Strikes have been in the news lately, with secondary school teachers on strike mid-August and nurses set to strike in September. With industrial action top of mind, this article provides a short background around striking, when strikes are lawful under the Employment Relations Act 2000 (Act) and how this has changed over time.
A background to New Zealand’s striking legislation
While the particulars around the legal right to strike have waxed and waned over time, this form of industrial action has a long history in New Zealand’s labour law context, with the earliest recorded strike dating back to 1821.
Despite this, the ability to strike was superseded by compulsory negotiation and binding arbitration to settle working condition disputes in the late 19th century; late 20th century legislation later recorded a legal right to strike; and more recently, the Act provided specific parameters around what constitutes a strike and when this may lawfully be done.
For employers, the counterpart to a strike is the right to ‘lock out’ an employee in negotiations: where an employer refuses an employee the right to carry out their normal work. While this makes the news less often than strikes in our current labour landscape, both the right to strike and to lockout have been described as “part of ensuring a balance to the relative negotiating positions of the parties in industrial bargaining”.[1]
What is a strike?
Under section 81 of the Act, strike is broadly defined to apply to action by employees in:
- discontinuing or reducing normal performance in work
- refusing or failing to return to work after this discontinuance
- breaking employment agreements
- refusing or failing to accept engagement for work
- reducing normal output or rate of work.
We note that such action must be part of a collective decision, implied or otherwise, by the group of employees.
When is a strike legal?
At a very high level, strikes can be lawful if:
- The strike relates to bargaining for a collective agreement that is intended to bind the striking employees; and/or
- The strike is justified on health and safety grounds.
Simply meeting one or both of these grounds is not enough. There are important requirements in respect of union ballots, timing and giving notice of the strike. In essential service industries, there are additional requirements around notice, contingency plans and mediation.
If strike action does not tick the required boxes in the Act, employers can seek recourse from the Employment Court to prevent the strike. We have acted successfully on injunctions for employers in the essential services industry and are well-placed to advise all employers on strike action and their options.
The ever-changing strike landscape
While the government has given no indication of amending the current legal strike parameters, earlier this year a law was passed that re-introduced legal rights for employers to deduct pay for partially striking workers. Our article about this can be viewed here.
[1] Secretary for Justice v New Zealand Public Service Association Inc [2018] NZEmpC 129 at [24].
