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DEVELOPMENTS IN COLLECTIVE BARGAINING SINCE 2004
JENNA RENNIE*
The promotion of collective bargaining under New Zealand's employment law is an area that has attracted considerable interest from politicians, the business community, unions and academics. Employment relations in the 1990s were governed by the Employment Contracts Act 1991 (ECA), a minimalist regime that ended compulsory unionism and largely deregulated employment relations. One of the first moves by the Labour government following their election in 1999 was to introduce the Employment Relations Bill 2000 (the Bill) intended to 'build productive employment relationships through the promotion of mutual trust and confidence in all aspects of the employment environment'.1 The introduction of the Bill was greeted with varying degrees of enthusiasm and horror. The National party greeted the initial Bill with predictions of a return to industrial strife, while employers and other businesses expressed fear at the perceived shift towards heavily favouring unionism.2 The government and its supporting parties, on the other hand, viewed the Bill as redressing the inequality of bargaining power between employers and employees that they considered existed under the ECA.3 The unions similarly welcomed the intended promotion of collective bargaining.
However, four years later the predictions on both sides had failed to be borne out. Following Cabinet reviews of the Employment Relations Act 2000 (ERA), a series of amendments were recommended in relation to collective bargaining. It is the subsequent impact of these amendments on collective bargaining in New Zealand that this paper intends to focus on.
It was recommended that the ERA be amended to prevent an employer advising an employee not to be involved in collective bargaining or be covered by a collective agreement.4 A statutory mechanism facilitating the conclusion of collective employment agreements in specified circumstances was also mooted,5 as was the prevention of the automatic passing on of similar conditions to those of a collective agreement done during or after the bargaining process, when this has the intent and effect of undermining the collective bargaining process.6 Additional guidance on when automatic passing on of terms and conditions would not be in breach was also recommended.7 The Cabinet further suggested that it be mandatory for all parties in multi-employer or multi-union bargaining to attend at least one bargaining meeting after bargaining had been initiated.8 Furthermore, it was advanced that the ERA should be amended so that nothing would prevent negotiation of collective agreements that recognised the benefits of participating in collective bargaining;9 and that provisions be made for penalties, including the fixing of terms by the Employment Relations Authority, where there was a serious and sustained breach of good faith deliberately designed to undermine the bargaining process or employment relationship.10
Predictably, unions and members of the government advocated the suggested amendments as a fine-tuning of the law. Members of the opposition and different employer and business groups, however, raised vociferous objections. As the catastrophic predictions made at the passing of the initial ERA had not materialised, significant repositioning of the initial Bill's opponents occurred.11 Suddenly the ERA itself was bearable, but the amendments were solely designed to give greater advantage to collective agreements over individual agreements, an aim which again would have devastating effects on the business community of New Zealand.12 Opponents of the Bill viewed the amendments as being motivated by an attempt to rectify the failure of the initial ERA to advance union density.13 Following consideration by the Industrial and Transport Relations Select Committee, key recommendations supported the clarification of 'passing on' rules and what a 'genuine reason' for not concluding a collective agreement could be. The specific obligation to attend the first meeting of bargaining for a multi-employer agreement was removed and provision was also made for the use of mutually agreed bargaining fee arrangements for the passing on of collective terms and conditions to non-union members.14
Thus the Employment Relations Amendment Act (No. 2) 2004 (ER Amendment) was portrayed at its introduction either as 'fine-tuning'15 or a union wish list.16 Three years on, it is now possible to examine the extent to which the development of collective bargaining in New Zealand has been impacted by the ER Amendment. This paper will consider several areas of the law pertaining to collective bargaining. It will commence by examining the extent of the obligation on negotiating parties to conclude a collective agreement following the 2004 amendment to s 33(1). It will then examine restrictions surrounding the passing on of employment terms and conditions, before considering the related issues of good faith and communication with employees during negotiations. The promotion of multi-employer collective agreements will also be examined, as will the closely linked issue of subsequent party bargaining. Consideration will also be given to the effectiveness of remedies and penalties provided for under the 2004 amendment and the courts' approach to strikes and lockouts. Finally, the prevalence of collective bargaining will be examined in helping to assess the success or otherwise of the amending provisions, as will non-legislative factors.
The duty to conclude a collective agreement introduced into s 33 was viewed by many to be a potentially significant change. Two hundred and fourteen submissions were received on this provision, with the majority (108) opposed to its introduction.17 Supporters considered that the provision would more effectively promote collective bargaining, although some desired that the amendment go further and require that collective agreements be concluded based on the coverage sought by a union.18 However, opponents raised numerous concerns, including the impact of the provision on the employer, small business and individual freedom of choice, as well as increased litigation and compliance costs.19 What 'genuine reason' meant under s 33(2) was also questioned in submissions,20 with the Bill amended to state that a genuine reason had to be based on reasonable grounds, and that reasonable grounds could not include opposition in principle to collective bargaining and agreements.21 A disagreement about including a bargaining fee clause under pt 6B was also excluded as a genuine reason not to conclude an agreement.
At the time of its passing, it was suggested that 'genuine reason' under s 33 could be interpreted in similar vein to genuine reason under s 66.22 Such an interpretation would require the reviewing of evidence to see if it supported the reason raised, assessing the reason from an objective stance but with regard to the circumstances of the case.23 It was also suggested that the use of the word 'a' in relation to collective agreement as opposed to 'the' would possibly enable a party to avoid concluding the agreement that negotiations were initiated for, with particular implications where multi-employer and single party collective agreements were being disputed,24 a claim which has since eventuated. Union representatives were hopeful that s 33, as amended, would lead to a climate more disposed towards collective bargaining.25 The hope was that it would prevent protracted bargaining tactics being adopted by employers trying to prevent the conclusion of a collective agreement.26 On the other hand, opponents alleged that under s 33 and the changes to good faith provisions, employers were now forced to conclude a collective agreement.27
The actual impact of s 33 since the passing of the amendment appears, however, to have been limited. Until recently it remained an area untested by the courts and subject only to academic comment. As such while Roth described it as a 'fundamental statutory inroad into an employer's right to freedom of association',28 the lack of litigation concerning the provision prompted Davenport, who had earlier identified s 33(1) as potentially the most significant amendment to the ERA,29 to question the efficacy of the provision.30 Davenport considered that the lack of litigation suggested two possible causes. Either 'a collective' agreement was too broad a phrase for the unions to use to force agreement, as all it does is require the employer to agree to a collective agreement, not the agreement that the union is seeking (this is particularly relevant regarding multi-employer collective agreements); or it was too easy for employers to formulate a genuine reason for not concluding a collective agreement.31
Since these academic opinions, s 33 has finally come before the courts for judicial consideration in Service and Food Workers Union Nga Ringa Tota v Auckland District Health Board ('Service and Food Workers Union v ADHB').32 In this case the preliminary point for decision before the Court was whether s 33(1) obligated parties to negotiations to agree to the form of collective agreement in respect of which bargaining had been initiated (in this case a multi-employer collective agreement (MECA)) or whether the obligations of good faith and under s 33(1) were discharged by the offer to enter into a single party collective agreement (SECA) with the union. The Court considered that while s 33 required the conclusion of a collective agreement (unless the qualifying grounds were met), it did not favour any particular form of collective agreement.33 In reaching this conclusion the Court followed the decision in Association of University Staff v University of Auckland ('AUS'),34 which in turn upheld the approach found in Toll New Zealand Consolidated Ltd v Rail and Maritime Union Inc ('Toll').35 This approach is particularly significant in that Toll was decided prior to the ER Amendment, meaning in effect that s 33, as amended, has not resulted in a shift in the approach adopted by the courts, despite predictions to the contrary. While the Court conceded that s 33 as amended went further than its predecessor in promoting collective bargaining, it did not consider that s 33 could be considered to impose an obligation on employers to enter into a specific type of collective agreement.36 This was despite the added consideration of the public health sector code in the circumstances of the case.37 This decision therefore seems to support Davenport's suggestion that the wording of the statutory provision is too broad to be of much use to unions in forcing the conclusion of a specific form of collective agreement as initiated.
