Alexandra Miller

Summary‍

The Court of Appeal addressed whether split shifts constitute a single "work period" under the Employment Relations Act 2000 when determining bus drivers' rest and meal break entitlements, finding that it depends on the specific facts and circumstances of the employment arrangement.

Background‍

Tranzurban Hutt Valley Ltd ("Tranzurban") operates bus services in the Hutt Valley under contract with the Greater Wellington Regional Council, utilizing "split shifts" where drivers work morning and afternoon periods separated by a midday break. The New Zealand Tramways and Public Passenger Transport Employees’ Union Wellington Branch Inc ("Union") challenged Tranzurban's practice of treating split shifts with breaks of two hours or more as two separate work periods for the purposes of s 69ZC of the Act, arguing that this reduced drivers' entitlement to rest and meal breaks. The Union contended that the entire split shift should be considered one continuous work period, resulting in more breaks for drivers. In practice, the difference between the two approaches was that the Union's approach would have resulted in three paid rest breaks and two unpaid meal breaks, while Tranzurban's resulted in two paid rest breaks and one unpaid meal break.

The Employment Relations Authority initially sided with the Union, finding that a split shift constituted a single work period from the beginning to the end of the driver's workday.

However, the Employment Court overturned this decision, holding that the Act did not prevent parties from agreeing to multiple work periods within a workday. The Employment Court determined that the classification of a split shift as one or more work periods was a factual question depending on the hours worked, the nature of breaks, and the agreed terms of employment.

The Court of Appeal Decision

The Court of Appeal upheld the Employment Court's interpretation of s 69ZC, finding that it was correct in its approach. It emphasized that the terms and conditions of employment, as reflected in the Collective Agreement, were a key factor. The Court found that the Collective Agreement was permissive, not prescriptive, and did not mandate that all split shifts be treated as single work periods.

The Court then assessed whether Tranzurban's approach was consistent with the purpose of the Act, which is to ensure employees have adequate time to rest and refresh. The Court considered that drivers were free to use the two-hour break as they wished, and there was no evidence Tranzurban was structuring shifts to avoid providing breaks. The Court acknowledged that a rested, refreshed, and nourished driver promotes a productive employment relationship. The fact that Tranzurban designed the shifts around bus routes and demand was also relevant.

Result

The Court of Appeal dismissed the Union's appeal, finding that Tranzurban's approach to split shifts was consistent with the Collective Agreement and the overall purpose of the Employment Relations Act 2000.

This case provides guidance on determining rest break entitlements in the context of split shifts. It highlights the importance of examining the specific terms and conditions of employment and the practical realities of the work arrangement on a case-by-case basis.

For further information on this case or similar issues, please contact Director Brigitte Morten.

Hon Simon Watts, Minister for Local Government, introduced  the Local Government (System Improvements)Amendment Bill aimed at reducing pressure on council rates.

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The Bill will amend the Local Government Act 2022 to:

·        refocus the purpose of local government;

·        better measure and publicise council performance;

·        prioritise core services in council spending;

·        strengthen council accountability and transparency; and

·        provide regulatory relief to councils.

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Refocusing the purpose of Local Government

This Bill is part of the Coalition Government’s reforms to local government announced in August 2024 which focus on reduced local government spending and delivery of core services.

Currently, section 10(1) of the LGA states the purpose of local government  is to:

a)     enable democratic local decision-making and action by, and on behalf of, communities; and

b)     to promote the social, economic, environmental, and cultural well-being of communities in the present and for the future.

The second component of this purpose, known as the “four wellbeings”, has attracted controversy. The four wellbeings was removed from the LGA by the National Government in 2012, and reintroduced by Labour in 2019.In December 2024, the Government announced it would again remove them, with Simeon Brown (the then Minister for local government) stated they had led “to about a two percent higher rates growth each year”. Labour leader Chris Hipkins’ responded that this was “a complete fabrication”.

The Bill proposes to replace the four wellbeings with two alternative purposes:

a)     to enable democratic local decision-making and action by, and on behalf of, communities; and

b)     To meet the current and future needs of communities for good-quality local infrastructure, local public services, and performance of regulatory functions in a way that is most cost-effective for households and businesses; and

c)      to support local economic growth and development by fulfilling the purpose set out in paragraph (b).

This change means local authorities  are required to take actions or implement measures that realise the purpose of local government.  

Whilst reference to the specific four wellbeings has been removed, local authorities will still be required to consider the interests of current and future communities generally.

Another key change proposed by the Bill, is for local authorities to have particular regard to “core services” in serving its communities. The core services include; network infrastructure, public transport services, waste management, civil defence emergency management, and recreational facilities such as libraries and museums.

Measuring and publicising council performance

The explanatory note in the Bill outlines the intention of the Government to establish a council performance measurement framework similar to that established in New South Wales, with this Bill laying the “foundation” for it. Such a framework would involve the Department of Internal Affairs routinely publishing local authority performance information so that members of the public can more easily access information about the performance of their local authority.

Bill also prescribes further regulations that the Minister for Local Government is able to recommend, including for the purpose of specifying groups of activities that local authorities must plan for and report on, and for the setting of benchmarks in areas of local authority activity (that is beyond financial performance and asset management).

