IN THE EMPLOYMENT COURT AUCKLAND [2017] NZEmpC 52 EMPC 186/2016. Plaintiff. RESTAURANT BRANDS LIMITED Defendant

Transcription

1 IN THE EMPLOYMENT COURT AUCKLAND IN THE MATTER OF BETWEEN AND [2017] NZEmpC 52 EMPC 186/2016 a challenge to a determination of the Employment Relations Authority UNITE UNION INC Plaintiff RESTAURANT BRANDS LIMITED Defendant Hearing: 10 November 2016 Appearances: P Cranney, counsel, and D Allan, advocate for plaintiff S Langton and R Tomkinson, counsel for defendant Judgment: 12 May 2017 JUDGMENT OF JUDGE K G SMITH Introduction [1] The plaintiff and defendant are parties to a collective agreement that covers certain work in restaurants operated by the defendant. A dispute has arisen about how to interpret the overtime provisions in that collective agreement. [2] What is in issue is the amount payable for overtime where an eligible employee discharges duties as a Shift Supervisor Sole Charge or an equivalent role. Background [3] This proceeding is a challenge by the plaintiff to a determination of the Employment Relations Authority (Authority) over how to calculate overtime in a UNITE UNION INC v RESTAURANT BRANDS LIMITED NZEmpC AUCKLAND [2017] NZEmpC 52 [12 May 2017]

2 collective employment agreement providing for overtime to be paid at time and a half of the ordinary rate. 1 [4] The plaintiff and defendant are parties to the Waged Store Employees Collective Employment Agreement. The term of that agreement was from 1 April 2015 to 31 March That agreement covered members of the plaintiff employed to work in the defendant s KFC, Pizza Hut, Starbucks and Carl s Jr restaurants. In that agreement remuneration is provided for in cl 3, which contains rates of pay and allowances, provides for wages to be paid weekly, deals with broken shifts, and describes the role of Shift Supervisor Sole Charge. [5] Clause 3.1 is described as being Wages Hourly Rates of Pay. This clause contains an introductory section that reads: The Employer s commitment is that Employees will have access to training that will allow them the opportunity to progress through the qualification levels with the intention, where practicable, of achieving KFC Gold Star, Pizza Hut Expert Gold, Carl s Jr. Star and Starbucks Certified Barista qualifications within 12 months of employment. This is dependent on the Employee taking up the opportunity for learning and development including the amount of shifts worked and demonstrating competency. [6] After that introduction, cl 3.1 contains several tables, each one stating a role with the defendant s relevant restaurant brand, training levels or skills, and an applicable hourly rate of pay. The remuneration table for KFC illustrates this format: KFC Role Training / Skill level Hourly Rate (Upon completion & RBL sign-off) Team Member Base $14.75 Team Member Gold Star $15.77 Team Member LAS $16.44 Shift Supervisor Sole Charge LAS $21.27 (This rate includes the base rate and the sole charge allowance listed under Allowances) 1 Unite Union v Restaurant Brands Ltd [2016] NZERA Auckland 219.

3 [7] The defendant s other restaurant brands listed in the remaining tables in cl 3 use the same format with some minor differences immaterial to this dispute. [8] In the table at [6] a KFC employee starts his or her employment as a Team Member at a training/skill level referred to as Base with an hourly rate of $ Progression to Gold Star follows with an increase in the hourly rate to $ The acronym LAS means the employee is a team member who has achieved a level of training or skill to be able to lead a shift. Each of the four restaurant brands listed in the tables in cl 3 provides for training or skill levels of LAS or its equivalent. [9] Clause 3.4 provides for allowances payable in addition to the hourly rates of pay in the tables in cl 3.1. The same format is used, with each allowance being described in tables that apply to each restaurant brand. This clause begins with the introductory words Allowances are paid in addition to Hourly Rates of Pay and in accordance with the following. The KFC table is: KFC Shift Supervisor Sole Charge Allowance Payment is payable for the hours worked in a sole charge capacity. Late Shift Allowance An allowance shall be paid to eligible Employees for time worked after midnight. Broken Shift Allowance When an Employee is engaged on a broken shift on any day, he/she shall be paid an allowance. Higher Duties Allowance An allowance is payable for the time an Employee works in a role with increased responsibilities, as determined and authorised by their Store Manager. $4.83 per hour (in addition to base rate) $0.36 per half hour (in addition to base rate) $2.11 per day $0.72 per hour (in addition to base rate) [10] The agreement explains what is meant by Shift Supervisor Sole Charge at cl 3.2 as follows:

