Court rejects athlete union's bid to appeal employment ruling
© Steve McArthur / @RowingCelebration
A year's-long battle over whether a group of elite athletes can collectively bargain has ended, after the Court of Appeal rejected an appeal bid from a union representing the country's top rowers and cyclists.
The Athletes' Cooperative (TAC), spearheaded by double Olympic rowing champion Mahe Drysdale, was seeking to overturn a
decision of the Employment Court in December last year
over TAC's three-year dispute with High Performance Sport NZ.
The Employment Court ruled that High Performance Sport NZ was not required to enter into collective bargaining with the union, as the two parties were not in an employment relationship.
Leave to appeal a decision can only be granted in cases where the court is satisfied that the proposed appeal is of "general of public importance" and is "capable of being seriously argued".
In a judgement released on Thursday, the Court of Appeal found TAC's case did not meet that threshold.
"We are satisfied that the Employment Court's interpretation ... was correct and that the proposed questions of law are not capable of being seriously argued," the judgement, prepared by Justice David Collins read.
"It would be inconsistent with the statutory context for there to be no requirement that the persons who are to benefit from a collective agreement be employees of the relevant employer or for there to be no employment relationship between the union and the employer."
Former NZ Rugby boss Steve Tew is the director of high performance at the government sport agency.
Photo:
Andrew Cornaga / www.photosport.nz
High Performance Sport NZ's director of high performance Steve Tew said his agency welcomed the court's decision.
"This has been a long process that has taken several years to resolve. We now look forward to moving on and ensuring we are supporting National Sports Organisations to create high performance environments where athletes not only thrive but are also heard and involved in decisions that impact them and help them to be the best they can be," Tew said in a statement.
"HPSNZ remains available to liaise with TAC, and any other organisation representing athletes in the high performance environment, to consider any issues that they are unable to be dealt with in their direct relationship with their NSO.
"Athlete well-being is a priority for our NSO partners and HPSNZ and we are working hard to demonstrate that through our strategy, system change initiatives, and day-to-day mahi."
A spokesperson for TAC could not be immediately reached for comment.
The highly political battle stems from mid-2022, when athletes from the country's two most successful Olympic sports formed a union and issued a notice to High Performance Sport NZ that it wished to initiate collective bargaining.
Among the co-operative's goals is to push for a system where "our remuneration matches the expectation of our roles and responsibilities, and we have genuine financial stability"; "the well-being and identity of all people are paramount"; and a "strong and respectful staff-athlete performance culture exists, founded on mutual respect, equality and trust".
The move came in the wake of a damning review into the culture of New Zealand's elite sporting environments following the
suspected suicide of Olympic cyclist Olivia Podmore in August 2021
.
That review, headed by former solicitor general Mike Heron KC and leading academic Sarah Leberman, raised concerns about the "chilling effects" of the power imbalance between athletes and sports leaders, noting that current athlete agreements imposed far more onerous demands on the athletes than they did on the government agency and national sporting bodies.
The review panel recommended that High Performance Sport NZ consult with athletes on the contractor versus employees model "in recognition of the fact they are under [Cycling NZ's] effective control and train/compete at [Cycling NZ's] direction".
Double Olympic gold medallist Mahe Drysdale is co-chair of The Athletes' Co-operative.
Photo:
© NZ ROWING 2018
The report also recommended that an independent athlete representative body be established, which proved the impetus for Drysdale and several high profile cyclists and rowers to form TAC.
But the government agency rebuffed attempts by the group to initiate collective bargaining, arguing it did not directly employ athletes - leading to the athlete union lodging a claim with the Employment Relations Authority (ERA).
The
ERA found in favour of the athletes
, determining that High Performance Sport NZ was obligated to engage in good faith collective bargaining.
The government agency then appealed that decision to the Employment Court, which overturned the ERA's decision in December last year.
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