A strike is a form of industrial action characterised by a collective, temporary withdrawal of labour by employees. It is primarily used as a tool to exert pressure on an employer, typically during unresolved disputes in the negotiation of a collective employment agreement. The right to strike is a recognised component of New Zealand's employment relations framework, but this right is not absolute. It is regulated by the Employment Relations Act 2000 (ERA 2000), which delineates specific conditions under which a strike is considered lawful. The current legislative framework attempts to strike a balance between protecting workers' fundamental right to take industrial action and establishing procedural safeguards to prevent precipitous or unduly disruptive actions, thereby considering the interests of employees, unions, employers, and the wider public.
Definition and Legality of a Strike
- What is a Strike? Under section 81 of the ERA 2000, a strike includes actions such as employees discontinuing their employment (whether wholly or partially), breaking their employment agreements, or reducing their normal work rate, level of output, or quality of work. A key element is that such action must be based on a common understanding or agreement among a number of employees.
- When is a Strike Lawful? For a strike to be lawful under the ERA 2000, several conditions must generally be met:
- Purpose: The strike must relate to the negotiation of a collective agreement (or its renewal).
- Timing (Collective Agreement): If an existing collective agreement is in force, it must typically have expired, or bargaining must have been initiated for a new agreement for at least 40 days. Strikes during the currency of a collective agreement are generally unlawful unless specific exceptions apply.
- Essential Services: If the strike involves an "essential service" (e.g., health services, utilities, certain transport services), specific notice periods must be adhered to. For example, at least 14 days' notice is typically required for strikes affecting health services.
- Secret Ballot: For union-organised strikes, the union must conduct a secret ballot of its members who would be involved in the strike, and the outcome of this ballot must support the proposed industrial action.
- Exclusions: The strike must not be related to a personal grievance, a dispute of rights (which have their own resolution procedures), or issues of health and safety where a lawful refusal to work under the Health and Safety at Work Act 2015 is the appropriate mechanism. Strikes concerning political matters or general social causes are also generally outside the scope of lawful industrial action related to collective bargaining.
- When is a Strike Unlawful? Any strike that fails to meet these statutory criteria is deemed unlawful. The Employment Court has the jurisdiction to issue injunctions to stop or prevent unlawful strikes, and participants in unlawful strikes lose certain legal protections.
Analysis of the Current Legislative Balance
The current legislative framework in New Zealand governing strikes can be argued to achieve a reasonable, albeit delicate, balance.
- Argument for "About Right":
- Protects Worker Voice and Collective Power: The legislation preserves a crucial tool for workers to collectively address the inherent power imbalance that often exists in the employment relationship, particularly during collective bargaining. It allows employees, through their unions, to exert meaningful pressure to achieve fair terms and conditions.
- Promotes Orderly Bargaining and Good Faith: The procedural requirements, such as the need for secret ballots, defined bargaining periods before action can be taken, and notice periods for essential services, are designed to ensure that strikes are a measure of last resort, not an impulsive first response. These requirements encourage parties to engage genuinely in bargaining and uphold the principles of good faith.
- Balances Competing Interests: The restrictions on strikes in essential services explicitly recognise the wider public interest, aiming to prevent immediate and significant harm to society while still allowing workers in these critical sectors to exercise their right to strike after due notice. The rules provide a degree of predictability for employers, the public, and the striking workers themselves.
Illustrative Example: The 2023 Teachers' Strikes
The series of strikes undertaken by primary and secondary school teachers in New Zealand during 2023, represented by their unions NZEI Te Riu Roa and PPTA Te Wehengarua, provides a pertinent contemporary example.
- Context: Teachers engaged in various forms of industrial action, including rolling strikes and a nationwide "mega-strike," as part of their campaign for new collective agreements.
- Application of Legislation:
- Legality: The strikes were lawful because they occurred during the renegotiation of their expired collective agreements. The unions followed the required procedures, including conducting secret ballots of their members, which demonstrated overwhelming support for industrial action, and providing the necessary notice to the employer (the Ministry of Education and school boards).
- Purpose: The primary aims of the strike action were to secure improved pay rates to address the rising cost of living and to attract and retain teachers in the profession. They also sought better working conditions, including measures to manage workload and increase resources for student support.
- Illustrating the Legislative Balance:
- The ability for teachers to strike provided them with significant leverage that protracted negotiations alone had evidently failed to achieve. This demonstrates that the legislation is not so restrictive as to render the right to strike illusory. It enabled a powerful collective voice.
- Conversely, the requirements for balloting and notice periods ensured that the industrial action was organised, democratic, and not a spontaneous or chaotic disruption. While the strikes caused considerable disruption to students, parents, and the education system, this disruption was a calculated and foreseen consequence of lawful action, indicating that the law is not unduly lenient in permitting such action without process.
- The eventual settlements reached for both primary and secondary teachers, following the period of industrial action, suggest that the legislative framework, including the right to strike, functioned as intended: the strike action applied considerable pressure that ultimately contributed to forcing a resolution that might not have been achieved, or achieved as favourably for employees, through bargaining alone.
Conclusion
In summary, New Zealand's strike legislation, as embodied in the Employment Relations Act 2000, achieves a functional equilibrium. It acknowledges and protects industrial action as a legitimate expression of collective employee power and a vital component of the collective bargaining process. Simultaneously, it channels this power through a structured, predictable, and procedurally fair process. As evidenced by significant industrial actions like the 2023 teachers' strikes, the current framework enables workers to advocate effectively for meaningful improvements to their terms and conditions of employment without permitting unchecked industrial disruption, thereby serving its intended purpose within the broader New Zealand employment relations system.
Made with Bullet