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Unite to Challenge Trespass Order
Unite Union national Director Mike Treen is to challenge a Trespass order taken against him and Joe Carolan another Unite official by SkyCity last week by trying to enter the casino at 2pm on Friday.
“The company is acting illegally by trying to use a trespass order to bar my access from most the Casino property and the members I represent,” said Mr Treen
“They are well aware that their powers to Trespass cannot reduce a union officials access rights contained in the Employment Relations Act. If they consider my access to be unreasonable they have the right to take me to court and have me penalized. However, by trying to use the Trespass Act they are seeking to avoid their responsibility to prove I have done anything wrong in exercising my access rights under law.
“In the process they will no doubt be calling the Police to act as their private security and have me arrested. I will be asking to NZ Police to act within the law and not be used in this way by the company. I have a copy of a Police magazine that gives advice to their staff. It explains:
“Where entry is authorized by sections 20 to 25 of the ERA, an employer may not rely on the Trespass Act 1980 to eject the union representative, see s 13c trespass act 1980. Where there are heightened tensions between employer and the union representative it may be that the police role, if any, will be restricted to preventing breaches of the peace.”
Mr Treen says “this action comes in the middle of an on-going industrial dispute between the unions at SkyCity and the company over the terms of the Collective Agreement. It is also part of a pattern of anti-union actions by the company since the new management team took over a couple of years ago. The workers have been forced to take action because of the take-it-or-leave-it attitude of the company. It may also be foretaste of how the some companies will abuse their increased powers to refuse access from April 1 under this governments law changes.
“I am calling on the police to prevent a breach of the peace by ensuring the company doesn’t deny my legal right of access.”
Attached are copies of the trespass order and another letter from SkyCity. Below is my response. Also attached are some background notes on the anti-union actions of the company and the relevant pages of the Police magazine “TEN ONE”.
COPY OF LETTER SENT BY MIKE TREEN IN RESPONSE TO THE TRESPASS LETTER FROM SKYCITY
I would like to respond to your letter of Trespass dated January 7, 2011.
The letter relates to incidents that happened in the course of a series of stop work meetings held on January 1 outside SkyCity premises.
These meetings were being held because in our view the company had illegally refused our right to have a meeting in paid time to consult our members as provided for in the Employment Relations Act. Since early this year the company also refuses us the right to meet on company premises for our meetings.
We received a letter from Claire Walker dated December 30 setting some claims and demands regarding the January 1 meetings. She first made the assertion that holding a stop work meeting was unlawful. The same claim was made in a letter to staff. She then threatened legal action against the union and its officials for damages if they proceed. She threatened staff that they would lose back pay if they participate in “strike action”.
In that context she wrote: “SKYCITY requires that any strike action or picketing occurs in a lawful manner and is not conducted on property. Enclosed a copy of a map which clearly sets out the boundaries of SKYCITY’s property. In the event there is repetition of the use of megaphones and whistles on the gaming floor as occurred in 2008, we reserve all our legal rights including trespassing individuals involved.” She then repeated her claims that the meetings were unlawful and shouldn’t occur.
Firstly it should be noted that none of the acts she said we could be trespassed for actually occurred.
While members and officials did hold a short march along the road that runs through SKYCITY’s property, that was a legitimate act of protest at the illegal and abusive treatment from the company. As this was New Year’s Day there were many people celebrating at the time. The company had a band playing under the tower. The public was wandering about at will. The protest stopped outside the main entrance for about 15 minutes on each of four occasions during the 4 meetings but at no time blocked anyone’s access. The largest protest was at 1am. At that time customers were being required to queue to get in behind a rail monitored by Security guards. There was no interference with that at all. Similarly with the protests that followed there was no interference with customers. In fact many seemed to enjoy the occasion and a number joined our protest in support.
On January 1 you approached me to check that I had received the letter from Claire Walker. I confirmed I had. You asked if I understood that if I went on SkyCity property I would be trespassing. I made it clear to you that I did not agree with your understanding. You claim in the January 7 Trespass letter that repeated requests were made for me and my group to leave. That is not correct. I was never asked to leave.
An assertion was made by you that you considered our protest a trespass. I disagreed. But no specific request was made to leave. The company has made clear to me in the letter from Claire Walker and other discussions that entry to the Casino and use of loud hailers inside would result in action being taken. But we have had dozens of protests around SkyCity property over the years that have involved standing near the entrance of either the Casino or the Grand Hotel without such threats being made. I believed it was part of our lawful right to protest in an area where the public has unhindered access and didn’t believe the company disputed our right in that regard. The way the company merges public and private space in Federal St and in the front of the casino with no clear boundaries seems to me the company wants the right to treat public space as virtual company property but then get legalistic when there is a protest.
The Trespass order places conditions on my access to SkyCity as a union official. I do not accept the company has that right. The only condition that can be imposed in law is that is that my entry be reasonable. You say that I can’t access any public area of SKYCITY and only Federal St and back of house areas and 24/7. But my right of entry in law applies to all areas where people work. For example, enforcing basic health and safety rules require that right. Observing if replacement staff are being used legally during a dispute also requires that right. I have the right to access staff where they are working if that access is “reasonable”.
A company cannot use the Trespass Act to deny access that is allowed under the Employment Relations Act. The Police magazine “TEN ONE” explains to police staff: “Where entry is authorized by sections 20 to 25 of the ERA, an employer may not rely on the Trespass Act 1980 to eject the union representative, see s 13c trespass act 1980. Where there are heightened tensions between employer and the union representative it may be that the police role, if any, will be restricted to preventing breaches of the peace.”
If I abuse the access rights there are remedies available to the company to seek penalties against me or the union.
The complete Trespass ban on my colleague Joe Carolan is invalid on the same basis.
We will be seeking access to the site outside the boundaries you are trying to enforce. I am sure the Police will do their duty and prevent any “breaches of the peace” by the company in those circumstances.
It is also of concern to me that you seem to have issued an instruction to your security managers to stop any Security staff member participating in strike action from accessing overtime for the duration of the dispute. You must know that it is illegal to discriminate against people for exercising their legal right to belong to a union and take legally protected action to defend their rights and living standards.
It is easy for a company to issue trespass notices that have no way to appeal against them. Whether they can be enforced is another matter. It seems much harder to ensure that workers get their full legal rights but we will keep fighting to ensure they do.
I would ask that you take further advice on this issue before being put into a position of trying to enforce a Trespass order that lacks legal validity. There are penalties under the law if this occurs.
National Director, Unite Union