Everyone
Strikes
Employees can legally go on strike if they are members of a union and collective bargaining talks break down, or if they believe there are serious health or safety issues at the workplace.
What a strike involves
Employees are on strike if they agree with other employees to totally or partially:
- break their employment agreement
- stop work or refuse to do some or all the work they usually do
- reduce their normal output, performance, or rate of work.
They don’t have to stop work completely to be on strike.
When employees can legally strike
A strike may be legal:
- if it relates to bargaining for a collective agreement and at least 1 of the existing collective agreements has expired and the parties began bargaining at least 40 days earlier, or
- where part of a collective agreement is illegal and the Employment Court has made an order suspending that part, or
- if it is in an essential service specified in Schedule 1 of the Employment Relations Act and the requirements for notice have been met, or
- if employees think it’s justified for health or safety reasons based on reasonable grounds.
Employees can’t go on strike:
- if less than 40 days have passed since collective bargaining was initiated
- if there is a current collective agreement
- over including a bargaining fee clause in the collective agreement
- over a personal grievance or a dispute
- for reasons relating to freedom of association
- if their work is an essential service and the right notice has not been given
- if the strike is against a court order.
If a strike is legal (and the right notice has been given), it cannot be stopped by a court order.
If the strike is not legal, employers can apply to the Employment Court for an injunction to stop it or to sue for loss caused by the strike.
Before a strike begins
After a union and employer have been in collective bargaining for more than 40 days, union members can consider starting strike action.
Union holds secret ballot
Unions must hold a secret ballot before members go on strike (unless a strike is for a health or safety issue).
All union members can participate in the secret ballot. The majority of members who vote must be in favour of the action for it to proceed.
The union must announce the results of the ballot to the members who were entitled to vote as soon as possible.
Union gives written notice to employer
A strike is unlawful if unions do not give the required notice. The notice requirements are designed to allow time for negotiations and mediation and making contingency plans.
Before any strike action starts, unions must give written notice of intention to strike to:
- the employer
- the Chief Executive of the Ministry of Business, Innovation and Employment by email strike.notices@mbie.govt.nz
The notice must state:
- when the strike will start (the period of notice)
- the nature of the strike (for example, if union members will completely stop work, or if they will refuse to do certain parts of their job)
- whether it will be continuous
- where it will happen
- the date and time it will start and end (or what event will end it).
The notice does not need to give the names of the employees who will strike if it states that it covers all the employees who are:
- members of the union that is party to the bargaining
- covered by the bargaining, and
- employed in the relevant part of the workplace or where the relevant work is done.
The information in the notice must be clear enough so that a reasonable recipient of the notice would be able to make plans to deal with the strike without using up the timeframe trying to clarify the information provided.
Unions must also ensure that their method of giving notice actually brings it to the attention of the employer – for example, pushing an envelope under closed doors after hours will not bring the notice to the attention of the other party.
If your workplace is an essential service, notice must be given:
- within 28 days before the start of the intended strike if:
- it will affect the public interest, including public safety or health (the legislation doesn’t define ‘public interest’), and
- it relates to:
- bargaining for a collective agreement which will bind the employees involved, or
- an aspect of a collective agreement that the court has declared there is a right to strike over.
- not less than 14 days before the intended lockout if it is an essential service described in Part A of Schedule 1 of the Employment Relations Act 2000, or
- not less than 3 days before the intended lockout if it is an essential service described in Part B of Schedule 1 of the Employment Relations Act 2000.
Essential services include:
- production, processing, and sale or supply of gas, petroleum, or electricity
- hospitals and ambulances
- water supply to cities and districts
- sewage disposal
- port facilities
- the operation of passenger services, between the North and South Islands, and air transport
- milk and cream production, distribution and sales.
See a complete list of essential services in Schedule I of the Employment Relations Act 2000.
Schedule I – Employment Relations Act 2000 - New Zealand Legislation(external link)
When the Chief Executive of the Ministry of Business, Innovation & Employment receives a notice of strike or lockout, the Employment Mediation Service will offer to assist the parties in the bargaining process to avoid the need for a strike or lockout.
During the strike
Union representatives and the employer must keep bargaining during the strike to try to resolve their differences. They must do this in good faith, with clear, accurate communication.
Getting paid
Employers do not have to pay employees if they suspend the employees while they are on strike.
If an employee is engaged in a partial strike, where they are still doing some form of their work, the employer cannot reduce their pay unless they suspend the employee or issue a lockout.
Suspension during strikes
Employers can suspend employees who go on strike, but they must state:
- why they plan to suspend the employee
- which section of the Employment Relations Act 2000 they are suspending them under.
The suspension lasts until the end of the strike (unless the employer stops the suspension earlier), but it doesn’t break the employee’s term of service.
Employers don’t have to pay employees while they are suspended.
Suspending non-striking employees
Employers can suspend non-striking employees until the strike ends, if the work the employees normally do is not available because of the strike. The employer does not have to pay any employee who has been suspended, but the employee’s term of service is continuous — the suspension does not affect leave or other entitlements.
Employees can go to the Employment Relations Authority for a compliance order if they want to challenge the suspension. They can also ask for remedies, like back pay of wages.
Employment of replacements during a strike
An employer can only employ someone else to do the work of striking employees:
- if the replacement worker agrees, and:
- is already employed by the employer at the time the strike starts, and
- has not been employed mainly to do the work of striking employees
- there are reasonable safety or health reasons, and
- the person only does the work as far as they need to satisfy those safety or health reasons.
Keeping a record of the strike
Throughout the strike, employers must keep a record using the record of strike or lockout form.
The employer is legally obliged to send strike or lockout record and notifications to the Ministry of Business, Innovation & Employment.
Employers may email at strike.notices@mbie.govt.nz or post:
Work Stoppages,
Employment Services,
Regulatory and Advisory Services,
PO Box 1473,
15 Stout Street,
Wellington 6011
Ending a strike
A strike ends when the union or employees provide written notice to the employer after an agreement has been reached.
Within a month of the strike ending, employers must:
- complete the record of strike or lockout form and
- email it to the Ministry of Business, Innovation & Employment at strike.notices@mbie.govt.nz or post to:
Work Stoppages
Employment Services
Regulatory and Advisory Services
PO Box 1473
15 Stout Street
Wellington 6011
Get advice
If you are unsure about your rights or need advice, call us on 0800 20 90 20 or email us.
For help at any stage of the collective bargaining process or during a strike, you can:
- get support from an employment mediator
- ask the Employment Relations Authority for a declaration stating bargaining has ended (or not)
- ask the Employment Relations Authority to fix the terms of a collective agreement where bargaining is undermined by sustained and serious breaches of good faith.
Employment Relations Authority (external link)
Strikes are serious matters and can involve complicated legal issues. We recommend seeking your own legal advice.