Another issue that was also considered during this case was whether a party can counter-initiate bargaining for a collective agreement. In this case the Auckland District Health Board (ADHB) had purported to cross-initiate bargaining for a SECA so as to avoid a MECA. The union's representative submitted that the ERA does not permit counter-initiation by an employer during bargaining for a collective agreement, where the counter-initiation involves the same parties. The Court subsequently accepted this submission.38 Section 32 of the ERA places parties under numerous duties designed to progress negotiations. The Court decided, however, that if parties were able to counter-initiate bargaining this would result in unnecessarily onerous repetition of the same obligations.39 It also considered that the ability to cross-initiate would be inconsistent with remedies provided in ss 50A - 50J.40 With such a finding, the Court did not consider itself to be considerably altering the landscape of collective bargaining in New Zealand. It noted that despite observations made in AUS about the potential use of cross-initiation, it was not a feature of bargaining in New Zealand and had not led to litigation.41 It also considered that the existence of facilitated bargaining under statute meant that the ability to cross-initiate bargaining was not needed to ensure an outcome to negotiations.42 Allowing cross-initiation, however, was considered to have the potential to lead to disorderly bargaining, against the intent of the ERA.43
The amendments relating to the so-called 'passing-on' of collective terms and agreements to non-union employees were granted considerable prominence during the passing of the ER Amendment. In legislating to prevent the passing-on of terms and conditions the ER Amendment's supporters considered themselves to be preventing one of the key means of undermining collective bargaining. The problem of passing-on, also referred to as 'free-loading' or 'free-riding', had been identified by the Department of Labour in a review of the ERA,44 and drew considerable attention from commentators in the lead up to its reform. The key difficulty in this area was balancing the resentment felt by union members at non-union members' receipt of similar employment terms and conditions, with the right to freedom of association.45 This issue gained particular prominence as a result of NZ Dairy Workers' Union v NZMP (NZ Dairy Workers').46 In this case an attempt had been made to charge non-union members a bargaining fee if they received the same benefits as the collective agreement. The Court of Appeal held that this was illegal, as it breached the Wages Protection Act 1983.47 However, the use of bargaining fees in other jurisdictions such as Canada meant their use in New Zealand had considerable appeal. Furthermore, some suggested that the balancing act between freedom of association and preventing free-loading was not as complex as it had been made out to be. By choosing to receive the benefits of the collective agreement, non-union members could be viewed as having chosen to associate with the union members, and thus having acquiesced to the payment of a bargaining fee.48 Little submitted that this was different to compulsory unionism as an employee could choose not to receive the benefits of the collective agreement, thus freedom of association was not removed from the individual.49
Concern over the undermining effect of the passing-on of terms and conditions led to amendments introducing ss 59A - 59C and pt 6B of the ERA. Sections 59A - 59C endeavour to establish when the passing on of employment terms and conditions would be considered a breach of the duty of good faith found under s 4, whereas pt 6B makes provision for the payment of bargaining fees by non-union members. This effectively overrides the decision of NZ Dairy Workers that the payment of bargaining fees was contrary to the Wages Protection Act 1983, although a number of constraints have been placed on the use of bargaining fees under pt 6B that were not present in the Dairy Workers case. Under s 59B, passing on terms and conditions to nonunion employees does not in itself constitute a breach of the ERA. Instead, there are two different thresholds that apply in determining whether the passing-on is in breach of the duty of good faith. Where the employer is already bound by a collective agreement the passing-on must have been done with the intent and the effect of undermining the collective agreement for the employer to be in breach.50 However, where negotiations for a collective agreement are still ongoing, an employer can be in breach of his duty of good faith if he passes on a term reached in bargaining for the collective agreement with the intent or the effect of undermining the collective agreement.51
Such a distinction in itself appears largely nonsensical, and merely has the practical effect of making an employer who desires to give non-union employees similar terms and conditions to not do so until after negotiations for the collective agreement have been concluded. If an employer adopts this path, for a union to argue that a breach of good faith has occurred, it must show intent to undermine. The amendment itself attempted to provide guidance on how to determine whether there has been a breach of good faith, requiring the courts to consider such things as bargaining between the employer and individual employee, consultation with the union, and overall number of union and non-union employees.52 The business community, however, was concerned that a breach could be found too easily by the courts, questioning whether the courts would accept the reaching of similar terms and conditions 'bargaining', and considering consultation with the union itself unlikely in reality.53 This view of the reforms seemed to consider them as a form of compulsory unionism by stealth. Some union representatives, on the other hand, considered that the proposed amendments, while a start, did not go far enough.54 Academic commentary at the time of the proposed amendments also considered that the reforms were only 'token' in their attempt to address free-loading, with the concept of freedom of association too firmly entrenched in New Zealand law for any government to undertake the extent of reform truly needed to forestall free-loading.55
The bargaining fee provisions outlined in pt 6B of the ERA allow for the union and employer to agree to the setting of a bargaining fee, by which means non-union members who pay the bargaining fee will be entitled to the benefits and entitlements of the collective agreement. A secret ballot of all employees covered by the terms of the agreement, whether union members or not, is then held. If a majority votes in favour of the bargaining fee, then that clause in the collective agreement becomes operative. If the clause does become operative but an employee does not wish to be covered by the bargaining fee, he or she can opt out, but will not receive the benefit of the terms in the collective agreement.
An evaluation of the courts' approach since the reforms suggest it is the union and academic view that seems to be closest to reflecting reality. Perhaps surprisingly, given the attention paid to the problem of free-loading prior to the amendments, only one case has reached the level of the courts since the passing of the ER Amendment. This decision, National Distribution Union v General Distributors Ltd (National Distribution Union'),56 has been viewed by some as a reading down of the amendments, rendering them ineffective.57 In National Distribution Union a collective agreement was decided on between the National Distribution Union (NDU) and General Distributors Ltd (GDL). The agreement contained a provision agreeing to a bargaining fee under the process set out in the ERA. While the bargaining fee passed the secret ballot, only one quarter of the total employees actually voted. Subsequently, when informed by GDL of their right to opt out, a significant majority of employees choose to do so, having been informed by GDL that while GDL could not pass on the same terms and conditions as settled under the collective agreement, the pay and conditions of non-union staff would be reviewed. GDL had offered an across the board pay rise of 60 cents under the collective agreement. They subsequently decided they would offer non-union staff a five percent pay increase (between 54 and 57 cents); although they did not inform non-union staff of this until after they had elected to opt out. Non-union staff were also informed that, while GDL would not negotiate changes for individuals in their hourly rate, they could negotiate for changes to their pay by being moved to a job with a higher pay rate. The NDU then brought an action against the GDL for passing-on terms and agreements negotiated collectively. The decision looked at what was meant by 'the same or substantially the same'; 'with the intention of undermining the collective agreement'; 'to undermine the collective agreement'; and 'bargained with the employee'.
The Court rejected the proposition by plaintiff's counsel that the combined effect of s 59B and pt 6B meant that there was a presumption that passing-on could only occur lawfully when pursuant to bargaining fee arrangement.58 It considered the correct interpretation of s 59B(1) to mean that passing on was prima facie lawful unless certain criteria were established.59 When considering the meaning of 'substantially the same', the Court, while accepting the plaintiff's submission that not every employee must receive substantially the same terms, rejected the notion that it would be a breach of the passing-on provisions if only one employee among many received substantially the same conditions.60 The Court accepted that the general interpretation of 'substantially the same' required similarity in substance, not form,61 but rejected the notion that this should be assessed in terms of the effect on the employer.62 In the circumstances of this case, the terms offered to non-union employees were held not to be substantially the same, therefore no breach had occurred.
Despite the finding that the terms and conditions were not substantially the same, the courts nevertheless continued to consider what constituted undermining, and what was required for intent to undermine and effect of undermining. NDU, relying on the meaning of undermine in the AUS63 case, submitted that if a collective agreement was supplanted overtly or by underhand means, it was undermined,64 even if the passing-on itself was not in breach. While the Court accepted the meaning of undermine adopted in AUS, it rejected an attempt by NDU to extend the prohibition on undermining in s 59B beyond the undermining of the collective agreement itself,65 despite the conceptual difficulties arising in connection with the ability to undermine an executed collective agreement.66 The Court also favoured a narrow meaning of intent, requiring that the intent to undermine be 'at least a concurrent or activating purpose'.67 Incidental undermining, even if it was a known or foreseeable consequence, was held to be insufficient to amount to intent, as was recklessness.68
Concerning the effect of undermining, a reduction in the potential number of employees covered by the collective agreement was held to be insufficient in itself.69 The Court did accept that where a term or condition is received by an employee without bargaining it is more likely that the passing-on of the term or condition was in breach of the statute.70 However the Court, in considering the facts of the case, stipulated that bargaining by means of unilateral offer was not illegal, with the allowing of individuals to approach their managers over specific concerns sufficient to meet the requirement of bargaining.71 It is interesting to note that the procedural requirements of individual bargaining found in pt 6 were limited in comparison with the stronger protections found in negotiations for collective agreements, in order to encourage more people into collective agreements. In this decision, however, that same limited procedural requirement for individual bargaining was applied when considering whether the requirements of s 59B had been met. Ironically, this meant that the employer had to do relatively little to satisfy the requirement that they bargain with individuals or risk undermining the collective agreement under s 59B.
Similarly, while the Court accepted that a failure to consult in good faith with the union before widespread passing on of similar conditions could be taken as an indication of an intent by the employer to undermine, it found no evidence of a lack of such consultation in the specific circumstances.72 While the number of workers covered by the collective agreement and the immediacy of the passing on of the terms and conditions were both factors to be considered, the Court considered them neutral in the situation in front of them.73 Finally, the fact that new employees were covered by the collective agreement and received better conditions than non-union employees was also considered to favour GDL.74 In terms of what other factors the Court may consider in evaluating whether undermining has occurred, the Court rejected the submission by NDU that an employer subject to a collective agreement containing a bargaining fee arrangement was thereby barred from passing on terms and conditions unless employees paid the bargaining fee.75
It appears the main conclusion to be drawn from this case is that where passing on is alleged, the courts will make an assessment on the specific facts of the case. In situations where the collective agreement has been concluded a high threshold seemingly applies, with restrictive interpretations of intent and effect being preferred. However, it can also be argued that the Court adopted a somewhat unrealistic approach to the effect on net pay of the union or bargaining fee, comparing the notional pay increases between union members and bargaining fee paying employees on the one hand, and other employees. As Robson has pointed out, once union member or bargaining fees were taken into account, employees covered by the collective in this case ended up receiving less pay than other employees.76 The Court's failure to consider the impact of the bargaining fee on end pay rates is also at odds with the approach adopted in the Dairy Workers case, when considering the deterrent effects of a bargaining fee on the forming or joining of another union.
