New Zealand: Court Of Appeal Holds Union Registrations Invalid

Last Updated: 24 October 2001
Article by Charles Chauvel

A recent decision by the Court of Appeal (New Zealand Employers Federation Inc v National Union of Public Employees (NUPE) & Ors, 24 September 2001, CA 32/01, Richardson P, Keith, Blanchard, Tipping, McGrath JJ) has held that the registration of many of New Zealand’s unions is invalid. This finding has in turn thrown into doubt the legal effect of much of what has happened in the New Zealand industrial relations environment over the last 12 months.

The Employment Relations Act 2000 (ERA) became law on 19 August 2000, but did not come into force until 2 October 2000. The new Registrar of Unions, Mr G Hobby, anticipated that about 100 unions would apply for registration on or about 2 October 2000, and that the possibility of delays in processing these applications meant that some unions might not be able to exercise their various rights and responsibilities under the ERA immediately on its coming into force. Acting on oral legal advice from the Department of Labour, in which Mr Hobby is employed, he accepted applications for processing from 18 September, and then purported to register 20 unions (including some of the largest in the country) under the ERA, but before 2 October.

One such union was the National Union of Public Employees (NUPE). The issue which came before the Court of Appeal in this case initially arose in the Employment Court, where the Attorney-General on behalf of the Director-General of the Ministry of Agriculture and Forestry (MAF) had attempted to prevent strike action by NUPE members. One of the arguments advanced by MAF in an attempt to have strike declared unlawful was NUPE’s apparently premature registration as a union. The Employment Court found in favour of the union, and the matter eventually came before the Court of Appeal on the initiative of the New Zealand Employers’ Federation, which had intervened in the Employment Court proceeding.

In the leading judgment of the majority, Richardson P focussed mainly on the application of s11 of the Interpretation Act 1999. That section allows a power conferred by an enactment to be exercised before the enactment comes into force or takes effect. Two requirements imposed on the exercise of such power is that it must relate to one of the actions set out in s11(1)(a)-(e), which include at s11(1)(c) the appointment of a person to an office or a position (which was relied upon to appoint Mr Hobby) and at s11(1)(e) any "other act or thing for the purposes of an enactment". Importantly, under s11(2):

"the power may be exercised only if the exercise of the power is necessary or desirable to bring, or in connection with bringing, an enactment into operation."

The question of law for the Court of Appeal was, therefore:

"whether the registration of a union … prior to the commencement date of the ERA … is the exercise of a power which is "necessary or desirable to bring, or in connection with bringing" the enactment into operation within the exception provided by s 11 of the Interpretation Act 1999."

Richardson P held that the early registration of unions was not an action which s 11 could be invoked to support. He noted that:

"there is a clear distinction under the legislation in this regard between actions of the executive in readying the administrative machinery of the ERA and actions taken by others, including employee associations, once the Act comes into force. In essence, s 11 is a governmental powers provision, not also directed to the exercise of private powers under the substantive provisions of enactments."

Richardson P also considered whether s5 Judicature Amendment Act 1972 could allow the Court of Appeal to make an order validating the actions of the Registrar of unions. However, Richardson P held that "the premature purported registration of NUPE is not a defect in form or a technical irregularity". Rather, he held that "it is a matter of prime substance. The power, as invoked, simply did not exist. The process adopted was fatally flawed."

Richardson P also noted the effect that the validation of the Registrar’s actions would have in the wider picture. He held that:

"the plea to avoid administrative chaos has to be weighed alongside two other considerations. One is the high public policy requirement that statutory officers ensure they keep within their powers and are accountable in law ... the other is that to refuse relief would still leave undesirable uncertainty as to the rights and liabilities of employee associations, employees and employers in respect of past and future actions."

His second concern was noted in light of the fact that a declaration in favour of NUPE in this case would not close the door on employers in the future who wished to challenge the premature registration of a different union.

Implications of the decision

By declaring that any union who sought and was granted registration prior to 2 October 2000 was not properly registered as a union within the meaning of the ERA, the Court of Appeal has created a situation whereby all actions undertaken, and all agreements entered into, by the unions affected are, at best, of dubious legality. Accordingly, many collective agreements already ratified may not be directly enforceable under the ERA (although they may still have some legal effect1). Similarly, many collective bargaining situations in respect of which a deal has been reached at the table and where the ratification process is under way may not be able to proceed to finalisation. Finally, all strike notices issued by any of the unions which were prematurely registered are technically invalid.

The Court of Appeal’s decision affects approximately 150,000 workers and 20 unions, including the National Union of Public Employees, the New Zealand Public Service Association, the Rail and Maritime Transport Union and the New Zealand Police Association, which were all purportedly registered prior to 2 October 2000. The decision may also affect a further 20 unions, including the National Distribution Union and the Service and Food Workers Union which, whilst not registered until after 2 October, applied to be registered prior to that date.


The union movement has called for urgent legislation to rectify the obvious potential for industrial chaos flowing from the Court’s decision. The Minister of Labour has undertaken to introduce urgent validating legislation when the House sits again from 2 October. In the meantime, she has called for calm, and essentially suggested that the parties to industrial agreements and negotiations should simply proceed as normal.

These approaches may be contrasted with the comment by Anne Knowles, formerly of the Employer’s Federation and now of Business New Zealand, that legislation is unnecessary and that affected parties should simply reach negotiated solutions to the problems presented by the decision of the Court.

Meanwhile, employers, unions and employees will hope that remedial legislation will quickly pass into law. In case it does not, however, any party to a collective understanding negotiated by a union whose registration is in doubt or invalid should urgently seek advice concerning just what their obligations under that understanding are.

Please contact us if you would like further information on this decision.


1. This is because of the decisions of the Court of Appeal in Wellington Area Health Board v Wellington Hotel etc IUOW [1992] 2 ERNZ 467; and NZ Building Trades etc IUOW v Zip Commercial Interiors Ltd [1992] 2 ERNZ 489. These decisions comment on the enforceability at common law of industrial arrangements that were not registered (or not able to be registered) under applicable employment legislation, and indicate that there is still considerable scope for enforcement: just under the general law rather than under employment law. However, the extent of enforceability will be a question to be determined on a case by case basis rather than one that can be easily answered in the abstract.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions