Ace Payroll: Employment Relations Act 2000 Part 5 Collective Bargaining


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Employment Relations Act 2000
Part 5 Collective Bargaining

Table Of Contents	Part 6 Individual Employees	Schedule 1 Essential Services
Part 1 Key Provisions	Part 7 Education Leave	Schedule 2 Employment Authority
Part 2 Preliminary Provisions	Part 8 Strikes And Lockouts	Schedule 3 Employment Court
Part 3 Freedom Of Association	Part 9 Disputes And Enforcement	Schedule 4 Changes to Police Act
Part 4 Operation Of Unions	Part 10 Institutions	Schedule 5 Enactments Amended
Part 5 Collective Bargaining	Part 11 General Provisions	Schedule 6 Enactments Repealed

Part 5 Collective Bargaining

Section 31 - Object of this Part
Good faith

Section 32 - Good faith in bargaining for collective agreement

Section 33 - Duty of good faith does not require concluded collective agreement

Section 34 - Providing information in bargaining for collective agreement
Codes of good faith

Section 35 - Codes of good faith

Section 36 - Appointment of committee to recommend codes of good faith

Section 37 - Minister may approve code of good faith not recommended by committee

Section 38 - Amendment and revocation of code of good faith

Section 39 - Authority or Court may have regard to code of good faith
Bargaining

Section 40 - Who may initiate bargaining

Section 41 - When bargaining may be initiated

Section 42 - How bargaining initiated

Section 43 - Employees' attention to be drawn to initiation of bargaining

Section 44 - When bargaining initiated

Section 45 - One or more unions proposing to initiate bargaining with 2 or more employers for single collective agreement

Section 46 - Terms of question for secret ballot

Section 47 - When secret ballots required after employer initiates bargaining for single collective agreement

Section 48 - When requirement for secret ballot does not apply

Section 49 - Parties joining bargaining after it begins

Section 50 - Consolidation of bargaining
Collective agreements

Section 51 - Ratification of collective agreement

Section 52 - When collective agreement comes into force and expires

Section 53 - Continuation of collective agreement after specified expiry date

Section 54 - Form and content of collective agreement

Section 55 - Deduction of union fees

Section 56 - Application of collective agreement

Section 57 - Employee bound by only 1 collective agreement in respect of same work

Section 58 - Employee who resigns as member of union but does not resign as employee

Section 59 - Copy of collective agreement to be delivered to chief executive

Section 31
Object Of This Part

The object of this Part is

(a) to provide the core requirements of the duty of good faith in relation to collective bargaining; and

(b) to provide for 1 or more codes of good faith to assist the parties to understand what good faith means in collective bargaining; and

(c) to recognise the view of parties to collective bargaining as to what constitutes good faith; and

(d) to promote orderly collective bargaining; and

(e) to ensure that employees confirm proposed collective bargaining for a multi-party collective agreement.

Good faith

Section 32
Good Faith In Bargaining For Collective Agreement

(1) The duty of good faith in section 4 requires a union and an employer bargaining for a collective agreement to do, at least, the following things:

(a) the union and the employer must use their best endeavours to enter into an arrangement, as soon as possible after the initiation of bargaining, that sets out a process for conducting the bargaining in an effective and efficient manner; and

(b) the union and the employer must meet each other, from time to time, for the purposes of the bargaining; and

(c) the union and employer must consider and respond to proposals made by each other; and

(d) the union and the employer

(i) must recognise the role and authority of any person chosen by each to be its representative or advocate; and

(ii) must not (whether directly or indirectly) bargain about matters relating to terms and conditions of employment with persons whom the representative or advocate are acting for, unless the union and employer agree otherwise; and

(iii) must not undermine or do anything that is likely to undermine the bargaining or the authority of the other in the bargaining; and

(e) the union and employer must provide to each other, on request and in accordance with section 34, information that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes of the bargaining.