The position following National Distribution Union seems to be, however, that if an employer has taken steps to act in good faith, they are likely to have a good defence to allegations of breach of the passing on provisions found in the ER Amendment.77 However, with the employer in this case having demonstrated what could be considered a textbook example of good faith, it is still difficult to conclude with certainty the approach that the courts will take in future cases where the employer's behaviour is not so exemplary. It is curious, nonetheless, that the NDU chose this case to act as a test case on what would constitute breach of the passing-on provisions, considering the precedent-setting nature of such an action. With concern expressed at the outset that the requirement that there be both effect and intent of undermining the collective agreement set too high a threshold, it would seem the union movement could have selected a more favourable fact scenario in which to test the boundaries of these new provisions.78
One particular area that remains unresolved with regard to passing-on and bargaining fees is the ability of employees who fail to opt out to subsequently renegotiate. Two possible approaches under the ER Amendment have been advanced. The first, advanced by unions, is that if an employee fails to opt out of the collective agreement within the specified period, ss 69R - 69T of the ERA bind the employee so that they cannot approach their employer to renegotiate their employment agreement to make the bargaining fee inapplicable.79 This argument would also possibly be supported by s 5 of the Contract (Privity) Act 1982, with the union considered a third party beneficiary of the individual employment agreement.80 An individual employee, on the other hand, would likely assert a right to renegotiate, with the success of this argument depending on judicial interpretation of the conflict between the law of contract and pt 6B.81 While the decision in National Distribution Union did not focus on this issue, it did make a passing comment that where an employee failed to opt out of the collective agreement within the specified time period, their only option for relief from paying the bargaining fee was to either join the union or resign.82 This would seem to suggest that the view advanced by the union of the binding nature of ss 69R - 69T is the approach the courts would take if confronted with this question. Whether such an approach is desirable is, however, ideologically divisive. While Barnes points out that memory lapses are not normally an excuse for avoiding legal obligations,83 the Court in National Distribution Union observed that the approach in s 69S requiring employees to positively opt out of the bargaining fee clause seems 'contrary to the general thrust of consumer and other social legislation that persons should not, by their inertia, be bound, effectively or irrevocably to private financial arrangements they may resent'.84
Good faith and communications with employees is an area particularly fraught with difficulties. In more acrimonious collective bargaining negotiations, the way in which ideas are presented to employees can be viewed as pivotal. The statutory provisions at issue in this area are s 4, which outlines general obligations of good faith; s 5, which defines 'bargaining'; and s 32, which contains more specific provisions concerning good faith in collective bargaining. Section 4(3), states that the duty of good faith 'does not prevent a party to an employment relationship communicating to another person a statement of fact or of opinion reasonably held about an employer's business or union's affairs'. However in s 32(d), the union and employer must also recognise the role and authority of any person chosen by the other to be their representative, and parties must not directly or indirectly bargain about matters relating to terms and conditions of employment with persons who are being represented or advocated for, unless otherwise agreed. There is also an obligation for one party to the negotiations not to undermine nor do anything likely to undermine the bargaining, or the authority of the other party to the bargaining. The interrelationship of s 32(1)(d) and s 4(3) has created considerable consternation since they were introduced, and was finally addressed in Christchurch City Council v Southern Local Government Officers Union ('Christchurch City Council').85 This case was subsequently appealed to the Court of Appeal,86 which attempted to definitively address the uncertainty surrounding communications with employees during bargaining. The Court of Appeal considered that three key issues needed resolution. These were: 'to what extent does s 32(1)(d) prohibit the council from communicating with its employees without the union's consent?';87 'is the test of whether a party has acted in bad faith subjective?';88 and 'can s 32(1)(d) prohibit communications prior to the initiation of bargaining?'.89
The Court of Appeal agreed with the Employment Court's finding that s 4 operated subject to s 32(1)(d), so the right to express a truthful statement or reasonably held opinion did not protect communications made in breach of s 32(1)(d).90 Having determined that s 32(1)(d) was thus the predominant provision, the Court then considered the real issue to be whether s 32(1)(d)(ii) meant that all communications relating to bargaining were prohibited (as the Council and Business New Zealand argued was the result of the Employment Court's decision), or just communications which undermined the bargaining or the union's authority.91 The Court of Appeal concluded that the Employment Court had erred in interpreting s 32(1)(d)(ii) in such a broad manner. Having regard to the changes made at Select Committee stage, they concluded that communications were prohibited where:
such communication amounted, directly or indirectly, to negotiation with those employees about terms and conditions of employment, without the union's consent (s32(1)(d)(ii)); or (2) such communication undermined or was likely to undermine the bargaining with the union or the union's authority in the bargaining(s32(1)(d)(iii)).92
The end result of the Court of Appeal's judgment in Christchurch City Council was that a less restrictive approach to communications appears to be in place than that found in the Employment Court level decision. However, despite the hope of the Court of Appeal that their decision would bring clarity to the issues arising in the application of s 32(1)(d), there still seems to be some dispute among commentators as to the true effect of the judgment. One interpretation of the Court of Appeal's decision appears to be that in rejecting the approach of the Employment Court, which could have resulted in absurdity, the Court of Appeal effectively reinstituted the approach found in common law under the ECA.93 Under this view of the Court of Appeal's decision, while employers should not approach union employees during bargaining, they could potentially communicate with employees to clarify their position or rectify statements by the union they consider untruthful or incorrect, although they would need to be careful not to undermine the bargaining or union when doing so.94 To better protect themselves from allegations of breaching s 32(1)(d), employers would also be better positioned if they agree to a bargaining process agreement at the outset that allows direct communication with employees or, if this is not possible, submit a draft of the communication to the union prior to issuing it to employees.95 It is also argued that as the ERA is based on philosophies that support collective bargaining, unlike its predecessor, a return to the effectively undermining approach of the 1990s, illustrated in such cases as Ivamy,96 is unlikely.97 Following this approach, despite the Court of Appeal allowing some employer communications with employees, the decision merely means that bargaining process agreements will be of greater importance in governing the types of communications.
The other view of the Court of Appeal decision is that rather than preventing absurdities that could arise from the Employment Court's bar on all communication, it represents a significant step backwards in terms of promoting collective bargaining.98 Ironically, this more extreme interpretation of the Court of Appeal's judgment can also be found in the business community, with the opinion expressed that s 32(1)(d) is merely the modern incarnation of s 12(2) under the ECA,99 and that the Court of Appeal's decision results in a return to the approach found under s 12(2).100 The first approach to the Court of Appeal decision appears to be the more accurate. While undoubtedly the Court of Appeal pulled back from the blanket ban on communications that appeared to result from the Employment Court's decision, this is not the same as returning to the position found under the ECA. As Davenport points out, communications under the ERA are taking place against a background of good faith that was not present under the ECA regime.101
In this respect the Court of Appeal rejected the Council's submission that the test of bad faith should be made subjectively. Instead they held that rather than using a strictly objective or subjective test, courts should consider the circumstances listed under s 32(3) in assessing faith.102 It is also important to remember that where a breach of s 32(1)(d) is held to have occurred it is still necessary to then continue to ask whether the general good faith provisions of s 4 have been breached.
Finally, the Court considered the Employment Court's decision regarding when the prohibitive effects of s 32(1)(d) applied. On this issue the Council had submitted that the Employment Court erred in stating that prohibited communications could include those concerning bargaining which will be initiated in future. Instead, the Court of Appeal held that bargaining must be formally initiated for the duties under s 32(1)(d) to come into force.103
However, while the Court of Appeal's decision has provided some degree of clarity on larger issues as to the prevalence of s 32(1)(d) over s 4(3), as well as on what the timing and extent of communications to employees should be, uncertainty still continues in some areas. The first concerns the interpretation of 'directly or indirectly bargain' under s 32(1)(d)(ii). While the Court did state that bargain meant negotiate, the point at which the nature of a communication amounts to indirectly bargaining was not discussed. Davenport has given consideration to this issue, looking at the Employment Court decision on the facts of Christchurch City Council (which decision was not overturned on appeal, despite disagreement as to the legal interpretations). There, communications were found to breach s 32(1)(d) when they presented only one side of the argument in communications, and when they communicated directly with employees about their preference for a multi-union collective agreement, despite this being the subject of bargaining and negotiation with the union. Directing union members to make any responses to the communication via their union representatives was not enough to prevent a breach.104 The meaning of undermining under s 32(1)(d)(iii) is also important with regard to where the line should be drawn in terms of permissible communications. Undermining was considered in AUS,105 with a broader interpretation of undermining preferred, where undermining could be subtle or overt.106 In considering what could be considered to have an undermining effect, both the Employment Court decision in Christchurch City Council and AUS can provide us with some examples, although there is certain to be further litigation on this matter. Davenport provides a comprehensive list of communications likely to be considered undermining in light of the Employment Court's decisions in the above cases. These include:
(i) Communications that criticise or undermine the other bargaining party;
(ii) Communications that criticise the stance or claims made by the other party in the bargaining (criticism as to substance);
(iii) Communications that could be viewed as advice or statements with the intention of inducing an employee not to be involved in bargaining for a collective agreement (see s 4(6) of the ERA);
(iv) Communications that seek to engage in direct negotiation with employees (such as presenting individual employment agreements to sign or seeking responses or interactions with the employees regarding matters which are subject to the bargaining);
(v) Communications that are one-sided or lack balance;
(vi) Communications that are not factual or reasonable (for example communications that are misleading or deceptive);
(vii) Communications that stem beyond factual material into the rationale of a particular bargaining position (communications that seek to persuade by emphasising reasoning and merit).107
The appearance of more case law in this area will undoubtedly provide further clarity for employers and unions alike.
The promotion of MECAS was another aim of both the ERA and the ER Amendment, albeit one thought able to be effected through general reinforcement of the promotion of collective bargaining as opposed to specific provisions. As discussed above, the obligation introduced in the ER Amendment to conclude 'a' collective agreement does not extend to an obligation to enter into a specific type of collective agreement (for example, to enter into a MECA not a SECA).108 The arguments advanced both in support of, and opposing, MECAs are much the same as those advanced with regard to collective agreements in general.109 However, MECAs cause additional concern to employers because of perceived inroads on commercially sensitive information and the potential loss of competitive advantages. Even though the select committee process resulted in the removal of a proposed amendment requiring parties to attend the first meeting of multi-party bargaining for a collective agreement,110 concern was still expressed by opponents that employers would find themselves forced to enter into MECAs.111 Prior to the passing of the amendment, the Employment Court considered the matter of MECAs in Toll.112 That decision concluded that under the ERA MECAs had no special status separate from collective employment agreements in general.113 It went on to state that the only advantage that MECAs had under the legislation was that there was no need to hold a new secret ballot when the MECA expired if its replacement affected the same employees.114
Since the passing of the amendment, the main consideration of MECAs has occurred in AUS.115 In this case, the University of Auckland refused at the outset to engage in negotiations for a MECA, providing reasons for their refusal. The first issue before the Court was whether the University of Auckland was required by the legislation to participate in bargaining. The Court held that the University of Auckland's rejection at the outset was too premature, and that they had not used their best endeavours (as required by the code formed under s 35) to enter a bargaining process arrangement under s 32(1).116 While the entering into a bargaining process arrangement would not subsequently require the University of Auckland to conclude a MECA, once the bargaining had been initiated by AUS 'the legislation requires the University to engage in bargaining with AUS about issues it had not ... been prepared to address other than by a refusal to bargain'.117 Once bargaining is engaged in, however, an employer is perfectly within their rights to refuse to conclude a MECA if they can provide a 'genuine reason' under s 33.118 Employers can also find reassurance in the Employment Court's reluctance to issue a compliance order in this case, finding on the facts of the case a compliance order was unwarranted as AUS could also have done more to enter a bargaining process arrangement.119 As discussed above, the Court also considered the position of MECAS under the ERA, as amended, in Service and Food Workers Union v ADHB. This case drew on the decision in AUS in clarifying that under s 33 the requirement to conclude a collective agreement did not equate to a requirement to conclude a MECA.120
As with most aspects of employment law, whether this approach is viewed positively or negatively depends on one's ideological viewpoint. Those who view MECAS favourably as the ultimate protection against employee inequality consider that the way that the ERA is drafted and interpreted by the courts, even after the 2004 amendments, is doing little to promote the growth of MECAS.121 However employers are likely to find reassurance in the approach of the courts, as it continues the lack of preference of one type of collective agreement found in the initial drafting of the ERA. It also seems in accordance with the intent of the Select Committee, following their deletion of a proposed amending clause that was considered to have contributed to an erroneous perception that employers would be compelled to enter into multi-employer collective agreements.122 The decision also suggests that following the ER Amendment, the courts are reluctant to intervene where the parties themselves do not act in the co-operative manner promoted within the amendments and fail to use the facilitative options made available under the Act,123 discussed in further detail below.
