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Employment Relations Act 2000

Collective bargaining - Undermining collective bargaining or collective agreement

59B: Breach of duty of good faith to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement

You could also call this:

“Employers can't use parts of group agreements in individual contracts if it weakens group bargaining power.”

In some cases, an employer can give you the same or similar work conditions as those in a collective agreement, even if you’re not part of that agreement. This is usually okay and doesn’t go against the rules of good faith in section 4.

However, if an employer does this to weaken the collective agreement, and it actually does weaken it, then it’s not okay. This would be breaking the good faith rules.

The same idea applies to conditions that were talked about during collective bargaining. An employer can give you these conditions, but if they do it to weaken the bargaining process or if it does weaken the process, then it’s not allowed.

If the union agrees to any of these things, then it’s not breaking the good faith rules.

When deciding if an employer is trying to weaken a collective agreement or bargaining, several things are considered. These include whether the employer talked with you first, if they spoke with the union, how many employees are part of the collective agreement compared to those who aren’t, and how long the collective agreement has been in place. Other factors can also be considered.

If an employer breaks these good faith rules, they can be punished under this law.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM59131.

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59A: Interpretation, or

“This explains what it means when people agree on something during talks about work rules.”

Next

59C: Breach of duty of good faith to pass on, in certain circumstances, in collective agreement provisions agreed in other collective bargaining or another collective agreement, or

“An employer can get in trouble for copying parts of other agreements if it hurts those agreements or negotiations.”

Part 5 Collective bargaining
Undermining collective bargaining or collective agreement

59BBreach of duty of good faith to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement

  1. It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee who is not bound by a collective agreement should be the same or substantially the same as a term or condition in a collective agreement that binds the employer.

  2. However, it is a breach of the duty of good faith in section 4 for an employer to do so if—

  3. the employer does so with the intention of undermining the collective agreement; and
    1. the effect of the employer doing so is to undermine the collective agreement.

      1. It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee should be the same or substantially the same as a term or condition reached in bargaining for a collective agreement.

      2. However, it is a breach of the duty of good faith in section 4 for an employer to do so if—

      3. the employer does so with the intention of undermining the collective bargaining; or
        1. the effect of the employer doing so is to undermine the collective bargaining.

          1. It is not a breach of the duty of good faith in section 4 if anything referred to in subsection (2) or subsection (4) is done with the agreement of the union concerned.

          2. In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account:

          3. whether the employer bargained with the employee before they agreed on the term or condition of employment:
            1. whether the employer consulted the union in good faith before agreeing to the term or condition of employment:
              1. the number of the employer's employees bound by the collective agreement or covered by the collective bargaining compared to the number of the employer's employees not bound by the collective agreement or not covered by the collective bargaining:
                1. how long the collective agreement has been in force.

                    1. Subsection (6) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).

                    2. Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act.

                    Notes
                    • Section 59B: inserted, on , by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
                    • Section 59B(6)(e): repealed, on , by section 16 of the Employment Relations Amendment Act 2014 (2014 No 61).