Authority finds plan was too far advanced for unions to meaningfully shape the outcome
In a determination dated 18 March 2026, the Employment Relations Authority ruled Fire and Emergency New Zealand breached consultation duties and good faith with two unions. The decision was the second of two in the proceeding, following an earlier determination on 9 February 2026 dealing with the interpretation of the consultation clauses themselves.
The case, brought by the New Zealand Professional Firefighters' Union (NZPFU) and the New Zealand Public Service Association (PSA), centred on a sweeping restructure. According to a January 2026 engagement session, the proposed changes to national headquarters and regional management would impact around 700 roles, resulting in a net loss of around 140 positions, with FENZ targeting a saving of approximately $90 million by 30 June 2029.
FENZ released its embargoed consultation document to the unions at 5.40pm on 11 November 2025, with the document going organisation-wide the following day. By that point, each branch of the organisation had been redesigned by executive leaders over several months, signed off by chief executive Kerry Gregory, with the overall proposal approved by the Board. The unions argued the proposal was already too advanced for genuine input. FENZ countered that until a proposal existed, there was nothing concrete to consult on.
Authority member Sarah Kennedy-Martin disagreed with FENZ's reading. She found the consultation clauses in both collective agreements required FENZ to consult not just on the consequences of change, but on whether change should happen and why. Looking at the scale of the redesign — 181 PSA members affected and 97 positions disestablished, alongside 66 NZPFU members significantly affected with 3 positions proposed for disestablishment — she concluded the plan had moved beyond the point where consultation could meaningfully influence the direction.
As she put it, "what was presented as a proposal for change had gone past the point where consultation could be said to be meaningful when the clause required consultation with the Unions about whether change should occur and the reasons for change."
The determination acknowledged employers are allowed to bring a working plan to the table. Drawing on earlier case law, Kennedy-Martin noted that consultation "is to be a reality, not a charade," and that an employer "must keep its mind open and be ready to change and even start afresh." FENZ's challenge was that its plan had hardened before the unions ever saw it.
Several details around the rollout also drew scrutiny. The consultation document itself contained no reference to the unions, an omission FENZ accepted was an oversight and said would not be repeated. The release also coincided with the NZPFU's annual conference and an active bargaining round with the PSA. Mr Gregory said he did not draw the dots between the date settled on for release of the consultation document and the NZPFU conference. Deputy chief executive Megan Stiffler said she knew the dates coincided but thought it was appropriate. The Authority found that as an organisation FENZ knew, so the timing could not have been unintentional. Early requests from the unions to see the document sooner or extend the two-week consultation window were declined without much discussion, though FENZ later extended the consultation period by a further two weeks to 19 December 2025.
On those grounds, the Authority found FENZ breached the consultation clauses in both collective agreements and section 4(1A)(b) of the Employment Relations Act 2000, the good faith duty requiring parties to be active, constructive, responsive and communicative in maintaining productive employment relationships.
Not every claim landed. The unions also alleged FENZ had undermined collective bargaining, pointing to overlap between bargaining claims and the restructure proposals. Kennedy-Martin rejected this, finding that while some of the unions' claims were affected, bargaining had not been undermined and remained ongoing with both unions as a dynamic process.
Compliance orders were reserved, with FENZ indicating it would consult in line with the Authority's conclusions without needing formal orders.
The determination is a reminder that timing is everything. Signalling that "change is coming" through town halls and all-staff emails is not the same as consulting on a specific proposal. Where collective agreements require consultation on the reasons for change and whether it should happen at all, locking in the plan before unions see it leaves little room for the genuine, open-minded conversation the law expects.
