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Collective bargaining: the basic rules
Under the Employment Relations Act 2000, strikes and lockouts are lawful:
- if they relate to bargaining for a single-party or multi-party collective agreement, and
- if any existing collective agreement has expired, and
- if the parties began bargaining at least 40 days previously, or
- in some other very limited circumstances where part of a collective agreement is illegal and the Employment Court has made an order suspending part of the agreement.
The only employees who can lawfully strike or be locked out are those who will be bound by the collective agreement being bargained for. back to top
Strikes and Lockouts in Essential Services
If the strike or lockout is in an essential service (these services can be found in Schedule 1 of the Employment Relations Act 2000 [external site]), then the union or employer is bound to give the required notice under sections 90 and 91 of any intended strike or lockout. Unions must notify the employer(s) and the Department of any intended strike, and Employers must notify the union(s) and the Department of any intended lockout.
Please direct the Department’s strike or lockout notice to:
Work Stoppages Officer
Work Place – Auckland Registry Office
The Department of Labour
P O Box 105 146
AUCKLAND
Fax 09 970 1522
For enquiries, call 04-915-4718 and ask for the Work Stoppages Officer.
The Employment Relations Act also sets additional public notice requirements if the strike or lockout affects bus or train services.
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Health and safety strikes
Strikes and lockouts are also lawful where those striking or locking out have reasonable grounds for believing that the strike or lockout is justified on safety or health grounds. back to top
Strikes and lockouts that are not lawful
If a strike or lockout is not lawful, it is possible for affected parties to apply to the Employment Court for an injunction to stop the action and for other remedies such as damages. back to top
Partial strikes
Work does not have to stop completely for there to be a strike. A strike can also occur where employees refuse to do some of their normal work.
Employer rights
Employers may suspend striking employees without pay. Employers may also suspend non-striking employees if the work they normally do is not available because of the strike. In both cases, if the employer does not suspend the employees, they may remain entitled to be paid.
Employers may request other employees to perform the work of striking or locked out employees and the other employees may agree to perform that work. Employers may not, however, require other employees to perform the work. Also, the employer may not employ new staff to do the work of the striking employees except in the case of work that must be done for health and safety reasons. Where, however, the strike is unlawful, none of these restrictions apply.
Employers may not discriminate against employees for taking part in a lawful strike.
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Seeking advice
Strikes and lockouts are serious matters and raise complicated legal issues. Employers, employees and unions should seek legal advice about these matters. back to top
Record of strikes and lockouts
If a strike or lockout occurs, the employer of the employees participating in the strike or affected by the lockout must:
- keep a record, in the prescribed form, of the strike or lockout; and
- give to the Department of Labour, within 1 month after the end of the strike or lockout, a copy of that record (PDF 43KB).
You can open, print out this form and complete it manually.
Send your completed form to:
Work Stoppages Officer
Workplace Group
Department of Labour
P O Box 3705
Wellington
or Fax to 0-4-915 4015
or email agreement@dol.govt.nz
For enquiries, you can contact 0-4-915-4315 and ask for the Work Stoppages Officer.
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