When NZ Bus issued lockout notices to employees on 22 April, seemingly in retaliation for strikes by bus drivers, this was met with widespread condemnation.

Transport Minister Michael Wood expressed concern about “the disproportionate impact on vulnerable workers by indefinitely locking them out unless they accept the company offer”.

Council of Trade Unions President Richard Wagstaff said he was “shocked and appalled” at the tactics of NZ Bus and accused the company of “trying to bludgeon a vulnerable workforce into submission”.

This strong and visceral reaction might suggest that the employer was acting somehow improperly in seeking to lock its employees out.  Leaving aside the legality of the particular lockout notices issued, lock outs are a legitimate industrial tool that employers are entitled to use.

No one generally accuses unions and employees of behaving badly or wrongly using their industrial might when they go on strike, so why do people criticise employers for doing the equivalent?

In my experience most employers do not threaten to lock their employees out, or issue lockout notices, unless they are pushed into this position by the approach taken by the union.

In the case of NZ Bus the union had issued a strike notice at 3am on 23 April for a strike commencing at 4am.  Clearly there was a deliberate strategy to provide very little notice in order to create as much uncertainty and disruption as possible.  This is not unlawful – unions are not required to give any minimum period of notice, except in essential services, but the union and its members should not then be surprised when the employer party reacts.

Chief Executive of NZ Bus Jay Zmijewski said that the company had “no option” but to issue lockout notices “in response to the strike action, the disruption we have been experiencing, and the threat of further “surprise attack strikes” by the union”.  He also explained that “we can’t guarantee the safety and reliability of our services” given the short notice of the strikes.  Issuing lockout notices was a way of taking back some control.

Other tactics typically used by unions include giving notice of strikes and then withdrawing them at the last minute, after the employer has put into place, and often paid for, contingency arrangements. 

Partial strikes are also commonly used.  This is where employees attend work but refuse to perform aspects of their role, for example in previous industrial disputes bus drivers have continued to drive buses, but have refused to take bus fares from passengers.  In the case of partial strikes employers generally remain liable to pay their employees in full even though they are performing only part of the job.

Again, these approaches are not unlawful, but do place employers in a position where a firm response is often required.

As it turns out in the NZ Bus case, the union sought an interim injunction to stop the lock outs.  The argument turned on a relatively technical point relating to whether NZ Bus could lock employees out in support of a multi-employer collective agreement, when the notices of initiation issued by the union were addressed to two separate employers.

NZ Bus argued that this was a “very significant reversal of position (by the union), purely brought about as an excuse to challenge the lockouts”.  In this regard it seems that throughout the bargaining all parties accepted that there should be common terms and conditions across the two different employer parties and the bargaining had proceeded on a “joint” basis.

Nonetheless, the Employment Court accepted that there was an arguable case and given the impact on the public and the potentially “draconian effect” of the lockouts, held that they should be stopped.  This was an interim decision only and the full case will be heard this week.

Ultimately this column is unlikely to change the general perception that NZ Bus are the aggressors in this situation, but the case could equally be viewed as an application of Newton’s law – for every action there is an equal and opposite reaction.