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Employment Relations Act 2000

Collective bargaining - Undermining collective bargaining or collective agreement

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

You could also call this:

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

You can use the same or similar provisions from one collective agreement in another collective agreement without breaking the rule of good faith in section 4. However, if you do this to weaken the other agreement, or if it has that effect, then you are breaking the rule of good faith.

The same applies when you use provisions from bargaining for one collective agreement in another agreement. If you do this to undermine the other bargaining, or if it has that effect, you are breaking the rule of good faith.

It’s okay to do these things if everyone involved in the other agreement or bargaining says it’s alright.

When deciding if someone is trying to weaken an agreement or bargaining, or if that’s what’s happening, you need to think about:

  • If the employer and union talked about the provision before agreeing to it
  • If the employer and union talked to the people involved in the other agreement or bargaining
  • How many workers are covered by each agreement or bargaining process
  • How long the other agreement has been in place

These aren’t the only things to think about, but they’re important.

If an employer breaks the rule of good faith in this way, 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=DLM59133.

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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, or

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

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60: Object of this Part, or

“This part explains the rules for deciding how employees should be treated at work and making sure they understand their job agreements.”

Part 5 Collective bargaining
Undermining collective bargaining or collective agreement

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

  1. It is not a breach of the duty of good faith in section 4 for an employer to conclude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions in another collective agreement to which the employer is a party.

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

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

      1. It is not a breach of the duty of good faith in section 4 for an employer to conclude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions reached in bargaining for another 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 other collective bargaining; or
        1. the effect of the employer doing so is to undermine the other 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 parties to the other collective agreement or collective bargaining.

          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 and union bargained before agreeing on the provision:
            1. whether the employer and union consulted, in good faith, the parties to the other collective agreement or collective bargaining:
              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 bound by the other collective agreement or covered by the other collective bargaining:
                1. how long the other collective agreement has been in force.

                  1. Subsection (4) 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 59C: inserted, on , by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).