(2) Subsection (1)(b) does not require a union and an employer to continue to meet each other about proposals that have been considered and responded to.

(3) The matters that are relevant to whether a union and an employer bargaining for a collective agreement are dealing with each other in good faith include

(a) the provisions of a code of good faith that are relevant to the circumstances of the union and the employer; and

(b) the provisions of any agreement about good faith entered into by the union and the employer; and

(c) the proportion of the employer's employees who are members of the union and to whom the bargaining relates; and

(d) any other matter considered relevant, including background circumstances and the circumstances of the union and the employer.

(4) For the purposes of subsection (3)(d), circumstances, in relation to a union and an employer, include

(a) the operational environment of the union and the employer; and

(b) the resources available to the union and the employer.

(5) This section does not limit the application of the duty of good faith in section 4 in relation to bargaining for a collective agreement.

Section 33
Duty Of Good Faith Does Not Require Concluded Collective Agreement

The duty of good faith in section 4 does not require a union and an employer bargaining for a collective agreement

(a) to agree on any matter for inclusion in a collective agreement; or

(b) to enter into a collective agreement.

Section 34
Providing Information In Bargaining For Collective Agreement

(1) This section applies for the purposes of section 32(1)(e).

(2) A request by a union or an employer to the other for information must

(a) be in writing; and

(b) specify the nature of the information requested in sufficient detail to enable the information to be identified; and

(c) specify the claim or the response to a claim in respect of which information to support or substantiate the claim or the response is requested; and

(d) specify a reasonable time within which the information is to be provided.

(3) A union or an employer must provide the information requested

(a) direct to the other; or

(b) to an independent reviewer if the union or employer providing the information reasonably considers that it should be treated as confidential information.

(4) A person must not act as an independent reviewer unless appointed by mutual agreement of the union and employer.

(5) As soon as practicable after receiving information under subsection (3), an independent reviewer must

(a) decide whether and, if so, to what extent the information should be treated as confidential; and

(b) advise the union and employer concerned of the decision.

(6) If an independent reviewer decides that the information should be treated as confidential, the independent reviewer must

(a) decide whether and, if so, to what extent the information supports or substantiates the claim or the response to a claim in respect of which the information is requested; and

(b) advise the union and employer concerned of the decision in a way that maintains the confidentiality of the information; and

(c) answer any questions from the union or employer that requested the information, in a way that maintains the confidentiality of the information.

(7) Unless the union and employer otherwise agree, information provided under subsection (3) and advice and answers provided under subsections (5) and (6)

(a) must be used only for the purposes of the bargaining concerned; and

(b) must be treated as confidential by the persons conducting the bargaining concerned; and

(c) must not be disclosed by those persons to anyone else, including persons who would be bound by the collective agreement being bargained for.

(8) This section does not limit or affect the Privacy Act 1993.

(9) Nothing in the Official Information Act 1982 (except section 6) enables an employer that is subject to that Act to withhold information that is required under section 32(1)(e).

Codes of good faith

Section 35
Codes Of Good Faith

(1) The Minister may, by notice in the Gazette,

(a) approve 1 or more codes of good faith recommended by the committee appointed under section 36:

(b) approve 1 or more codes of good faith if section 37 applies.

(2) The notice in the Gazette may, instead of setting out the code of good faith being approved, provide sufficient information to identify the code, specify the date on which it comes into force, and state where copies of the code may be obtained.

(3) The purpose of a code of good faith is to provide guidance about the application of the duty of good faith in section 4 in relation to collective bargaining

(a) generally; or

(b) in relation to particular types of situations; or

(c) in relation to particular parts or areas of the employment environment.

Section 36
Appointment Of Committee To Recommend Codes Of Good Faith

(1) The Minister may appoint a committee for the purpose of recommending to the Minister 1 or more codes of good faith.

(2) The membership of the committee must comprise

(a) at least 1 person who represents unions; and

(b) at least 1 person who represents employers' organisations; and

(c) such other persons as the Minister thinks fit to appoint.

