'The best chance of avoiding industrial action is to keep negotiations with the union measured and conciliatory and to be as transparent as possible'
With a recommendation from an arbitration panel that teachers should get a 14.5 per cent pay rise spread over three instalments, there is hope the protracted dispute between the Post Primary Teachers Association and the Ministry of Education will be resolved.
If accepted by both parties, the agreement will end a lengthy period of disruption that has led to frustration across the country.
The strike has put a spotlight on industrial action – and serves as a helpful reminder for employers and HR when it comes to handling this type of workplace conflict.
Being proactive to avoid industrial action
“As a generalisation, New Zealand doesn’t have quite the same degree of highly contentious industrial conflict that some overseas countries and sectors do,” says Anna Jackman, specialist employment lawyer and workplace investigator at DTI Lawyers.
But that doesn’t mean that organisations shouldn’t have a toolbox at hand in case the situation arises. Knowing how best to avoid an escalation of issues in the first place can help resolutions be achieved prior to industrial action being taken.
“The best chance of avoiding industrial action is to keep negotiations with the union measured and conciliatory and to be as transparent as possible without damaging the employer’s negotiating position,” says Jackman.
Communicate in good faith
Communication is key. “Explaining to workers, in an accessible way, how increased costs, downturns in sales or predicted pipeline have affected revenues - or whatever the particular circumstances are - can help diffuse a potentially difficult situation,” she says.
Wherever possible, Jackman advises using neutral, non-emotive language and backing up statements with objective examples and illustrations.
"Communications to union employees by union representatives should fairly reflect the bargaining positions, and not be misleading or deceptive; for example, the communications must be consistent with good faith,” she says.
In the case of the Post Primary Teachers Association, the arbitration panel strongly recommended a new body be created to improve relations between the two parties. It noted the union complained the Ministry was not engaged in discussions about issues raised since the previous collective agreement in July 2022 and that timely engagement on those matters was likely to make bargaining easier.
If an employer gets news of planned strike action, it should continue to communicate in good faith with employees and the union, says Jackman, and call in someone to help manage the relationships and go over the options if the parties reach an impasse.
Legal considerations around strikes
If there appears to be no way to reach an agreement in good faith, the employer should consider the effect the strike will have on the workforce and make contingency plans – especially where the strike action is in a sector considered an essential service, she says. All the time, they must be mindful of not breaching good faith obligations to employees.
“Consequences should also be clear - in a fair and balanced way, in good faith - including that the employer has the ability to suspend and not pay employees while they are on strike,” says Jackman.
In some cases, industrial action may leave an employer unable to provide enough work for non-striking employees. In this situation, they might consider suspensions until the action is over.
Trying to keep organisations running by getting someone else to do the work of a striker is only allowable for the duration of the strike, says Jackman.
“If an employer gets someone else to do the work without [following the] strict rules, they can be liable for a penalty from the Employment Relations Authority for each person they got to do the work.”
Best practices to contain reputational damage
However, there are broader considerations to take into account, says Jackman, including the impact this could have on the goodwill with employees, as well as the knock-on effects to the wider community if the organisation is a major employer for the area.
There’s an even higher potential for reputational damage where, in an extreme situation, employers might consider lockouts.
“There will be scenarios where a lockout is warranted,” says Jackman. “However, before deciding to lockout employees, an employer is wise to consider the potential for reputational damage, damage to goodwill and the impact this could have on the ongoing relationships between those involved.”
