Industrial action – Fact Sheet Two
STRIKES and LOCKOUTS Some Questions and Answers What is a strike? The Employment Relations Act provides a wide-ranging definition of strike action, which includes: • discontinuing employment, either wholly or partially, in reducing normal work-performance; • refusing, after discontinuing work, to resume or return to duties • breaking the terms of an employment agreement • refusing or failing to accept work in which employees are normally employed • reducing normal output or rate of work A strike does not include meetings authorised: • by the employer • under the provisions of an employment agreements • under the provisions of the Employment Relations Act When is it legal to strike? The right to strike is restricted to: • any time when justified on health and safety grounds • when the strike is lawful (see immediately below) and relates to the negotiation of a new collective agreement. A strike is unlawful when it: • occurs when a collective agreement is in force • occurs during bargaining for a proposed collective agreement unless at least 40 days have passed since the initiation of bargaining an existing collective agreement had expired at the time bargaining was initiated In the case of multi-employer bargaining, at least one of the pre-existing collective agreements have expired and 40 days have passed since bargaining was initiated • relates to the negotiation of a proposed bargaining fee arrangement Can striking workers be replaced? Employers are not permitted replace striking workers unless the replacement employee: • is already employed at the time he strike occurs • is not employed principally to perform the work of a striking worker • agrees to perform the work However, an employer may employ another person to do the work if: • there are reasonable grounds for believing that the work must be performed for health and safety grounds • the person is only employed to perform work only to the extent necessary for health and safety grounds