Essential Workers and Strike Actions in New Zealand
New Zealand employment law provides specific regulations for strike actions involving workers in services deemed 'essential'. These rules aim to balance the right to strike with the need to prevent serious harm to the public during industrial action. The primary legislation governing strikes and essential services is the Employment Relations Act 2000 (ERA 2000).
What is a 'Strike'?
In New Zealand, a 'strike' generally refers to a refusal to work by employees. This can include a partial refusal to work, a go-slow, or any other action that interferes with the normal operation of work. A strike is typically initiated by employees with a view to compelling their employer, or any other employer, to accept their demands concerning terms of employment, working conditions, or other employment matters [Source: Employment Relations Act 2000, s 86(1)].
What are 'Essential Services'?
'Essential services' are specific services that, if interrupted by a strike or lockout, could endanger the life, safety, or health of the whole or part of the population, or cause serious damage to the national economy [Source: Employment Relations Act 2000, s 90(1)]. The ERA 2000 lists certain essential services in Schedule 1A, which includes sectors such as hospital and aged care services, air traffic control, fire services, electricity generation and supply, and water and wastewater services [Source: Employment Relations Act 2000, s 90A and Schedule 1A].
Strikes in Essential Services: Specific Rules
Industrial action in essential services is subject to additional legal requirements compared to strikes in non-essential sectors.
Notice Requirements
Before a strike or lockout can occur in an essential service, a minimum of 14 days' written notice must be given. This notice must be provided by the union (for a strike) or the employer (for a lockout) to the other party [Source: Employment Relations Act 2000, s 90B(1) and (2)]. The notice must specify the nature of the industrial action, the essential service involved, and the date and time it will begin [Source: Employment Relations Act 2000, s 90B(3)].
Maintaining Essential Services
During a strike or lockout in an essential service, the parties (union and employer) are required to try and agree on what essential services must be maintained to prevent danger to life, safety, or health, or serious damage to the economy [Source: Employment Relations Act 2000, s 90C(1)]. This agreement, known as an 'essential services agreement', should specify:
- The particular essential service to be maintained.
- The number and classes of employees required to perform that service.
- The tasks to be performed by those employees [Source: Employment Relations Act 2000, s 90C(2)].
Role of the Employment Relations Authority (ERA)
If the union and employer cannot reach an essential services agreement within 7 days of the strike notice, either party may apply to the Employment Relations Authority (ERA) to determine the essential services that must be maintained [Source: Employment Relations Act 2000, s 90D(1)]. The ERA is an independent body that investigates and resolves employment relationship problems. The ERA will hear the parties and make a determination as to what essential services must be maintained [Source: Employment Relations Act 2000, s 90E(1)]. In making its determination, the ERA must consider factors such as the nature and extent of the danger or damage, the capacity of the employer to maintain the service, and the minimum service level required to prevent serious harm [Source: Employment Relations Act 2000, s 90F].
Once an essential services agreement or an ERA determination is in place, employees who provide those specified essential services must work as required to maintain them, notwithstanding the strike action [Source: Employment Relations Act 2000, s 90I(1)].
Rights and Obligations
Obligations of Unions and Employees
Unions representing essential service workers have an obligation to comply with the notice requirements and to genuinely attempt to reach an essential services agreement with the employer [Source: Employment Relations Act 2000, s 90C(1)]. Individual employees in essential services are obligated to perform the duties necessary to maintain agreed or determined essential services during a strike [Source: Employment Relations Act 2000, s 90I(1)].
Obligations of Employers
Employers in essential services are also obligated to participate in good faith negotiations to reach an essential services agreement. They must also ensure that arrangements are in place to allow for the maintenance of agreed or determined essential services during industrial action [Source: Employment Relations Act 2000, s 90C(1)].
Unlawful Strikes in Essential Services
A strike in an essential service is unlawful if the required 14 days' notice has not been given, or if an essential services agreement or ERA determination has not been complied with [Source: Employment Relations Act 2000, s 87(1)(b) and s 87(1)(c)(iib)]. Engaging in or inciting an unlawful strike can result in pecuniary penalties for the union, individuals involved, or the employer [Source: Employment Relations Act 2000, s 91].
When to Seek Independent Legal Advice
Information concerning employment law, particularly regarding strikes and essential services, can be complex. Parties involved in or contemplating industrial action, including unions, employees, and employers, may benefit from seeking independent legal advice to understand their specific rights, obligations, and the potential implications of their actions. The Employment Relations Authority and the Ministry of Business, Innovation and Employment (MBIE) provide guidance and services related to employment relations. Free advice may be available from Community Law Centres.