Very closely connected to the issue of the formation of MECAS is subsequent party bargaining under s 56A. This provision was intended to enable willing employers and unions to join pre-existing collective agreements.124 The key case in this area is Epic Packaging v NZ Amalgamated Engineering, Printing and Manufacturing Union Inc ('Epic').125 At issue in this case was whether it was possible for a union to issue a notice initiating bargaining for an employer to become party to an existing MECA under s 42, thereby compelling the employer to engage in bargaining and allowing the possibility of strike action.126 The Court considered the meaning of the word 'bargain' under the ERA, concluding that if bargaining were to apply in relation to attempts to get employers to join existing MECAS, this would represent a significant shift from common law principles.127 It then considered the meaning of the term 'collective agreement' under the ERA, as amended. After noting the importance of balancing the statutory aims of promoting collective bargaining and protecting the integrity of individual choice,128 the Court observed that while coercive tactics were supported by the ERA in order to conclude a collective agreement, it could not extend beyond that to allowing coercion to be used to obtain agreement to join a particular form of collective agreement.129 The Court then considered the meaning of collective bargaining, stating:
It is fundamental that the collective bargaining referred to in the object section of the Act is bargaining for a collective agreement as that concept is described and embodied in the Act. Such an agreement must contain or otherwise fix terms of employment. It must also have the form and content required by s 54. It follows that the bargaining process under the Act must be directed atconcluding such an agreement.130
Such an interpretation results in placing any bargaining to get subsequent joinder to a pre-existing MECA outside the intent of the ERA. Therefore it is not possible to serve a s 42 notice to initiate a bargaining process for subsequent joinder. The Employment Court considered that to allow otherwise would be contrary to the object of promoting orderly collective bargaining.131 The Employment Court also considered such an approach was consistent with the right of freedom to associate found in the New Zealand Bill of Rights Act 1990, relevant considerations in international covenants and parliamentary intent.132 The end result of the decision is that s 56A can only be considered to enable the voluntary joinder of parties to existing collective agreements, rather than providing active promotion of MECAs.
While Epic is currently under appeal to the Court of Appeal, the current position adopted by the courts means valid questions can be raised as to the utility of s 56A. Davenport, in commenting on the decision, noted that following Epic all s 56A does is provide a way for an employer to join an existing agreement should they choose to do so.133 The Court itself in Epic had expressed puzzlement as to the reasons for Parliament's enacting of s 56A in light of the legislative history and absence of any controversial issue under the legislation as initially enacted.134 Indeed, at the outset of its judgment in Epic, the Court noted that while the ERA provides a statutory process for the bargaining of a collective agreement, it was equally open to parties to come to their own collective agreement independently of the statutory process.135 In light of this one could conclude that section 56A was merely intended to clarify an inherent aspect of the law. This conclusion could arguably be considered an inevitable consequence of the decision at Select Committee stage to delete clause 14 of the Employment Relations Law Reform Bill 2004 so as to not create the impression that an employer could be compelled to enter into a MECA.136 It is also arguably consistent with the view most recently expressed in Service and Food Workers' Union v ADHB137 that the legislation is not intended to promote one form of collective agreement over another.
An inability to issue bargaining notices under s 42 for subsequent joinder prevents a union from reopening bargaining on a concluded agreement that an employer has already opted, for genuine reasons, not to become part of. As the Court noted in Epic, the union could have issued a bargaining notice to Epic Packaging Ltd when a pre-existing MECA that Epic Packaging Ltd had not been party to came up for renegotiation, but chose not to.138 One could therefore argue that there is a certain fairness in not allowing a union to issue a bargaining notice under s 42 and thereby use coercive tactics to persuade an employer to agree to join an already existing MECA. By not engaging the employer in negotiations prior to concluding the MECA, the union has effectively denied the employer the chance to negotiate the terms of the agreement. This is despite the NZ Amalgamated Engineering, Printing and Manufacturing Union's contention (rejected by the Employment Court)139 that negotiation is allowed for by a two-step bargaining process, in which the first step is to bargain for the employer to become a subsequent party and the second step is for the union and employer to negotiate variations to the agreement that are specific to the employer.140 Additionally, if bargaining has already been initiated between multiple employers and a union or unions, and an employer has been able to establish a genuine reason not to conclude the agreement under s 33, enabling the union to reissue a bargaining notice under s 42 for subsequent joinder under s 56A would arguably provide them with a means of reopening bargaining that has reached a genuine deadlock. As this would not be available had the collective bargaining in question concerned a single employer collective agreement (SECA), it would seem inadvisable to allow it to occur when a MECA was involved, as it would create an avenue for compulsion in MECAS that is not available under SECAs.
The above evaluation of the merit of the decision is based on an acceptance of the Court's interpretation of the meaning of 'collective agreement'. However Roth has submitted that the Employment Court adopted an unnecessarily narrow interpretation of 'collective agreement'.141 This viewpoint rests on the premise that the ERA as drafted maintains a distinction between 'collective agreement' and 'employment agreement', with 'collective agreement' intended to be a broader concept capable of covering joinder agreements.142 If a broader interpretation of collective agreement is adopted, it is argued that a joinder agreement could, if in writing, be made to satisfy the Court's requirements that it fix terms of employment, if it refers to the already existing collective agreement, and be in the form required by s 54.143 Further, Roth argued the Employment Court made the additional mistake of conflating the joinder agreement with the MECA, deciding the case by reference to the MECA when they should have been considering the joinder agreement itself, which could be negotiated over.144 However, others have submitted that the statutory notice issued by the NZ Amalgamated Engineers, Printing and Manufacturing Union had itself conflated the agreement and subsequent variations, meaning that the Court's decision in this regard was inevitable.145
Roth also raised concerns about the Court's comments with regard to when the duty of good faith applies. While he conceded that they were consistent with the Court's approach in the case, he considered their statement that 'it does not follow that the act of validly initiating bargaining makes every subsequent topic of discussion a valid part of the collective bargaining process established by the Act and potentially subject to the coercive measures available in such bargaining'146 to be regrettable. This was because such a statement is likely to be used by litigants to support fine distinctions in the duty of good faith, which Roth considers to be inconsistent with key aspects of the ERA.147
Roth also considered that the Employment Court's reliance on an employer's right to freedom of association was misplaced.148 In contrast to the Employment Court's assertion that under the ERA the issues confronting the Court in Epic should be interpreted consistently with an employer's right to freedom of association unless there was clear legislative intent to the contrary,149 Roth considers that the tension between collective bargaining and freedom of association is not so extreme. Instead he argues that the reference in s 3 of the ERA to the protection of the integrity of individual choice is not targeted at protecting freedom of association but rather continuing the notion that there should be no compulsory unionism.150 Additionally, he considers the fact that pt 3 of the Act dealing with freedom of association only addresses employees, that the legislative meaning of 'individual' tends to be a natural rather than legal person, and that an employer has the ultimate ability to refuse to conclude an agreement if they can satisfy the requirement of a genuine reason under s 33, to preclude the Employment Court's emphasis on an employer's freedom (not) to associate.151
In light of Roth's criticisms it will be interesting to see what the Court of Appeal will say on the matter, if the appeal is pursued. While Roth's broader interpretation of collective agreement will undoubtedly be supported by those who seek the statutory advancement of collective agreements, it is questionable if the Court of Appeal will be so embracing. Some people view the general approach of the courts to be one of reading down the ERA.152 Under this approach it is therefore doubtful whether Roth's arguments, though cogent, will persuade the courts to abandon a narrow interpretation of collective agreement in favour of a broader one.
When the Employment Relations Bill 2000 was first advanced, it was noted that sufficient remedies must be available to dissuade a breach in order for a duty to bargain in good faith to be effective.153 However a constructive, problem-solving approach was preferred over the more litigious nature of the ECA.154 Concerns soon arose that there were not enough statutory remedies provided for within the ERA, something which the ER Amendment then tried to redress. Unions were unsurprisingly supportive of changes to the statutory regime, which included the provision of third-party assistance to help with bargaining for collective agreements, and resolution by the Employment Relations Authority where there is a serious, sustained and significant breach of good faith in collective bargaining.155 Employers, on the other hand, were critical of what they perceived as the punitive nature of the reforms.156 They were mistrustful of ss 50A - 50I which provide for the Employment Relations Authority to facilitate collective bargaining and s 50J which allowed the fixing of terms of a collective agreement, despite numerous thresholds needing to be passed before facilitation could occur and further thresholds to be met before the fixing of terms would be instigated.157 The Opposition also expressed concern over the introduction of the ability of the Employment Authority to set terms and conditions where parties are unable to agree and there has been a breach of good faith.158
However, as was noted soon after the ER Amendment was passed, the impact of provisions enabling statutory remedies was largely dependent on the approach taken by the Employment Relations Authority and the courts.159 Despite the sometimes apocalyptic predictions made by the opponents of the ER Amendment, the reality appears to be rather tame. Davenport, writing in 2006, noted seven applications for facilitation under the ERA, with three surprisingly having been made by employers.160 Of these, four were successful in receiving facilitation, however, none reached the ultimate stage of having
the terms of their collective agreement fixed by the Employment Relations Authority.161 Such reluctance means that Davenport considers s 50J at least to be an example of where the amendments support collective bargaining in theory, but in reality have little impact.162
More recent cases in the Employment Relations Authority also reinforce the attitude taken by the Employment Relations Authority and the courts that facilitation is to be a last resort, with a high threshold needing to be satisfied before intervention can occur.163 The Employment Relations Authority's consideration of applications for facilitation under s 50C is slowly providing further clarity about what needs to have occurred before they will provide facilitation.164 In general, where applications for facilitation have been turned down it appears to have been on the basis that while the parties were in difficulties, these were not of a serious enough nature to meet one of the requirements under s 50C,165 or other alternatives had yet to be exhausted.166 It is also interesting to note that the Employment Relations Authority adheres to a strict application of the grounds that must be satisfied, even where parties themselves may agree to facilitation.167 The use of s 50J to fix terms and conditions is one step further again, and although it does not require the failure of facilitation before becoming available,168 it does seem to be conceived of as a solution of last resort. In AUS the Court seemed to support this inference by describing s 50J as 'an ultimate game-breaker in exceptional cases'.169
The overall trend that seems to be emerging from the courts and the Employment Relations Authority is a reluctance to intervene unless the parties have exhausted all reasonably available alternatives in an attempt to settle their dispute. This approach seems consistent with the notion that the emphasis of the ERA is on parties cooperating and handling their own bargaining methods, with statutory mechanisms merely intended as a backup.170
The ER Amendment also introduced penalties for serious breaches of good faith, with the Opposition again expressing concern over the potential impact of such penalties.171 Once again, however, these fears seem yet to be realised. Davenport has noted the absence of any penalties for breaches of good faith being handed down by the courts, suggesting that the remedial provisions in the ERA were failing to be a 'meaningful deterrent against breaching of good faith obligations in collective bargaining'.172
Examples of the courts choosing not to exercise their ability to hand down penalties are easily demonstrated by reference to some of the cases discussed earlier in this paper. In the decision in Christchurch City Council,173 the Employment Court, despite finding clear breaches, stated it had no jurisdiction to award damages174 and that a compliance order was unnecessary, meaning a declaration of the breaches made was the only remedy awarded.175 In AUS 176 the Court also concluded that a penalty for bad faith or the issuing of a compliance order was not suitable,177 a conclusion which seems to support Davenport's assertion that it is difficult to satisfy the requirement of an 'intent' to undermine bargaining in order to have a penalty awarded under s 4A.178
However penalties have been awarded in the Employment Relations Authority. A recent example is that of NZEPMU v Terry Young Limited (t/a Yunca Heating & Gas).179 In this case the Employment Relations Authority found that there had been breaches of good faith relating to the employer's meeting with employees; a credit proposal that had only been circulated to non-union employees; and the display of a memo with notification of union fee increases.180 A jurisdictional question also arose in this case, however. Section 133(1)(b) of the ERA states that the Employment Relations Authority only has jurisdiction to deal with actions for a penalty where a section has been breached if the Authority is specifically provided jurisdiction by the breached section. The ability to award a penalty for breach of good faith is contained in s 4A, but this does not state that the Authority has jurisdiction.181 However, the Employment Relations Authority concluded that, as it had exclusive jurisdiction to decide whether good faith obligations under the ERA had been complied with, jurisdiction to impose penalties for breach of s 4A lay with the Authority.182 The Employment Relations Authority then continued to consider whether a penalty was appropriate in this particular case. It concluded that the employer had intended to undermine bargaining for a collective agreement, and the relationship between the union and employer.183 These actions were considered deliberate, serious, and held to have influenced union members, leading to resignations from the union which subsequently harmed the collective bargaining process.184 In setting the level of penalty, the Employment Relations Authority considered it should have an element of 'condemnation and deterrence'.185 It also favoured assessing damages based on conduct treated as a whole rather than on a breach by breach basis.186
Nonetheless, the overall reluctance by the courts to impose penalties, combined with the fact that penalty and facilitation provisions were largely absent from the initial ERA, supports the idea that Authority and court intervention may continue to be the exception in modern employment relations.
