Ace Payroll: Employment Relations Act 2000 Part 8 Strikes And Lockouts


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Employment Relations Act 2000
Part 8 Strikes And Lockouts

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Part 5 Collective Bargaining	Part 11 General Provisions	Schedule 6 Enactments Repealed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 8 Strikes And Lockouts

Section 80 - Object of this Part
Interpretation

Section 81 - Meaning of strike

Section 82 - Meaning of lockout
Lawfulness of strikes and lockouts

Section 83 - Lawful strikes and lockouts related to collective bargaining

Section 84 - Lawful strikes and lockouts on grounds of safety or health

Section 85 - Effect of lawful strike or lockout

Section 86 - Unlawful strikes or lockouts
Suspension of employees during strikes

Section 87 - Suspension of striking employees

Section 88 - Suspension of non-striking employees where work not available during strike

Section 89 - Basis of suspension
Essential services

Section 90 - Strikes in essential services

Section 91 - Lockouts in essential services

Section 92 - Chief executive to ensure mediation services provided
Procedure to provide public with notice before strike or lockout in certain passenger transport services

Section 93 - Procedure to provide public with notice before strike in certain passenger transport services

Section 94 - Procedure to provide public with notice before lockout in certain passenger transport services

Section 95 - Penalty for breach of section 93 or section 94
Employer's liability for wages during lockout

Section 96 - Employer not liable for wages during lockout
Performance of duties of striking or locked out employees

Section 97 - Performance of duties of striking or locked out employees
Record of strikes and lockouts

Section 98 - Record of strikes and lockouts
Jurisdiction of Employment Court

Section 99 - Jurisdiction of Court in relation to torts

Section 100 - Jurisdiction of Court in relation to injunctions

Section 80
Object Of This Part

The object of this Part is

(a) to recognise that the requirement that a union and an employer must deal with each other in good faith does not preclude certain strikes and lockouts being lawful (as defined in this Part); and

(b) to define lawful and unlawful strikes and lockouts; and

(c) to ensure that where a strike or lockout is threatened in an essential service, there is an opportunity for a mediated solution to the problem.

Interpretation

Section 81
Meaning Of Strike

(1) In this Act, strike means an act that

(a) is the act of a number of employees who are or have been in the employment of the same employer or of different employers

(i) in discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it; or

(ii) in refusing or failing after any such discontinuance to resume or return to their employment; or

(iii) in breaking their employment agreements; or

(iv) in refusing or failing to accept engagement for work in which they are usually employed; or

(v) in reducing their normal output or their normal rate of work; and

(b) is due to a combination, agreement, common understanding, or concerted action, whether express or implied, made or entered into by the employees.

(2) In this Act, strike does not include an employees' meeting authorised

(a) by an employer; or

(b) by an employment agreement; or

(c) by this Act.

(3) In this Act, to strike means to become a party to a strike.

Section 82
Meaning Of Lockout

(1) In this Act, lockout means an act that

(a) is the act of an employer

(i) in closing the employer's place of business, or suspending or discontinuing the employer's business or any branch of that business; or

(ii) in discontinuing the employment of any employees; or

(iii) in breaking some or all of the employer's employment agreements; or

(iv) in refusing or failing to engage employees for any work for which the employer usually employs employees; and

(b) is done with a view to compelling employees, or to aid another employer in compelling employees, to

(i) accept terms of employment; or

(ii) comply with demands made by the employer.

(2) In this Act, to lock out means to become a party to a lockout.

Lawfulness of strikes and lockouts

Section 83
Lawful Strikes And Lockouts Related To Collective Bargaining

Participation in a strike or lockout is lawful if the strike or lockout

(a) is not unlawful under section 86; and

(b) relates to bargaining

(i) for a collective agreement that will bind each of the employees concerned; or

(ii) with regard to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declaration made by the Court under section 192(2)(c).

Section 84
Lawful Strikes And Lockouts On Grounds Of Safety Or Health

Participation in a strike or lockout is lawful if the employees who strike have, or the employer who locks out has, reasonable grounds for believing that the strike or lockout is justified on the grounds of safety or health.

