On 1 May public servants in Auckland, Wellington and Christchurch rallied to protest government policies and job cuts. This was the first time that “stop work meetings” had been held on May Day in over a decade and raises important questions about the right to strike and protest.
The New Zealand Bill of Rights Act sets out the fundamental rights and freedoms of every person in this country, which include the right to “freedom of peaceful assembly”, ‘ freedom of association” and “freedom of movement”. Together these rights legitimise the right of peaceful protest. Such action only becomes unlawful if it infringes some other law, for example it is violent, involves trespass on private property or obstructs public access to property.
Clearly the vaccination related protests at parliament in 2022 overstepped these boundaries. Likewise, in the US currently, President Biden has expressed serious concerns about the action being taken by College students in support of Palestinians in the Gaza strip. He has decried the intimidating and destructive conduct of some of the protestors as unlawful and has said “Order must prevail…Dissent is essential for democracy. But dissent must never lead to disorder”.
But what could be wrong with public servants peaceably walking down Lambton Quay waving banners? The issue is in the description of the events as “stop work meetings”.
In New Zealand employees are entitled to “strike” in very restricted circumstances. The Employment Relations Act provides for a strike to occur only where it relates to collective bargaining or where the participating employees have reasonable grounds for believing that it is justified on health and safety grounds. Outside of these situations, any withdrawal of labour or refusal to undertake work that would usually be performed amounts to an unlawful strike.
Turning to the different forms of strike action, the description “stop work meetings” suggests that work that would otherwise have been performed was actually stopped. If this was the case, and the employees attending the march were not engaged in collective bargaining and striking predominantly for that purpose, the action could potentially have been unlawful.
Even if the strikes were legitimately for collective bargaining or health and safety reasons, the union representing the employees would have been required to give proper notice – simply walking off the job would breach the legal requirements of a lawful strike under the Act.
Alternatively, it is possible that the term “stop work meetings” was simply used for dramatic effect and employees were using their lunch break to attend the rally.
The term “sympathy strike” is also often used in situations where employees participate in a strike in support of other workers, but where they themselves are not involved in collective bargaining or affected by the health and safety issue. This is unlawful in New Zealand. In short, an employee can not refuse to work in support of their mates or colleagues.
“Working to rule” is also a common form of industrial action. This is where an employee works to the letter of their employment agreement and refuses to engage in any additional activities, such as overtime. It can also involve the employee taking all of their contractual and legal breaks at the allotted time in circumstances where they may not always do so, or may be prepared to take a more flexible approach depending on work needs.
On the face of it, “working to rule” is simply an employee holding their employer to the letter of their employment agreement, but where it occurs on mass and involves employees refusing to perform work that they would usually accept, it can potentially amount to a strike.
The other scenario is a “partial strike”. This is where an employee attends work for their full work day but refuses to undertake particular tasks such as answering emails or completing paper work. This can be extremely difficult for employers to manage as they are still required to pay the striking employees in full, but are not getting full performance.
One option available to an employer in these circumstances is to suspend the striking employees, but often some performance is better than no performance.
The “right to strike” is often misunderstood, with people thinking it is wider than it legally is. It is important for any employees participating in these activities to be aware of their rights and obligations because engaging in unlawful strike action can have consequences.
Equally, however, where there are important issues of public or social interest, the right to engage in peaceable protest or strike action is fundamental and should be respected. In such circumstances, employers might consider taking a measured approach rather than over reacting to employees taking a few extra minutes at lunch to express their views.
This article was originally published in The Post
