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Rolling strikes or mega: the teachers may be hoping the ministry will fold

Date: 12/06/2019

There has been an uneasy silence by both parties since last week’s closed door meeting between the Teachers Unions and Education Minister, Chris Hipkins. Whilst we await news as to whether there has been a break in the impasse, there are indications that both parties are seeking to take a more conciliatory approach.

The Post Primary Teachers Association (“PPTA”) has called off planned strike action for this week, whilst the Ministry of Education has signalled that teachers will be paid in full despite the rolling strikes that occurred last week.

It is unusual for the relevant Minister to become directly involved in negotiations in this way, but in the face of protracted bargaining and escalating strike action, there needed to be a circuit breaker.

If the Minister’s intervention does not result in an agreement and end to the bargaining, the strike action is likely to continue. The other option that remains available is facilitated bargaining through the Employment Relations Authority, although the PPTA appears to be strongly resisting this.

What we are likely to see in terms of future strike action, if this stalemate persists, is a continuation of the rolling strikes that commenced on 4 June, rather than another “mega strike”, whereby all school teachers walk off the job. The reason for this is because each time teachers walk off the job for a day, they lose a full day’s pay.

Teachers have therefore turned to strategic strike action taking the form of rostering home one year group of students on a particular day each week. In practice, this means that the nominated year group will not receive teaching on the day of the strike, but that teachers will still attend work and teach other year groups and undertake their other usual duties.

This type of strike action is called a “partial” strike.

Whilst the Ministry of Education may appear to be magnanimous in announcing that it will not dock the pay of teachers who participated in the partial strikes last week, the reality is that it probably could not anyway. This is because an employer can only refuse to pay employees if they completely withdraw their labour during the course of a strike.

In respect of the rolling strikes, however, the teachers are still at school and performing other duties, and therefore it is strongly arguable that they remain entitled to full payment. The alternative for the Ministry would be to suspend the teachers during the periods of strike action, in which case they would have no entitlement to payment. However, this would be seen as an aggressive response, and also an administratively messy one.

There is no doubt that the PPTA has deliberately and strategically chosen to strike in this way in order to maximise inconvenience for schools and the Ministry, whilst minimising any adverse consequences to their own members, specifically through lack of pay.

It could be said that the Government has been hoist by its own petard in this situation, because only recently it passed amendments to the Employment Relations Act to remove the ability of employers to dock pay as a response to partial strike action. Under the previous legislation, an employer was able to make a flat rate deduction of 10% of an employee’s pay, or a greater proportion equivalent to the productivity time lost, in any partial strike.

Employers warned, at the time that this amendment was being considered, that it would result in an increase in partial strikes and this is already proving to be true. The problem for the Ministry is that teachers could continue rolling strikes of this nature for as long as it takes, without suffering any loss of pay, and therefore incentive to stop.

If the Ministerial talks do not achieve a result, the other option is for the parties to return to facilitated bargaining. NZEI, representing primary teachers and principals, entered into facilitation with the Secretary for Education late last year. On the basis that this process did not result in an agreed outcome, the Chief of the Employment Relations Authority, James Crighton, issued a public recommendation.

It would be fair to say that the Crighton was highly critical of the approach adopted by NZEI in the facilitation. He referred to the union claims as having “an air of unreality” about them. The Ministry had at that time proposed a package that would cost $700 million over 4 years, while the total cost of the unions’ proposal was estimated to be $2.5 billion. Crighton stated that the difference of $1.8 billion between the Ministry’s offer and what the union wanted highlighted the “total unreality of NZEI claims”.

Crighton went so far as to describe the Ministry’s offer as “a handsome and competitive proposal in the current fiscal environment”. He also said that “were the NZEI’s negotiating team, not saddled with totally unrealistic riding instructions, it would and should have been accepted”. His strong recommendation was that NZEI members should accept the package.

Given the strong views expressed by the Employment Relations Authority in the last round of facilitation, it is not surprising that the unions are not keen to return to that process. However, if they are not able to gain any traction as a result of the Ministerial meeting last week, the options are running out.

Either, the unions continue with their campaign of strike action, in the hope that the Ministry folds before they lose public sympathy, or they return to facilitated bargaining. Whilst any recommendation made by the Authority would be non-binding, there comes a point at which ignoring the views of an independent third party might become difficult to sustain.