Obligation to be constructive in consultation reinforced

Article written for Otago Daily Times, by John Farrow.

WHILE there has been significant media coverage of ongoing industrial action by firefighters over pay offers, it seems there is more to this.

In a recent case before the Employment Relations Authority, both the New Zealand Professional Firefighters Union and the Public Service Association argued the actions of Fire and Emergency New Zealand and how it approached consultation with the unions about a change proposal had undermined bargaining.

Bargaining began in May 2024 with NZPFU. There have been about 50 days of bargaining and six days of facilitation. PSA bargaining started in January 2025 and there have been nine days.

The authority accepted there was a crossover between a number of the unions’ claims and the proposal for change. However, bargaining had been ongoing with both unions.

While there was an element of surprise, given the crossover between the change proposal and bargaining claims, the authority also observed that bargaining is a dynamic process.

Fenz’s organisational priorities changed during the bargaining process, but the fact claims were impacted did not necessarily mean bargaining had been undermined.

The authority found Fenz failed to adequately consult with NZPFU and PSA over the proposed restructure and it breached its duty of good faith by failing to be active and constructive in establishing and maintaining a productive employment relationship.

The collective agreements provided that Fenz agreed to consult with the unions over any proposed changes that might impact the terms and conditions of employment.

The agreements also detailed the obligation to consult was not limited to consultation about the consequences of a proposed change but included consultation about whether or not the proposed change should take place and the reasoning behind it.

Early in 2024, a decision was made to refresh Fenz’s organisational strategy and in May 2025, a refreshed strategy was launched. The draft was consulted on with the unions before it was put before the board for approval.

In June, the Strategic Implementation Programme was released. The Strategic Direction 2025-2030 document and the Implementation Programme signalled change at Fenz but were not specific about what those changes would be. Executive leadership team members were to design a plan for change in relation to the branch they were responsible for with the overall objective of aligning Fenz with the strategy.

Each plan was signed off by the chief executive and the overall proposal for change was signed off by the board. The consultation document was released under embargo to the union, 24 hours before it was disseminated organisation wide. A decision was made not to consult with the union prior to consulting with the whole organisation.

NZPFU reminded Fenz that if matters affected the work of any NZPFU members then Fenz was required to consult in accordance with the consultation clause in the collective.

The PSA requested an extension of the consultation period noting that it had not yet received the embargoed copy, nor had there been any pre-consultation about any proposal.

Meeting invites were sent to employees whose positions were affected by the proposal. The intention was to communicate with those most affected before the whole organisation was aware of what the proposal contained. Recipients of invites were upset and stressed. They assumed they were losing their jobs. As the unions had not seen the proposal, they were unable to provide support or guidance to their members.

The meetings took place. Fenz could not provide the change proposal document to those staff but confirmed each person’s role had been significantly impacted.

An embargoed copy of the consultation document was then emailed to the unions. The following evening the consultation document was released organisation wide and the embargo on the copies provided to the union was lifted.

The PSA advised Fenz it considered it was in breach of the consultation clause in the collective agreement and said it wanted to resolve that breach by having Fenz retract the change proposal and consult with the PSA. Fenz responded it was consulting and there was no obligation to consult with the PSA exclusively before consulting with other unions and associations and directly with employees.

The unions submitted Fenz did not consult early enough to be able to satisfy the consultation requirements in the collective agreement clauses. They further argued there had not been a genuine effort by Fenz to respond to the views of those being consulted.

The unions also claimed Fenz had failed to consult in a way that demonstrated a genuine effort to respond to the unions’ views or in a way that demonstrated Fenz was motivated to reach consensus about the points raised by the unions.

While Fenz accepted no consultation occurred prior to the release of the consultation document, it said this was because there was no proposal that could be consulted on prior to that date.

The unions argued the proposal released for consultation was well advanced and almost complete. The proposal was worked on for about six-months and yet there was no indication of the massive exercise that was under way. Fenz argued it had to formulate a proposal in order to trigger the consultation clause.

The authority found the proposal made it clear that change was imperative and urgent for financial reasons and that these reasons were known when the proposal was released. The unions argued that while they knew that more change and restructure was coming, they did not have any information about what that might look like or the magnitude of it.

After reviewing all the material, the authority concluded what was presented as a proposal for change had gone past the point where the consultation document could be said to be meaningful. The clauses in the collective required consultation with the unions about whether change should occur and the reasons for change.

The redesign of the organisation involved changes to about 700 roles and more than 150 redundancies. The consultation document illustrated how advanced the thinking was. As such it undermined the prospect of meaningful consultation.

The consultation document failed to reference consultation with the unions. There was also a failure to recognise that more time was required to understand the change proposal of such a scale before release to union members.

The authority also found that once consultation commenced, Fenz’s responses to communications from the unions did not demonstrate a motivation to reach consensus.

The authority concluded Fenz had breached the consultation clauses in the collective agreements by not consulting on the proposal early enough to allow for consultation on whether change should occur and the reasons for change.

As part of the finding that Fenz also breached its good faith obligations, the authority noted that the proposal was released on a date that coincided with the NZPFU annual conference and bargaining between PSA and Fenz. The timing was not conduct aimed at maintaining a productive employment relationship.

In part, the authority’s decision rests on the particular wording of the consultation clauses within the collectives. However, it is also clear that the authority viewed a number of Fenz’s actions as lacking in good faith, if not deliberately obstructive.

One of the lessons that comes from this decision, is that no matter how frustrating the bargaining process may be, both the employer and the union have obligations to be active and constructive in establishing and maintaining a productive employment relationship.