In the case Lamont v Ritchies Transport Holdings Limited (17 June 2020), the Employment Relations Authority determined that the company Ritchies Transport Holdings Limited was discriminating against a number of employees because of their membership to the trade union FIRST.

The case is interesting because it implies that companies must be extremely careful when engaged in simultaneous negotiations of different collective agreements with different trade unions.

Indeed, most bus drivers employed by the company are member of a trade unions, either AWUNZ or FIRST. Moreover, some bus drivers have no union membership.

The company concluded a collective agreement with AWUNZ and paid the resulting wage increases to AWUNZ members as well as to the non-union employees. 

FIRST demanded that those increases be paid to its members as well, but the company refused to extend those payments on the grounds that negotiations with FIRST for a separate collective agreement were ongoing, including on wages.

FIRST claimed that the company’s refusal to pay its members the increases negotiated by AWUNZ was discrimination against FIRST members because they were union members. 

The point here is that all employees but FIRST members received the wage increase. 

The union claimed: “The wage increase paid to all new starts and to AWUNZ members was not paid "by reason of the employee(s) being a member of a union".It was paid regardless of union membership. Some were members of AWUNZ, some were not in any union, and some were new starts. Union membership was not relevant, except to exclude First Union”.

The company replied: “It is submitted that union membership is not a material reason for why they have not received wage increases, the material reason for the difference in wages is that bargaining for a collective agreement has not yet concluded”.

To this exchange the Employment Relations Authority (ERA) replied: “Given the presumption and [...] especially the conclusion an increase was passed to non-members without real negotiation, I conclude First Union members were deprived of the increase primarily because of their union membership. It was, using the words of the Supreme Court in McAlister, a material ingredient and as a result they were discriminated against”.

Therefore, the ERA agreed with the complainants on the discrimination on the ground of union membership, noting among other reasons that several employees who resigned from FIRST were subsequently paid the increases as non-union members.

ERA left the parties decide on the remedies to solve this situation.

While ERA cases are binding on only the parties to the case, this case has implications for all businesses whose employees are a mix of union and non-union members. Future cases could include penalties and punitive awards for damages.