4 Shift Supervisor Sole Charge Sole charge occurs when the Shift Supervisor is ultimately responsible for the direction and management of rostered staff, product quality, food safety, customer flow and customer needs, including service delivery and resolving customer complaints, during a shift. If rostered as a Shift Supervisor responsible for running a shift (as above), the employee remains in this position for the duration of the rostered period and is paid accordingly, regardless of other management on site. Examples of eligible Shift Supervisors, who have entitlement to claim the Sole Charge Allowance, are as follows: Rostered as Shift Supervisor, i.e. responsible for running a shift (as above); Rostered as a Team Member, however, upon commencing a shift is asked to run the shift (as above) in the absence of the rostered Shift Supervisor, resulting in the employee becoming the Shift Supervisor for a specific shift. [11] It was common ground that the defendant s employees are not employed in a job or position as Shift Supervisors Sole Charge as is apparent from cl 3.2; it is a role that is performed as required. Each employee is a Team Member who must be paid in accordance with the tables in cl 3.1 and, depending on the role or function that employee is required to perform, he or she becomes entitled to one or more of the allowances in the tables in cl 3.4. Overtime [12] The problem which has emerged is what to pay for overtime where a team member has performed the role of Shift Supervisor Sole Charge because of the wording of cl 8.1. Clause 8.1 reads: Authorised overtime. Authorised overtime shall be payable at time and one half of the ordinary rate as follows: Where an Employee works more than 8 hours on any day or 40 hours in any working week. A working week is defined as starting on a Tuesday and ending on the Monday following. Periods of leave are not deemed to be worked and therefore are not eligible to be included in overtime calculations. (original emphasis) [13] There is no definition of ordinary rate anywhere in the agreement even though the phrase is used in cl 3.1 and elsewhere; for example in cl 11 which provides for payment at the employee s ordinary rate during training. Compounding

5 the problem caused by the absence of a definition of ordinary rate is that the tables in cl 3.1 specify an hourly rate and, for a Shift Supervisor Sole Charge, refer to a base rate ; however, base rate is not defined. The dispute [14] On 19 March 2015 the plaintiff raised an issue with the defendant about the pay, including overtime, for one of its members who was a Shift Supervisor at a KFC restaurant. In answering that query, the defendant s response was that overtime was payable on the ordinary rate which did not include allowances. [15] That explanation was not acceptable. The plaintiff drew to the defendant s attention that the sole charge function for which the allowance was payable was listed as a role in the table in cl 3.1. The Union s said: The pay shift supervisors are specified to receive in the Collective is listed as a combined single rate. It is not an allowance, it is [an] hourly [pay rate] for a role that KFC workers work. They are therefore entitled to time and a half on the hourly [pay rate], currently $21.27, that they work. [16] On 9 June 2015 the defendant replied and pointed out that, following bargaining in 2010, an amendment was made to the collective agreement that applied at that time, to define shift supervisor and provide an entitlement to claim for a sole charge allowance. The defendant also said that, following bargaining in 2012, the collective agreement was amended: to further clarify payment for Shift Supervisors operating in a sole charge capacity; a row was added to the remuneration tables to demonstrate the total combined amount for a Shift Supervisor operating in a sole charge capacity (the Team Member hourly rate for an LAS certified employee combined with the sole charge allowance). (original emphasis) [17] That letter continued: The meaning intended by the parties was to both eliminate confusion around entitlement to the sole charge allowance and clarify, at a glance, the total applicable in charge rates; there was never any intention to create a new and additional position, with a singular hourly rate. (original emphasis)