Section 85
Effect Of Lawful Strike Or Lockout

(1) Lawful participation in a strike or lockout does not give rise

(a) to proceedings under section 99 that are founded on tort; or

(b) to proceedings under section 100 for the grant of an injunction; or

(c) to any action or proceedings

(i) for a breach of an employment agreement; or

(ii) for a penalty under this Act; or

(iii) for the grant of a compliance order.

(2) Where it is proved in proceedings that participation in a strike or lockout of a kind described in section 86 has occurred, a party to those proceedings who alleges that participation in the strike or lockout was lawful by virtue of section 84 has the burden of proving that allegation.

Section 86
Unlawful Strikes Or Lockouts

(1) Participation in a strike or lockout is unlawful if the strike or lockout

(a) occurs while a collective agreement binding the employees participating in the strike or affected by the lockout is in force, unless subsection (2) applies; or

(b) occurs during bargaining for a proposed collective agreement that will bind the employees participating in the strike or affected by the lockout, unless

(i) at least 40 days have passed since the bargaining was initiated; and

(ii) if on the date bargaining was initiated the employees were bound by the same collective agreement, that collective agreement has expired; and

(iii) if on that date the employees were bound by different collective agreements, at least 1 of those collective agreements has expired; or

(c) relates to a personal grievance; or

(d) relates to a dispute; or

(e) relates to any matter dealt with in Part 3; or

(f) is in an essential service and the requirements as to notice that are contained in section 90 or section 91, as the case may be, have not been complied with; or

(g) takes place in contravention of an order of the Court.

(2) Subsection (1)(a) does not apply

(a) to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declaration made by the Court under section 192(2)(c); or

(b) to a collective agreement that is still in force after the first of the collective agreements referred to in subsection (1)(b)(iii) has expired, for so long as that bargaining continues.

(3) For the purposes of this section, in determining whether a collective agreement is in force or has expired section 53 is not to be taken into account.

Suspension of employees during strikes

Section 87
Suspension Of Striking Employees

(1) Where there is a strike, the employer may suspend the employment of an employee who is a party to the strike.

(2) Unless sooner revoked by the employer, a suspension under subsection (1) continues until the strike is ended.

(3) The suspension under this section of all or any of the employees who are on strike does not end the strike and those employees do not, by reason only of their suspension under subsection (1), cease to be parties to the strike.

(4) An employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the suspension.

(5) On the resumption of the employee's employment, the employee's service must be treated as continuous, despite the period of suspension, for the purpose of rights and benefits that are conditional on continuous service.

Section 88
Suspension Of Non-Striking Employees Where Work Not Available During Strike

(1) Where there is a strike, and as a result of the strike an employer is unable to provide for a non-striking employee work that is normally performed by that employee, the employer may suspend the employee's employment until the strike is ended.

(2) A non-striking employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the suspension.

(3) On the resumption of the employee's employment, that employee's service must be treated as continuous, despite the period of suspension, for the purpose of rights and benefits that are conditional on continuous service.

(4) Where a non-striking employee or group of non-striking employees is suspended under subsection (1), that employee or group of employees may

(a) challenge the suspension by applying for the grant of a compliance order under section 137; and

(b) seek other remedies under this Act in respect of the suspension, including (without limitation) arrears of wages.

(5) In this section, non-striking employee means an employee who is in the employer's employment and who is not on strike.

Section 89
Basis Of Suspension

Where an employer suspends an employee under section 87 or section 88, the employer must indicate to the employee, at the time of the employee's suspension, the section under which the suspension is being effected.

Essential services

Section 90
Strikes In Essential Services

(1) No employee employed in an essential service may strike

(a) unless participation in the strike is lawful under section 83 or section 84; and

(b) if subsection (2) applies,

(i) without having given to his or her employer and to the chief executive, within 28 days before the date of the commencement of the strike, notice in writing of his or her intention to strike; and

(ii) before the date specified in the notice as the date on which the strike will begin.

(2) The requirements specified in subsection (1)(b) apply if

(a) the proposed strike will affect the public interest, including (without limitation) public safety or health; and

(b) the proposed strike relates to bargaining of the type specified in section 83(b).