(3) The Minister must appoint the same number of persons under both subsection (2)(a) and subsection (2)(b).

(4) The chairperson of the committee is the member appointed by the Minister to be the chairperson.

(5) Subject to any directions given to it by the Minister, the committee may determine its own procedure.

Section 37
Minister May Approve Code Of Good Faith Not Recommended By Committee

(1) The Minister may approve a code of good faith under section 35(1)(b) if

(a) the committee has not recommended a code of good faith within a time specified by the Minister; or

(b) the Minister declines to approve a code of good faith recommended by the committee.

(2) Before the Minister approves a code of good faith under section 35(1)(b), the Minister may consult such persons and organisations as the Minister thinks appropriate.

(3) If the Minister declines to approve a code of good faith recommended by the committee, the Minister must notify the committee

(a) that the Minister has declined to approve the code; and

(b) of the reasons for declining to approve the code.

Section 38
Amendment And Revocation Of Code Of Good Faith

A code of good faith may be amended or revoked in the same manner as the code is approved.

Section 39
Authority Or Court May Have Regard To Code Of Good Faith

The Authority or Court may, in determining whether or not a union and an employer have dealt with each other in good faith in bargaining for a collective agreement, have regard to a code of good faith approved under section 35 that

(a) was in force at the relevant time; and

(b) in the form in which it was then in force, related to the circumstances before the Authority or the Court.

Bargaining

Section 40
Who May Initiate Bargaining

(1) Bargaining for a collective agreement may be initiated by

(a) 1 or more unions with 1 or more employers; or

(b) 1 or more employers with 1 or more unions.

(2) However, bargaining for a collective agreement may not be initiated by an employer (whether alone or with other employers) unless the coverage clause will cover work (whether in whole or in part) that is or was covered by another collective agreement to which the employer is or was a party.

Section 41
When Bargaining May Be Initiated

(1) If there is no applicable collective agreement in force between a union and an employer, the union or the employer may initiate bargaining with the other at any time.

(2) Subsection (1) applies subject to section 40(2).

(3) If there is an applicable collective agreement in force,

(a) a union must not initiate bargaining earlier than 60 days before the date on which the collective agreement expires:

(b) an employer must not initiate bargaining earlier than 40 days before the date on which the collective agreement expires.

(4) However, if there is more than 1 applicable collective agreement in force that binds more than 1 union or more than 1 employer or both that are intended to be parties to the bargaining, then

(a) a union must not initiate bargaining before the later of the following dates:

(i) the date that is 120 days before the date on which the last applicable collective agreement expires:

(ii) the date that is 60 days before the date on which the first applicable collective agreement expires:

(b) an employer must not initiate bargaining before the later of the following dates:

(i) the date that is 100 days before the date on which the last applicable collective agreement expires:

(ii) the date that is 40 days before the date on which the first applicable collective agreement expires.

(5) For the purposes of this section, an applicable collective agreement is in force between a union and an employer if the agreement binds employees whose work is intended to come within the coverage clause in the collective agreement being bargained for.

Section 42
How Bargaining Initiated

(1) A union or employer initiates bargaining for a collective agreement by giving to the intended party or parties to the agreement a notice that complies with subsection (2).

(2) A notice complies with this subsection if

(a) it is in writing and signed by the union or the employer giving the notice or its duly authorised representative; and

(b) it identifies each of the intended parties to the collective agreement; and

(c) it identifies the intended coverage of the collective agreement.

Section 43
Employees' Attention To Be Drawn To Initiation Of Bargaining

An employer that initiates bargaining or that receives a notice initiating bargaining for a collective agreement must, as soon as possible but not later than 10 days after initiating the bargaining or receiving the notice, draw the existence and coverage of the bargaining, and the intended parties to it, to the attention of all employees (whether or not members of a union concerned) whose work would be covered by the intended coverage clause if the collective agreement were entered into.

