New Zealand's Employment Law Agenda 2014: Collective Bargaining and Unions in an Election Year

This paper considers changes made to the ERA (ERA) 2000 since the election of a National-led Government in 2008 as well as the recently proposed changes to New Zealand's employment legislation. Analysis of the impact or likely impact of those changes is offered in light of the original object of the Act: "to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship". This paper considers, further to this, that any advancement towards balancing of relative bargaining power between employers and employees represents an improvement in employment relations. This is to suggest that any assessment of the changes made over the previous six years to New Zealand's legislative regime for regulating collective bargaining, as well as those statutory amendments to the country's employment legislation proposed by the current Government, should focus on the question of whether those changes have resulted - or and will result, as the case may be - in genuine improvements to collective bargaining and employment relations more generally.IntroductionAs enshrined in the Employment Contracts Act (ECA) 1991, the National Party's industrial relations policy following the 1990 general election in New Zealand resulted in the total abandonment of compulsory unionism and removal of the monopoly in wage bargaining that trade unions had enjoyed in most sectors for nearly a century (Geare, 2001). This, in turn, precipitated a sharp decline in union membership and density as well as in the share of the country's workforce represented in collective bargaining. It is ironic, therefore, that collective bargaining did not become an effective mode of detennining wages, hours and working conditions in New Zealand until enactment of the ECA. Rather, for most of the last century, the predominant system for determining wages and conditions of work in this country was one of conciliated and, if required, arbitrated bargaining for awards, and that system remained essentially intact until 1991 (Dannin, 1997).Since that time, New Zealand employment relations system has progressed from one which provided virtually no protections for trade unions and in particular collective bargaining, to a system that now relies on the duty of good faith to protect and promote collective bargaining (Davenport & Brown, 2002). Under its core conventions, collective bargaining is recognised by the International Labour Organisation (ILO) as an effective tool to protect those in weak bargaining positions. It is also acknowledged internationally as a means of overcoming any power imbalance between employers and employees which may result in unjust employment terms and conditions. An essential component for effective collective bargaining, therefore, is that the representative bodies on both sides have relatively equal bargaining power. This typically necessitates appropriate legislative support to enhance the bargaining power of the weaker party (Goldberg, Sander & Rogers, 1992).With this purpose in mind, both key pieces of employment legislation enacted in New Zealand in the past quarter century were, in large measure, intended to enhance the relative bargaining power of either the employer party, in the case of the ECA, or the employee party, with enactment in October 2000 of the ERA. Often, the means by which these opposing policy goals is effected is either by making it easier or more difficult for trade unions to organise workers, depending on where those setting the policy believe the balance of powder in collective bargaining falls. In this context, legislation enacted to amend those statutes in that period has, likewise, frequently been aimed at giving greater influence to one party or the other (Blumenfeld, 2010).Freedom of Association and the Right to Collective Bargaining Under the ERAFreedom of association and the right to organise, as enshrined in the ILO's core conventions on those matters, fonn the conditio sine qua non for effective collective bargaining to take place. …