File photo. Photo: AFP/OLIVIER MORIN
A landmark legal battle between High Performance Sport NZ and an elite athletes' union looks set to go another round after the agency scored a key victory in the Employment Court.
The court has overturned a January 2024 Employment Relations Authority (ERA) ruling, which required HPSNZ to engage in collective bargaining with The Athletes Cooperative (TAC).
TAC represents the country's top rowers and cyclists and is co-chaired by Olympic rowing great Mahe Drysdale.
In its judgment, the court ruled that "although TAC is a union and HPSNZ is an employer, they are not in an employment relationship for the purposes of [the Employment Relations Act], because TAC's members are not sufficiently connected to HPSNZ".
The union's lawyer Andrew Scott-Howman confirmed to RNZ that TAC has sought leave to appeal the latest decision. If leave is granted, the case would go to the Court of Appeal.
The Employment Court ruling followed a hearing in September last year, in which several top athletes - including Olympic gold medal winning rower Tom Mackintosh and sprint cyclist Sam Dakin - testified about their experiences in the high performance system.
The mother of Olympic cyclist Olivia Podmore, who died in August 2021 in a suspected suicide, also gave evidence at the hearing. Nienke Middleton told the court an independent athlete representative body "would have made all the difference" when her daughter was experiencing difficulties in the system.
The Athletes' Cooperative was established following the release of an inquiry into Cycling NZ in the wake of the death of Olivia Podmore. Photo: Dianne Manson / RNZ Composite
But the case, which was heard by a full court - Chief Judge Christina Inglis, Judge Kathryn Beck and Judge Bruce Corkill - hinged on finer points of employment law.
The court found that as there was "no prior or mutually intended future employment relationship between HPSNZ and TAC's members," the union did not initiate any valid bargaining with HPSNZ.
HPSNZ director of high performance Steve Tew said the government body "welcomes the outcome".
"In its decision the Employment Court acknowledged that while HPSNZ had declined to participate in bargaining, we had always shown a willingness to explore ways to continue to help empower and enhance athlete voice, and to consider any issues that TAC brought to the table," Tew said.
"We are disappointed that TAC has sought leave to appeal the decision, given the clarity of the Employment Court's ruling, and also considering that we have always been available to talk to TAC, just not within a collective bargaining framework.
"That offer remains open and we hope to be able to continue discussions to help ensure athletes are heard and involved, and that we can work together to ensure the high performance sport system is the best it can be."
Experienced athlete representative Rob Nichol chairs the new athlete body, The Athletes' Cooperative. Photo: RNZ / Rebekah Parsons-King
In a letter sent to the union's 65 members before Christmas, TAC chair Rob Nichol said the board and steering group disagreed with aspects of the Employment Court ruling, in particular its finding that the athletes were "not sufficiently connected" to HPSNZ.
"The not sufficiently connected part is the key aspect - and we believe this deserves to be challenged," Nichol wrote.
"HPSNZ's very existence is to enable athlete performance. In our view they essentially fund and control the system, and pretty much all the services and conditions of an athlete's engagement within it."
The Court of Appeal may grant leave if it agrees that the legal question being discussed is of general or public importance beyond just that case.
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