News
The Employment Court:
"Gagging" Employers?
Faith is a funny thing.
When you think about it, the essence of faith is belief in something that you can't necessarily prove. Taken to its extreme (particularly in a religious sense), faith represents a creed by which one can choose to live - placing utmost reliance upon other people - and a divine plan.
At first blush, you might think that a dissertation about faith was rather unusual in the context of employment law. But not so.
Collective bargaining is - and always has been - something which can be a strange experience for employers. This is a process where two sides to an employment relationship - the employer and its employees - sit down to discuss the terms of their relationship.
For the employer, it's pretty easy. It owns and runs the business - and therefore has both direct knowledge and interest in the matters which are the subject of bargaining.
The position for the employees is, however, a little different.
Under New Zealand law, only unions can enter into collective bargaining. This means that the representative entity attends bargaining on behalf of the workers. Culturally this can be a little bit of a tough experience for an employer. Union officials do not work in the employer's workplace - and it is possible (and in many cases, usual) for the employer to look over to the opposite side of the table and see no employees' faces at all.
Think about this from the employer's perspective - here are some people, none of whom have a direct relationship with you - but who are not only bargaining on behalf of your workers, but making assertions and representations on their behalf.
In many cases, of course, the union's representatives are at least known to the employer but even then, if the relationship is a bad one (perhaps even on a personal basis) the employer may not like the dynamic of the bargaining environment.
So what does all this mean?
Well, in many cases, when the employer imparts information at bargaining, it wants to make sure that its employees have received and processed it when deciding whether or not to accept a collective agreement. But here is the rub. The Employment Relations Act expressly states that employers may not deal directly with people who have representatives at bargaining unless the union agrees. According to our law, doing so would undermine the authority of those representatives.
But where there is a bad relationship - or at least an environment of mistrust - the employer is left with uncertainty as to whether or not its desired communications are reaching its workers.
A recent decision of the Employment Court, Christchurch City Council v Southern Local Government Officers Union, 7/9/05, Judge Colgan, Judge Travis, Judge Shaw, EC Christchurch CC 12/05 addressed a situation in which an employer communicated directly - on several occasions - with its employees, despite being involved in bargaining.
The facts of the case were somewhat complicated. In essence, however, the Council believed that the union had provided its employees with misleading information. It decided to act to correct the information - and approach the employees directly.
The Employment Court held that doing so was a breach of the Employment Relations Act. It found that the employer was required to confine itself to communications with the union. Reaction to this decision has been interesting. Business New Zealand has proclaimed that the decision represents something of a disaster for employers who, in its view, will now effectively be "gagged" from communicating with their workers. In contrast, unions have welcomed the decision - proclaiming that it operates as an affirmation of one of the key principles which underlines good faith.
One could probably see merit in each perspective. On the one hand, unions could not function if employers were free to skirt their representatives in an attempt to undermine or discredit them. On the other hand, of course, one might have some sympathy for employers who, as a result of this process, cannot communicate directly with the people that work for them – and who will be directly affected by the outcome.
Perhaps the moral of the story is that, for employment relationships to work (at least under New Zealand law) each side has to have a little bit of faith.
