Employees cannot be forced to cover for striking colleagues, they must agree to taking on the work.
The Court of Appeal ruled that Atlas Specialty incorrectly suspended two employees who refused to operate machinery when the regular operators were on strike. The two were entitled to arrears of wages for an unlawful suspension.
The dispute arose during wage negotiations in 2005. Staff who normally operated a coil slitter were on strike. Atlas asked two employees who were not on strike to handle the machine. They were competent to do the work, and regularly operated the coil slitter when the regular operators were on leave or away sick. They refused to do their colleagues work during the strike, and were immediately suspended.
The legal issue centred on the manner in which an employer could use strike breakers.
The employer argued that any employee who normally undertook the work in question could be required to do the strikers’ work.
The Court of Appeal said the Employment Relations Act 2000 prohibits the use of new employees, or contractors, to break a strike, but does allow existing employees to do the work – provided they agree to do so.
Employers argued this meant strikes could never be broken: employees would always refuse to cover for striking colleagues. The Court said there are other options: employees refusing to provide cover might carry out work being done by other existing employees who in turn might cover for the striking workers.
Finau v. Atlas Specialty – Court of Appeal (7.8.09)
10.09.003