A January ruling by the Employment Relations Authority (ERA) said that The Athletes’ Co-operative (TAC) had been successful in their case against High Performance Sport New Zealand (HPSNZ), heard in February last year.

The ERA determined that HPSNZ is obligated to enter into collective bargaining with TAC. HPSNZ have said that following consultation with a number of external parties, including a second opinion from Paul Wicks KC, they have decided to challenge the determination in the Employment Court.

HPSNZ high performance director Steve Tew said the wider implication of the ruling is what drove the organisation to reach their decision.

“We believe the ERA ruling could have implications not just for HPSNZ, but other Government agencies and business across New Zealand. Given those wider implications, we believe it is important that we ask the Employment Court to clarify and confirm the legal position,” Tew said.

What did the ERA ruling decide?

In a 16-page written decision, authority member Rowan Anderson found that HPSNZ is obligated to engage in good-faith collective bargaining with the co-operative, which represents around 60 elite cyclists and rowers.

HPSNZ bosses had rejected earlier moves to negotiate a collective agreement on the basis that it does not have a formal employment relationship with athletes.

Much of the written decision is a discussion of the finer points of employment law, but Anderson ultimately concluded that “for the purposes of initiating collective bargaining... [it is not] a requirement that the union seeking to initiate bargaining have members that are, at the time of initiation, employees of the proposed employer party”.

Why HPSNZ believe they have a case

Tew said HPSNZ believes it does not have a direct relationship with the athletes that TAC represents, that the relationship is with the national sporting organisations (NSOs) and therefore that it should not be in bargaining.

“There’s two key things. The most important thing is we don’t believe we should [be] in bargaining because we do not have a direct relationship with the athletes. The athletes’ relationship is with their national sporting organisation; they’re the ones that identify the athletes, they select them, they ultimately look after their daily training environment and they take them away to pinnacle events.

“Our relationship is as the guardian, if you like, of the high performance system and the Government’s investment in that system and therefore we’re one step removed from the athletes - therefore bargaining which would assume, at least at some level, an employment and a direct relationship, we believe is wrong.”

He further said the legal advice given to them leads them to believe the ruling is wrong “in law” and that it should be tested in court.

“We’ve also taken advice and we believe the ruling from the Employment Relations Authority is wrong in law and we have senior legal counsel looking at that and so we think it should be tested in the Employment Court.”

Mahé Drysdale is chair of The Athletes' Co-operative. Photo / Warren Buckland

What are the wider implications of the ruling?

Tew highlighted that the legal advice that HPSNZ had sought told them there were wider implications across both government agencies and the private sector, adding that Minister for Sport Chris Bishop supported their decision to appeal.

“Certainly the legal advice that we’ve got suggests that. A lot of people [are] interested and we’ve had interesting conversations with a number of people in different sectors also [who are] interested in what we’re going to do about it so it was a pretty high level of support, including from our minister, to lodge an appeal.

“If you read the ruling in its rawer sense, it says that anybody that could come together and could constitute a union could initiate bargaining with any organisation that employs employees - whether they have a direct relationship or not.

“We do not believe that is what the spirit of the Employment Law Act intended and, as I say, we have senior legal counsel view that backs that up.”

Tew also said HPSNZ had spoken with a number of interested organisations across both the public and private sector.

Who are The Athletes’ Co-operative?

The Athletes’ Co-operative is a newly formed union of 60 elite rowers and cyclists chaired by two-time Olympic gold medallist Mahé Drysdale.

Drysdale said after the decision was released that the ruling would pave the way for the independent athlete union to secure strong protections for athletes.

“The main thing is what we have been fighting for over the last 18 months has been accepted as the right way, so I guess there is a sense of vindication there that the ERA have ruled that [HPSNZ] should have been engaging with us in the process,” the champion rower said.

“This has gone our way, but ultimately it is the start of the process. Now we have to get around the table and the hard work begins.”

Will Toogood is an online sports editor for the NZ Herald. He has previously worked for Newstalk ZB’s digital team and at Waiheke’s Gulf News, covering sport and events.