Get the answers: City port dispute makes employers anxious about strikes

By Bridget Smith

3 comments
The law is clear about industrial action. Photo / Natalie Slade
The law is clear about industrial action. Photo / Natalie Slade

Industrial action in strikes and lock-outs has raised its head in the media recently. The most high profile dispute has been at the Ports of Auckland, causing many employers to consider whether their workplaces could be affected by industrial action too.

When can employees lawfully strike?

You have to be a union member to lawfully go on strike. Union members can only lawfully go on strike in limited circumstances.

If there is a current collective agreement in place, then strikes are usually unlawful. The objective of the strike generally has to be to secure a new collective agreement. If an existing collective agreement has expired, at least 40 days must have passed since bargaining for a new agreement was initiated. An exception to this is if a strike is for health and safety reasons.

A strike doesn't necessarily have to be stopping all work. It can, for example, be a reduction in work to the employees' minimum contractual requirements, which is often referred to as "working to rule".

What about employees who are not union members?

Employees who are not union members and/or are not covered by the coverage clause of the collective employment agreement, are employed under individual employment agreements.

Can individual employees "work to rule?"

Individual employees can't go on strike to try to get better individual agreements. However they could, for example, decide they will work to the letter of their employment agreements and job descriptions. Employers must deal with individual employees on an individual basis but they must also ensure employees are treated consistently. Different circumstances may justify different treatment and the facts and circumstances will therefore be relevant but where the circumstances are the same or similar, employees should be treated consistently to avoid a claim for disparity of treatment.

What can employees do if they are not happy with their terms and conditions?

The Employment Relations Act 2000 requires employers to have written employment agreements for all employees. The act also specifies some terms and conditions an employment agreement must include, such as location of work, salary or wages, hours, a description of duties and so on.

Employment agreements are binding on both sides so providing the terms are legal, and the agreement was entered into fairly, then changes can only occur by agreement.

Having said this, the parties to an employment relationship are obliged to deal with each other in good faith. This includes being responsive and communicative. Therefore, if a party is unhappy about an aspect of the employment relationship, in the first instance they should raise it with the other party and try to resolve it.

If an employee is still unhappy and believes their employer is acting in breach of the contract or in a way that is unfair or in bad faith, they may have grounds to pursue a personal grievance.

An employee has 90 days from the date the issue arose or came to their attention (whichever is the later) to pursue a personal grievance (unless there are exceptional circumstances). If the employment relationship problem arises during the employment it may be a claim for unjustified disadvantage. If the employment has ended it may be a claim for unjustified dismissal. It is also possible to pursue claims for harassment and duress.

Obviously, the best way to avoid action by employees, either collectively or individually, is to try to work together to resolve things at the lowest possible level.

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Bridget Smith is a senior associate at Swarbrick Beck Mackinnon.

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