(3) The notice required by subsection (1)(b)(i) must specify

(a) the period of notice, being a period that is

(i) no less than 14 days in the case of an essential service described in Part A of Schedule 1 ; and

(ii) no less than 3 days in the case of an essential service described in Part B of Schedule 1; and

(b) the nature of the proposed strike, including whether or not the proposed action will be continuous; and

(c) the place or places where the proposed strike will occur; and

(d) the date on which the strike will begin.

(4) The notice

(a) must be signed by a representative of the employee's union on the employee's behalf:

(b) need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who

(i) are members of a union that is a party to the bargaining; and

(ii) are covered by the bargaining; and

(iii) are employed in the relevant part of the essential service or at any particular place or places where the essential service is carried on.

Section 91
Lockouts In Essential Services

(1) No employer engaged in an essential service may lock out any employees who are employed in the essential service

(a) unless participation in the lockout is lawful under section 83 or section 84; and

(b) if subsection (2) applies,

(i) without having given to the employees' union or unions and to the chief executive, within 28 days before the date of commencement of the lockout, notice in writing of the employer's intention to lock out; and

(ii) before the date specified in the notice as the date on which the lockout will begin.

(2) The requirements specified in subsection (1)(b) apply if

(a) the proposed lockout will affect the public interest, including (without limitation) public safety or health; and

(b) the proposed lockout relates to bargaining of the type specified in section 83(b).

(3) The notice required by subsection (1)(b)(i) must specify

(a) the period of notice, being a period that is

(i) no less than 14 days in the case of an essential service described in Part A of Schedule 1; and

(ii) no less than 3 days in the case of an essential service described in Part B of Schedule 1; and

(b) the nature of the proposed lockout, including whether or not it will be continuous; and

(c) the place or places where the proposed lockout will occur; and

(d) the date on which the lockout will begin; and

(e) the names of the employees who will be locked out.

(4) The notice must be signed either by the employer or on the employer's behalf.

Section 92
Chief Executive To Ensure Mediation Services Provided

Where the chief executive receives a notice of intention to strike or lock out under section 90(1)(b)(i) or section 91(1)(b)(i), the chief executive must ensure that mediation services are provided as soon as possible to the parties to the proposed strike or lockout for the purpose of assisting the parties to avoid the need for the strike or lockout.

Procedure to provide public with notice before strike or lockout in certain passenger transport services

Section 93
Procedure To Provide Public With Notice Before Strike In Certain Passenger Transport Services

(1) No employee employed in a passenger road service or a passenger rail service may strike

(a) unless participation in the strike is lawful under section 83 or section 84; and

(b) without the employee's union giving his or her employer notice in writing of the employee's intention to strike.

(2) The notice required by subsection (1) must specify

(a) the period of notice, being a period of not less than 24 hours; and

(b) the nature of the proposed strike, including whether or not the proposed action will be continuous; and

(c) the particular passenger road service or passenger rail service that will be affected by the strike; and

(d) the date on which the strike will begin.

(3) The notice

(a) must be signed by a representative of the employee's union; and

(b) need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who

(i) are members of a union that is a party to the bargaining; and

(ii) are covered by the bargaining; and

(iii) are employed in the relevant part of the passenger road service or passenger rail service.

(4) An employer who is given notice of a strike under subsection (1) must take all practicable steps to ensure that the public who are likely to be affected are notified of the strike as soon as possible after the employer receives the notice.

(5) For the purposes of this section and section 94, passenger road service means the carriage of passengers on any road, whether or not for hire or reward, by means of a large passenger service vehicle within the meaning of that term in section 2(1) of the Transport Services Licensing Act 1989 (not including any service specified as an exempt service in Part I of the First Schedule of that Act or in regulations referred to in that Part).

Section 94
Procedure To Provide Public With Notice Before Lockout In Certain Passenger Transport Services

(1) No employer engaged in providing a passenger road service or passenger rail service may lock out employees who are employed in the service

(a) unless participation in the lockout is lawful under section 83 or section 84; and

(b) without having given to the employees' union or unions notice in writing of the employer's intention to lock out.

(2) The notice required by subsection (1) must specify

(a) the period of notice, being a period of not less than 24 hours; and

(b) the nature of the proposed lockout, including whether or not it will be continuous; and

(c) the particular passenger road service or passenger rail service that will be affected by the lockout; and

(d) the date on which the lockout will begin; and

(e) the names of the employees who will be locked out.