Section 44
When Bargaining Initiated

(1) Bargaining for a collective agreement is initiated,

(a) if only 1 notice is required under section 42, on the day on which the notice is given:

(b) if more than 1 notice is required under section 42, on the day on which the last notice is given.

(2) Consolidated bargaining for a single collective agreement under section 50 is initiated on the day by which all the unions concerned agree to the request from the employer to consolidate bargaining initiated by the unions.

Section 45
One Or More Unions Proposing To Initiate Bargaining With 2 Or More Employers For Single Collective Agreement

(1) This section applies to

(a) 1 union proposing to initiate bargaining with 2 or more employers for a single collective agreement:

(b) 2 or more unions proposing to initiate bargaining with 1 or more employers for a single collective agreement.

(2) Before bargaining for the single collective agreement is initiated under section 42, the union or each union (as the case may require) must hold, in accordance with its rules, separate secret ballots of its members employed by each employer intended to be a party to the bargaining.

(3) A secret ballot may be held only if the members of the union employed by the employer are

(a) not covered by an applicable collective agreement that is in force; or

(b) covered by an applicable collective agreement that is in force and the secret ballot is held not earlier than 60 days before the time within which bargaining may be initiated by the union under section 41.

(4) The result of a secret ballot of members of the union employed by an employer is determined by a simple majority of the members who are entitled to vote and who do vote.

(5) If, at the conclusion of the secret ballots, 2 or more secret ballots have resulted in a decision in favour of bargaining for a single collective agreement, then the union proposing to initiate bargaining for a single collective agreement may initiate bargaining by giving a notice in accordance with section 42 to each employer in respect of which a secret ballot has resulted in a decision in favour of bargaining for a single collective agreement.

(6) The notice must include the following additional information in respect of each employer whose employees voted in a secret ballot:

(a) the name of the employer; and

(b) the number of the employer's employees who are members of the union; and

(c) the number of those members who voted; and

(d) the number of those members who voted in favour of bargaining for a single collective agreement.

Section 46
Terms Of Question For Secret Ballot

The question to be voted on in a secret ballot for the purposes of section 45 is

(a) whether the member is in favour of bargaining for a single collective agreement, irrespective of the employers or unions concerned; or

(b) whether the member is in favour of bargaining for a single collective agreement with named employers or unions; or

(c) whether the member is in favour of bargaining for a single collective agreement except with 1 or more named employers or unions.

Section 47
When Secret Ballots Required After Employer Initiates Bargaining For Single Collective Agreement

(1) This section applies to

(a) 2 or more unions in relation to which 1 employer has initiated bargaining for a single collective agreement:

(b) 1 or more unions in relation to which 2 or more employers have initiated bargaining for a single collective agreement.

(2) A union to which subsection (1)(a) applies must hold a secret ballot of its members employed by the employer if the union considers that a majority of its members employed by the employer would disagree with bargaining for a single collective agreement.

(3) A union to which subsection (1)(b) applies must hold a secret ballot of its members employed by an employer to which subsection (1)(b) applies if it considers that a majority of its members employed by the employer would disagree with bargaining for a single collective agreement.

(4) A secret ballot held under subsection (2) or subsection (3) must be held in accordance with sections 45 and 46, and those sections apply with all necessary modifications.

(5) At the conclusion of a secret ballot, the union must inform the following employers of the result of the secret ballot:

(a) the employer of the employees in respect of whom the secret ballot has been held; and

(b) if subsection (1)(b) applies, the other employers concerned.

(6) At the conclusion of the secret ballots, bargaining for a single collective agreement may continue,

(a) where subsection (1)(a) applies, if the members of each of the 2 unions or of a majority of the unions, if more than 2,

(i) have voted in favour of bargaining for a single collective agreement with the employer; or

(ii) are considered by their union to be in favour of bargaining for a single collective agreement with the employer; or

(iii) both; or

(b) where subsection (1)(b) applies, if the members of the union or of each union, if there are 2, or of a majority of the unions, if more than 2,

(i) have voted in favour of bargaining for a single collective agreement with the 2 or more employers; or

(ii) are considered by the union or each union, as the case may be, to be in favour of bargaining for a single collective agreement with the 2 or more employers; or

(iii) both.

