Collective bargaining

When collective bargaining runs into serious difficulties, the bargaining parties can ask the Employment Relations Authority to help resolve their differences – this is called facilitation.

When the Authority can facilitate collective bargaining

The Authority can only facilitate collective bargaining if:

  • there has been a serious and sustained breach of good faith that has undermined the collective bargaining, or
  • the bargaining has been unduly drawn out and extensive efforts to resolve the parties' differences have failed, or
  • there has been a lengthy or acrimonious strike or lockout, or
  • a strike or lockout has been proposed that would substantially damage the public interest.

The facilitation process

If one of the criteria above are met and we agree to assist the parties, the Authority Member responsible will decide which process we will use to facilitate the bargaining.

The facilitation process takes place in private. While facilitation is going on:

  • the bargaining continues
  • employers and employees are not prevented from using strikes and lockouts.

Making recommendations

At the end of the facilitation process, the Authority can make recommendations about:

  • the process the parties should use to reach agreement
  • the terms and conditions of the collective agreement.

The Authority can choose to make our recommendations public in the interests of reaching a settlement.

The parties do not have to follow our recommendations, but they must consider the recommendations in good faith. They cannot reject the recommendations without first considering them.

Fixing the terms of a collective agreement

A party can apply to the Authority to fix the terms and conditions of a collective agreement after a serious and sustained breach of good faith.

They can only do this if:

  • it is appropriate, and
  • there has been breach of good faith in the bargaining that is serious and sustained which significantly undermined the bargaining, and
  • all other reasonable alternatives have been used up, and
  • setting the terms is the only effective remedy available.

If the Authority fixes the terms and conditions of a collective agreement, this means that the Authority decides what will be included in the collective agreement.

Once fixed, the collective agreement becomes a binding and enforceable agreement just as if it had been agreed, ratified and signed by the parties.