The NZ Amalgamated Engineering Printing & Manufacturing Union (the Union) lodged a complaint with the Press Council alleging unethical journalistic practice on the part of The New Zealand Herald newspaper. At that stage the Council accepted it because an actual dispute existed between the parties

For reasons set out hereafter the Council does not issue an adjudication and formally declines jurisdiction.

The Union is the industrial union for journalists and represents their interests in industrial disputes with employers. The legal employer of the journalists who work at The Herald is the company W & H Newspapers Limited but the substance of the issue is between the Union and The Herald and those titles are used.

Since 6 March 2001 the Union and the newspaper had been bargaining over industrial issues. The bargaining was protracted and involved strike action. The exact events concerned with this complaint occurred on 30 August 2001 when employees held a morning meeting at which it was, apparently, resolved to begin indefinite strike action.

Before continuing to outline facts relevant to this complaint it is appropriate to mention many of the facts are not independently verified but it is also true that there seemingly is no material dispute about facts.

An employee who attended that meeting took personal notes of possible peripheral action to support the strike. It is not known whether the notes represented his personal suggestions, or were a record of what the meeting was discussing. Simply to convey the general thrust of the notes by the employee, quite determined and commercially disruptive action was proposed in the notes and were interpreted by the employer as “an orchestrated campaign to interfere with the company’s business” among other matters.

Apparently the actions proposed were never implemented being, no doubt, overtaken by the events about to be described.

When the meeting ended the notebook containing the information referred to above was inadvertently left in the room where the meeting had taken place and was handed to the employer.

A further two events took place within hours of discovery of the notebook. On the night of 30 August TV3 broadcast a news item about the discovery of the notebook and its contents. The subject was therefore in the public arena as a newsworthy item of industrial relationships. Also on that night the editor of The Herald deputed a reporter to interview Mr Andrew Little the Union’s National Secretary on the contents of the notebook as they related to possible industrial action.

The next day 31 August 2001 The Herald published a news story revealing that The Herald intended to ask the Employment Relations Authority to investigate what it says are plans for “industrial sabotage” by striking members. As part of the same article the results of the reporter’s interview with Mr Little were recorded. Mr Little had at the time of the interview not personally perused the contents of the notebook but seemed to make an adequate response to allegations of industrial sabotage pointing out they were simply notes made by one person as his “set of ideas” and, of course, nothing had been implemented.

It is important to record here that the Union makes no complaint whatsoever that the interview was conducted in anything but a professional manner, devoid of deception on the part of the newspaper and its reporter. Although forecast in the article the actual ERA proceeding had not been filed. Neither does the Union make any complaint about the published article itself or the way Mr Little’s responses were used.

On 5 September 2001 the employing company filed an application to the Employment Relations Authority naming the Union and the employee as the first and second respondents, respectively. The thrust of the application was the respondents’ lack of good faith bargaining owed to the company and the failure of fidelity to the company. All of these allegations were based on the contents of the notebook. Attached to the application were the two pages from the notebook and the transcript of the interview, which had taken place.

The essence of the Union’s complaint is that it is unethical journalism for the newspaper to use the notes of the interview reporter for an ordinary news item article as part of its case against the Union and the employee for alleged misconduct in the bargaining process. The Herald’s response was to deny such allegations.

The Union in its submissions on more that one occasion accused the newspaper of using its notes of the interview as an active “sword” in its case against the respondents. The Union conceded on occasions a newspaper might use the notes of a reporter as a “shield” if the newspaper is being sued, say, in defamation. The issue of the newspaper’s case against the respondents was the Union’s tactics as revealed by the employee’s notes of proposed peripheral action in the strike. The interviewing reporter’s notes were attachments (considered to be relevant) and not the case itself. The case was the Union’s intent as revealed by the notebook and the interviewer’s notes were merely an account of what happened as a result of the newspaper’s possession of the notes. The sword/shield metaphor simply has no application to these facts.

At some point after the issue of the ERA’s proceedings and the complaint to the Press Council, the case by the newspaper against the Union and the employee was abandoned. The editor-in-chief said in a letter to the Council dated 17 December 2001:

“I should point out to the Press Council that the company decided not to proceed with that complaint after industrial action ceased and a contractual agreement reached with the union members on our staff. The company believes that this episode is best put behind us and that we concentrate on restoring relationships with staff.”

Notwithstanding that the industrial action in the ERA ceased the Union has not withdrawn its complaint to the Press Council.

By any analysis this is an unusual case because it is centrally concerned with conduct in an industrial bargaining situation which at one point was to go before an expert tribunal but was abandoned by the applicant. The Employment Relations Authority will never hear the case for it has been discontinued. Any decision by the Press Council would at best be an opinion and not a decision of the Press Council. Furthermore it could have a possible deleterious influence on other similar but not exact situations in the future. Ordinary courts decline to give a decision of academic interest only. In the courts it is sometimes argued that a court’s opinion (for example on a case that has been settled by the parties) on a certain set of facts might act as a guide for future conduct to the parties and others, but wisely the courts resist that as a potentially dangerous precedent. In law it is known as the doctrine of futility and mootness. When a dispute between parties ceases to exist, for any number of reasons, the proper course is to leave it extinct and not to try to use it for any supposed benefit that might result from an opinion of a complaint resolution body.

For the foregoing reason the Press Council formally declines jurisdiction.


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