The finer points of going on strike
OPINION: Industrial action is not 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 coalminer from Illawara, Australia, recently led a protest where workers stripped down to their underpants.
His protest was in respect of a failure by the employer, Perthbased 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 from his role.
McLachlan’s union has been campaigning for him to be reinstated. However, South32’s vice-president 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 [Australia’s] 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, Brazillians have recently engaged in a series of strikes across the country to protest a proposal by Brazillian 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 car makers, petroleum, schools and transport.
The strikes resulted in 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 amount to a lawful strike under New Zealand law.
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 only amount to a lawful strike 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.
For this ground to be made though, the striking employees will need to be able to point to some imminent and significant danger.
All strikes must be preceded by written notice being given to the employer of the intended strike action, which clearly sets out the details of the strike.
While in most cases the amount of notice that needs to be given is not prescribed, 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 without first giving proper notice.
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 find that there has been a breach of the employment agreement and potentially take disciplinary action against the employee.
In the case of the striking Brazilians, their opposition to government policy would not be a lawful strike in New Zealand because the strike action did not relate to collective bargaining or health and safety.
Where employees choose to take time off from work to protest 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 an important one which is enshrined by law, but it is also a restricted one.
Probably the most significant limiting factor is that employees do not get paid while 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.
In the case of the striking Brazilians, their opposition to government policy would not be a lawful strike in New Zealand.