Strikes and lockouts
Collective bargaining: the basic rules
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 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.
Strikes and Lockouts in Essential Services
If the strike or lockout is in an essential service (these services can be found in Schedule 1 of the Employment Relations Act 2000 [external site]), then the union or employer is bound to give the required notice under sections 90 and 91 of any intended strike or lockout. Unions must notify the employer(s) and the Department of any intended strike, and Employers must notify the union(s) and the Department of any intended lockout.
Please direct the Department’s strike or lockout notice to:
Work Stoppages Officer
Work Place – Auckland Registry Office
The Department of Labour
P O Box 105 146
AUCKLAND
Fax (09) 970 1522
The Employment Relations Act also sets additional public notice requirements if the strike or lockout affects bus or train services.
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.
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.
Employment Relations (Secret Ballots for Strikes) Amendment Act 2012
The new sections 82A to 82C of the Employment Relations Act 2000 require a union to hold a secret ballot of members who would become party to a strike, to approve any strike action before undertaking strike action (unless it is a strike on the grounds of health and safety issues). The result of the secret ballot must be in favour of the strike. A majority is required for the strike to proceed, and the union is required to announce the results of the ballot to their members as soon as reasonably practicable.
Where a union’s rules do not provide a process for holding a secret ballot transitional provisions require a union to amend their rules as soon as practically possible but no later than 2 years after the Act’s commencement date (i.e. Before 14th May 2014). There is no requirement for a union to send a copy of the amended rules to the Registrar of Union.
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 may 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.
Employers may not discriminate against employees for taking part in a lawful strike.
Seeking advice
Strikes and lockouts are serious matters and raise complicated legal issues. Employers, employees and unions should seek legal advice about these matters.
Record of strikes and lockouts
If a strike or lockout occurs, the employer of the employees participating in the strike or affected by the lockout must:
- keep a record, in the prescribed form, of the strike or lockout; and
- give to the Department of Labour, within 1 month after the end of the strike or lockout, a copy of that record [PDF 2 pages, 43KB].
You can open, print out this form and complete it.
Then scan your form and email to Strike or lockout record.
Or, send your completed form to:
Executive Officer
Labour Group
Department of Labour
P O Box 3705
Wellington
For enquiries, you can contact (04) 915 4512 and ask for the Executive Officer.
Work Stoppages
Work Stoppages report 2011 calendar year
