Bargaining for occupational contracts

To participate in bargaining, a worker organisation or engager organisation must be an incorporated society and register with the Registrar of Screen Industry Organisations.

The registration requirements under the Screen Industry Workers Act are similar to those for unions under the Employment Relations Act 2000. 

Screen industry organisations - Companies Office(external link)

To start bargaining, a worker organisation or an engager organisation must apply to the Employment Relations Authority (ERA).

Before applying, an organisation must ensure a simple majority of their members (who would be covered by the contract) agree.

Only a worker organisation can apply to bargain the first contract for an occupational group, and they can do so at any time.

Workplace relations in the screen industry - Employment Relations Authority(external link)

Initiating bargaining for a replacement occupational contract

If there is no existing occupational contract, or the last contract expired no more than 2 years earlier, bargaining for a replacement can be started by either a worker organisation or an engager organisation, and they can do this at any time.

If an occupational contract expired more than 2 years earlier, only a worker organisation can apply to start bargaining, and they can do this at any time.

If an existing occupational contract hasn’t expired, a worker organisation can start bargaining 180 days before the expiry date. An engager organisation can start bargaining 160 days before the expiry.

The ERA must approve the application if there is sufficient support, which is determined through a public submissions process.

• If a worker organisation has applied to initiate bargaining, sufficient support is when a simple majority of workers within coverage, who have submitted, support it.
• If an engager organisation has applied to initiate bargaining, sufficient support is when a simple majority of engagers within coverage, who have submitted, support it.

If there is sufficient support, the ERA will decide who the bargaining parties will be, and which worker organisation will run the ratification vote at the end of bargaining. These decisions will be published on the ERA’s website.

Bargaining parties can ask the ERA to be excluded from bargaining. The ERA cannot exclude the largest worker or engager organisation, or an organisation that represents a substantial number or distinct class of people. Bargaining cannot take place without at least 1 bargaining party on both the worker side and engager side.

Once the ERA approves the application to initiate, the organisation that applied must initiate bargaining. This is done by providing written notice to the other bargaining parties within 28 days of the ERA’s decision. If written notice is not provided, bargaining is automatically initiated.

Once notice of initiation is given, bargaining can start.

During bargaining, parties must act in good faith, which includes an obligation to produce an occupational contract.
All occupational contracts must contain certain terms (for example, pay, hours of work, breaks, termination).

If disputes arise during bargaining, parties can apply for mediation, facilitation or a determination by the ERA. If the dispute is about what a term in the occupational contract should be, bargaining parties can apply to the ERA to fix the disputed term.

Removing a bargaining party

During bargaining, a party can be removed if:

• they ask to be removed, and they are not the largest worker or engager organisation, or an organisation that represents a substantial number or distinct class of people covered
• their registration has been cancelled
• they were identified as a party as a result of providing false or misleading information to the ERA, or
• the ERA believes they no longer have any members to whom the occupational contract would apply.

Bargaining will stop if there is no longer at least 1 bargaining party representing workers or 1 bargaining party representing engagers.

Adding a bargaining party

After negotiations have begun, organisations who weren’t identified as a bargaining party during the initiation process can apply to the ERA to be added as a bargaining party.

These organisations must have members covered by the occupational contract being bargained. The organisation must show that a substantial number or distinct class of people covered would not have their interests represented if the organisation is not permitted to be a bargaining party.

For the organisation to be added, the ERA needs to be satisfied that allowing the organisation to be included will not undermine the bargaining taking place.

Once bargaining parties have negotiated a draft occupational contract, it is assessed by the ERA. The ERA checks that mandatory terms have been included, and that no prohibited terms have been included.

After the ERA has checked the draft occupational contract, it must be ratified by the workers who will be covered by the contract.

An occupational contract is ratified if a majority of eligible workers who vote, vote in favour.

A worker is eligible to vote if they have done work within coverage of the contract in the 3 years before the application for bargaining was publicly notified.

Ratification is always required, even if the ERA has fixed any terms in the occupational contract.

After ratification, the occupational contract must be signed by bargaining parties and sent to the Ministry of Business, Innovation and Employment (MBIE) at employmentagreements@mbie.govt.nz

It must also be accompanied by a statement describing the results of the ratification vote.

The occupational contract comes into force and applies to new individual and enterprise contracts 6 months after it has been notified in the Gazette. This means the occupational contract is deemed to be part of workers’ individual contracts from that date. More favourable terms in occupational contracts automatically apply to individual contracts. This means individual contracts do not need to be changed.

Individual contracts that are currently in force and were made prior to the date MBIE gave notice have an additional 6 months before the occupational contract is deemed to be part of them (12 months total).

The engager must send a written request to the occupational contract’s signatory parties outlining:

• the proposed less favourable term
• the number of individual contracts that ill contain the less favourable term
• the term(s) of the occupational contract the engager is seeking an exemption from
• how the exemption threshold has been met.

Signatory parties have 14 days to respond to the request in writing. If they do not respond, they are considered to have consented.

If the exemption is needed immediately, it can be verbally agreed between workers and their engager. However, the engager must amend the workers’ individual contracts and notify (in writing) all signatory parties to the occupational contract as soon as is reasonably practicable.

When informing signatory parties, the engager must outline:

• what the less favourable term is
• the number of individual contracts that contain the less favourable term
• the term(s) of the occupational contract that the less favourable term in individual contracts relates to
• how the exemption threshold has been met
• why the less favourable term was immediately needed.