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SCHEDULE 3
Procedure for conciliation and arbitration
1 Initiation of negotiations for agreements
Subject to this Act, the appropriate service organisation or the Commissioner may at any time initiate negotiations for the
making or renewal of an agreement under section 67 by submitting a notice to the chief executive of the Department of Labour. 2 Contents of notice
Every notice submitted under clause 1 must indicate any claims that the initiating party wishes to make against the other party and must identify the matters that may be fixed under section 67(3).
3 Power to withdraw notice
The initiating party may, at any time before a settlement has
been reached, withdraw a notice submitted under clause 1 by giving written notice to that effect to the chief executive of the Department of Labour. 4 Service of copies of notice
Immediately after the submission of a notice under clause 1 or clause 3, the party that submitted the notice must serve a copy on the other party.
5 Duty of chief executive
The chief executive of the Department of Labour must, on
receiving a notice submitted under clause 1, designate a person to facilitate negotiations in relation to the claims made by the initiating party. 6 Mediator
The person designated under clause 5 is, in this schedule, referred to as the mediator. 7 Mediator to determine date for negotiations
(1) The mediator must, as soon as practicable after being designated by the chief executive of the Department of Labour, determine, in
consultation with the representatives of the parties, a date, time, and place for negotiations. (2) The mediator must
(a) notify the service organisation and the Commissioner of the date, time, and place determined for the negotiations; and (b) notify the service organisation and
the Commissioner that they may each nominate up to 10 persons as negotiators on behalf of the parties to the negotiations.
8 Action where mediator cannot arrange for negotiations
(1) Where the mediator is unable to bring together the parties for negotiations, the mediator must
inform the arbitrating body accordingly. (2) The arbitrating body must then attempt to facilitate or arrange to bring together the parties for negotiations and may, for that purpose,
(a) give such directions incidental thereto as it thinks fit: (b) call on the services of the chief
executive of the Department of Labour or any other person. (3) Subject to subclause (4), where the arbitrating body's actions do not result in bringing together
the parties for negotiations, the arbitrating body must proceed to hear and determine those parts of the claim that may be fixed under section 67(3) by settling those terms of the agreement.
(4) Where the arbitrating body is satisfied that the inability of the mediator or other person to bring together the parties for negotiations was caused by the party which initiated the negotiations for an agreement under clause 1, the arbitrating
body (a) must not proceed to hear and determine the claim under subclause (3); and
(b) must regard the notice submitted under clause 1 as being withdrawn and must notify the parties to the negotiations accordingly.
(5) Where the parties to negotiations are notified under subclause (4), those negotiations lapse. 9 Negotiators
(1) No barrister or solicitor who holds a practising certificate for the time being in force under the Law Practitioners Act 1982, whether that barrister or solicitor is acting under a power of attorney or
otherwise, is allowed to act as a negotiator unless the parties agree. (2) Nothing in subclause (1) prevents a person acting as a negotiator where that person is acting
substantially as an employer or employee rather than as a barrister or solicitor. (3) The mediator may permit any other person to act for a negotiator who is unable to attend any
negotiations. (4) The powers and functions of the parties to negotiate the claim, and of the mediator, are not affected by any vacancy in the office of negotiator for either party.
10 Powers and functions of mediator
(1) The mediator must make every endeavour to
bring about a settlement of the claim. (2) The mediator must determine, in consultation with the appropriate service organisation and the Commissioner, the procedures to be followed in
the negotiations. (3) The mediator may from time to time adjourn the negotiations. (4) The mediator must make and preserve a
record of the negotiations. (5) The mediator may at any time, of the member's own volition or at the joint request of the parties, seek the advice or opinion of the Employment
Relations Authority. 11 Settlement
(1) If a settlement of the claim is arrived at in
negotiations, the mediator must record in writing the terms of settlement, which must be signed and dated by (a) the mediator; and
(b) an authorised representative of the appropriate service organisation; and (c) an authorised representative of the Commissioner.
(2) The terms of settlement must be given by the mediator to (a) the representatives of the parties;
and (b) the chief executive of the Department of Labour. 12 Unsettled disputes
If the claim to which this Schedule applies is not settled by negotiations, the mediator must refer the claim to the arbitrating body.
13 Statement as to state of negotiations
(1) The appropriate service organisation and the Commissioner must each provide the arbitrating body with a signed statement as to
(a) the state of the negotiations; and (b) the issues in dispute, identifying the matters that may be fixed under
section 67(3). (2) The statement must indicate, among other things, whether or not a partial settlement has been reached.
