QUESTIONS & ANSWERS

There are two aspects to "good faith" in the legislation.

Firstly, the legislation requires all parties to the employment relationship (unions, employers and employees) to deal with each other in "good faith". This means, for example, not acting in such a way as to deceive or mislead another party.

Secondly, bargaining for a collective agreement must be carried out in good faith. The legislation includes as basic obligations, unions and employers meeting together from time to time and considering and responding to proposals made by the other side.

Good faith does not mean that the parties have to agree or to settle a collective agreement.

A Committee on Good Faith Bargaining will be established to provide the parties with some guidelines about what it means to bargain in good faith.

No.

If a contract says that an individual is a contractor, but the person thinks that they are really an employee, they will be able to challenge this in the Courts, as they can now. However, the Courts will not make a decision on the contract of anyone who has not agreed to be involved in the case; and unless their employer has also had a chance to say what they think.

The legislation will specifically exclude real estate agents and sharemilkers, who are covered by their own legislation.

No. Union membership is solely a matter of individual choice.

No one can be forced to become (or not become) a member of a union, or of a particular union. Neither can anyone be forced to become a member of any employees’ organisation (such as a staff association) that is not a registered union.

Only registered unions will be able to take advantage of the benefits of the Act. This is to ensure that the benefits of collective bargaining are offered only to those organisations that are independent, democratic and properly accountable to their members.

Unions must meet the conditions laid out in the Incorporated Societies Act before they can register. This means that they must be democratic, have a set of rules, and at least 15 members. In addition, in order to register as a union, a society must be independent of any employer.

Union access to workplaces is constrained by limiting the purposes and times at which access can occur.

Lawful purposes include:

• discussing union business with union members
• recruiting new members
• providing information on union membership to employees
• participating in bargaining for a collective agreement
• dealing with matters concerning health and safety of members
• monitoring compliance with the legislation and with collective agreements.

Lawful times are any reasonable time when an employee is employed. However, union officials must have regard to normal business operations; and must also comply with existing reasonable procedures and requirements that relate to safety and health or security.

Unions do not have access to workplaces that are also a dwelling.

An employer in this situation can seek to consolidate the bargaining into one set of negotiations, under the process set out in clause 60 of the Bill. A union that does not agree to consolidate negotiations within 30 days will be treated as if they have withdrawn their notice initiating bargaining.

Yes. However, this requirement applies only to union members. In addition, they must actually attend the meeting and can only be paid if they would otherwise have been working at the time of the meeting.

The legislation limits paid time to an annual entitlement of 2 meetings of up to 2 hours. In addition, the union must give 14 days notice, and must make arrangements with the employer to ensure that employer’s business is maintained during the meeting.

Normally, if a workplace is covered by a collective agreement, the employer is required to collect union fees from each union member with their consent. These fees are then paid to the union. However, the parties can agree in the collective agreement to alter or delete this requirement.

The duty of bargaining in good faith requires unions and employers to provide to each other information that is reasonably necessary to support or substantiate, or in response to, a claim made in bargaining.

Requests must be in writing and specify in detail the nature of the information requested.

If the party being asked for the information considers the information being asked for to be confidential, they may instead provide it to an independent reviewer, mutually agreed by the parties. This person will review the information, decide whether it supports or substantiates the claim or response to a claim, advise the parties of their decision, and answer any questions on it in a way that protects the confidentiality of the information.

The benefits of collective bargaining are provided only to those organisations that have demonstrated, through the registration process, that they are democratic, accountable to their members, and independent of any employer.

As long as a registered union has followed the correct process for initiating bargaining, employers are required to bargain with them in good faith. Good faith does not, however, require that a collective agreement be settled.

There is nothing to stop groups of employees doing this. However, the resulting agreements will have the status of individual, rather than collective, employment agreements.

An employer may be required to participate in bargaining for a multi-employer agreement provided that:

• the members of the union employed by the employer are not already covered by a collective agreement
• those union members have participated in a secret ballot and the majority in each workplace have agreed that they wish to be covered by a multi-employer collective agreement
• notice has been given to the employer of the number of union members employed by the employer, the number who voted and the number who were in favour
• normal procedures for initiating collective bargaining have been followed.

Collective agreements must:

• be in writing
• be signed by the union and employer parties to it;
• contain a coverage clause
• contain a clause which deals with the rights and obligations of the employer and employees if work covered by the contract is contracted out, transferred or sold
• include a plain language explanation of the services available to resolve employment relationship problems
• contain an expiry date.

