The ITUC affiliate in New Zealand is the New Zealand Council of Trade Unions (NZCTU).
Freedom of association / Right to organise
The law prohibits anti-union discrimination.
Categories of workers prohibited or limited from forming or joining a union, or from holding a union office:
- Others categories
- Volunteers who do not expect and do not receive any reward for work performed as a volunteer, and certain persons engaged in film production (unless their contract provides that the person is an employee), are not covered by the protections established in the Employment Relations Act 2000.
Right to collective bargaining
Restrictions on the principle of free and voluntary bargaining:
- Prohibition or limitation of collective bargaining at a certain level (local, regional, territorial, national; enterprise, industry, sector or general)
- Multi-party collective bargaining (i.e. one or more unions bargaining with 2 or more employers) may only be initiated by the union(s) if the union(s) conduct a secret ballot of their members and achieve a simple majority of votes supporting the multi-party bargaining (sections 45 and 46 Employment Relations Act 2000).
Right to strike
Ban or limitations on certain types of strike actions:
- Restrictions with respect to the objective of a strike (e.g. industrial disputes, economic and social issues, political, sympathy and solidarity reasons)
- A strike will be unlawful if it relates to any of the following: a personal grievance; a dispute about the interpretation, application, or operation of an employment agreement; a bargaining fee clause or proposed bargaining fee clause under Part 6B of the Act (Bargaining fees); or any matter dealt with in Part 3 of the Act (Freedom of association) (section 86, Employment Relations Act 2000).
- Restrictions with respect to the level or scope of a strike (e.g. (enterprise, industry and/or sector, regional and/or territorial, national)
- A strike will be unlawful if it occurs while a collective agreement binding the employees participating in the strike is in force, subject to certain exceptions where the strike relates to multi-party collective bargaining (section 86, Employment Relations Act 2000).
Undermining of the recourse to strike actions or their effectiveness:
- Possibility to replace workers during lawful strike actions
- An employer may employ another person to perform the work of a striking or locked out employee if the person: is already employed by the employer at the time the strike or lockout commences; and is not employed principally for the purpose of performing the work of a striking or locked out employee; and agrees to perform the work. Further, an employer may employ or engage another person to perform the work of a striking or locked out employee if: there are reasonable grounds for believing it is necessary for the work to be performed for reasons of safety or health; and the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health (section 97, Employment Relations Act 2000).
Limitations or ban on strikes in certain sectors:
- Discretionary determination or excessively long list of "essential services" in which the right to strike is prohibited or severely restricted
- Schedule 1 of the Employment Relations Act lists the following as essential services for which between 14-28 days' notice of strike action is required: the production, processing, distribution, or sale of petroleum; the production, processing, distribution, or sale of petroleum; air and certain water transport services; the production of butter or cheese or of any other product of milk or cream and the processing, distribution, or sale of milk, cream, butter, or cheese or of any other product of milk or cream. The holding and preparation of sheep, cattle, goats, pigs, or deer for slaughtering, the slaughtering of such animals, and the subsequent processing of their meat and smallgoods for the domestic market or the export market is an essential service for which between 3-28 days' notice of strike action is required (s 90 and Schedule 1, Employment Relations Act 2000).
- Other limitations (e.g. in EPZs)
- Employees employed in a passenger road service or a passenger rail service may only strike after giving the employer at lest 24 hours' written notice of the intended strike action (section 93, Employment Relations Act 2000).
Workers in the film and computer games industries are contractors rather than employees - unless this is explicitly negotiated - as a result of changes to the Employment Relations Act (ERA). The ERA (Film Industry) Amendment Act 2010 denies film and computer game industry workers the opportunity to bargain for a collective employment agreement or to be represented by a union in employment negotiations. There is no specific union for computer game developers. Furthermore, the government changed immigration regulations in 2011 to enable easier access for overseas film workers to work in New Zealand. The union for the film sector fears loss of work and undercutting of wages and conditions.