6 [18] The balance of that letter expressed the defendant s opinion about clauses in the collective agreement it thought relevant to its interpretation. Specifically, the defendant noted that other allowances were not included in the hourly rate in the tables in cl 3.1. The letter ended with the defendant noting that it had operated consistently in how it had calculated and paid overtime since at least Previous collective agreements [19] In considering the meaning of ordinary rate in cl 8.1, an overview of previous collective agreements provides some context. Between 2006 and 1 April 2015, when the relevant collective agreement commenced, there had been five collective agreements covering the following periods: March March 2008, 1 April March 2010, 1 April March 2012, 1 April March 2013, 1 April March Each of them provided for overtime to be paid at timeand-a-half of the ordinary rate, but none of them defined what was meant by that term. [20] The first two collective agreements (March 2006 March 2008 and 1 April March 2010) adopted the same mechanism for paying wages, allowances and overtime. In each agreement, wages for all of the defendant s restaurants were stated in one table in a part of the agreement labelled Schedule A - Remuneration. That table provided for a dollar amount and differentiated between employees based on experience and qualifications. The table ended at LAS or its equivalent. It did not provide for a Shift Supervisor Sole Charge role, which was in a separate section of the schedule labelled Allowances (in addition to the above rates). [21] Changes were made to the way in which remuneration was expressed in the collective agreement. The same format was retained with remuneration being referred to in Schedule A. Instead of referring to wages, this collective agreement referred to hourly rates of pay which were set out in separate tables for each of KFC, Pizza Hut and Starbucks. Schedule A listed allowances in separate tables specific to each restaurant brand. Each of those tables provided for an allowance for a Shift Supervisor Sole Charge, and underneath the stated dollar amount of that allowance the words in addition to base rate are in brackets. As

7 with the previous two collective agreements, this agreement provided for overtime at time-and-a-half of the ordinary rate without further definition. This agreement did not define base rate even though that term was used in it. [22] A further change occurred when the parties settled a collective agreement covering the period April 2012 to March The table format was retained. This is the same format referred to at [6] above. However, this collective agreement had a row added to the hourly rates table referring to Shift Supervisor Sole Charge and included the words in brackets: This rate includes the base rate and the sole charge allowance listed under Allowances. However, the agreement did not otherwise explain what was meant by base rate or how to determine the ordinary rate for paying overtime that was stated to be payable at time and one half of the ordinary rate. [23] The method of providing for overtime remained unchanged when the Waged Store Employees Collective Employment Agreement 1 April March 2017 was settled. Bargaining [24] The only evidence about bargaining came from witnesses called by the defendant. Ms Jennifer Buddle, the defendant s General Manager, People & Performance, gave evidence about her involvement in the bargaining that led to the collective agreement for 1 April 2015 to 31 March Her evidence was supported by evidence from Mr Paul Diver who is an experienced employment relations consultant. The plaintiff elected not to call evidence but relied on documents admitted by consent. [25] Ms Buddle had been engaged in bargaining for collective agreements, on behalf of the defendant, with the plaintiff in 2010, 2012, 2013, 2015 and She also explained how the defendant has paid overtime in the past. Her uncontradicted evidence was that the defendant does not have a job described as Shift Supervisor Sole Charge (or its equivalent) in any of its restaurants. It is a role an employee

8 becomes eligible for through training or experience recognised by the LAS" entry in the remuneration tables. [26] Ms Buddle explained that, when qualified, an employee worked as a general Team Member, Crew or Barista depending on the restaurant brand concerned. The allowances were only applied by the defendant for those periods of time when the employee was rostered to be in charge of, or was running, a shift. [27] Ms Buddle said that the first time a dispute arose about calculating overtime for those employees who had worked as Shift Supervisor Sole Charge was in the correspondence in March 2015 which I previously mentioned. She had no recollection of overtime being discussed in relation to the payment of allowances during any of the bargaining for collective agreements in which she was involved. [28] However, an issue did arise in bargaining for the collective agreement that Ms Buddle considered explained the last row in each of the remuneration tables in cl 3 (referred to at [6] above). She said: What happened was that I had received feedback from employees that they would like to be able to identify, within the collective agreement, the total hourly amount of dollars that they would receive when operating as a Shift Supervisor Sole Charge. They wanted to see the Shift Supervisor Sole Charge dollar amount listed as the total of the hourly rate plus the allowance. This was as opposed to having to look up the hourly rate for the relevant skill (for example, LAS) in one section, and then look in another section of the document to find the relevant allowance relating to Shift Supervisor Sole Charge. [29] Her evidence continued: This feedback was also raised by me with the Union at the time. I advised them that my suggestion was to display the rate within the document as a combined figure representing both the base rate plus the allowance. [30] Ms Buddle made a note of her conversation with the Union about this subject. She said:

