Strikes and Lockouts

25 August 2015

Written Notice of all lawful strikes and lockouts is required

No employee may strike:

Unless the strike is lawful,
Without having given to the employer and the Chief Executive of the Ministry of Business Innovation and Employment, notice of an intention to strike,
Before the date and time specified in the notice as the date and time on which the strike will begin.

The notice must be in writing specifying:

The period of notice given,
The nature of the proposed strike, including whether or not it will be continuous,
The places where it will occur,
The date and time on which it will begin,
The date and time, or an event on the concurrence of which, it will end.

The notice must be signed by a representative of the employee’s union. It need not specify the names of the employees if it is expressed to be given on behalf of all employees covered by the bargaining and employed in the relevant part of the workplace.

Similar notice requirements apply in the case of lockouts.

Note that the above provisions do not apply to strikes in essential services, strike action in certain passenger transport services, or strikes in schools. However, notice requirements for such strikes and lockouts now have similar requirements about notification of the date and time on which the action will begin; and the date and time or occurrence on which the action will end.

Withdrawal of notice of strike or lockout

A strike notice may be withdrawn at any time by a representative of the employee’s union giving written notice to the employer and the chief executive of MBIE. Similarly, a lockout notice may be withdrawn at any time by the employer or a representative of the employer giving written notice to the union and the chief executive of MBIE.

Partial pay deductions for partial strikes

A “partial strike” means an act of the employees who are party to a strike in:

Continuing to perform some work for their employer during the strike instead of wholly discontinuing their employment and includes:
- A partial discontinuance of work through a failure to accept engagement for work that forms part of their normal duties,
- A reduction in the employee’s normal performance, or normal work output, or normal rate of work.
Breaking their employment agreements whether or not the act involves any reduction in the employees’ normal duties, normal work performance, or normal output, or rate of work.

An employer faced with a partial strike may make a “specified pay deduction” from the employee’s salary or wages except if:

The partial strike is lawful on grounds of health and safety
The employee is paid by piece work and the strike result in the employee reducing their output,
The strike involves a refusal to work overtime,
The strike involves a refusal to perform callouts for which the employee would otherwise receive a special payment.

The employer must give notice of an intention to make a specified pay deduction. The notice:

Must be in writing,
Must be given before the deduction is made and within the pay period during which the deduction is to be made,
Where two or more employees are involved the employer may either provide a single notice to all those employees or their union, or provide a notice with the same wording to each of those employees,
The employer may choose the method of giving notice,
The validity of the notice is not affected if it is given to employees who are not striking,
Where the partial strike action occurs over more than one pay period the employer is not required to give notice more than once,
The notice is not required to specify the amount or the proportion of the pay deduction.

The specified pay deduction must be calculated by:

Identifying the employee’s usual hours of work for the day of the partial strike,
Identifying the work that the employee will not be performing because of that strike,
Estimating how much time the employee would, but for the strike, have spent performing the work on the day of the strike,
Calculating the time referred to above as a percentage of the employee’s usual hours of work.
The above percentage is the percentage of the employee’s wages or salary that may be deducted.
Instead of calculating and applying the deduction as described above, the employer may instead decide to impose a flat 10% deduction, regardless of whether the amount of the deduction calculated above would have been more or less than 10%.

Note that the Minimum Wage Act does not apply to an employee subject to the above provisions, including an employee who is paid by piece work.

Union may request information about specified pay deduction

Where employees or their union consider an incorrect deduction has been made, the union (as opposed to the employees) may request the employer to provide the information relied on to make the pay deduction. The request must be in writing and be made as soon as reasonably practicable after the pay day on which the deduction was made. The employer must respond in writing as soon as reasonably practicable.

If the matter remains unresolved it must be dealt with as an employment relationship issue. The Court has full jurisdiction to in relation to applications for injunctions to stop a specified pay deduction being made.