Employment Relations Act 2000

Strikes and lockouts - Lawfulness of strikes and lockouts

86: Unlawful strikes or lockouts

You could also call this:

"When strikes or lockouts are against the law"

If you are in a strike or lockout, it is unlawful if it happens when it is not allowed. You can check section 82A to see when a strike is not allowed. A strike or lockout is also unlawful when a collective agreement is in place, unless certain conditions are met.

You need to follow the rules for bargaining for a new collective agreement. At least 40 days must have passed since bargaining started, and any old collective agreements must have expired. You can look at section 86A or 93 to see the notice requirements for a strike. For a lockout, the employer must follow the notice requirements in section 86B or 94.

A strike or lockout is unlawful if it is about a personal grievance, a dispute, or a bargaining fee clause. It is also unlawful if it is about something dealt with in Part 3. In an essential service, you must give notice as required by section 90 or 91. A strike or lockout is unlawful if it goes against a court order.

If you are bargaining for a new collective agreement, you can still strike or lock out in some cases. You can check section 192(2)(c) to see when you can strike or lock out. When checking if a collective agreement is in force, you should not consider section 53.

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Part 8Strikes and lockouts
Lawfulness of strikes and lockouts

86Unlawful strikes or lockouts

  1. Participation in a strike or lockout is unlawful if the strike or lockout—

  2. in the case of a strike, takes place in contravention of section 82A; or
    1. 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
      1. occurs during bargaining for a proposed collective agreement that will bind the employees participating in the strike or affected by the lockout, unless—
        1. at least 40 days have passed since the bargaining was initiated; and
          1. if on the date bargaining was initiated the employees were bound by the same collective agreement, that collective agreement has expired; and
            1. if on that date the employees were bound by different collective agreements, at least 1 of those collective agreements has expired; or
            2. occurs in a situation where,—
              1. in the case of a strike, the employee has failed to comply with the notice requirements in section 86A or 93, as the case may be:
                1. in the case of a lockout, the employer has failed to comply with the notice requirements in section 86B or 94, as the case may be; or
                2. relates to a personal grievance; or
                  1. relates to a dispute; or
                    1. relates to a bargaining fee clause or proposed bargaining fee clause under Part 6B; or
                      1. relates to any matter dealt with in Part 3; or
                          1. 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
                            1. takes place in contravention of an order of the court.
                              1. Subsection (1)(a) does not apply—

                              2. 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
                                1. 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.
                                  1. 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.

                                  Compare
                                  • 1991 No 22 s 63(a)–(d), (f), (g)
                                  Notes
                                  • Section 86(1)(aa): inserted, on , by section 8 of the Employment Relations (Secret Ballot for Strikes) Amendment Act 2012 (2012 No 37).
                                  • Section 86(1)(ba): inserted, on , by section 54 of the Employment Relations Amendment Act 2014 (2014 No 61).
                                  • Section 86(1)(da): inserted, on , by section 35 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
                                  • Section 86(1)(ea): repealed, on , by section 7(1) of the Fair Pay Agreements Act Repeal Act 2023 (2023 No 65).