While an in-depth examination of the law pertaining to strikes and lockouts is beyond the scope of this paper, a brief examination of recent decisions pertaining to strikes and lockouts will be undertaken. Little amendment was made in this area of the law in 2004. The right to strike and lockout existed under the ECA, and was continued into the ERA, albeit with some added restrictions.187 These are contained under s 86 of the ERA, and of relevance to collective bargaining are the provisions that make a strike unlawful where a binding collective agreement is in force (subject to subs 2), or within the first 40 days of bargaining being initiated for a collective agreement. Employers are unable to lock out employees not part of collective bargaining, or require them to undertake the work normally performed by the striking workers. Workers can also not be dismissed for taking part in a lawful strike. The other main development from the ECA was that it was no longer unlawful to strike in support of a multi-employer collective agreement.188
After the passing of the ERA some concern was expressed that it did not clearly state that strikes and lockouts should be an option of last resort. While strikes and lockouts are forbidden for 40 days after initiation of bargaining, this does not equate to requiring that parties have explored all other options before resorting to industrial action.189 However, the ER Amendment contained no major changes to strike and lockout procedures. Where strikes and lockouts were mentioned was in relation to some of the other major amending provisions. As such, the introduction of bargaining fees was accompanied by a provision that it was illegal to strike or lockout employees over bargaining fees.190 Acrimonious or protracted strikes or lockouts were also made a ground for facilitation under s 59C. Applications for facilitation have since been granted by the Authority for both acrimonious191 and protracted192 striking.
One issue that has arisen with regard to the restriction on striking and lockouts within the first 40 days of bargaining is the determination of when bargaining is actually initiated. This most recently arose in Waikato District Health Board v Service and Food Workers Union,193 with the Employment Court having to address the impact of refusal of consent to join a MECA. In this case, an application was made for an interim injunction preventing strike action. It was granted, with one ground being that it was arguable that initiation of bargaining for a MECA did not also constitute initiation of bargaining for a SECA with the WDHB itself.194 Informal bargaining that had continued between the parties was also insufficient to constitute initiation of bargaining.195
However, where bargaining has been initiated, it seems unlikely that injunctions prohibiting strikes will be granted. This is illustrated by Director-General of the Ministry of Agriculture & Forestry v New Zealand Public Service Association Inc.196 The case concerned an application by the plaintiff for an injunction to prevent a strike where the subject of the strike was targeted at was already subject to proceedings in the Employment Relations Authority. In this case the Court cited s 80(a) which states the duty of good faith does not preclude recourse to strikes and lockouts to rebut the plaintiff's submission that 'where there were alleged breaches of good faith or where these are being addressed in proceedings, the alleged actor in bad faith should be precluded from what would otherwise be a statutory right to take strike or lockout action, at least until the alleged good faith wrongs have been righted'.197 Section 100(3), which provides that where a strike is found to be lawful under ss 83 and 86 'the Court must dismiss a proceeding seeking the grant of an injunction to stop a strike or to prevent a threatened strike and precludes recourse to injunctive proceedings in any other court'198 was also cited in support of not granting the injunction to prohibit the strike. This case also clearly elucidates that the courts' view of Parliament's intent is that parties should only be deprived of their right to strike in very tightly defined circumstances.199
Other issues that have arisen pertaining to strikes and lockouts surround the use of non-striking workers to do work normally undertaken by striking workers. This was considered in Finau v Southward Engineering Co Ltd,200 where the question at issue was whether an employee who relied on s 97(3) to refuse to do work normally performed by a striking employee subsequently became a party to the strike and able to be suspended under s 87. The Court found that as s 97(3) required the employee's agreement to make an instruction to perform a striking worker's duties lawful, a refusal to perform the work would not fit within the definition of strike found in s 81(1), and thus would not allow suspension under s 87.201 The use of a corporate employer's personnel to undertake the work normally completed by striking workers has also been held to possibly contravene s 97.202 This was despite an earlier decision in National Distribution Union & Anor v General Distributors Ltd & Anor ('NDU v GDL')203 which enabled other people to perform the work of locked out workers provided they were not engaged or employed to do so, with the Court distinguishing the cases on the facts. This so-called 'type of work' approach was then applied in the substantive hearing New Zealand Amalgamated Engineering etc Union Inc v Air Nelson Ltd ('Air Nelson').204
Thus at the interlocutory hearing in NDU v GDL it was held that it was equally open to the Court to infer that the suppliers, not the employer, had engaged those who performed the duties of the striking and locked out workers, so they were not satisfied to the necessary standard that there had been a breach of s 97.205 Alternatively, at the interlocutory stage in Air Nelson, the request by Air Nelson to Air New Zealand to make the necessary arrangements to ensure continuation of cargo out of Nelson arguably amounted to evidence of the employment or engagement of Air New Zealand to perform the work of the striking employees.206 It has been suggested, however, that the approach followed in the interlocutory hearing of Air Nelson seems arguably more correct as there is little sense in a provision that would allow others to perform the work of locked out or striking employees provided their relationship to the employer was unclear.207 However in the substantive hearing of Air Nelson, the Court held on the facts that the email request merely activated a provision in the commercial contract between Air Nelson and Air New Zealand. That provision enabled Air New Zealand to carry out the work itself, for the benefit of its clients, if Air Nelson was unable to discharge its obligations. So ultimately there was found to be no breach of s 97.
The ambit of 'safety' under s 84, which makes strikes over safety and health lawful, has also received recent consideration by the courts. In Service and Food Workers Union Nga Ringa Tota Inc v Spotless Services (NZ) Ltd,208 the Court considered that the meaning of safety was broader than the safety of the employees themselves, and could encompass not only the safety of patients209 but also arguably the safety of inanimate objects and systems.210 This decision has been criticised, however, as being inconsistent with general constructions of 'health and safety' which, although potentially supporting extension to inanimate objects such as medical equipment, seem nonsensical when applied to something such as landscaping.211
Whether strikes and lockouts are a legal option with regard to subsequent joinder is another area that has received attention from the courts. As discussed above, in Epic212 the union sought to issue a notice under s 42 to initiate bargaining for a collective agreement, with the agreement in this case being an agreement for subsequent joinder to an existing MECA. In considering whether the statutory bargaining process could be invoked for this purpose, the Employment Court was also determining whether coercive measures such as strikes could be invoked in order to secure a joinder agreement.213 As previously noted, the Employment Court rejected the use of statutory bargaining processes in this area, instead finding that in order to protect individual choice exclusion, coercion or compulsion should not be an available means for obtaining agreement to join a particular form of collective agreement.214 This decision necessarily reduces the potency of strikes as a tool for securing MECAS, however strikes can still be used to advance MECAS if bargaining is initiated with employers as 'original parties', rather than attempting to force them to subsequently join existing MECAS.215
The final area that this paper will examine is the trends of collective bargaining amongst New Zealand workplaces subsequent to the ER Amendment. One key object of the amendments was to promote collective bargaining. Thus it is appropriate to consider developments in the prevalence of collective bargaining in addition to judicial developments. Under the ECA, private sector collective bargaining density had declined from 50% to 21%, and this decline continued under the ERA.216 Public sector collective bargaining density, although reduced under the ECA,217 has remained relatively high, although the ERA has not led to a resurgence in density to pre-State Sector Act 1988 and ECA levels.218 Focusing on density levels within the era of the ERA itself, in 2000 public and private sector collective bargaining density stood at 69% and 21% respectively. In 2005, soon after the introduction of amendments, density levels had dropped to 61% and 9% respectively. Since this time private sector density has remained unchanged, while public sector density fluctuated back up to 68% in 2006 before returning to 61% in 2007.219 As for the types of agreements, the Industrial Relations Centre noted a shift of collectivised workers from MECAs to SECAs of five percent.220 They also noted that despite some periods of growth in MECAs in previous years, the overall coverage of MECAs in 2007 was less than 30% of employees on collective agreements.221 An examination of the distribution of MECAs between the public and private sectors further reveals that 47% of core Government employees are covered by a MECA, as opposed to only 10% of private sector employees.222
When the ERA was initially introduced, opponents were quick to criticise what they perceived as a return to compulsory unionism.223 However, the much predicted rise in union membership and collective agreements did not seem to eventuate. Instead Laila Harré's comments that she only expected collective bargaining to occur in workplaces with large numbers, and that she did not expect MECAs to be widespread,224 proved more accurate. The ER Amendment was described by supporters as a fine-tuning to more effectively promote collective bargaining.225 Opponents decried it as promotion of unions following refusal to join by the majority of private sector workers.226 Whether one viewed the intended further promotion of collective bargaining in a positive or negative light however, the above data on collective bargaining appears to suggest it was largely ineffective, a conclusion also supported by Davenport's 2006 analysis of MECAS.227
The inability of the ERA and the ER Amendment to create a significant upswing in union density deserves further analysis. While opponents have seized on the relatively low levels of union membership as evidence that unions are no longer desired by the vast majority of employees,228 a paper presented in 2004 suggested that New Zealand unions could expect a realistic catchment of 34%.229 Data from the year ending December 2006 showed union density levels at 21.7%,230 meaning there would appear to be considerable unrealised potential for growth in union density. In 2004 Anderson considered that employer hostility and anti-union strategies must be considered part of the reason why this potential remained unfulfilled, and thus legislative amendments further promoting collective bargaining could be considered justified as it would further assist those employees who so desired to be represented by unions.231 In light of the relatively unchanged union density figures, however, one of two conclusions must be drawn. Either the amending provisions did not go far enough, or other factors are at play.
