Academic journal article New Zealand Journal of Employment Relations (Online)

Mechanisms for Resolving Collective Bargaining Disputes in New Zealand

Academic journal article New Zealand Journal of Employment Relations (Online)

Mechanisms for Resolving Collective Bargaining Disputes in New Zealand

Article excerpt

Paper for the NZLLS Conference, 22 November 2013, Auckland

Overview

The subject of this paper, state provided assistance for collective bargaining is not necessarily seen in the same sexy way it was during the 1970 and 1980s. Those years were a time of unrest in workplaces when industrial conciliators provided assistance to parties encountering difficulties in reaching settlements of their collectives. The era of the think big projects, Mangere Bridge, Bank of New Zealand building in Wellington, Marsden Point, provided lots of opportunities for conciliators and mediators to demonstrate their skills. Despite there being a move away from collectivism to individualism, with a reduction in union membership and fewer employees covered by collective employment agreements assistance in resolving collective disputes, it is still a very important function for the state. Workplace disputes can lead to consequences for a much wider part of society than those involved in the dispute. An extreme example is the strike at the Marikana Mine in South Africa. This conflict resulted in the death of 44 miners, with many more injured and a feeling of deep sadness and helplessness from the South African Conciliation Service.* 1 On a less dramatic scale, the Ports of Auckland strike in 2012 filled the news media with stories of tensions and job and profit losses at the Port.2

New Zealand has a unique form of assistance for parties involved in collective bargaining. My presentation will review that system, and compare and contrast it to systems applying in other jurisdictions.

NZ Mediation and Conciliation System 1894-1991

Statutory assistance for resolving collective bargaining disputes in New Zealand has been provided by the state since 1894.3 The system of industrial conciliation and arbitration introduced in the Industrial Conciliation and Arbitration Act 1894 lasted in one form or another from 1894 to 1991. There were, however, major changes to some parts of the system during that time. For example, voluntary arbitration was introduced at the height of the Great Depression and a highly centralised wage-fixing system based on compulsory unionism and general wage orders was implemented by the first Labour government (1935-1949).

The part of the system that did not change greatly was conciliation, a similar process to the mediation provided by the Ministry of Business Innovation and Employment, to assist collective bargaining today. While the Arbitration Court issued general wage orders and set wage relativities, most settlements were determined between the parties as part of a conciliation process. Conciliation councils continued to operate successfully and formed the basis for settling collective bargaining disputes until 1991. Collective employment arrangements were made by way of Awards of the Arbitration Court or by industrial agreements agreed between the parties. An analysis of the total of 2,000 awards made by the Arbitration Court between 1947 and 1960 showed that 75 per cent were complete settlements reached by the parties. During the same period, 1,005 industrial agreements were made; meaning that out of 3,005 enforceable documents the court had a direct hand in settling some of the terms in only 486 documents.4

The system developed into what became known as the annual wage round. The key players were the Federation of Labour, and the Employers Federation. The Department of Labour also played a role by providing mediation and conciliation services and representing the public interest. Terms and conditions of employment for union members in the private sector were determined in one of two ways; either by an award, made in a conciliation council or, by the Arbitration Court (the predecessor of the present Employment Court), or by an agreement between the parties. The system gave unions the ability to bind employers who were not parties.5

The conciliation process commenced when a union created a dispute with an employer party by seeking a change to an award. …

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