Prioritising core services in council spending

Under the LGA, a local authority must manage its revenues, expenses, assets, liabilities, investments, and general financial dealings in a manner that promotes the current and future interests of the community.

The Bill proposes to add an additional requirement that when a local authority is determining its approach to financial management, it must have “particular regard” to the purpose of local government and the core services.

Strengthening council accountability and transparency

Amendments are proposed to promote public expectations of local authorities and to support elected members to effectively represent their communities.

A proposed change is the enabling of the Secretary for Local Government (who is the Secretary for Internal Affairs), to issue a code of conduct and set of standing orders that are binding on local authorities. Currently, the LGA prescribes that local authorities must adopt standing orders, it does not prescribe the content of them.

The Bill also introduces an entitlement of members of local authorities to have access to documents held by it that are reasonablynecessary to enable the member to effectively perform their duties, imparting anew responsibility on local authority Chief Executives to ensure that membershave access to such documents.

Amendments to the local authority governance principles are also outlined, so as to insert new clauses regarding the fostering of “free exchange of information and expression of opinions by elected members” and “the responsibility of its elected members to work collaboratively”.

If the Bill is passed, information on how a local authority is acting in accordance with the governance principles would need to be included in local governance statements (which are required to be made publicly available following the triennial election).  

Providing regulatory relief to councils

Amendments to reduce or clarify regulatory requirements on local authorities in the pursuit of greater efficiency are included in the Bill, such as the extension of the maximum length of a chief executive’s second term (from 2 years to 5 years).

One amendment that may be considered controversial, is the removal of the requirement that local authorities must consider the relevance of tikanga Māori knowledge when appointing council-controlled organisation directors.

Next steps

The Bill is likely to be sent to Select Committee in July2025 and public submissions will be called for.

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If you would like further information on the Bill, please contact Director Brigitte Morten.

Summary

Te Runanga o Ngati Awa (NgatiAwa) and Sustainable Otakiri await a Supreme Court decision on their unsuccessful challenges to consents granted to a Chinese-owned water bottling company for water extraction near Otakiri.

Background

Creswell is a subsidiary company of Nong fu Springs, a Chinese water bottling giant. It was established in 2016 and entered into an agreement to purchase an existing water bottling plant in Otakiri.

In 2018, approval was given to purchase approximately 6 hectares of land at Otakiri Springs, conditional on obtaining all necessary consent. Water permits from the Bay of Plenty Regional Council and land use consents from Whakatane District Council were granted which would enable Creswell to export over one billion litres of drinking water annually.

Initial Challenges

Ngati Awa and a group called Sustainable Otakiri which consisted of residents living near the bottling plant (“Applicants”), sought to challenge the granting of these consents in the Environment Court.

The Environment Court upheld the consents, and the Applicants appealed to the High Court. The key questions on appeal included:

1.       whether the “end use” of the bottles could be considered (i.e. export and use of plastic bottles);

2.       whether recourse to Part 2 of the Resource Management Act 1991(“RMA”) was required;

3.       whether negative effects on te mauri o te wai and the ability of Ngāti Awa to exercise kaitiakitanga (the negative tikanga effects) could be considered; and

4.       whether there was an error in determining that the activity was the expansion of an existing activity rather than a new activity.

The High Court dismissed the appeal, echoing the Environment Court's view that broader public concerns about Creswell's operations are a matter for legislative, rather than judicial, resolution.

The Court of Appeal

The Applicants were then granted leave to appeal to the Court of Appeal. Five of the fifteen grounds of appeal sought, were granted. The Court dismissed the appeal, finding in favour of Creswell.  

Of significance, the Court of Appeal found that “end use” is a permissible consideration, but the potential effects of plastic bottle disposal were too remote to be relevant in this case. In particular, the disposal would be occurring overseas by third parties and it would be very difficult to quantify the environmental impact.  

Part 2 of the RMA outlines the purpose and principles of the RMA, which refer to Māori relationships with water and consideration of the principles of the Treaty of Waitangi. The Court found that these provisions were considered in forming the relevant planning instruments, including the regional policy statements and plans, and therefore the local authorities were not required to directly consider the Part 2 provisions in deciding to grant the consents.

The Court of Appeal disagreed with the lower courts, and did find an error in the classification of the activity (the expansion of the bottling plant) under section 127 of the RMA. In particular, it was not a change to an existing consent, but a new activity requiring a new consent. However, this error did not affect the outcome and therefore the decisions of the local authorities were upheld.

The Supreme Court

The Supreme Court granted leave to the Applicants to appeal the Court of Appeal's decision. Leave was also granted on a question the Court of Appeal had declined leave to consider. This was regarding the High Court's findings on the negative tikanga effects of the proposal.

The Supreme Court reserved its judgment in November 2023 and there have been no further updates.

The decision will be significant in understanding how tikanga Maori is integrated into resource consent processes in New Zealand but this is likely to change in the current government’s RMA reforms.

Production under the granted consents cannot begin until and unless the Supreme Court issues its decision upholding them.

To understand more about this case or similar decisions, please contact Director Brigitte Morten.