rat was part of an international tradition.
The use of a cartoon-style rat was a common means of industrial protest in New Zealand and elsewhere, such as in North America, it told the court.
The rat’s purpose was to publicise the industrial dispute, not to insult Dobson, the union argued.
‘‘The union, and its members, enjoy a right of free speech which they were entitled to exercise.’’
Judge Kerry Smith
Instead, it was a legitimate tool to bring pressure to bear.
The union also argued that the rat and a sign referring to Pak’n Save as ‘‘Pak’n Slave’’ could not be seen as defamatory.
Smith said Kaikorai Service Centre took exception to the rat and sign, and claimed they breached good faith.
‘‘As to ‘Pak’n Slave’, while the company submitted the slogan breached the duty of good faith for likening the business to slavery, the union considered that statement to be part of attempts to use legitimate pressure and was no more than a commonly used corruption of a wellknown trading name reflecting a reputation for paying low wages,’’ the judge said.
‘‘I agree with the union that the slogan did not breach the duty of good faith. It was an attempt to publicise the industrial dispute to obtain some leverage and nothing more,’’ Smith continued.
‘‘It needs to be borne in mind that the union, and its members, enjoy a right of free speech which they were entitled to exercise.
‘‘That is not to say that industrial relations should be conducted in some sort of open slather where any sort of behaviour, no matter how egregious, must be tolerated.’’
The dispute was part of an ongoing legal battle that started when the union took a case to the Employment Relations Authority claiming Kaikorai Service Centre had breached the good faith provisions of the act by refusing to include wages in collective bargaining.
The authority agreed, but Kaikorai Service Centre appealed the decision, and won.
The union has appealed that decision to the Court of Appeal.