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Employment Court gives nurses the green light to strike

16 Jun 2023

| Author: Jamie Dierick

Employment Relations Act 2000 – s 90 notice to strike – s 84 strike on grounds of health and safety – interim injunction – interim injunction essentially summary judgment in circumstances – serious question to be tried about health and safety concerns under s 84 – balance of convenience in favour of strike based on health and safety and short duration of the strike – overall interest of justice lies in favour of the strike

Te Whatu Ora Health New Zealand v New Zealand Nurses Organisation Incorporated [2023] NZEmpC 75 per Judge K G Smith)

On 9 May 2023, the New Zealand Nurses Organisation gave notice of a strike at Gisborne Hospital on safety and health grounds on 24 May 2023 between 1.30pm and 2.30pm.

On 16 May, Te Whatu Ora Health applied for urgent interim orders to restrain the strike planned by its employees, who are members of New Zealand Nurses Organisation. The hearing was held on 22 May 2023.

Because hospitals are an essential service, the strike notice had to comply with s 90 of the Employment Relations Act 2000. Te Whatu Ora did not contest compliance , but questioned whether the nurses could do so on health and safety grounds.

Judge K G Smith applied the same principles that would apply to an application for an interim injunction: an assessment of whether there was a serious question to be tried, whom the balance of convenience favoured, and where the overall interests of justice fell.

The judge also recognised that in scenarios where the proposed action cannot be deferred without effectively being cancelled, the granting of interim relief is essentially a summary judgment.

In relation to whether there was a serious question to be tried, the judge looked at s 84 of the Employment Relations Act, which states a strike is lawful if the employees have reasonable grounds for believing it is justified on the grounds of safety or health.

The nurses’ evidence indicated ongoing staffing problems and compromised patient care. They described staff shortages, care rationing, delayed assessments, compromised patient dignity, exhaustion, stress, and anxiety.

While the hospital had taken some steps to address the concerns, there was potential to argue the proposed strike was aimed at forcing the hospital to take further action.

The court, therefore, recognised the validity of the nurses’ concerns about safety and health, holding there was a serious question to be tried that a strike would likely be deemed lawful under s 84.

The judge also concluded the balance of convenience favoured the Nurses’ Organisation due to the short duration of the strike and the provision of life-preserving services.

The court said it was not in the overall interest of justice to grant Te Whatu Ora Health New Zealand’s application.

Held: Application for interim injunction to restrain strike from occurring dismissed.

Te-Whatu-Ora-v-NZ-Nurses-Org-Inc (1)

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