Lightning strikes by court staff tricky

3 Dec 18

Column written by Dunedin Partner John Farrow, published in the business section of the Otago Daily Times on Monday 3 December.

It seems to be the year for strikes. Nurses went on strike over staff levels and pay. Teachers have been striking on and off throughout the year over pay increases and improved staffing. Court workers announced increased industrial action from November 7 to December 7, but it appears they have since settled their dispute at mediation.

The court workers’ announcement followed a judgement of the Employment Court delivered on November 5. The Ministry of Justice sought orders restraining the New Zealand Public Service Association from engaging in further lightning strike action without providing reasonable notice. The Ministry of Justice argued that at least 48 hours’ notice was reasonable in the circumstances. However, the Employment Court found that the proposal to require notice of 48 hours would seriously and unjustifiably affect the relative bargaining positions of the parties in their collective bargaining. To require 48 hours’ notice (two days) would negate the effectiveness of the actions taken and reduce the strike action to being merely symbolic.

The strike action that has now been notified includes a ban on working overtime and toil; working to rule by taking common breaks; a ban on working anywhere other than the workers’ home registry; a ban on participating in any AVL custody hearings or remote participation events; a ban on involvement in any event or hearing involving sentencing and a ban on all collection tasks.

The Ministry of Justice and court workers are currently engaged in collective bargaining concerning the renewal of two expired collective employment agreements. The agreements expired in June 2018. Mediation was attempted, but was not successful in resolving matters.

Industrial action has taken place including partial strike action and ‘‘lightning strikes’’. The lightning strikes have been in the form of one-hour or two-hour strikes involving a total withdrawal of labour by court security officers. Written notice of the strikes has been given 30 minutes prior to the action being taken. In support of its claim, the ministry of Justice argued that the strikes had an impact from a health and safety point of view. The Ministry has legal obligations to keep court premises safe, healthy and secure and the partial strike action left no option but to clear and close the courthouses. It was claimed that this resulted in increased risks to the health and safety of those who do business in the court and gave rise to a risk among those facing criminal charges who became confused and angry.

People lingering outside the courthouse after evacuation then came into close contact with others such as rival gang members, opposing parties in litigation, and estranged family members. This gave rise to a potential danger.

The ministry argued that strike action taken on 30 minutes’ notice meant that there was insufficient time to make appropriate arrangements to keep the affected courts open and that the clearing process carried significant health and safety risks. The short notice meant that there was not enough time to attempt to resolve differences through mediation and that the ministry could not consider whether to make proportionate pay deductions allowed for under the Employment Relations Act.

The Employment Relations Act requires employees to provide the employer notice of intention to strike before the date and time specified in the notice. The notice must be in writing and include specific information about the nature of the proposed strike. Different provisions apply to strikes in essential services and schools.

The purpose of notification for strikes is to ensure that employers are aware of the nature of the strike and are able to decide how they will respond to it including making proportionate pay reductions.

The Employment Court found that the inability of the ministry to keep the courts open did not make the strikes unlawful.

‘‘The whole purpose of the strike action, which is common in other cases as well, is to cause such inconvenience and it is a valid bargaining tool where carried out in accordance with the statutory requirements.’’

The court also said that the right to strike was part of ensuring a balance to the relative negotiating positions of the parties in industrial bargaining.

The ministry’s predictions about the health and safety were speculative and overstated. No examples were given of where the predicted consequences had actually occurred despite the strikes having been in place for well over a month. It is the ministry’s responsibility to manage health and safety considerations. It had managed to do so.

In concluding, the court stated: ‘‘What amounts to inconvenience to the ministry needs to be weighed against depriving the employees of a substantial right to strike.’’ The court also noted that the strikes were not occurring in an essential industry or other industry where specific periods of notice are required.

Strikes in schools on the other hand must be notified three days before commencement. Primary and intermediate schoolteachers and principals recently went ahead with their planned strike action across Otago and Southland.

The chief of the Employment Relations Authority released recommendations to the Ministry of Education and the New Zealand Educational Institute. The recommendations followed attempted facilitation. The chief described NZEI’s proposals taken in totality as having an ‘‘air of unreality about them’’. However NZEI said that it did not think it was being unreasonable. It did look at the practicalities of calling off the strike but the meetings across the country were scheduled with venues booked and there was no guarantee that teachers could get back into classrooms in time.

It certainly looks like industrial action by teachers and other professions is destined to continue into 2019. Midwives have also recently signaled their intention to strike. While the Employment Relations Act may be designed to ensure a balance to negotiating positions, what it is likely to boil down to is a good old-fashioned arm wrestle.


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