Fair Go host Pippa Wetzell and Sunday host Miriama Kamo.
Fair Go host Pippa Wetzell and Sunday host Miriama Kamo.
The Employment Court has rejected an appeal by TVNZ and ordered the broadcaster to comply with a clause related to staff participation in changes to workplace practices.
The decision comes after a two-day hearing this week in which TVNZ appealed an earlier Employment Relations Authority (ERA) ruling that found it in breach of the company’s collective agreement.
As a result of the earlier ERA decision, TVNZ has had to retain 17 staff while the Employment Court heard the case as a matter of urgency.
The case centred around TVNZ’s compliance with clause 10.1.1 of the collective agreement, which the ERA found it had breached.
That clause, which the broadcaster has been ordered to comply with in the next 20 days, states TVNZ will support the active participation of staff in the development of the organisation and changes in workplace practices.
“TVNZ acknowledges that change is an evolutionary process and employees will be involved throughout. The aim of this participation will be to discuss all relevant information openly and honestly and to reach agreement and to make recommendations to management,” the clause said.
Employment Court chief judge Christina Inglis said the expressly stated aim of clause 10.1.1 participation is three-fold: to discuss all information openly and honestly; to reach agreement; and to make recommendations to management.
“I do not accept the interpretation advanced by TVNZ that reference to ‘the aim’ indicates that what follows is aspirational, including in respect of the provision of relevant information. Such an interpretation appears to me to strain the plain wording of cl 10.1.1.”
Inglis said TVNZ had placed weight on its statutory obligations under the Television New Zealand Act 2003, which emphasised the objective of maintaining and managing commercial performance.
”It was said that this was relevant to the interpretative exercise because, if the union’s interpretation of cl 10.1.1 is accepted, it would be impossible for TVNZ to take necessary steps to maintain financial viability.”
Although Inglis had “no difficulty” accepting the proposition that interpreting the clause in the way it was advanced by the defendant would have an impact financially and operationally she did not believe it materially assisted in the interpretation of the wording of 10.1.1.
During its evidence, she said TVNZ told the court that E tū had never raised the clause during previous change processes.
This, again, was not persuasive and the judge said it was relatively vague and she did not accept that this evidence was “materially helpful”.
On the question of whether the clause was breached, Ingles said the simple answer was yes.
“As at 16 November 2023 TVNZ understood that it had to find very significant savings (in the order of $10m). It did not advise staff of this, provide relevant information and activate the participatory process required under cl 10.1.1.”
Ingles said the broadcaster did not engage with staff for the simple reason, as expressed by news and current affairs executive editor Phil O’Sullivan, “we don’t make these decisions in the open”.
Michael Wood from E tu outside the tvnz building after the meeting. Photo / Jason Oxenham
E tū negotiation specialist Michael Wood said the ruling means the redundancy process for those staff who are still with TVNZ “cannot proceed” and TVNZ is required to redo the process with staff before it makes any changes.
“It also means that those staff who have been made redundant and have left the company now have a very strong case to take significant personal grievances against the company.”
Wood told Newstalk ZB’s Heather du Plessis-Allan the potential “big sums” TVNZ could face in personal grievances were on top of the legal expenses the broadcaster had already racked up.
“If they had have sat down with staff properly at the beginning, they would have saved themselves a lot of grief and would be in a much better place.”
The arguments
During the case, Paul Wicks, KC, representing TVNZ, submitted the clause had not been breached.
That was because, he said, TVNZ had supported the active participation of staff in workplace change through its 2023 Te Paerangi programme and subsequently when it became clear that television shows needed to end.
The Te Paerangi programme was a form of staff consultation to discuss falling revenue and the need to cut costs.
While TVNZ argued the programme, and its Ideas Week initiative, helped meet its obligations of consulting staff, the union said Te Paerangi was a general programme and there had been no specific proposal to staff to cut costs.
During the second day of the hearing, former acting chief executive and current chief operating officer Brent McAnulty said senior leaders knew before Christmas the broadcaster needed to reduce employee costs by $10 million but held off telling staff as it would have had a “catastrophic” impact.
TVNZ chief operating officer Brent McAnulty.
As well as creating concern for staff, he said, raising the figure last year would have affected market confidence.
McAnulty told the court the broadcaster waited to progress any proposals until TVNZ received its second quarter financial results.
“We all hoped our revenue position would change for the better.”
This did not eventuate and he said the downturn, which began in February 2023, had worsened by the end of the year.
Simon Mitchell, KC, for E tū, argued there had been a “total failure” on the part of TVNZ to comply with 10.1.1.
Mitchell questioned whether it was fair to state that McAnulty’s position was that decisions regarding how the $10 million would be saved were for leadership at TVNZ.
“It’s what we’re paid to do,” he replied.
To this, Mitchell asked whether he saw any incongruity with the 10.1.1 clause and McAnulty said he did not believe there was.
Mitchell asked McAnulty if the Te Paerangi programme discussed specific redundancies and he said “no”.
The lawyer then referred to TVNZSundaysenior producing director Del Byast’s testimony on Tuesday where he outlined how he was not involved in Te Paerangi but would have been had he known his role was on the line.
Byast broke down in tears as he revealed he and his family came close to buying their first home, shortly before the state broadcaster cancelled the current affairs show.
“I was so confident about Sunday’s place in the newsroom that last year my partner and I were making multiple offers to buy our first home,” he said.
Paul Wicks, KC, represented TVNZ.
Earlier in the hearing O’Sullivan was asked by Mitchell about a comment he was reported to have made at a Sunday team meeting in February 2024, when staff asked what they needed to do in light of the financial challenges.
“Nothing. Keep doing what you are doing,” O’Sullivan is reported to have said.
O’Sullivan told the court that it sounded like something he would say, placing it in the context that a final decision on whether to propose closing Sunday had not been made.
He said it would have been “brutal” to have raised that prospect at that staff meeting and he “hoped against hope” that the show might still be saved.
A month later, the formal proposal was presented to staff.