At the time of the amending provisions, while unions were supportive, they did express some concern that the amending provisions did not go far enough232 and thus would be unable to effect true change. Particular concern was expressed that the reforms targeted at preventing freeloading were only token.233 The subsequent decision in National Distributions Union234 illustrates the difficulties confronting unions attempting to prove unlawful passing-on once a collective agreement has been reached, meaning the amendments may have little practical effect in this area.235 Concern has also been expressed by some commentators that there is a tendency to 'read down' the ERA, resulting in unduly narrow interpretations of the law. The Court of Appeal decision in Christchurch City Council pulled back from a broad interpretation in the Employment Court, clarifying that s 32(1)(d)(ii) would only apply in specific circumstances,236 a decision viewed by some as a return to the position found in Ivamy, decided under the ECA.237 Similarly the unions have viewed the decision in Epic as another conservative interpretation of the ERA with negative implications for collective bargaining.238 Others have suggested that while legislation merely permits, rather than mandates, union membership, levels of union membership are unlikely to change significantly.239
Other non-legislative factors also need consideration when considering current levels of uptake of union membership and collective bargaining. Attitude changes do not occur overnight. The deregulation of the business environment, including the introduction of the ECA, created an atmosphere seen as hostile to collective bargaining for the entirety of the 1990s. Thus in contrast to their predecessors, a significant portion of today's workforce are accustomed to a work environment where collective agreements and unions, while an option, are not the powerful influence they were previously. That, coupled with a general societal movement to increased individualism, could be seen to provide some attitudinal barriers to advancing the position of collective bargaining. While an employee may say that they would prefer to be represented by a union when the concept is presented as an abstract notion, they may be more reluctant when confronted with the reality of union membership fees and the loss of some autonomy. However, some substantial gains have been noted in union membership levels among younger, part-time and casual workers,240 suggesting unions are managing to establish some influence and relevance among the next generation of workers, boding well for their long-term prospects.
Employees are also increasingly demanding work-life balance, and it appears that employers are moving to meet this demand by providing a range of initiatives that workers can take advantage of in order to tailor their employment to their situation.241 In such an environment, the option to join a collective agreement may appear less appealing to employees. This is likely to be further compounded by the recent introduction of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007, which inserts a new pt 6AA into the ERA. While this legislates to enable employees greater ability to request flexible working conditions, under s 69AAF(3) an employer must refuse a request if the request is from an employee who is bound by a collective agreement, the request relates to working arrangements to which the collective agreement applies, and the employee's working arrangements would be inconsistent with the collective agreement if the employer were to approve the request. Thus, belonging to a collective agreement could potentially hamper access to more flexible working arrangements, despite the fact that access to initiatives enabling flexible start and finish times, or the ability to work from home were rated as two of the three most useful initiatives that could be introduced to assist work-life balance.242 Ironically enough, this restriction on the ability to request flexible working arrangements when an employee is subject to a collective agreement was intended by the Select Committee to prevent the undermining of a collective agreement.243
The nature of the overall labour market is also likely to have some impact on union membership uptake. The case for collective bargaining is based on the basic premise that there is an inherent inequality in bargaining power.244 However, while some inequalities will always exist between employers and certain employees, market factors such as low unemployment rates mean that employees have been in a relatively strong position over recent years, with employers competing among themselves to attract employees, to the general benefit of most employees. This again means there has arguably been less incentive for union growth than would have been the case if there had been an economic downturn and high unemployment levels. Additionally, many of the more traditional union strongholds have been in manufacturing and production industries that are increasingly being moved offshore and thus outside of New Zealand union influence.
Laila Harré's recent Bruce Jesson memorial address considered that the fault lay in more than one area. While she concluded that more legislative support was necessary than currently available,245 she also pointed to a need for unions themselves to build relevance and respect among workers and employers.246 This could be achieved through collective action but also through following the example of unions such as Unite in increasing the value of union membership through providing benefits such as provision of free educational opportunities, and creating alliances with other community groups in order to maximise the impact of any campaigns.247
Finally it is important to note that a deliberate feature of the ERA is that relatively few employment cases come before the courts and Employment Relations Authority. While there will always be unscrupulous employers and unions under any regime, this does not mean that the general notion of good faith is not gaining ground within the employment environment. The National Distributions Union case can be considered an example where the employer had seemingly been making genuine endeavours to comply with legislation that at that point was new and, as such, uncertain. There also appears to be indications of an increasing willingness on the part of both employers and unions to engage in partnership behaviours within unionised workplaces.248 While it is the situations where disputes arise that lead to the pronouncements by the Employment Relations Authority and courts that facilitate the interpretation of the statutory regime, they will only ever provide a partial, more acrimonious view of the state of employment relations in New Zealand than exists in reality.
The ER Amendment was intended to assist in the promotion of collective bargaining, by strengthening provisions within the initial ERA. However, the overall impact of the statutory provisions promoting collective bargaining remains limited. The Employment Relations Authority and courts have adopted a seemingly conservative approach to the statutory provisions, with an apparent emphasis on freedom of association and a desire to avoid intervention unless absolutely necessary. At times the drafting of the legislation itself also appears to fail to effect what may have been desired by the legislators. While unions may have desired greater assistance from the amendments, employers' fears once again appear to have been unrealised. The density of collective bargaining has remained relatively unchanged since the rapid decline at the start of the 1990s, and it seems unlikely that a reversal of this trend will be achieved through legislative means unless more drastic steps such as the reintroduction of some form of mandatory unionism or 'closed shop' were taken. In the current political climate, however, such further amendments seem doubtful. Instead it would seem that the best course for proponents of collective bargaining is to use the enabling legislative environment that currently exists to consolidate their current position, and look to developing the role and profile of unions in such a way as to maintain relevance in an employment environment and demographic that is substantially altered from the conditions that generated the original union movements.
[*] LLB(Hons), BA. Jenna is due to take up employment with Simpson Grierson in July 2008. She would like to gratefully acknowledge the assistance and supervision provided by Senior Lecturer John Hughes of the University of Canterbury School of Law in the writing of this paper.
[1] Explanatory Note to the Employment Relations Bill [2000] Employment Law Bulletin 40, 40.
[2] Rebécca Macfie, 'Reactions to the New Employment Relations Bill' [2000] Employment Law Bulletin 70.
[3] Ibid 71.
[4] Cabinet Economic Development Committee Review of Employment Relations Act 2000: Outstanding Matters Min (03) 27/15, (06 August 2003) [1].
[5] Ibid [2].
[6] Ibid [7].
[7] Ibid [8].
[8] Ibid [17] - [18].
[9] Ibid [19].
[10] Ibid [20] - [21].
[11] John Hughes, 'Editorial — The Sky is Falling ... Again' [2004] Employment Law Bulletin 77.
[12] See, for example, Dr Wayne Mapp, National Party in 'Political Parties' Comment on Recent Labour Law Reforms' [2004] Employment Law Bulletin 106, 109.
[13] See, eg, Paul Adams, United Future: ibid 111.
[14] Paúl Swain, Labour: ibid 106 - 107.
[15] Peter Tritt, 'Editorial: The Employment Relations Law Reform Bill — A "Fine-Tuning" of the ERA?' [2004] Employment Law Bulletin 1.
[16] Barbara Burton, 'The ER Law Reform Bill — A Business New Zealand Perspective' [2004] Employment Law Bulletin 6.
[17] Department of Labour Report ‘Employment Relations Law Reform Bill' 22 July 2004, ER/ DOL/5A, 32-34.
[18] Ibid 33, [2].
[19] Ibid 33 - 34, [3].
[20] Ibid 34 - 35, [5] - [8].
[21] Ibid 35 - 36.
[22] Geoff Davenport and Melanie Brewer, 'Good Faith — An Enhanced Collective Focus' [2004] Employment Law Bulletin 101, 103.
[23] Ibid.
[24] Ibid.
[25] Andrew Little, 'ERA Amendments — Will They Make a Difference?' [2004] Employment Law Bulletin 118, 119.
[26] Ibid 118.
[27] New Zealand National Party, 'ERB will see employers held to ransom' (Press Release, 13 September 2004).
[28] Paul Roth, 'What is a Collective Agreement under the Employment Relations Act' [2007] Employment Law Bulletin 19 <http://www.lexisnexis.com.ezproxy.canterbury.ac.nz/nz/legal/ results/pubTreeViewDoc.do?nodeId=TAAH & pubTreeWidth=23%25> at 7 January 2008.
[29] Davenport and Brewer, above n 22, 102.
[30] Geoff Davenport, 'Editorial: The ERA's objective of promoting collective bargaining — The proof is in the MECA pudding?' [2006] Employment Law Bulletin 157,158.
[31] Ibid.
[32] Service and Food Workers Union Nga Ringa Tota v Auckland District Health Board (Unreported, Employment Court, Wellington, Colgan CJ, Shaw and Couch JJ, 1 August 2007).
[33] Ibid [60].
[34] Association of University Staff v University of Auckland [2005] NZEmpC 38; [2005] 1 ERNZ 224.
[35] Toll New Zealand Consolidated Ltd v Rail and Maritime Union Inc [2004] NZEmpC 64; [2004] 1 ERNZ 392.
[36] Service and Food Workers Union Nga Ringa Tota v Auckland District Health Board (Unreported, Employment Court, Wellington, Colgan CJ, Shaw and Couch JJ, 1 August 2007), [66].
