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The Employment Relations Act 2000 sets out some basic requirements for good faith bargaining. In summary, employers and unions involved in collective bargaining must:
- use their best endeavours to agree to an effective bargaining process
- meet and consider and respond to proposals made by each other
- continue to bargain about any matters they have not reached agreement on, even if they have come to a standstill or deadlock on another matter
- respect the role of the other's representative by not seeking to bargain directly with those for whom the representative acts
- not do anything to undermine the bargaining process or the authority of the other's representative.
- not undermine collective bargaining or collective agreements by automatically passing on collectively bargained terms and conditions to employees not covered by that collective bargaining or agreement. (Get more information)
- conclude a collective agreement, unless there is a genuine reason based on reasonable grounds not to. A genuine reason does not include a party’s opposition or objection in principle to collective bargaining or being covered by a collective agreement. It also does not include a dispute over whether the collective agreement should include a bargaining fee clause.
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The duty of good faith also means that an employer must not advise an employee or seek to induce them not to be covered by collective bargaining or a collective agreement. An employer is also prohibited from passing on conditions in a collective agreement to an employee not covered by the collective bargaining terms where the effect of passing on would undermine the bargaining or intends doing so. If the pass on occurs with the agreement of the union concerned, it is not a breach of good faith.
A Code of Good Faith has been developed to provide guidance on the concept of "good faith" in collective bargaining. A separate code of good faith (covering collective bargaining and other issues) has also been developed for the public health sector, and is contained in a schedule to the Employment Relations Act 2000.
Employers and unions must also provide, on request, information reasonably necessary to support or substantiate claims or responses to claims. Information requests must be in writing and specify:
- what information is requested
- the claim or response the information relates to
- a reasonable time within which to supply the information.
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Where the party that has the information considers it to be confidential, that party must give that information to an independent reviewer appointed by agreement between the parties. The reviewer will first decide whether the information is genuinely confidential.
If it is, the reviewer will:
- decide the degree to which the information supports the claim or response
- inform both parties accordingly and answer any questions whilst keeping the information confidential.
If the reviewer decides that some or all of the information is not confidential, the reviewer will advise both parties accordingly and will return the information to the party that provided it. That party should then, in good faith, provide the information to the other party.
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The information can only be used for the bargaining process and must be kept confidential by all those who have access to it.
If parties who are bargaining have difficulties concluding a collective agreement, the Employment Relations Act 2000 provides a number of options that can help:
- seeking the assistance of a mediator from the Mediation Service.
- asking the Employment Relations Authority to facilitate the collective bargaining - help which can be provided if certain grounds in the Act are met; and
- asking the Employment Relations Authority to fix the terms of a collective agreement. The Authority can do this only in very limited circumstances, including that there has been a serious and sustained breach of good faith by one of the parties and all other reasonable alternatives for reaching agreement have been exhausted.
In serious cases the Employment Relations Authority or the Employment Court can also impose a penalty on a party that breaches the duty of good faith while engaged in collective bargaining. Here is a flow chart of the key steps involved in resolving a collective bargaining dispute. [PDF 300KB] or HTML back to top
This page was last updated on:
17-Dec-2009
and is current. |
