Observación (CEACR) - Adopción: 2024, Publicación: 113ª reunión CIT (2025)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Nueva Zelandia (Ratificación : 2003)

The Committee notes the observations of Business New Zealand (BusinessNZ) and the International Organisation of Employers (IOE) received on 31 August and 10 November 2022 on issues raised in its previous comment and the Government’s reply thereto. The Committee further notes the observations of the New Zealand Council of Trade Unions (NZCTU) received on 24 October 2024 and the Government’s reply.

Follow - up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May-June 2022)

The Committee notes the discussion held in the Committee on the Application of Standards of the International Labour Conference (Conference Committee) in June 2022 in which the Conference Committee urged the Government, in consultation with the social partners, to: (i) continue to examine, in cooperation and consultation with the social partners, the proposed new legislation (draft Fair Pay Agreements Bill and the draft Screen Industry Workers Bill) to consider the impact of the proposed legislation and to ensure compliance with the Convention; and (ii) prepare, in consultation with the most representative employers’ and workers’ organizations, a report on these measures to be submitted in accordance with the regular reporting cycle.

The Committee notes the Government’s indication that the Fair Pay Agreements Act which came into force on 1 December 2022 was repealed by the current administration, in order to ensure flexibility and improve business certainty, with the Fair Pay Agreements Act Repeal Act which came into force on 20 December 2023. The Committee further takes due note of the opposing views expressed by BusinessNZ and NZCTU accompanying the Government’s report in relation to the Fair Pay Agreements and their repeal.

As regards the screen industry, the Committee noted in its previous comments the establishment of the Film Industry Working Group in 2017 consisting of industry, business and worker representatives and its October 2018 recommendations suggesting a bespoke workplace relations regime for contractors in the screen industry resulting in the Screen Industry Workers Bill. The Committee trusted that the Bill would ensure that all film and television workers can fully enjoy the rights and guarantees set out in the Convention and requested the Government to transmit a copy of the final version of the Bill once approved and provide information on its application in practice. The Committee notes with satisfaction the adoption of the Screen Industry Workers Act 2022 which implements a model unanimously agreed to by representatives from industry guilds, unions, and production companies, as well as the NZCTU and BusinessNZ, creating a workplace relations regime for contractors in the screen industry and introducing rules for individual contracts and a duty of good faith, allowing collective bargaining at the occupational and enterprise levels and providing access to dispute resolution services. While observing from the Act that, once collective bargaining has begun, there is an obligation to conclude an agreement coupled with a prohibition of industrial action and compulsory arbitration in the event of failure of voluntary dispute resolution processes, the Committee understands that these provisions were agreed to by all relevant social partners with a view to creating a framework for industrial relations to respond to the specificities of a sector which had until then been wholly excluded from the national regime embodied in the Employment Relations Act. Noting the Government’s indication that collective bargaining under the Act has not yet commenced, the Committee requests the Government to provide information on the number of requests to initiate bargaining under the Act and any collective bargaining agreements concluded.

Article 4. Voluntary nature of collective bargaining. In its previous comments, the Committee noted the detailed observations made by BusinessNZ and the IOE in relation to the obligation to conclude a collective agreement unless there is a “genuine reason” not to under sections 31 and 33, as amended by the Employment Relations Amendment Act, 2018, and the possibility for courts to compulsorily fix the terms of a collective agreement under section 50J and the Government’s reply thereto. It requested the Government to provide detailed information on the use and practical implementation of these sections and in particular on any specific cases where genuine reason not to conclude a collective agreement was either found to be present or not and the resulting consequences.

