TVNZ has been ordered to mediation after the employment relations authority found that it had failed to comply with its consultation obligations in its restructuring. This decision throws the broadcaster into disarray given that it has already made decisions as to which roles are to be disestablished and issued notice of termination to affected employees, with most of them to leave on 24 May 2024.
If mediation does not result in an agreed outcome, TVNZ will likely have to unwind its process and do it again.
So, how could this have gone so wrong? The starting point is TVNZ’s collective agreement with union E Tu. This agreement requires the “active participation” of staff in the development of proposals for organisational change. The clause further states that change is an “evolutionary process” and that employees should be “involved throughout”.
The stated aim of this participation is to “discuss all relevant information openly and honestly” and to “reach agreement and make recommendations to management”. TVNZ is required to fully consider all options and proposals put forward with “an open mind” and take staff feedback into account as far as possible when making final decisions.
It would be fair to say that this clause goes further than in most employment agreements. Further, TVNZ did engage in an ongoing series of meetings and dialogue with employees and the union from mid-2023 until the announcement of the restructuring proposals in March 2024.
This included an “Ideas Week” in which staff were invited to suggest ideas for how to get ahead of the predicted structural changes for the industry as a result of advertising revenue moving away from traditional linear broadcasting to digital media platforms.
2089 ideas were generated by TVNZ employees during this week which were then considered by the Executive Team and whittled down to 75 big initiatives. However, staff were not involved in this process for prioritising the initiatives and none of these required jobs to be cut or for shows to be cancelled.
By early 2024 TVNZ was plainly stating that it was considering its options to reduce labour costs. However, when the proposal was announced to cut Fair Go, Sunday, Tonight and Midday, and also roles in video content team, this was the first that employees had heard of it.
The authority found that despite the extensive sign posting that had occurred in the second half of 2023, and the fact that staff were fully aware of the company’s financial challenges, the failure to involve them in the development of the proposal was in breach of the collective agreement. It held that staff should have been involved in the process while proposals were still being developed and before they became recommendations for management.
It also held that the agreement envisaged a “collaborative effort” by both parties, although if it was not possible to “co design” an agreed outcome, TVNZ could make the decisions it considered necessary for running its business.
In respect of the inconvenience, confusion and cost created by having to redo the process, the authority was unsympathetic; “TVNZ have assumed the risk of making workplace changes without the relevant clause in mind and if having to redo things comes at a significant cost, that is a natural consequence of its breach”.
Whilst this case was decided largely on the basis of the particular contractual requirements, it is a reminder that consultation must be genuine. It cannot be a box ticking exercise.
The case also raises interesting issues as to the requirement for consensus in developing restructuring proposals. The authority found that the right of TVNZ to manage its business trumped the obligation to endeavour to “co design” a structure, and to this end agreement was not required.
However, in emerging cases it has been argued that the obligation to “co design” stems from Te Tiriti o Waitangi and the concept of partnership, This is still to be tested by the authority and court and would fundamentally change the dynamic in restructuring from one of “consultation” to a situation where employee/union agreement was required for business changes.
At this point, this is likely to be a step too far, but at the very least, employers need to comply with obligations that they themselves have entered into.
In the meantime, we wait to see whether further meaningful consultation will result in Fair Go and Sunday being saved.
This article was originally published in The Post
