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Employment Relations Act 2000

Collective bargaining - Determining collective agreement if breach of duty of good faith

50J: Remedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining

You could also call this:

“The law allows a judge to decide what goes in a work agreement if someone keeps being really unfair during talks about it.”

If you’re trying to make a collective agreement and someone isn’t playing fair, you can ask for help. You can go to the Employment Relations Authority and ask them to set the terms of the agreement if someone has seriously broken the rules of good faith.

The Authority can do this if they think it’s the right thing to do. They’ll look at whether the breach of good faith was really bad and went on for a long time, making it hard to reach an agreement. They’ll also check if you’ve tried everything else to reach an agreement and if fixing the terms is the only way to solve the problem.

Even if someone has already been punished for not acting in good faith, the Authority can still step in and set the terms. Once they do this, the collective agreement becomes official, just as if everyone had agreed to it and signed it.

If you had help from a facilitator earlier, you can ask for a different person from the Authority to make this decision.

Remember, this is a serious step and should only be used when other options haven’t worked.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM59109.

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50I: Party must deal with Authority in good faith, or

“Everyone must be honest and fair when talking to the helper during work discussions.”

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50K: Authority may determine that bargaining has concluded, or

“The Employment Relations Authority can decide when talks between workers and bosses are finished.”

Part 5 Collective bargaining
Determining collective agreement if breach of duty of good faith

50JRemedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining

  1. A party to bargaining for a collective agreement may apply, on the grounds specified in subsection (3), to the Authority for a determination fixing the provisions of the collective agreement being bargained for.

  2. The Authority may fix the provisions of the collective agreement being bargained for if it is satisfied that—

  3. the grounds in subsection (3) have been made out; and
    1. it is appropriate, in all the circumstances, to do so.

      1. The grounds are that—

      2. a breach of the duty of good faith in section 4—
        1. has occurred in relation to the bargaining; and
          1. was sufficiently serious and sustained as to significantly undermine the bargaining; and
          2. all other reasonable alternatives for reaching agreement have been exhausted; and
            1. fixing the provisions of the collective agreement is the only effective remedy for the party or parties affected by the breach of the duty of good faith.

              1. The Authority may make a determination under this section whether or not any penalty for a breach of good faith has been awarded under section 4A in relation to the same bargaining and whether or not the breach is the same breach.

              2. The effect of a determination of the Authority fixing the provisions of a collective agreement is to make the collective agreement binding and enforceable as if it had been—

              3. ratified as required by section 51; and
                1. signed by the parties under section 54(1)(b).

                  1. Section 59 applies to the determination as if it were a collective agreement.

                  2. If the bargaining for the collective agreement was subject to facilitation under sections 50A to 50I, the member of the Authority who makes a determination under this section must not be the member of the Authority who conducted the facilitation if a party to the bargaining objects.

                  Notes
                  • Section 50J: inserted, on , by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).