[37] Note the public health sector code was introduced by the Employment Relations Amendment Act (No 2) 2004 ... Under s 100D, it is a breach of good faith for a person to whom the public health sector code applies to fail to comply with its provisions. However, the public health sector code operates subject to the provisions of the Employment Relations Amendment Act (No 2) 2004 (See Lexis Nexis Mazengarb's Employment Law Code of good faith for public health sector ERA s100D, Commentary, <http://www.lexis.nexis.co.nz.html> at 7 January 2008, for further details).
[38] Service and Food Workers Union Nga Ringa Tota v Auckland District Health Board (Unreported, Employment Court, Wellington, Colgan CJ, Shaw and Couch JJ, 1 August 2007) [76].
[39] Ibid [79].
[40] Ibid [81].
[41] Ibid [84].
[42] Ibid [84].
[43] Ibid [93] — [95].
[44] Tony Waldegrave, Dianne Anderson, and Karen Wong, 'Evaluation of the Short Term Impacts of the Employment Relations Act 2000' Department of Labour (2003); <http://www.dol.govt.nz/PDFs/ERA/Evaluation.pdf> .
[45] Andrew Little, '"Free-loading" into Union Negotiated Agreements' [2003] Employment Law Bulletin 106.
[46] NZ Dairy Workers' Union v NZMP [2004] NZCA 110; [2004] 3 NZLR 652.
[47] Ibid 665.
[48] Little, above n 45, 107.
[49] Ibid 107 - 108.
[50] Employment Relations Amendment Act (No 2) 2004, s 59B(2).
[51] Employment Relations Amendment Act (No 2) 2004, s 59(4).
[52] Employment Relations Amendment Act (No 2) 2004, s 59(6).
[53] Burtón, above n 16.
[54] Ross Wilson, 'The ER Law Reform Bill — A CTU Perspective' [2004] Employment Law Bulletin 4, 5.
[55] Gordon Anderson, 'Editorial: Employment Law Reform: is it Really that Bad?' [2004] Employment Law Bulletin 17, 18.
[56] National Distribution Union v General Distributors Ltd [2007] ERNZ 120.
[57] Ross Wilson, 'The Courts and Bargaining under the ERA: reading down the Act' [2007] Employment Law Bulletin 48 <http://www.lexisnexis.com.ezproxy.canterbury.ac.nz/nz/ legal/results/pubTreeViewDoc.do?nodeId=TAAGAAE & pubTreeWidth=23%25> at 7 January 2008.
[58] National Distribution Union v General Distributors Ltd [2007] ERNZ 120 [89] - [90].
[59] Ibid [91].
[60] Ibid [93].
[61] Ibid [94].
[62] Ibid [95].
[63] Association of University Staff v University of Auckland [2005] NZEmpC 38; [2005] 1 ERNZ 224.
[64] National Distribution Union v General Distributors Ltd [2007] ERNZ 120 [108].
[65] Ibid [115].
[66] Ibid [108] - [115].
[67] Ibid [135].
[68] Ibid [136].
[69] Ibid [139].
[70] Ibid [142].
[71] Ibid [144].
[72] Ibid [145] - [146].
[73] Ibid [149] and [152].
[74] Ibid [155].
[75] Ibid [160].
[76] Susan Robson, 'Recent Case Comment: National Distribution v General Distributors Ltd' [2007] ELB 33 <http://www.lexisnexis.com.ezproxy.canterbury.ac.nz/nz/legal/results/ pubTreeViewDoc.do?nodeId=TAAHAADAAF & pubTreeWidth=23%25> at 7 January 2008.
[77] Jasmine Brown and Blair Scotland, 'Advising Employees — Communication and passing-on in collective bargaining' [2007] Employment Law Bulletin 51 <http://www.lexisnexis.com.ezproxy.canterbury.ac.nz/nz/legal/results/pubTreeViewDoc.do?nodeId=TAAGAAF & pubTreeWidth=23%25> at 7 January 2008.
[78] Ronelle Barnes, 'An Analysis of Passing On in New Zealand: The Employer's Duty to Manage Concurrent Bargaining in a Mixed Workplace' [2005] AukULawRw 4; (2005) 11 Auckland University Law Review 56, 72 noted the importance of unions only resorting to litigation in especially clear-cut situations with regard to passing-on provisions.
[79] Ibid 68 - 69.
[80] Ibid 69.
[81] Ibid.
[82] National Distribution Union v General Distributors Ltd [2007] ERNZ 120, [63].
[83] Barnes, above n 78, 69, citing email from James Ritchie to Ronelle Barnes, 21 December 2004.
[84] National Distribution Union v General Distributors Ltd [2007] ERNZ 120, [64].
[85] Christchurch City Council v Southern Local Government Officers Union [2005] NZEmpC 94; [2005] 1 ERNZ 666.
[86] Christchurch City Council v Southern Local Government Officers Union [2007] NZCA 11.
[87] Ibid [7].
[88] Ibid [8].
[89] Ibid [9].
[90] Ibid [29] and [32].
[91] Ibid [35].
[92] Ibid [44].
[93] Brown and Scotland, above n 77.
[94] Ibid.
[95] Ibid.
[96] New Zealand Fire Service Commission v Ivamy [1996] 1 ERNA 85. In this case persuasive presentation of factual information was considered allowable by the majority of the Court of Appeal, only excluding communications which were aimed at persuading employees to exclude the union and negotiate directly with the employer.
[97] Gordon Anderson, 'Communications with employees during bargaining' [2007] Employment Law Bulletin 37 <http://www.lexisnexis.com.ezproxy.canterbury.ac.nz/nz/legal/results/pub TreeViewDoc.do?nodeId=TAAGAAB & pubTreeWidth=23%25> at 7 January 2008; see also Geoff Davenport, 'Communication during collective bargaining — no blanket ban but still uncertainty' [2007] Employment Law Bulletin 40 <http://www.lexisnexis.com.ezproxy. canterbury.ac.nz/nz/legal/results/pubTreeViewDoc.do?nodeId=TAAGAAC & pubTreeWidt h=23%25> at 7 January 2008.
[98] Wilson, above n 57.
[99] Barbara Burton, 'Developments in bargaining law' [2007] Employment Law Bulletin 44 <http://www.lexisnexis.com.ezproxy.canterbury.ac.nz/nz/legal/results/pubTreeViewDoc. do?nodeId=TAAGAAD & pubTreeWidth=23%25> at 7 January 2008.
[100] Ibid.
[101] Davenport, above n 97.
[102] Christchurch City Council v Southern Local Government Officers Union [2007] NZCA 11, [48], citing in support Auckland City Council v New Zealand Public Services Association Inc [2003] NZCA 311; [2004] 2 NZLR 10, [22], Carter Holt Harvey Ltd v National Distribution Union [2002] NZCA 268; [2002] 1 ERNZ 239,[55] and New Zealand Fire Service Commission v Ivamy [1996] 1 ERNA 85 (CA), 99 - 100.
[103] Christchurch City Council v Southern Local Government Officers Union [2007] NZCA 11, [54].
[104] Davenport, above n 97.
[105] Association of University Staff v University of Auckland [2005] NZEmpC 38; [2005] 1 ERNZ 224.
[106] Ibid [78].
[107] Davenport, above n 97.
[108] Service and Food Workers Union Nga Ringa Tota v Auckland District Health Board (Unreported, Employment Court, Wellington, Colgan CJ, Shaw and Couch JJ, 1 August 2007), [68].
[109] See, for example, Brown, New Zealand First, in 'Political Parties' Comment on Recent Labour Law Reforms', above n 12, 114 where concern is expressed at the potential for MECAs to represent a shift towards a return to national awards.
[110] Transport and Industrial Relations Committee, New Zealand, Employment Relations Law
Reform Bill (2004) (92-2) ,7.
[111] Ibid 21.
[112] Toll New Zealand Consolidated Ltd v Rail and Maritime Union Inc [2004] NZEmpC 64; [2004] 1 ERNZ 392.
[113] Ibid [61] - [62].
[114] Ibid [63].
[115] Association of University Staff v University of Auckland [2005] NZEmpC 38; [2005] 1 ERNZ 224.
[116] Ibid [65].
[117] Ibid [69].
[118] Ibid [69].
[119] Ibid [70].
[120] Service andFood Workers Union Nga Ringa Tota v Auckland District Health Board (Unreported, Employment Court, Wellington, Colgan CJ, Shaw and Couch JJ, 1 August 2007), [60], [62], [66].
[121] Davenport, above n 30, 157.
[122] Transport and Industrial Relations Committee, above n 110, 7.
[123] John Hughes, Gordon Anderson, and Olivia Grainger, 'Recent Case Comment' [2005] Employment Law Bulletin 69, 71.
[124] Transport and Industrial Relations Committee, above n 110, 8.
[125] Epic Packaging v NZ Amalgamated Engineering, Printing and Manufacturing Union Inc [2006] NZEmpC 67; (2006) 3 NZELR 480.
[126] Ibid[1] - [3].
[127] Ibid [23].
[128] Ibid [35].
[129] Ibid [75].
[130] Ibid [76].
[131] Ibid [77] - [78].
[132] Ibid [79] - [80].
[133] Davenport, above n 30, 158.
[134] Epic Packaging v NZ Amalgamated Engineering, Printing and Manufacturing Union Inc [2006] NZEmpC 67; (2006) 3 NZELR 480, [57] - [58].
[135] Ibid [27].
[136] Transport and Industrial Relations Committee, above n 110, 7.
[137] Service and Food Workers Union v ADHB (Unreported, Employment Court, Wellington, Colgan CJ, Shaw and Couch JJ, 1 August 2007), [66].
[138] Epic Packaging v NZ Amalgamated Engineering, Printing and Manufacturing Union Inc [2006] NZEmpC 67; (2006) 3 NZELR 480, [13].
[139] Ibid [82].
[140] Ibid [71].
[141] Paul Roth, 'Employment Law' (2007) 1 New Zealand Law Review 179, 204.
[142] Ibid 204.
[143] Ibid 204 - 205.
[144] Ibid 205.
[145] Susan Robson, 'Recent Case Comment: Epic Packaging Ltd v NZ Amalgamated Engineers, Printing and Manufacturing Union' [2006] Employment Law Bulletin 120, 121.
[146] Epic Packaging v NZ Amalgamated Engineering, Printing and Manufacturing Union Inc [2006] NZEmpC 67; (2006) 3 NZELR 480, [69].
[147] Roth, above n 141, 206.
[148] Ibid 206-207.
[149] Epic Packaging v NZ Amalgamated Engineering, Printing and Manufacturing Union Inc [2006] NZEmpC 67; (2006) 3 NZELR 480, [46].
[150] Roth, above n 141, 207.
