Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - New Zealand (Ratification: 2003)

The Committee notes the observations of Business NZ and the New Zealand Council of Trade Unions (NZCTU) communicated with the Government’s report.

Scope of the Convention. In its previous comments, the Committee had noted that pursuant to an amendment from 2010 to the Employment Relations Act (ERA), workers engaged in film production work are considered to be independent contractors rather than employees, unless they have a written employment agreement that provides that they are employees. The Committee had requested the Government to indicate whether film and television workers employed as independent contractors enjoyed the protection of the rights in the Convention and the manner in which they are able to engage in collective bargaining. The Committee notes the Government’s indication that, where a worker agrees to be an employee, the worker will have the right to bargain collectively. The Committee further notes the observations of the NZCTU stating that: (i) the 2010 amendment excluded an entire industry (film production work including video game production work) from the protections of employment law; (ii) that it has been argued that collective bargaining by these workers would be prohibited by the Commerce Act 1986 on price-fixing grounds; and that (iii) even if it were interpreted that these workers could bargain collectively, they would not enjoy the guarantees and protections applicable to employees, including against acts of anti-union discrimination. The Committee must recall once again that the rights enshrined in the Convention, including as to collective bargaining and protection against anti-union discrimination, are fully guaranteed to all workers (regardless of whether they are engaged as employees or as independent contractors) with the sole possible exceptions of the armed forces and the police, as well as public servants who are engaged in the administration of the State. Taking into account the recent information about the Government’s steps to address this question, the Committee requests the Government to take any necessary measures, in consultation with the social partners, to ensure that all film and television workers, including those engaged as self-employed workers, can fully enjoy the rights and guarantees set out in the Convention. To this end, the Committee suggests that the Government and the social partners concerned may wish to identify the particularities of self-employed workers that have a bearing on collective bargaining and the other rights and guarantees set out in the Convention, so as to develop specific mechanisms relevant to them.

Article 4. Promotion of collective bargaining. The Committee notes the information provided by the Government concerning the introduction, through an amendment in 2014, of a new section 50(K) to the ERA. Section 50(K) allows any party to bargaining for a collective agreement to apply to the Employment Relations Authority for a determination as to whether bargaining has concluded because of difficulties in concluding bargaining. Said Authority may then direct the parties to try to resolve the difficulties by mediation or further mediation. If the Authority determines that bargaining has concluded, none of the parties may initiate further bargaining earlier than 60 days after the date of the declaration without the agreement of the other party or parties concerned. The Government states that the aim of the 2014 legislative amendment, including section 50(K), is to allow for increased choice and flexibility for negotiating parties, to tackle ineffective bargaining and to increase fairness and balance in the collective bargaining process. The Government also informs that in this amendment process, as is routinely the case for the development of relevant laws and regulations, tripartite consultations took place with the most representative organizations of employers and workers (Business NZ and the NZCTU). The Committee also notes the observations of the NZCTU, stating that the provision hinders the promotion of collective bargaining as the 60-day period where parties cannot reinitiate bargaining without agreement creates undue delay in negotiations and restricts strike action for a 100-day period (because industrial action cannot be commenced for 40 days after bargaining is initiated). The Committee requests the Government to, in consultation with the social partners, review and assess the application of section 50(K) of the ERA and its impact on the conclusion of collective bargaining agreements and, in light of such review, consider the introduction of any adjustments or other measures that could be necessary so as to ensure that the provision contributes to the promotion of collective bargaining. The Committee requests the Government to provide information in this regard.

The Committee further notes that the NZCTU also states in its observations that the 2014 legislative amendment introduced in section 44A, B and C of the ERA an opt-out possibility for employers presented with a notice initiating collective bargaining including them and other employers, which allows any employer to write to the other parties communicating the discontinuation of their participation in such multi-employer bargaining process. The NZCTU claims that allowing employers to opt out of multi-employer collective agreement negotiations hinders the promotion of collective bargaining and denies workers the opportunity to bring bargaining leverage to bear on the question of employer coverage. The Committee notes that the Government responds to these observations by noting that: (i) before the amendment the employers had to take part in meaningful negotiations even if they did not sign the multi-employer collective agreement; and (ii) employers may choose not to take part because they do not want to bargain together with competitors, as bargaining can be expensive in terms of time and resources, or if they believe that the multi-employer collective agreement will not meet their organization’s needs. The Committee requests the Government to inform on the impact of this amendment on the number of multi-employer collective agreements concluded and their coverage.