Section 48
When Requirement For Secret Ballot Does Not Apply

Sections 45, 46, and 47 do not apply to bargaining for a single collective agreement if

(a) the collective agreement is intended to replace a single collective agreement that is in force; and

(b) the parties to the bargaining are 2 or more of the same parties to the single collective agreement; and

(c) the scope of the coverage clause is not wider than the scope of the coverage clause in the single collective agreement.

Section 49
Parties Joining Bargaining After It Begins

(1) A union or employer may become a party to bargaining for a collective agreement after bargaining has been initiated, but only if the requirements of this section are met.

(2) The union or employer that wishes to become a party to the bargaining must, at the time that it seeks to become a party, meet the requirements (including but not limited to those for secret ballots) that would have applied if the union or employer had been a party at the initiation of the bargaining.

(3) The parties to the bargaining must consent to the union or employer becoming a party to the bargaining.

Section 50
Consolidation Of Bargaining

(1) This section applies if

(a) an employer receives 2 or more notices under section 42 from different unions; and

(b) the notices relate, in whole or in part, to the same type of work.

(2) The employer may, within 40 days after receiving the first notice, request each union concerned to consolidate the bargaining initiated by each notice into bargaining for a single collective agreement.

(3) Each union receiving a request under subsection (2) must, within 30 days after receiving the request,

(a) agree to the request; or

(b) withdraw the notice given under section 42.

(4) A union that does not comply with subsection (3) is to be treated as if it had withdrawn the notice given under section 42.

(5) If all the unions concerned agree to the request, the bargaining initiated by each notice is consolidated into bargaining for a single collective agreement.

Collective agreements

Section 51
Ratification Of Collective Agreement

(1) A union must not sign a collective agreement or a variation of it unless the agreement or variation has been ratified in accordance with the ratification procedure notified under subsection (2).

(2) At the beginning of bargaining for a collective agreement or a variation of it, a union must notify the other intended party or parties to the collective agreement of the procedure for ratification by the employees to be bound by it that must be complied with before the union may sign the collective agreement or variation of it.

Section 52
When Collective Agreement Comes Into Force And Expires

(1) A collective agreement comes into force on

(a) the date specified in the agreement as the date on which it comes into force; or

(b) if no such date is specified, the date on which the last party to the agreement, or its duly authorised representative, signed the agreement.

(2) A collective agreement may provide that 1 or more of its provisions have effect from 1 or more dates before or after the date on which the agreement comes into force.

(3) A collective agreement expires on the close of the earliest of the following dates:

(a) the date specified in the agreement as the date on which the agreement expires:

(b) the date on which an event occurs, being an event that is specified by the agreement as an event on the occurrence of which the agreement expires:

(c) the date that is the third anniversary of the agreement coming into force.

(4) Subsection (3) applies subject to section 53.

Section 53
Continuation Of Collective Agreement After Specified Expiry Date

(1) A collective agreement that would otherwise expire as provided in section 52(3) continues in force

(a) if subsection (2) is complied with; and

(b) for the period specified in subsection (3).

(2) This subsection is complied with if the union initiated collective bargaining before the collective agreement expired and for the purpose of replacing the collective agreement.

(3) The period is the period (not exceeding 12 months) during which bargaining continues for a collective agreement to replace the collective agreement that has expired.

Section 54
Form And Content Of Collective Agreement

(1) A collective agreement has no effect unless

(a) it is in writing; and

(b) it is signed by each union and employer that is a party to the agreement.

(2) A collective agreement may contain such provisions as the parties to the agreement mutually agree on.

