The boundaries of collective bargaining in the high-performance sport scene have been turned on their head by a recent Employment Court decision that overturns an earlier determination.
In the latest chapter of legal actions in this sphere, late last year the Court found that High Performance Sport New Zealand Ltd (HPSNZ) was not required to collectively bargain with The Athlete’s Collective (TAC) – a union representing athletes.
This overturned an earlier Employment Relations Authority determination. Please read our earlier article for details on the background to this, the impact of the Authority decision and our perspective.
A refresher on the Authority determination
In early 2024, the Authority accepted the notice had been validly given because HPSNZ was an employer and TAC was a union within the context of the Act.
This meant that collective bargaining could be initiated and was not limited by the fact that the union had no current employees. This was despite TAC being comprised of athletes, and HPSNZ being some steps up the ladder in New Zealand’s funding model with a “national sporting organisation” (NSO) in between the parties.
In allowing the collective bargaining, the Authority referenced how the Act’s objectives include:
- Promoting good faith in all aspects of the employment relationship and environment, to build productive employment relationships.
- Addressing and acknowledging inherent power inequalities in employment relationships.
- Promoting collective bargaining.
Fast-forward to the Court’s findings
In contrast, late last year the Court found that collective bargaining had not been validly initiated because there was not an employment relationship in that particular context. In other words, there was no formal employment relationship, nor were the TAC members “persons intending to work.”
This conclusion was reached after comparing the situation to other contexts where parties were not in a current employment relationship but it was in contemplation. Examples of these were where seasonal workers were not currently employed but were seeking re-engagement for the next season, or where a new business would replace another one and indicated it might employ the existing business’ employees.
In this case, New Zealand’s model meant HPSNZ dealt with NSOs, who then dealt with athletes. Further, HPSNZ had “emphatically” said it had no intention of employing the TAC members and the Court accepted there was “also no prior or mutually intended future employment relationship between HPSNZ and TAC’s members.”
Put simply, TAC and HPSNZ were too far apart. The athletes were essentially strangers to HPSNZ and there was no employment relationship for the purposes of the Act’s collective bargaining provisions. Even though “employee” could have an extended definition in some circumstances, these did not stretch to the case at hand.
So, what next?
TAC has the opportunity to seek leave to appeal the Court’s decision. If this is granted, then the Court of Appeal will hear the issue. Until this is heard, however, the boundaries of collective bargaining set by the Court limit further attempts at collective bargaining.
If this interests you, or you have any concerns about the possible impact on you, please contact a member of Lane Neave’s employment team.
