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employment

What constitutes a legal vs. illegal strike?

Key Takeaway

In New Zealand, a legal strike is generally industrial action undertaken to support a collective bargaining claim for a collective agreement, or for health and safety reasons, provided specific conditions like notice periods are met. Strikes for other reasons, or without proper notice, are typically illegal. The law provides protections for participants in lawful strikes.

Understanding Legal and Illegal Strikes in New Zealand

Industrial action, commonly known as a 'strike', involves employees stopping work or refusing to perform duties to pressure an employer. New Zealand employment law distinguishes between legal (lawful) and illegal (unlawful) strikes, with different rights and obligations applying to each.

What is a 'Strike' Under New Zealand Law?

A strike is defined as any of the following acts by employees:

  • The discontinuing of their employment, whether wholly or partially.
  • The discontinuing of their employment in combination with others or in concert with others.
  • The reducing of their normal output or their normal rate of work.
  • The refusing to work overtime that is reasonable, or the refusing to work beyond the hours fixed by an employment agreement.
  • The performing of their work to a standard that is lower than that at which it is normally performed.
  • The performing of work in a way that is designed to restrict or limit output [Source: Employment Relations Act 2000, s 4(1)].

This definition also applies to other forms of industrial action, such as a go-slow (working at a deliberately reduced pace) or a work-to-rule (following employment agreement terms strictly to disrupt production).

Legal Strikes (Lawful Industrial Action)

An action is considered a lawful strike (or lawful industrial action) if it is:

  1. For the purpose of supporting a collective bargaining claim for a collective agreement [Source: Employment Relations Act 2000, s 81(1)(a)]. This is the most common reason for a legal strike.
  2. For the purpose of resisting a proposal by an employer that would, if implemented, affect the collective agreement [Source: Employment Relations Act 2000, s 81(1)(b)].
  3. About a health and safety matter, where there is a serious risk to an employee's health or safety arising from an immediate or imminent exposure to a hazard, and the employee genuinely believes this risk exists [Source: Employment Relations Act 2000, s 81(1)(d), s 84(3)(b)(iii)]. In such a case, the employee must have first attempted to resolve the issue with the employer without success [Source: Employment Relations Act 2000, s 84(3)(b)(iii)].

For a strike related to collective bargaining to be lawful, specific procedural requirements must typically be met, including giving notice.

Notice Requirements for Lawful Strikes

Generally, a union must give an employer at least 3 days' notice of the intention to strike [Source: Employment Relations Act 2000, s 86(1)(a)]. This notice must state the nature of the action and the employees intended to participate [Source: Employment Relations Act 2000, s 86(1)(b)]. Shorter notice may be permissible in certain urgent circumstances relating to health and safety [Source: Employment Relations Act 2000, s 86(2)].

Protection for Employees Participating in Lawful Strikes

Employees who participate in a lawful strike are generally protected from dismissal or other penalties for that participation [Source: Employment Relations Act 2000, s 96(1)]. Employers are prohibited from dismissing an employee or prejudicing their employment because they participated in a lawful strike [Source: Employment Relations Act 2000, s 97(1)]. However, participants in a strike are not entitled to receive remuneration for any period during which they refuse to perform work [Source: Employment Relations Act 2000, s 98(1)].

Illegal Strikes (Unlawful Industrial Action)

Industrial action is considered unlawful if it falls outside the definitions of lawful industrial action or breaches specific prohibitions in the Employment Relations Act 2000. Examples of unlawful industrial action include:

  • Strikes during the currency of a collective agreement or part of a collective agreement (unless it relates to a health and safety matter or the interpretation of the collective agreement) [Source: Employment Relations Act 2000, s 84(2)].
  • Strikes that are not about a collective bargaining claim for a collective agreement or resistance to a proposal affecting one, or health and safety [Source: Employment Relations Act 2000, s 84(1)]. This means strikes solely about personal grievances, for example, are generally unlawful [Source: Employment Relations Act 2000, s 84(3)(a)].
  • Strikes where the required notice has not been given [Source: Employment Relations Act 2000, s 84(1)].
  • Strikes aimed at forcing a person to become or remain a member of a union [Source: Employment Relations Act 2000, s 85(1)(a)].
  • Strikes aimed at discriminating against a person based on their union membership or non-membership [Source: Employment Relations Act 2000, s 85(1)(b)].
  • Strikes where the industrial action causes, or is intended to cause, a significant loss of production or revenue to the employer, or seriously damages the employer’s business relationship with a third party [Source: Employment Relations Act 2000, s 85(1)(c)].

Consequences of Unlawful Industrial Action

Parties involved in or instigating unlawful industrial action may face legal consequences. An employer, employee, or union that initiates, instigates, or aids an unlawful strike may be subject to pecuniary penalties (fines) imposed by the Employment Relations Authority or the Employment Court [Source: Employment Relations Act 2000, s 90, s 135]. Employees participating in an unlawful strike do not have the same protections as those in a lawful strike and could face disciplinary action, including dismissal, depending on the circumstances [Source: Employment Relations Act 2000, s 99(1)].

Rights and Obligations of Employers

Employers have the right to:

  • Withhold pay for any period an employee is participating in a strike [Source: Employment Relations Act 2000, s 98(1)].
  • Lock out employees (prevent them from working) in response to a strike, under certain conditions, primarily when the lockout is for the purpose of supporting a collective bargaining claim [Source: Employment Relations Act 2000, s 82(1)(a)]. Notice requirements also apply to lockouts [Source: Employment Relations Act 2000, s 86(3)].

When to Seek Independent Legal Advice

Navigating employment law, particularly concerning industrial action, can be complex. Employers, employees, or unions seeking to understand their specific rights and obligations, determine the legality of a proposed or ongoing strike, or address disputes arising from industrial action, should obtain independent legal advice. Information and assistance can be sought from the Ministry of Business, Innovation and Employment (MBIE) or Community Law Centres (https://communitylaw.org.nz/).

Key Resources