Film and computer game worksites have restricted access on security grounds for commercial reasons. This impedes unions’ ability to gain information on informally reported health and safety lapses. Both sectors report workers regularly working in excess of fifty or sixty hours a week or more. The Department of Labour investigated a complaint against a games company in July 2011 from a contractor working 14 hour days, 7 days a week, for 4 weeks. The Department did not find sufficient evidence to lay charges but industry consensus was that such working hours were common. Two people received minor injuries in an explosion at Sir Peter Jackson’s Wellington film studio. The Fire Service put out the fire and investigated the explosion but was prevented by a secrecy order from speaking on the incident. Private reports have been received of previous accidents but information is difficult to gather with the security requirements.
Some workers have been pressured by employers not to join a union, or to sign an individual contract rather than a collective agreement, by financial incentives or through fear of the loss of a job, or demotion to a lower ranked job.
In 2011, AFFCO Meat Company offered employees at some of its plants an additional extra 3% in wages to accept individual employment agreements [IEAs] in preference to a collective employment agreement [CEA]. Those accepting IEAs were promised secure jobs and a NZD1,000 attendance bonus for 98% attendance. Meat Workers Union (MWU) members were laid off, but workers on IEAs with shorter service, were kept on. The employer had previously agreed to seniority guaranteeing longer employment. AFFCO employed non-union workers ahead of union members at AFFCO meat works at Imlay; Rangiuru, Horotiu, and Moerewa. MWU applied to the Employment Court to stop AFFCO’s actions. In April 2011, the Judge ruled in the union’s favour and said that AFFCO had to engage union members in accordance with seniority lists. The Judge found that AFFCO had favoured non-union workers in offering them longer contracts than unionised workers and that this practice was discriminatory. In a separate case in 2011, the Employment Relations Authority found that AFFCO had demoted a skilled senior employee down to a basic labourer’s position because of his union activities.
Even when legal action is successful, financial and other pressures may result in employees leaving the union. Industrial and legal action was initiated between the Dairy Workers Union and Open Country Dairy Ltd in 2009 following a bitter dispute with the company who reduced conditions of employment and union rights. The dispute was concluded in 2011 and the union won the right to collective bargaining in Court, but the decision came too late for the workers and only 6 of the 34 locked out workers retained employment with the company. Those six workers subsequently accepted financial incentives to leave the union. Open Country Dairy now has no union members.
Private and public sector employers are hiring more workers as contractors rather than employees. Contractors are not covered by most New Zealand employment law which includes the right to organise, the right to take collective action, and the right to lodge personal grievance cases for wrongful dismissal. In 2011, the CEO of Ports of Auckland has threatened to make all union members redundant and replace them with contractors.
In 2010 and 2011, unions succeeded in nine law suits taken to the Employment Relation Authority and Employment Court against food companies: Talley’s Group Ltd, AFFCO Ltd, and Open Country Dairy Ltd over employment issues including union access. Talley’s Group have acquired majority ownership shares in AFFCO Ltd and in Open Country Dairy in recent years. Only one of the cases resulted in a fine being imposed for breach of good faith. In other cases, the employer was ordered to comply with legislation such as enabling union representatives to have access to the worksite. The Meat Workers’ Union spent over NZD100,000 in litigation costs on disputes at one worksite. It was successful in Court but was only awarded a portion of this sum to cover costs.
It can take years and applications to three different judicial bodies for unions to get a final determination when employers are hostile to unions and well-resourced. In 2011, the Service and Food Workers Union (SFWU) and the Public Service Association (PSA) finally gained a pay-out for night duty residential care workers who had been paid below minimum wage for many years. After three years of legal action and years of negotiations the government mediated a law change for a partial pay-out that gave years of back-pay to the workers, but not the full amount that was owed. The cost of taking legal action is a drain on unions.
In theory unions can access workplaces and can sign up workers as members. In practice, many employers oppose this and prevent easy access to members including requiring union officials to be accompanied at all times in entering a workplace and controlling the space and circumstances for union meetings with members. Some unions have already reported obstructive attitudes by employers prior to new access requirements coming into force on 1 April 2011. One employer Pacific Flight Catering blocked union access to the workplace for over two years until being required to grant access following legal action. Union visits to that workplace are still heavily monitored and supervised and a police check of the union official was required. Open Country Cheese attempted to prevent access to the Dairy Workers Union (DWU) union officials in June 2009 until the Employment Relations Authority ruled that access should be permitted. Other unions report oversight or impediments to workplace visits. The amendments to the Employment Relations Act in 2010 will only aggravate the situation (see “trade union rights in law”).