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Concern for students' exams as bus drivers cover capital train strike

Date: 15/11/2017

Last week the travel arrangements of Wellington commuters were thrown into disarray by the last minute notice of a strike by train workers. The employers, Transdev Wellington and Hyundai Rotem, and the public, were given just 2 days’ notice that all train services were to be suspended from 2am Thursday 16 November until 2am Friday 17 November.

The short notice of the strike meant that Metlink was unable to arrange alternative transport options, and as a result, a number of employees were unable to get to work.

In terms of what the strike was about, the public received conflicting stories from the employers and union representatives on this point.

The union said that it was striking because the employer was seeking to “clawback” benefits in the collective agreement, including the reduction of penal rates for weekend and night shifts, and the requirement to work public holidays if requested.

Transdev Manager of People and Culture, David Gould, rubbished these claims describing the union as “disingenuous”.  He said that “this is absolutely not about terms and conditions of employment ... the union have actually told us that quite clearly”. Mr Gould claimed that in fact the strike was so the union could hold a meeting for all its members.

All of this seemed a bit chaotic and confusing to the public looking on. To try to make sense of it all, keep reading to understand the key legal principles that apply when strikes occur.

Firstly, prior to any strike occurring, a union must give notice to the employer of the date and time that the strike will start and finish, where it will occur, and who will be involved. Whilst the Employment Relations Act provides that employers in “essential services” must be given a minimum of 14 days notice of a strike, this does not apply to public transport services.

This means that the union in this case was perfectly entitled to give just 2 days notice of the strike and in fact could have given less. It would have been open to the union to provide a strike notice to the employers, and then immediately direct its members to walk off the job.

The next question is what the obligation of “good faith” means in the context of a strike. It may seem odd to suggest that there is any good faith involved in a strike. However, the law and international labour conventions recognise the right of employees to strike in collective bargaining and this is consistent with the good faith framework established by the Employment Relations Act.

The key constraint is that, aside from giving proper notice, the parties must not act in a “misleading or deceptive” way. This often becomes contentious as a result of communications issued by the union and employer parties during bargaining, and in relation to media statements.

In the case of the train strike, it seems that either or both parties put their own “spin” on the reasons for the strike and what was happening in bargaining. Whether these statements were actually misleading or deceptive is not clear, because the parties are entitled to communicate statements of fact or opinion, as long as they are reasonably held.

The good faith obligations also prevent an employer from undermining the union, by for example, making disparaging comments or seeking to persuade employees to resign their union membership.

In this case, it is arguable that describing striking union members as performing a Black Power salute was disparaging. However, this appears to have been directed at employees as opposed to the union as the representative. This may well have been unwise on the part of the company, but probably was not unlawful.

So where does all this end?

The union has signalled that unless the employer changes its attitude, it is likely that further strikes will occur. You may think that this sounds like blackmail, but that is the whole point of a strike and it is quite legitimate.

At some point, the parties will likely return to the bargaining table, and explore whether there is a compromise to be reached. If there is not and the bargaining becomes protracted, it is possible for one or both parties to ask the Employment Relations Authority to intervene. This process is known as “facilitated” bargaining, and results in the Authority making a recommendation to the parties about how to resolve their differences.

In cases where there have been serious and sustained breaches of good faith in the bargaining process, the Authority can even set the terms of a collective agreement.

From the employer’s perspective, and likely also that of the union, having the Authority dictate the terms of the collective agreement is not ideal. The parties have no control as to what deal they will end up with.

Whilst strike action is sometimes a necessary part of the bargaining process, there are potentially serious impacts. Employees do not get paid whilst they are on strike, the employer suffers disruption to its business, and in this case, the public experiences significant inconvenience.

For all of these reasons, and because if the parties cannot come to an agreement themselves, they may have one imposed upon them by a third party, it makes sense for them to get back around the bargaining table, and to try to sort this out.