Non-union members will have their terms and conditions of employment set in different ways depending on whether there is a collective agreement in place in their workplace.

In workplaces where there is a collective agreement, any new employees who fall within the coverage clause of the agreement will be covered by its terms and conditions, whether or not they are a union member, for 30 days. There is nothing to stop the new employee from also negotiating additional terms and conditions of employment, that are not inconsistent with the collective agreement.

At the time of their engagement, the employer must also tell the new employee about the collective agreement and the union, and that if the employee joins the union they will be covered by the collective agreement.

If at the end of 30 days, the employee chooses not to join the union, then the employer and employee may negotiate whatever wages and conditions of employment they see fit. If they do not, then the employee continues to have the same terms and conditions of employment.

In workplaces where there is not a collective agreement in place, employers and employees may negotiate an individual employment agreement from the start. However, the employer must give the proposed agreement to the employee in advance, advise the employee that they are entitled to seek advice on it, and give the employee an opportunity to seek that advice.

Individual employment agreements must include:

• the name of the employer and employee
• a description of the work to be performed
• an indication of where the employee is to perform the work
• an indication of working time arrangements (for example, working hours, or how rosters are organised)
• the wages or salary to be paid to the employee
• a plain language explanation of the services available to resolve employment relationship problems.

Fixed-term agreements will continue to be able to be used for work of a fixed duration. They may end at a particular date, or at the occurrence of a particular event (for example, for as long as funding continues), or at the conclusion of a specified project.

There is nothing to stop employees being employed on a fixed-term basis provided that the employer has genuine reasons for employing the employee in that way. They must also advise the employee at the beginning of the contract when and how their employment will end, and the reasons for this.

EREL is leave that can be taken by union members to help them learn how to improve relations between unions, employers and employees.

Entitlement is determined by a formula based on the number of union members at a workplace.

No individual union member can take more than 5 days leave in any one year.

Yes, but they don’t need leave provisions to do so. Employers may also be eligible for funding to attend ERE courses, from the contestable fund that will be set up alongside the Bill.

It is impossible to tell. The level of industrial action has been dropping since the late 1970s, but this reflects a number of factors. There is no reason to suggest that a change in legislation alone will result in increased level of industrial action.

Use of strike action or lockouts are legitimate tools in bargaining for collective agreements. The use of industrial action must, however, be balanced (as has been achieved in the Employment Relations legislation) by:

• constraints on the when action may be taken
• effective procedures and institutions for resolving disputes
• ensuring that unions and employers deal with each other fairly and in good faith.

Strikes or lockouts are unlawful when:

• there is a collective agreement in place
• bargaining for a collective agreement has not gone on for at least 40 days
• it relates to a personal grievance or dispute
• it is in an essential service and notice has not been given

In addition, employers are not able to lockout employees unless the employee is involved in collective bargaining.

Strikes may, however, be legitimate at any time if they relate to health and safety matters.

Strikes over political, social or economic issues remain unlawful.

Dispute resolution processes and institutions under the Employment Relations legislation will be based on the principle that disputes should be solved as close as possible to their point of origin, and in as informal and effective a way as possible.

This means that the new system will place much greater emphasis on preventing disputes, through making sure that the parties clearly understand their rights and obligations, under this and other pieces of legislation (such as the Holidays Act or the Minimum Wage Act).

In contrast to the excessive legalism of the current system, disputes which occur under the Employment Relations Act will be solved having regard to common-sense, the need for fairness and balance at the workplace, and in an effort to build mutual trust and confidence in the relationship between employers and employees.

The concept of mediation that is provided for under the Employment Relations legislation is vastly different from mediation as it happens currently.

Mediation in the current Employment Tribunal is formal in its procedures, often involves legal nit picking, and is reactive. Consequently there are long delays in reaching justice, and the parties are often faced with expensive legal bills in doing so.

The new Mediation Service will be more proactive and educative. It will focus on solving the problem in a way that is much more focussed on the needs of employers and employees. For example, mediators will not be limited to having hearings, but will be able to go out to visit employers and employees at their workplaces, communicate with people by phone, fax and email, and provide information to help employers and employees resolve their own difficulties.

The Employment Relations Authority will also be very different to the current specialist institutions. Rather than relying on the presentation of evidence by the parties, and adversarial procedures, the Employment Relations Authority will be an investigative body. It will be charged with establishing the facts of any particular dispute according to the substantive merits of the case, without regard to technicalities. It will still, however, be subject to normal natural justice principles.

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