A class action against MUNZ?

via the tipline

The Owl has written up some interesting aspects of law for union members to consider:

Under commercial law members of the Union would be able to go about a class action against its Union for damages.

The Union charges members a subscription for services provided. This is basic “offer and treat”

The Union provides employment advice and is not a “polictical party” which MUNZ website clearly states.

Their employment advice is covered by statutes the same as Financial Advisors, Accountants and Lawyers. If any of these industries transgress their boundaries they can be sued for damages and there is plenty of case law to back this up.

The Union organisers have blurred the lines between what members pay them for and what their agendas are. By losing their jobs when reasonable offers were on the table they have not provided the best advice expected.

It is fair to say that key members of the debate (no more than Mr Brown) have publicly stated that the Unions could of settled at the first meeting. With the relationship between Mr Brown and Union publicly known then the argument of “fair and reasonable” would stand up in court.

If it can be proven that POAL offer would not commercially disadvantage MUNZ (all information says it would not) then the Union organisers need to provide the best advice available.

The only way to prove this would be a class action against the Union and then under law the Union and POAL would be required to allow the lawyers from both sides “discovery” of all documents, correspondence and any relevant information.

The final part of any class action would highlight any deficiencies of the statutes covering Unions and their ability to provide advice of the “highest standard”

For this all to happen is a number of members to find a lawyer who is willing to take up the case. Employment law is well tested through the courts but never has Union services they receive financial rewards for been tested. Now is the time.

Is there a brave lawyer and some union members who are keen to try? I think the public would be keen for this to be done as such a court case would provide clarity.

The Owl

 


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  • Euan Rt

    Sounds fascinating. We need some legal minds to give this some consideration. 

  • ConwayCaptain

    WOW!!!!!!!!!!!!!

  • In Vino Veritas

    Hmmm. Don’t be too wowed. I think the Union’s rules need to be scrutinised. Owl makes a case based on a contractual arrangement – Union offers services (offer), worker decides to join (acceptance) and pays dues (consideration). However, the MUNZ incorporated society will have rules, which they will claim the workers would have and should have looked at. And almost certainly there will be contradictory or at best grey clauses in the rules. Again, almost certainly there will be “as union decides best” inclusions which may have the effect of giving Union carte blanche to do damn near anything, no matter the effect on its members.

    • Budgieboy

      ….including the ability to royally screw over their
      membership?

      Now there’s a defence I would love to see!!!

       

      What is it that these parasites keep harping on about –  ‘good faith’?

      • phronesis

        I sued a billion dollar public institution in NZ and that was their defence. They bought me off the day before the trial but it would have been an amusing trial.

  • johnbronkhorst

    “The Maritime Union recognizes the importance of not relying on achieving its goals simply through parliamentary methods, and will continue to use industrial tactics and community campaigns to further the interests of the majority, the working class.”…Taken from an article titled “Election 2011” on the MUNZ web site. Wonder how this stacks up with the unions promises to it’s members? Looks to me like an anti democratic attempt to circumvent the election! In light of what has happened at the port (re the union), before during and since the election!

  • Jester

    Sorry bit off topic but did anyone hear on the lead up to the Radio Live 2pm news slot? Im pretty sure the short report was that some picket members are wanting to return to work but have stated that they feel too scared to do so. May be the usual repeaters searching for ratings but this is pretty significant if the line is weakening.

  • Adolf Fiinkensein

    Yesterday I read somewhere that MUNZ has assets and cash to the value of $17 million.

    Ripe for plucking, I’d say.

    • johnbronkhorst

      Don’t forget, under union rules some of that money goes to Labour party campaigning!

    • In Vino Veritas

      At 31 March 2011 MUNZ had $2.133m in net assets. This includes $2.595m of cash and investments, and $1.654m of liabilities to its branches which apparently need to be paid by Dec 2012.

  • Tevisiteur

    I think Owl is off-track here.  The union doesn’t act as an adviser to employees, but as their agent.  The union is unlikely to be liable for the success or failure of the agent in achieving a particular negotiating outcome, just as it’s very difficult to sue your lawyer for not achieving the outcome you desire unless you can establish a breach of fiduciary duty (i.e., negligence, or malicious intent).  Both are very difficult to satisfy.

    A better argument would be whether the Union is acting with the consent of its membership, and whether the Union took reasonable steps to ensure that the membership did consent to the Union’s strike notices.  It would depend on whether MUNZ’s constitution give it carte blanche to issue strike notices during bargaining without expressly seeking the membership’s consent, or not.
    Given that MUNZ has not held any ballots before proceeding to strike notices, it would certainly be worth a test to see if the Union is required to expressly seek the consent of its membership by balloting its members, and whether it breached its fiduciary duty as an agent by not doing so.

  • A strictly non-legal reason to take MUNZ to court is they have a lousy record in court recently, in fact as far as I know they’ve never got past the big fat bagel…….