14 Copies of statement
A copy of the statement must be forwarded to the other party
at the same time as it is provided to the arbitrating body. 15 Power of arbitrating body to determine dispute where parties agree
If the parties agree in writing, the arbitrating body, after giving the parties an opportunity to be heard, must, subject to the provisions of this schedule, hear and determine the claim by
deciding the conditions of employment that may be included in the agreement under section 67(3). 16 Duty of arbitrating body where power to determine dispute not conferred on it
If the parties do not agree to the claim being heard and determined by the arbitrating body, the arbitrating body must forthwith call the parties to a meeting for the purpose of
determining the most appropriate method of resolving the dispute. 17 Hearing by arbitrating body
At any such meeting the arbitrating body must hear the parties and may do all or any of the following: (a) refer the dispute to the chief executive of the
Department of Labour to arrange (by delegation if necessary) for further negotiations between the parties to try and resolve the dispute: (b) consult such organisations as may be
appropriate with a view to ascertaining whether they could assist in resolving the dispute: (c) with the written consent of the parties, refer it to
the arbitrating body to hear and determine the matters that may be fixed under section 67(3): (d) take such other action as the arbitrating body
considers in all the circumstances might assist to resolve the dispute. 18 Other actions of arbitrating body
Any action or actions taken by the arbitrating body under clause 17 do not preclude the arbitrating body from taking any further action under that clause.
19 Lapse of negotiations
Where, in respect of any dispute,
(a) the arbitrating body has exercised any or all of the powers conferred by clause 17; and
(b) the arbitrating body is satisfied that no action short of hearing and determining the dispute will settle it; and (c) the parties do not agree to the dispute being
heard and determined by the arbitrating body, those matters which may be fixed under section 67(3) and which remain in dispute must be referred to compulsory
arbitration in accordance with clauses 20 to 27. All other matters raised in the claim lapse. 20 Arbitrating body
(1) The arbitrating body, for the purposes of the compulsory arbitration, is a committee appointed from time to time under this clause.
(2) The Committee consists of (a) an equal number of representatives (not exceeding 2) nominated respectively by the service organisations jointly and the Commissioner; and
(b) a person to chair the committee, who is to be either (i) a person mutually agreed by the service
organisations and the Commissioner; or (ii) a person designated by the chief executive of the Department of Labour.
(3) The person designated under subclause (2)(b)(ii) may be the same person as the person designated under clause 5 as the mediator.
(4) If the service organisations or the Commissioner fail to make nominations for the purposes of subclause (2)(a) or act in such a way that the committee cannot be established, in accordance with subclause (2), the chief executive
of the Department of Labour must appoint as members of the committee such persons as the chief executive of the Department of Labour thinks fit.
(5) The members of the committee hold office at the pleasure of the chief executive of the Department of Labour. 21 Statement as to state of negotiations
The appropriate service organisation and the Commissioner must each provide the arbitrating body with a signed statement as to
(a) the issues in dispute in accordance with clause 19; and (b) the position on those issues of the party providing the statement; and
(c) full particulars of the final offer being made by the party providing the statement. 22 Copies of statement
When the arbitrating body has received both of the statements required under clause 21, it must supply
(a) a copy of the service organisation's statement to the Commissioner; and (b) a copy of the Commissioner's statement to the service organisation.
23 Hearing and determination of dispute
(1) The arbitrating body, after giving the parties an
opportunity to be heard, must, subject to the provisions of this schedule, hear and determine the dispute and settle the terms of the agreement.
(2) The arbitrating body must, at the conclusion of the hearing and before making its determination, give each of the parties the opportunity to restate in writing, within a specified time or before a specified date, its final offer.
(3) Where any party so restates its final offer, the offer as restated is that party's final offer for the purposes of clause 26.
24 Criteria to be observed by arbitrating body
The arbitrating body, in hearing and determining a dispute in relation to a proposed agreement, must have regard to
(a) the supply and demand factors for the skills of the members covered by the proposed agreement; and
(b) the need for fairness and equity in the rate of pay and conditions of employment for work covered by the proposed agreement; and (c) any changes in the content of any job or in the
skills, duties, or responsibilities of positions covered by the proposed agreement; and (d) any changes in productivity arising from, for example, the introduction of new technology; and
(e) relativities within the proposed agreement, and between it and other awards and agreements; and
(f) the special conditions applicable to employment as a member of the Police; and (g) such other matters as the Commissioner or the arbitrating body, as the case may be, considers
relevant, or as may be agreed upon between the Commissioner and the appropriate service organisation. 25 Application of criteria
In applying the criteria, the arbitrating body (a) is not bound by historical precedent and practice of any sort; and
(b) must consider whether relativities or conditions of employment should be changed to take account of factors that are specific to the work covered by the proposed agreement; and
(c) is not to have any regard whatsoever to any matters that remained in dispute but were not matters that may be fixed under section 67(3).
26 Duty of arbitrating body to accept one final offer
(1) In determining any dispute under this schedule,
the arbitrating body must accept either the final position adopted by the service organisation or the final position adopted by the Commissioner.
(2) The arbitrating body must accept in full the final offer made by one of the parties. (3) The arbitrating body may not adopt only a part
or parts of one final offer and a part of the other final offer. 27 Right of parties to agree on other methods
Nothing in this schedule prevents the parties from agreeing to have the dispute or any issues in dispute determined in a way different from that set out in clauses 20 to 26.
28 Power of arbitrating body to waive technical irregularities
The arbitrating body in its discretion may waive any technical
irregularity or omission that may have occurred in the submission or reference of a dispute of interest to the arbitrating body, if it is satisfied that the provisions of this Act have been substantially complied with.
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