(3) However, a collective agreement

(a) must contain

(i) a coverage clause; and

(ii) with a view to protecting employees bound by the agreement from being disadvantaged, a clause dealing with the rights and obligations of the employees and employer if the work of any of the employees were to be contracted out or the business or part of the business of the employer concerned were to be transferred or sold; and

(iii) a plain language explanation of the services available for the resolution of employment relationship problems, including a reference to the period of 90 days in section 114 within which a personal grievance must be raised; and

(iv) a clause providing how the agreement can be varied; and

(v) the date on which the agreement expires or an event on the occurrence of which the agreement is to expire; and

(b) must not contain anything

(i) contrary to law; or

(ii) inconsistent with this Act.

Section 55
Deduction Of Union Fees

(1) A collective agreement is to be treated as if it contains a provision that requires an employer that is a party to the agreement to deduct, with the consent of a union member, the member's union fee from the member's salary or wages on a regular basis during the year.

(2) A collective agreement may exclude or vary the effect of subsection (1).

(3) Union fees deducted from a member's salary or wages must be paid to the union concerned in accordance with any arrangement agreed with the union.

Section 56
Application Of Collective Agreement

(1) A collective agreement that is in force binds and is enforceable by

(a) the union and the employer that are the parties to the agreement; and

(b) employees

(i) who are employed by an employer that is a party to the agreement; and

(ii) who are or become members of a union that is a party to the agreement; and

(iii) whose work comes within the coverage clause in the agreement.

(2) If the registration of a union that is a party to a collective agreement is cancelled or the union ceases to be an incorporated society, the collective agreement continues to bind the employer or employers who are parties to the agreement, and the members of the union who were bound by the collective agreement immediately before the cancellation of the union's registration or the cessation of the union as an incorporated society.

(3) If the union's registration is cancelled as a result of the union's amalgamation with 1 or more other unions, the collective agreement binds the amalgamated union.

Section 57
Employee Bound By Only 1 Collective Agreement In Respect Of Same Work

If an employee is a member of more than 1 union, the employee is bound by only 1 collective agreement covering the same work done by the employee, being the collective agreement resulting from the bargaining first initiated which covered the employee's work.

Section 58
Employee Who Resigns As Member Of Union But Does Not Resign As Employee

(1) A member of a union who is bound by a collective agreement and who resigns as a member of the union but does not resign from his or her employment, may not be subject to any other bargaining for a collective agreement or bound by any other collective agreement until the 60th day before the expiry date of the collective agreement binding on the member before resigning as a member of the union.

(2) For the purposes of subsection (1), the expiry date of a collective agreement is determined under section 52(3) without taking section 53 into account.

Section 59
Copy Of Collective Agreement To Be Delivered To Chief Executive

(1) The parties to a collective agreement must ensure that, as soon as practicable after they enter into the agreement, a copy of the agreement is delivered to the chief executive.

(2) The copy of the agreement delivered to the chief executive must include any document referred to, or incorporated by reference, in the collective agreement, unless the document is publicly available.

(3) Nothing in the Official Information Act 1982 applies to copies of collective agreements delivered to the chief executive under subsection (1).

(4) The information contained in the copies of collective agreements delivered to the chief executive under subsection (1) must be used only for statistical or analytical purposes.

End of Part 5

Table Of Contents	Part 6 Individual Employees	Schedule 1 Essential Services
Part 1 Key Provisions	Part 7 Education Leave	Schedule 2 Employment Authority
Part 2 Preliminary Provisions	Part 8 Strikes And Lockouts	Schedule 3 Employment Court
Part 3 Freedom Of Association	Part 9 Disputes And Enforcement	Schedule 4 Changes to Police Act
Part 4 Operation Of Unions	Part 10 Institutions	Schedule 5 Enactments Amended
Part 5 Collective Bargaining	Part 11 General Provisions	Schedule 6 Enactments Repealed

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Updated: 9th December 2008
Published: 27th August 2000

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