9 I have a note that I made during the bargaining on 27 March 2012 that records "[Unite s] Mike Treen advised he was generally in favour of (employees) being able to easily access (the rates information) and receive more information". [31] She explained that the words in brackets in the tables in cl 3.1, underneath the hourly rate for Shift Supervisor Sole Charge, were drafted by her to meet this request. The words in the collective agreement for 1 April March 2017 had been carried over from this previous agreement. [32] Mr Diver s evidence was that he had been involved in successive collective agreement bargaining between the plaintiff and the defendant since 2006 and during that time no claims had been raised in bargaining about overtime. Plaintiff s case [33] The plaintiff s case is that the rate to use when calculating overtime for a qualified employee who has worked as a Shift Supervisor Sole Charge (or its equivalent) is the hourly rate in cl 3.1; in the example given for KFC that rate is $21.27 per hour. What happened in the drafting of the collective agreement was that the allowance for the role of Shift Supervisor Sole Charge was included in that hourly rate. Consequently, where overtime for a Shift Supervisor Sole Charge is concerned, the hourly rate in the cl 3.1 table is synonymous with the ordinary rate in cl 8.1. Defendant s case [34] The defendant s case is that, where overtime is concerned, the ordinary rate for its employees who act as Shift Supervisor Sole Charge is the Team Member leading a shift, or LAS, rate. Payment of a separate allowance compensates for performing that role. In the KFC example at [6] above, that rate is $16.44 per hour. Discussion [35] There was no disagreement on the approach to take when interpreting the parties collective agreement. Mr Cranney, for the plaintiff, relied on New Zealand

10 Professional Firefighters Union v New Zealand Fire Service Commission. 2 He also referred to, and relied on, Secretary for Education v New Zealand Educational Institute Te Riu Roa. 3 [36] Mr Langton, for the defendant, referred to Vector Gas Ltd v Bay of Plenty Energy Ltd 4 and to Professional Firefighters Union. 5 [37] Both counsel also referred to Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc, 6 in which the Court of Appeal recognised that Vector Gas applies to interpreting collective agreements, and noted that it is appropriate, when considering collective agreements, to take into account undisputed evidence as to the terms of prior instruments. 7 [38] In Vector Gas, Tipping J said: 8 The ultimate objective in a contract interpretation dispute is to establish the meaning the parties intended their words to bear. In order to be admissible, extrinsic evidence must be relevant to that question. The language used by the parties, appropriately interpreted, is the only source of their intended meaning. As a matter of policy, our law has always required interpretation issues to be addressed on an objective basis. The necessary inquiry therefore concerns what a reasonable and properly informed third party would consider the parties intended the words of their contract to mean. The court embodies that person. To be properly informed the court must be aware of the commercial or other context in which the contract was made and of all the facts and circumstances known to and likely to be operating on the parties minds. Evidence is not relevant if it does no more than tend to prove what individual parties subjectively intended or understood their words to mean, or what their negotiating stance was at any particular time. [39] Tipping J explained why an objective approach rather than a subjective one is required, and said: New Zealand Professional Firefighters Union v New Zealand Fire Service Commission [2011] NZEmpC 149. Secretary for Education v New Zealand Educational Institute Te Riu Roa [2016] NZEmpC 100. Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444. New Zealand Professional Firefighters Union, above n 2. Silver Fern Farms Ltd v New Zealand Meat Workers and Related Trade Unions Inc [2010] NZCA 317, [2010] ERNZ 317. At [43]. Vector Gas, above n 5, at [19]. At [21].

11 But despite its eschewing a subjective approach, the common law does not require the court, through the objective method, to ascribe to the parties an intention that a properly informed and reasonable person would not ascribe to them when aware of all the circumstances in which the contract was made. [40] He went on to say: 10 Nor does the objective approach require there to be an embargo on going outside the terms of the written instrument when the words in issue appear to have a plain and unambiguous meaning. This is because a meaning that may appear to the court to be plain and unambiguous, devoid of external context, may not ultimately, in context, be what a reasonable person aware of all the relevant circumstances would consider the parties intended their words to mean. An example of that situation is when plain words, read contextually, lead to a result which does not make sense, whether commercially or otherwise: a meaning that flouts business commonsense must yield to one that accords with business commonsense. [41] His Honour also observed that context is always a necessary ingredient in ascertaining meaning. He observed: 11 You cannot claim to have identified the intended meaning without reference to context. Hence it is always permissible to go outside the written words for the purpose of identifying the context in which the contract was made and its objective purpose. While there are no necessary preconditions which must be satisfied before going outside the words of the contract, the exercise is and remains one of interpretation. [42] Finally, Tipping J acknowledged that the contractual context could be referred to as a cross-check and in practical terms that is likely to be what happens in most cases. 12 Tipping J observed that there is no difficulty in considering evidence about negotiations which took place because that can properly inform an objective approach to meaning. That is to be distinguished from the subjective views of either of the parties as to what they consider the contract means. Relevant evidence can include post-contract and pre-contract evidence At [22] (footnotes omitted). At [23] (footnotes omitted). At [24]. See also New Zealand Airline Pilots Assoc Inc v Air New Zealand Ltd [2016] NZEmpC 116.

