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Where parties in collective bargaining are having serious difficulties in concluding a collective agreement they can apply to the Employment Relations Authority for facilitation assistance.
The parties should always continue their own efforts to reach a settlement during facilitation.
Applications for facilitation
Before being referred for facilitation a party must satisfy the Authority that one of the following grounds exists before they are eligible for facilitation:
- a party has undermined the bargaining through a serious and sustained breach of good faith
- the bargaining has been unduly protracted and extensive efforts (including mediation) have failed
- there have been one or more acrimonious strikes or lockouts
- a proposed strike or lockout would be likely to affect the public interest substantially by:
- endangering life, safety or health; or
- disrupting social, environmental or economic interests in a way that is likely to be widespread, long term or irreversible.
If the Authority determines that one or more of the above criteria are met then the parties will be referred to another Authority Member who will provide facilitation assistance.
Further information on how to apply for facilitation is available from the Authority.
Role of the facilitator
The role of the facilitator is to assist the parties in resolving their difficulties in concluding a collective agreement. Although the facilitator can decide the process that the facilitation will take, they will assist the parties in a similar way to a mediator.
The facilitator is not an arbitrator and will not be making any binding determinations.
Process of facilitation
The facilitator may wish to have a briefing with the parties before the facilitation takes place in order to:
- hear the main issues in the dispute and the positions of the parties; and
- consider and discuss any documents; and
- carry out any pre-negotiating research
Any agreement that the parties have as to the process of bargaining continues to apply unless this conflicts with the process determined by the facilitator.
During facilitation, the parties may continue to negotiate with or without the assistance of the facilitator.
The facilitation will be held in private; members of the public will not be allowed to attend.
Before making a recommendation, the facilitator may provide an opportunity for the parties to persuade the facilitator of their position. Parties will be expected to support their position with fact and argument..
If, at this stage, the positions have changed from the facilitated negotiations, the facilitator may continue the facilitation.
Recommendation
A recommendation may not be made in every facilitation.
However, where the facilitation process has not resulted in a settlement, the Authority can make recommendations about one or both of:
- the process the parties should follow to reach agreement and/or
- the provisions of the collective agreement the parties should conclude
The recommendation does not have to be accepted by the parties but must be considered. The facilitator may make the recommendation public in the interests of encouraging a settlement.
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This page was last updated on:
17-Jun-2005
and is current.
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