The finer points of strike action
OPINION: Industrial action is not necessarily just about walking off the job – it can take various shapes and forms. However, there are limits on what is lawful and what is not.
Dave McLachlan, a coal miner from Illawara, Australia, recently led a protest involving workers stripping down to their underpants.
McLachlan’s protest was in respect of a failure by the employer, South32, to provide an agreed laundry service for work clothes.
While it seems that some resolution was reached between the disgruntled workers and the company, South32 was evidently not impressed with how McLachlan chose to conduct his protest and he was dismissed.
McLachlan’s union has been campaigning for him to be reinstated, but South32’s vicepresident for operations, Mick Thew, appears entirely unwilling to allow McLachlan to return.
‘‘Not only was the protest deemed as unprotected industrial action in accordance with the Fair Work Act, but it involved people presenting for work inappropriately dressed which is not acceptable in the workplace,’’ he said.
In a different part of the world, Brazilians have recently engaged in a series of strikes across the country in protest at a proposal by President Michael Temer to set a new minimum age for retirement.
The strikes were led by a number of Brazilian trade unions and were spread across key sectors including automakers, petroleum, schools, transport and baking.
There was major disruption across the country, with Sao Paulo coming to a standstill and police having to be called in to get the streets moving.
The scale and nature of these examples of strike action differ wildly. But what they both have in common is that neither would be lawful in New Zealand.
The right to strike in New Zealand is guaranteed under the Employment Relations Act. This right is not unqualified, though, and there are limits on when a strike will be lawful.
A strike for the purposes of the act includes situations where two or more employees collectively decide to totally or partially break their employment agreements, stop work, or refuse to accept some or all of the work they usually do.
It can also include reducing the normal output of work or a ‘‘go slow’’.
These actions will amount to a lawful strike only where they are undertaken in the context of collective bargaining, and where the primary purpose of the strike is to advance the employees’ interests in the bargaining.
The only exception to this is where employees believe on reasonable grounds that strike action is justified for health and safety reasons. However, they would have to be able to cite an imminent and significant danger.
All strikes must be preceded by written notice being given to the employer of the intended action, which clearly sets out the details of the strike.
In most cases the required notice is not prescribed, but at least 14 clear days’ notice must be given for essential services such as hospitals.
These are important procedural steps which mean that employees cannot simply ‘‘down tools’’ and walk off the job.
Where an employee participates in a lawful strike, they cannot be discriminated against as a result of their involvement.
This includes being protected from any adverse treatment such as formal warnings or dismissal.
But where an employee engages in unlawful strike action, the employer may – depending on what specifically the employee did or did not do – find that there has been a breach of the employment agreement and potentially take disciplinary action.
In the case of the striking Brazilians, their protests would not be a lawful strike in New Zealand because the action did not relate to collective bargaining or health and safety.
Where employees choose to take time off from work to protest at the law of the land, and do so without the agreement of their employer, they will have limited protection should they breach any of their employment obligations.
And what about McLachlan, whose novel and revealing approach to strike action was directed at decisions made by his employer? He, too, would receive no protection under New Zealand law, given the strike he led was not connected to collective bargaining or health and safety.
The right to strike in New Zealand is important and enshrined by law, but it is also restricted.
Probably the most significant limiting factor is that employees do not get paid whilst on strike.
This means that in practice employees cannot strike indiscriminately and instead must be disciplined and strategic about exercising this right in order to achieve bang for buck.
Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers www.dundasstreet.co.nz.