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  • Justice Toogood hears appeal in a case he played a part in


    July 21 (Wellington) - Justice Kit Toogood sits on the bench today to hear Affco New Zealand's appeal against an Employment Court ruling that the rights of seasonal workers were preserved in the off-season, a decision that overturned a precedent-setting case from 1992 that he played a part in.

    Toogood, who was admitted to the bar in 1973 and appointed a Queen's Counsel in 1999 before being appointed a High Court judge in 2011, represented the meat industry in NZ Meat Workers Union v Richmond in 1992. That was a key case in finding that meat workers were employed on a seasonal basis and the employment relationship terminated at the end of each season but it was effectively overturned by the Employment Court last year.

    In another apparent conflict of interest in 1992, it was revealed in a complaint to the New Zealand Law Society that Mr Toogood had acted for both the Tourist Hotel Corporation and for an former employee in an employment dispute. The NZLS subsequently determined that there was no conflict of interest, despite Mr Toogood and his law firm Kensington Swan having represented the THC on numerous occasions, the society found that there was nothing untoward in his representation of a client suing the corporation.

    In April of this year, the Talleys Group-controlled meat processor was granted leave to appeal the Employment Court ruling on three questions of law - did the Employment Court err in finding workers were on employment contracts of indefinite duration; did the lower court err in holding that the Employment Relations Act applied even if there was no relationship between company and workers in the off-season; and did it err in holding Affco's new individual employment contract didn't comply with the law.

    The appeal is being heard in Wellington today, with Justice Ellen France presiding, alongside Toogood and Justice Rhys Harrison. The appeal ruling is part of a series of ongoing legal clashes between Affco and the Meatworkers Union, which has achieved a measure of success in the Employment Court.

    The union's national secretary Graham Cooke said the win in the Employment Court had been a pyrrhic victory because Affco has continued to block access to its members at processing plants and treated them less favourably in terms of shifts and seniority.

    Affco was the first under the government’s new employment law to apply for an end to bargaining under amendments to the Employment Relations Act which lets firms opt out of multi-employer agreements and removed the duty under good faith bargaining for both sides to reach an agreement.

    Given the composition of the Court, it seems extremely unlikely the Meatworkers Union will prevail.
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