  • Blokeintakapuna

    Surely the NZ public with a class action suit would qualify for legal aid?

    Surely if Mark Byers & Petrovic can get it – so can the entire NZ public??

  • Pakeha56

    ‘ By losing their jobs when reasonable offers were on the table they have not provided the best advice expected.’
    If the port company had signalled its intention to sack the workforce if the union did not submit to the changes then this writer might have a point. But in this case the union would normally put it to a vote, I expect.

    • Justine

      You are forgetting that the strike action caused the loss of signficant customers.  Regardless of whether or not the port has signalled it’s intention, MUNZ went on strike  repeatedly and big business left the Ports of Auckland.  Losing Fonterra and 2 Maersk services was always going to create layoffs whether contracting out happened or not.

      MUNZ strikes every 2-3 years and it has done some irreparable damage to its image with shipping lines.  Without the lines – no work.  It will take months and probably years before they feel confidence in POAL again.

  • JimboBug

    Out of interest if you incurred costs as a direct result of the various illegal strike actions then would you be able to sue the union to get these back (assuming your contract with the port doesn’t cover you for those delays)?

  • Anonymouscoward

    Both striking and locking out are legally permitted actions under industrial legislation.

    If a strike ballot was held by a group of individuals who had banded together voluntarily to advance their employment interests within a collective structure the law would regard an individual member as bound by the ballot decision and as a consequence a party to the risks of the strike

    If an individual wishes to backslide there is nothing to stop them resigning from the union, revoking the unions bargaining authority and dealing directly with the employer and try to get whatever deal he is able to achieve as an individual.

    Anonymouscowards postulation: Employers get the unions they deserve.

  • Owl

    I guess this is an interesting discussion and I am sure people would be interested in reading the MUNZ Consitution which is on the Societies of NZ office website – just type in Maritime Union of New Zealand in the search bar.

    Someone made the point the Union acts as Agents – Real Estates have Agents as well.

    My point comes down to whether all offers were reasonable. First they must have been because the Union has said it is not about money – so one can assume they voted for the remmuneration package as a resounding YES. Then that argument would be won in court. The next point is about families.

    Questions:
    Did POAL take into account family matters or how it would affect union members? If under scrutiny it showed that the POAL were as they say “did what as reasonable employer would do?”  and that was a yes or could be proven they were then the offer from POAL was fair and reasonable under good faith bargining.

    Did the Union then provide all this information prior to the ballot taken? I would say they probably did.

    From experience someone speaks in favour or against the offer. So who said what?

    So a quick recap – “it is not about the money”. So MUNZ wouldn’t have a leg to stand on.
    Is it then only about casualization and the effect on Families.

    What is casualisation and where does this term appear in any legal statute in NZ? Coining phrases to explain a situation is fine – but determining what it is actually would be crucial?

    There is no case law from what I have read outlaws casualisation if there ever was such an employment word.

    I stand to be corrected – NB not interested in any foul mouth replies – this one is about sensible points of employment law etc etc etc

    • Bunswalla

      Owl, great work as usual, but I’m pretty sure that all major decisions related to this dispute will have been put to the vote by members of MUNZ. This means the union and its management can point to the votes and say it wasn’t their decision but that of their members. MUNZ lawyers would also say that if any members didn’t like the decisions they were free to leave the union and negotiate an IEA with the Port.

      The fact that the votes were not taken in secret, enabling intimidation, threats and coercion to get the result the union wanted, is unfortunatley immaterial due to current legislation. The fact that getting out of the union is much harder than it is to get in (and you leave yourself open to “consequences” for “betraying your bruvvers” is also going to be very hard to prove.

      Unfortunately the sad manipulated rank and file members have been shafted and – a bit like leaving an abusive relationship – they’re going to have to man up and take the step to leave if they want to be free to choose how they live their own working lives.

    • Bunswalla

      Union version of democracy = Vladimir Putin’s recent re-election
      Leaving MUNZ = leaving the cosa nostra (not something to be taken lightly)

      • Mully

         Yeah – I was thinking it’s like leaving a gang….

  • Hiding

    Would there be some way that the union members themselves could tell the truth but not be identified? Would it be allowed in a court of law to prove that intimidation was used?

    • Owl

      Hiding – are you are Union member or just asking the question?

      • Hiding

        I am just asking the question thank you owl. in hope that those that may want to pursue this will be reading this blog. I appreciate the answer.

  • Owl

    Message to comments made by Hiding – Yes there would be protection and it would be admissible along as no evidence was taken without consent. The lawyers would also have show that a witness was in danger if identified.

    There is probably a high threshold of proof but under certain circumstances I guess it would be okay.

    I think via the whale oil tip line if there were a number who were interested you could contact on there in the first instance – I think if there was at least a dozen members then I believe that is a reasonable starting point.

    If zero – then I guess solidarity in the Union membership is strong and backs up MUNZ’s comments.

  • Greg M

    Very good work as always Owl, Thank you. G.

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