(3) The notice must be signed either by the employer or on the employer's behalf.

(4) An employer engaged in providing a passenger road service or passenger rail service and who intends to lock out any employees who are employed in the service must take all practicable steps to ensure that the public who are likely to be affected are notified of the lockout as soon as possible.

Section 95
Penalty For Breach Of Section 93 Or Section 94

(1) A union that fails to comply with section 93 is liable to a penalty imposed by the Court under this Act.

(2) An employer who fails to comply with section 93 or section 94 is liable to a penalty imposed by the Court under this Act.

(3) Except as provided in this section, a union or employer is under no liability (whether under this Act or the general law) for a failure to comply with section 93 or section 94.

Employer's liability for wages during lockout

Section 96
Employer Not Liable For Wages During Lockout

(1) Where any employees are locked out by their employer, those employees are not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the lockout, unless the employer's participation in the lockout is unlawful.

(2) On the resumption of work by the employees, their service must be treated as continuous, despite the period of the lockout, for the purpose of rights and benefits that are conditional on continuous service.

Performance of duties of striking or locked out employees

Section 97
Performance Of Duties Of Striking Or Locked Out Employees

(1) This section applies if there is a lockout or lawful strike.

(2) An employer may employ or engage another person to perform the work of a striking or locked out employee only in accordance with subsection (3) or subsection (4).

(3) An employer may employ another person to perform the work of a striking or locked out employee if the person

(a) is already employed by the employer at the time the strike or lockout commences; and

(b) is not employed principally for the purpose of performing the work of a striking or locked out employee; and

(c) agrees to perform the work.

(4) An employer may employ or engage another person to perform the work of a striking or locked out employee if

(a) there are reasonable grounds for believing it is necessary for the work to be performed for reasons of safety or health; and

(b) the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health.

(5) A person who performs the work of a striking or locked out employee in accordance with subsection (3) or subsection (4) must not perform that work for any longer than the duration of the strike or lockout.

(6) An employer who fails to comply with this section is liable to a penalty imposed by the Authority under this Act in respect of each person who performs the work concerned.

Record of strikes and lockouts

Section 98
Record Of Strikes And Lockouts

If a strike or lockout occurs, the employer of the employees participating in the strike or affected by the lockout must

(a) keep a record, in the prescribed form, of the strike or lockout; and

(b) give to the chief executive, within 1 month after the end of the strike or lockout, a copy of that record.

Jurisdiction of Employment Court

Section 99
Jurisdiction Of Court In Relation To Torts

(1) The Court has full and exclusive jurisdiction to hear and determine proceedings founded on tort

(a) issued against a party to a strike or lockout that is threatened, is occurring, or has occurred, and that have resulted from or are related to that strike or lockout:

(b) issued against any person in respect of picketing related to a strike or lockout.

(2) No other court has jurisdiction to hear and determine any action or proceedings founded on tort

(a) resulting from or related to a strike or lockout:

(b) in respect of any picketing related to a strike or lockout.

(3) Where any action or proceedings founded on tort are commenced in the Court, and the Court is satisfied that the proceedings resulted from or related to participation in a strike or lockout that is lawful under section 83 or section 84,

(a) the Court must dismiss those proceedings; and

(b) no proceedings founded on tort and resulting from or related to that strike or lockout may be commenced in the District Court or the High Court.

Section 100
Jurisdiction Of Court In Relation To Injunctions

(1) The Court has full and exclusive jurisdiction to hear and determine any proceedings issued for the grant of an injunction

(a) to stop a strike or lockout that is occurring or to prevent a threatened strike or lockout; or

(b) to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout.

(2) No other court has jurisdiction to hear and determine any action or proceedings seeking the grant of an injunction

(a) to stop a strike or lockout that is occurring or to prevent a threatened strike or lockout; or

(b) to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout.

(3) Where any action or proceedings seeking the grant of an injunction to stop a strike or lockout or to prevent a threatened strike or lockout are commenced in the Court, and the Court is satisfied that participation in the strike or lockout is lawful under section 83 or section 84,

(a) the Court must dismiss that action or those proceedings; and

(b) no proceedings seeking the grant of an injunction to stop that strike or lockout or to prevent that threatened strike or lockout may be commenced in the District Court or the High Court.

End of Part 8

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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