12 Plain meaning [43] Both parties began their analysis by drawing on dictionary definitions to explain what ordinary rate means in plain language. Drawing on the Oxford English Reference Dictionary, Mr Cranney submitted that as an adjective ordinary is defined as with no special or distinctive features; normal. As a noun ordinary is defined as what is commonplace or standard. 14 [44] He linked that definition with the fact that the hourly rate in the agreement is a single payment due to the employee for each hour worked as a matter of agreement. Relying on Idea Services Ltd v Dickson, Mr Cranney submitted that there was only one payment for the unit of time; that is $ On this basis the collective agreement described how the Shift Supervisor Sole Charge rate was made up by recognising that it consisted of two components, but otherwise that hourly rate was to be used for calculating overtime. In this analysis it follows that the words in brackets in table 3.1 described the components of that combined rate and it was not appropriate for the defendant to separate them. [45] Relying on the hourly rate being an indivisible payment for the unit of time worked by an employee, Mr Cranney submitted that it is the agreed rate now payable for the work as a matter of ordinary or expected or standard practice. That means a person entitled to be paid for working as Shift Supervisor Sole Charge would ordinarily expect to receive $21.27 per hour for that work. That is his or her ordinary rate : what is expected for performing that role. Consequently, the column labelled Hourly Rate in the tables in 3.1 is synonymous with ordinary rate for the purposes of calculating overtime. [46] In explaining the bracketed words in the Hourly Rate column that refer to a base rate, Mr Cranney said they supported the plaintiff s case. That is because while a base rate may make up a part of an ordinary rate, the converse does not apply. The ordinary rate (that is, what is expected) cannot often be said to be capable of Oxford Living Dictionaries (free online ed) Idea Services Ltd v Dickson [2009] ERNZ 372, (2009) 7 NZELR 121.

13 including only the base rate and nothing else. He submitted that the terms ordinary rate and base rate do not, in this context, bear the same meaning. [47] Mr Cranney took some comfort from the Court of Appeal decision in Ports of Auckland Ltd v New Zealand Waterfront Workers Union Inc, 16 which did discuss an ordinary time rate, although that case was concerned with interpreting s 7A(1) of the Holidays Act In that context comments about an ordinary time rate of pay do not assist in determining the meaning of ordinary rate in cl 8.1 of this collective agreement. [48] Mr Langton submitted that the plain meaning of the words ordinary rate is the wage rate that applies when an employee is rostered to work as a team member on a shift, not the hourly rate incorporating the allowance. Like Mr Cranney, he drew on an Oxford Dictionary definition. [49] However, he differentiated between what the defendant saw as its employees usual rate of pay and an allowance for something special, payable in defined circumstances and at defined times. The circumstance in which that allowance becomes payable means the work being performed is special or distinctive, so the rate shown in the hourly rate column in the cl 3.1 table could not properly be seen as being the ordinary rate. [50] This means that employees eligible for the allowance are employed as team members and that is their normal job. However, on occasions, qualified employees work as Shift Supervisors Sole Charge. In that role there are special or distinctive features in addition to their normal or standard work. They are not offered employment in that capacity because it is not a stand-alone or distinct job. The remuneration arrangements follow suit. On a plain meaning of ordinary rate, what the employees are entitled to for overtime is payment by reference to the job they normally perform. [51] There is no plain or ordinary meaning of the words ordinary rate that unequivocally favours the interpretation for which either of the parties argued. 16 Ports of Auckland Ltd v New Zealand Waterfront Workers Union Inc [1996] 2 ERNZ 25 (CA).