[151] Ibid.
[152] Wilson, above n 57.
[153] Geoff Davenport, 'Good Faith Bargaining — What Does it Really Mean' [2000] Employment Law Bulletin 119, 122.
[154] Lorraine Skiffington, 'Editorial: The Making of the ER Act — A Recipe for Success' [2001] Employment Law Bulletin 37, 40.
[155] Wilson, above n 54, 5.
[156] Tritt, above n 15, 1.
[157] Little, above n 25, 119.
[158] Mapp above n 12, 109.
[159] Davenport and Brewer above n 22, 104.
[160] Davenport, above n 30, 158; see also Employment Institutions Information Centre Employment Cases Summary, June 2005, Editorial, at 10ff, for an in-depth consideration of the first five applications for facilitation, of which two were successful. This editorial provides further detail of the interpretation of the specific remedy provisions under the Act, concluding that the cases illustrate the high threshold required to be met before facilitation will be accepted
[161] Ibid 158.
[162] Ibid.
[163] NZ Meat Workers and Related Trades Union v Crusader Meats NZ Ltd (Unreported, Employment Relations Authority, Auckland, L Robinson, 24 May 2007), [19].
[164] See, for example, Ports of Auckland Ltd v Maritime Union of NZ (Unreported, Employment Relations Authority, Auckland, M Urlich 17 October 2007) where facilitation was granted at the employer's application on the grounds of unduly protracted bargaining (s 50C(1)(b)), after 20 days of formal bargaining over 10 months, 12 days bargaining with a Department of Labour mediator, 3 days private mediation and discussions with mediation services.
[165] For example, PMP Print Ltd v NZ Amalgamated Engineering Printing and Manufacturing Union Inc (Unreported, Employment Relations Authority, Christchurch, H Doyle, 22 December 2004).
[166] For example, Finegand Sub Branch of the NZ Meat Workers Union v Primary Producers Co-op Soc (Unreported, Employment Relations Authority, Christchurch, Cheyne P, 15 April 2005).
[167] Service & Food Workers Union Inc v Air NZ Ltd (Unreported, Employment Relations Authority, Auckland, A Dumbleton, 19 January 2005).
[168] Lexis Nexis, Mazengarb's Employment Law Determining collective agreement if breach of duty of good faith, http://www.lexisnexis.com.ezproxy.canterbury.ac.nz/nz/legal/results/pub TreeViewDoc.do?nodeId=TAAFAACAAHAAH&pubTreeWidth=23%25>, 50J.4.
[169] Association of University Staff v University of Auckland [2005] NZEmpC 38; [2005] 1 ERNZ 224, [61].
[170] Hughes, Anderson and Grainger, above n 123, 71.
[171] Mapp, above n 12, 109.
[172] Davenport, above n 30, 159.
[173] Christchurch City Council v Southern Local Government Officers Union [2005] NZEmpC 94; [2005] 1 ERNZ 666.
[174] As the offending action had occurred prior to the passing of the 2004 amendments.
[175] Christchurch City Council v Southern Local Government Officers Union [2005] NZEmpC 94; [2005] 1 ERNZ 666, [130 - 132].
[176] Association of University Staff v University of Auckland [2005] NZEmpC 38; [2005] 1 ERNZ 224.
[177] Ibid [100].
[178] Davenport, above n 30, 159.
[179] NZEPMU v Terry Young Limited (t/a Yunca Heating & Gas) (Unreported, Employment Relations Authority, Christchurch, Cheyne P, 28 March 2007).
[180] Ibid [42].
[181] Peter Kiely, 'Employment Law Update' in Employment Agreements: Bargaining Trends and Employment Law Update — 2006/2007 Industrial Relations Centre, School of Business and Public Management, Victoria University, Wellington, 149.
[182] NZEPMU v Terry Young Limited (t/a Yunca Heating & Gas) (Unreported, Employment Relations Authority, Christchurch, Cheyne P, 28 March 2007), [43].
[183] Ibid [44].
[184] Ibid [44] - [46].
[185] Ibid [46].
[186] Ibid [46].
[187] Lorraine Skiffington, A New Era of Employment Relations [1999] Employment Law Bulletin 151, 154.
[188] Ibid.
[189] Davenport, above n 153, 122.
[190] Employment Relations Act 2000, s 86(da).
[191] Service & Food Workers Union Inc v Air NZ Ltd (Unreported, Employment Relations Authority, Auckland, A Dumbleton, 19 January 2005).
[192] Mount Cook Airline Ltd v NZ Airline Pilots Association Industrial Union of Workers (Unreported, Employment Relations Authority, Christchurch, H Doyle, 28 July 2006).
[193] Waikato District Health Board v Service and Food Workers Union (Unreported, Employment Court, Auckland, Colgan CJ, 31 May 2007).
[194] Susan Robson, 'Recent Case Comment: Waikato District Health Board v Service and Food Workers Union Nga Ringa Tota Inc [2007] Employment Law Bulletin 104 <http://www.lexisnexis.com.ezproxy.canterbury.ac.nz/nz/legal/results/pubTreeViewDoc.do?nodeId=TAADAADAAF & pubTreeWidth=23%25> at 7 January 2008.
[195] Ibid.
[196] Director-General of the Ministry of Agriculture & Forestry v New Zealand Public Service Association Inc (Unreported, Employment Court, Wellington, Colgan J, 30 November 2005).
[197] Ibid [8], with Ports of Auckland Limited v NZ Waterfront Workers Union Inc [2001] NZEmpC 97; [2001] ERNZ 564 cited as supporting authority.
[198] Ibid [9].
[199] Ibid.
[200] Finau v Southward Engineering Co Ltd (Unreported, Employment Court, Wellington, Colgan CJ, Shaw and Couch JJ, 25 July 2007).
[201] Ibid [40] - [41].
[202] New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air Nelson Ltd (Unreported, Employment Court, Christchurch, Colgan CJ, 17 June 2007), although this was subsequently overturned due to the specific contracts involved.
[203] National Distribution Union & Anor v General Distributors Ltd & Anor [2006] NZEmpC 89; [2006] 1 ERNZ 790.
[204] New Zealand Amalgamated Engineering etc Union Inc v Air Nelson Ltd (Unreported, Employment Court, Christchurch, Full Court, 8 November 2007).
[205] Kiely, above n 181, 108.
[206] Ibid.
[207] Susan Robson, 'Recent Case Comment: NZ Amalgamated Engineering, Printing and Manufacturing Union v Air Nelson [2007] Employment Law Bulletin 102 <http://www.lexisnexis.com.ezproxy.canterbury.ac.nz/nz/legal/results/pubTreeViewDoc.do?nodeId=TAADAADAAE & pubTreeWidth=23%25> at 7 January 2008.
[208] Service and Food Workers Union Nga Ringa Tota Inc v Spotless Services (NZ) Ltd (Unreported, Employment Court, Auckland, Colgan CJ, 11 July 2007).
[209] As in Counties Manukau District Health Board v Public Service Assn Inc [2002] NZEmpC 215; [2002] 2 ERNZ 968.
[210] National Distribution Union & Anor v General Distributors Ltd & Anor [2006] NZEmpC 89; [2006] 1 ERNZ 790, [15].
[211] Mazengarb, above, n 168, [ERA84.8A].
[212] Epic Packaging v NZ Amalgamated Engineering, Printing and Manufacturing Union Inc [2006] NZEmpC 67; (2006) 3 NZELR 480.
[213] Kiely, above n 181, 100.
[214] Epic Packaging v NZ Amalgamated Engineering, Printing and Manufacturing Union Inc [2006] NZEmpC 67; (2006) 3 NZELR 480, [75].
[215] Kiely, above n 181, 100.
[216] Leda Blackwood, Goldie Feinberg-Danieli and George Lafferty, 'The Employment Relations Act and Collective Bargaining Patterns: A Review of the 2006/2007 Year' in Employment Agreements: Bargaining Trends and Employment Law Update — 2006/2007 above n 181, 13.
[217] For example in 1995 it had dropped to 59%, from 97% in 1990: ibid 14, Table 2.
[218] Ibid 13.
[219] Ibid 14, Table 2.
[220] Ibid 14.
[221] Ibid.
[222] Ibid.
[223] See for example Warren Kyd, then National's spokesperson for manufacturing and small business stating the Employment Relations Bill 2000 was 'compulsory unionism in drag' as cited in Macfie, above n 2, 70.
[224] As cited in Macfie, above n 2, 71.
[225] Wilson, above n 54, 4.
[226] Tritt, above n 15, 1.
[227] Davenport, above n 30.
[228] Anderson, above n 55, 18.
[229] Haynes, Boxall and Mackay, Patterns of Demand for Union Membership in New Zealand (presented to 18th AIRAANZ Conference, Noosa, February 2004) as cited in Anderson, above n 55, 18.
[230] Goldie Feinberg-Danieli and George Lafferty, Unions and Union Membership in New Zealand: Annual Review for 2006, Industrial Relations Centre, 1. Note, however, that while union density levels have declined by 0.2%, there was an increase in overall union membership of 1.4% in the year 2006, with a 2.8% increase in membership in the private sector and 2.25% decline in the public sector.
[231] Anderson, above n 55, 18.
[232] Wilson, above n 54, 4.
[233] Anderson, above n 55, 18.
[234] National Distribution Union v General Distributors Ltd [2007] ERNZ 120.
[235] Kiely, above n 181, 101.
[236] Ibid 94.
[237] Burton, above n 99.
[238] Wilson, above n 57.
[239] Ian McAndrew, 'Employers, Unions and Workplace Partnership in New Zealand' (2006) 31(3) New Zealand Journal of Employment Relations 51.
[240] Feinberg-Danieli and Lafferty, above n 230,7.
[241] Dr Lindsy Fursman, Work-life Balance in New Zealand: A snapshot of employee and employer attitudes and experiences Department of Labour (2006) 7, 27.
[242] Ibid 41.
[243] Transport and Industrial Relations Committee, Employment Relations (Flexible Working Hours) Amendment Bill, 30 July 2007, 5.
[244] Norman LaRocque, 'Getting back to the future with labour market policy in New Zealand' [2005] Employment Law Bulletin 90, 90.
[245] Laila Harré, Union Relevance in Aotearoa in the 21st Century, Bruce Jesson Memorial Lecture, Auckland University, 9 November 2007, 16.
[246] Ibid 13.
[247] Ibid, 14-15.
[248] McAndrew, above n 239, 51, 64. Note McAndrew's conclusion that '[f]rom employers' perspectives, it appears to be occurring largely pragmatically, while most union officials are more inclined to believe that partnership behaviours and attitudes benefit workers, employers and productivity.'
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