The Committee takes due note of the detailed information provided by the Government on the process of elaboration of these provisions in the Employment Relations Act, 2000 (ERA) and their consideration by judicial authorities in a number of cases before them, in particular as regards the meaning of the terms “genuine reason, based on reasonable grounds”. The Committee further observes BusinessNZ’s reiteration of its consideration that section 50J is contrary to the voluntary nature of collective bargaining and points to what it sees as contradictory reflections in the court judgments provided by the Government which maintain that section 50J is seen as an “effective remedy” to the lack of “genuine reasons based on reasonable grounds” to not conclude a collective agreement, while they acknowledge the lack of definition of what constitutes “reasonable grounds”. Finally, the Committee notes that the NZCTU disagrees with the views expressed by BusinessNZ and maintains that the statutory obligation for bargaining parties to act in ‘good faith’ is a vital element of the bargaining machinery referred to in the Convention and the limited caselaw on the subject demonstrates that the statutory mechanism for ‘fixing’ collective terms is applied only in rare circumstances. The Government for its part notes that the topic of section 50J of the ERA has been extensively discussed in its previous report to the Committee, and therefore simply takes note of both the BusinessNZ and the NZCTU further comments.

In these circumstances, the Committee recalls its previous comment in which it emphasized that ensuring the voluntary nature of collective negotiations is inseparable from the principle of negotiation in good faith if the machinery to be promoted under Article 4 of the Convention is to have any meaning. The Committee recalls that sections 31, 33 and 50J as currently drafted had not given rise to any comments by the social partners for the decade in which they were jointly in force until the application of section 50J in 2019 in one case imposing a collective agreement for a period of 14 months on an employer found to have been in serious and sustained breach of the duty of good faith. It further observes from the information provided by the Government in a general section on judicial decisions that there was one case where this provision was successfully used by an employer to obtain an award by the Employment Relations Authority against a union that was found not to be negotiating in good faith. Neither of the social partners make reference to this case nor do they indicate any other case in which section 50J has been applied to enforce an agreement. In these circumstances, the Committee requests the Government to continue to provide detailed information on the use and practical implementation of sections 31, 33 and 50J and in particular on any specific cases where genuine reason not to conclude a collective agreement was either found to be present or not and the resulting consequences.

The Committee notes the latest observations from the NZCTU on behalf of its affiliates the New Zealand Educational Institute (NZEI Te Riu Roa) and the Post Primary Teachers Association Te Wehengarua (PPTA) in relation to the recent adoption of the Education and Training Amendment Act 2024. The NZCTU contends that the Act violates its affiliates’ collective bargaining rights under the Convention by extinguishing collective agreement coverage for employees of state schools that convert to charter school status and prohibiting unions from initiating multi-employer collective bargaining with more than one charter school sponsor (employer) or with a sponsor and any other employer or employers.

The Committee notes the Government’s reply indicating that charter schools are a different type of school in New Zealand, operated by an independent “sponsor” under contract with the Government, while being fully funded by the State in exchange for meeting contractual requirements. The charter schools model aims to provide greater flexibility to charter schools, increase schooling choice for families, give educators more autonomy to innovate, and raise overall student achievement, especially for students who are underachieving or disengaged from the current system. As regards the issue raised related to the extinguishment of collective agreement coverage, the Committee takes due note of the Government’s indication that section 119(1)(a) provides that employees will be transferred on terms and conditions that are “no less favourable overall” to those that applied to the person immediately before they became an employee of a sponsor. The transferred terms and conditions will remain in place until they are varied by agreement between the transferred employee and the sponsor (on an individual employment agreement), or the transferred employee becomes bound by a collective agreement (section 119(2)). The term “no less favourable overall” is used as there will be some terms and conditions that cannot practically be provided by sponsors and where alternative arrangements will need to be found. As regards the restrictions on multi-employer collective agreements, the Government indicates that unions will continue to be able to initiate bargaining for a single employer collective agreement with the sponsor of a charter school and adds that this restriction is aimed at ensuring the flexibility which is a fundamental element of the charter school model.

The Committee first recalls the need to ensure that collective bargaining should be possible at all levels, including multi-employer, and that the decision as to the level of bargaining is essentially a matter for the parties (see the 2012 General Survey on the fundamental Conventions, paragraph 222). Observing the recent adoption of these legislative provisions, the Committee, in order to be able to better evaluate the impact of the new legislation on the rights recognized by the Convention, requests the Government to provide detailed information on the number of workers in newly-established or converted charter schools, the number of collective agreements concluded and their coverage and any complaints made of less favourable terms and conditions of employment than those previously existing under the collective agreement.