Dispute Resolution

Alternative Dispute Resolution Procedures
Employers and employees can choose to use a private mediator or arbitrator to resolve their problems. They should be aware that the outcome would have no status under the Employment Relations Act. If they want a settlement or decision reached in this way to be final and binding, they can have it signed by a mediator.

Strikes & Lockouts
Here are the basic rules for Collective bargaining.

Under the Employment Relations Act 2000, strikes and lockouts are lawful:

  • If they relate to bargaining for a single-party or multi-party collective agreement, and

  • If any existing collective agreement (or collective employment contract under the Employment Contracts act 1991) has expired, and

  • If the parties began bargaining at least 40 days previously, or

  • In some other very limited circumstances where part of a collective agreement is illegal and the Employment Court has made an order suspending part of the agreement.

The only employees who can lawfully strike or be locked out are those who will be bound by the collective agreement being bargained for.

The Employment Relations Act requires that unions give notice of any strike and employers give notice of any lockout if the strike or lockout is in an essential service and will affect the public interest.

  1. Essential services are listed in Schedule 1 of the Employment Relations Act 2000.
    If a strike or lockout affects bus or train services, Employment Relations Act notice and public notification procedures must be followed.

  2. Health and safety strikes.
    Strikes and lockouts are also lawful where those striking or locking out have reasonable grounds for believing that the strike or lockout is justified on safety or health grounds.

  3. Strikes and lockouts that are not lawful.
    If a strike or lockout is not lawful, it is possible for affected parties to apply to the Employment Court for an injunction to stop the action and for other remedies such as damages.

  4. Partial strikes.
    Work does not have to stop completely for there to be a strike. A strike can also occur where employees refuse to do some of their normal work.

Employer Rights
Employers may suspend striking employees without pay. Employers may also suspend non-striking employees if the work they normally do is not available because of the strike. In both cases, if the employer does not suspend the employees, they remain entitled to be paid.

Employers may request other employees to perform the work of striking or locked out employees and the other employees may agree to perform that work. Employers may not, however, require other employees to perform the work. Also, the employer may not employ new staff to do the work of the striking employees except in the case of work that must be done for health and safety reasons. Where, however, the strike is unlawful, none of these restrictions apply.