14 Having made that observation, I consider the meaning of ordinary rate is the payment the employee would receive in his or her normal or usual job. That is consistent with what ordinary means when taking into account the dictionary definitions relied on by counsel. Once it is accepted that the allowance is earned by performing duties not usually undertaken by the employee, the Shift Supervisor Sole Charge role being performed could not be said to be his or her normal work. It is not commonplace or standard. [52] Support for that conclusion comes from the context of the balance of the remuneration section of this collective agreement. This interpretation provides an explanation for both the statement in the words in brackets in the last row of the remuneration table, under $21.27 per hour, and the separate provision of the Shift Supervisor Sole Charge allowance in cl 3.4. If the parties had intended to pay overtime on the hourly rate for a Shift Supervisor Sole Charge stated in the tables in cl 3.1, there would be no need for those bracketed words, or to specify separately a Shift Supervisor Sole Charge allowance. At least part of each table in cl 3.4 would be unnecessary as would the reference to that allowance in the words in brackets in the tables in cl 3.1. The allowance would have been subsumed into the hourly rate for all purposes. Contextual matters [53] There are three other reasons supporting this conclusion and that provide a cross-check. First, there is the drafting of previous collective agreements. Mr Langton had also sought to rely on previous standard-format individual employment agreements, but they were not sufficiently connected to the bargaining for the collective agreements to be of any assistance. Second, is Ms Buddle s evidence about how the last row in each of the tables in cl 3.1 came to be added to the collective agreement for The third cross-check is Ms Buddle s evidence about the practice of the parties before this dispute began. [54] The Hourly Rate column in the tables in cl 3.1 first appeared in collective agreements between these parties in the collective agreement. In all previous agreements a delineation was maintained between hourly rates and

15 allowances. Mr Langton submitted that in settling the collective agreement, there was an opportunity to identify that the ordinary rate to apply when calculating overtime is synonymous with hourly rate in the remuneration tables but that opportunity was not taken up. It followed that a distinction was maintained because the parties understood one was intended and that a combined rate for the purposes of overtime calculation had not been agreed. [55] Mr Cranney s reply was that the position illustrated by these previous agreements is equivocal because they also do not define ordinary rate. However, I consider that the careful drafting of those agreements, including the detailed way in which they deal with remuneration, suggests that had a composite rate been intended for the Shift Supervisor Sole Charge role when overtime became payable, a different format would have been used. Keeping the allowances and rates of pay separate made it clear that overtime was not to be calculated on either an allowance or a combination of an hourly rate and an allowance. [56] The second point is Ms Buddle s uncontested evidence that the only reason for the last row in the remuneration tables in cl 3, referring to this allowance, was to satisfy a request from employees to make the agreement easier to read. Ms Buddle s evidence was about what was being bargained for in the lead-up to the settlement of the collective agreement and, as such, is objective evidence about the intentions of the parties. Her evidence was corroborated by Mr Diver and was not contradicted by the plaintiff. [57] From Ms Buddle s evidence it is apparent that the parties did not intend the hourly allowance contributions to the rate for Shift Supervisor Sole Charge in the tables in cl 3.1 to be used for calculating overtime. [58] Finally, there is the conduct of the parties. Ms Buddle said that the defendant has been consistent in the way it has paid overtime: that is by using the employees Team Member rate without including the Shift Supervisor Sole Charge allowance. It is noteworthy that the plaintiff did not raise its concerns sooner than in 2015, by which time this practice had been long-standing. That suggests the method being used to pay overtime was consistent with the agreement between the parties. It

16 supports the conclusion that the parties did not intend to settle a collective agreement where overtime would be paid on the combined rate incorporating the hourly rate and the Shift Supervisor Sole Charge allowance. [59] In that light, the meaning of ordinary rate in cl 8.1 is that it applies to the employees Team Member hourly rate, not to the rate obtained by combining that with the allowance. In the KFC example at [6] that rate is $16.44 per hour. Conclusion [60] Consequently, the plaintiff s challenge to the Employment Relations Authority determination is unsuccessful. [61] Costs are reserved. In the absence of agreement, memoranda may be filed. The defendant has 20 working days from the date of this judgment to file and serve a memorandum and the plaintiff 20 working days following service within which to respond. KG Smith Judge Judgment signed at 9.30 am on 12 May 2017