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Employment Relations Act 2000

Code of Good Faith for Bargaining for Collective Agreement

(S35 Employment Relations Act 2000)

  1. Introduction

    1. The purpose of this generic code is to give guidance to employers and unions in the application of good faith to bargaining for a collective agreement or variation to a collective agreement ("the bargaining").

    2. Bargaining for a collective agreement, as defined in the Employment Relations Act, means all the interactions between the relevant employer(s) and union(s) ("the parties") to the bargaining that relate to the bargaining; and includes negotiations that relate to the bargaining; and communications or correspondence (between or on behalf of the parties before, during, or after negotiations) that relate to the bargaining.

    3. The parties to the bargaining must deal with each other in good faith and must not, whether directly or indirectly, do anything to mislead or deceive each other; or do anything that is likely to mislead or deceive each other.

    4. The existence of the Code does not imply that employers in general, or unions in general, act in bad faith in their dealings with each other.

    5. The good faith matters set out in this code are not exhaustive.

    6. The parties must recognise the role and authority of any person chosen by each to be its representative or advocate.

    7. The parties must not (whether directly or indirectly) bargain about matters relating to terms and conditions of employment with persons whom the representative or advocate are acting for, unless the parties agree otherwise.

    8. The parties must not undermine or do anything that is likely to undermine the bargaining or the authority of the other in the bargaining.

    9. The parties are encouraged to consider, where appropriate, ways in which good faith relations during bargaining can take into account Maori protocols and practices as well as any cultural differences or protocols that might exist in the environment in which the bargaining applies.


  2. Development of an Agreed Bargaining Process

    1. The parties must use their best endeavours to enter into an arrangement, as soon as possible after the initiation of bargaining, that sets out a process for conducting the bargaining in an effective and an efficient manner.

    2. The parties should consider the following matters which may, where relevant and practicable, in whole or in part make up any such arrangement;

      1. Advice as to who will be the representative(s) or advocate(s) for the parties in the bargaining process

      2. Advice as to whom the representative(s) or advocate(s) represent

      3. The size, composition and representative nature of the negotiating teams and how any changes will be dealt with

      4. Advice as to the identity of the individuals who comprise the negotiating teams

      5. The presence, or otherwise, of observers

      6. Identification of who has authority to enter into an agreement/limits of authority

      7. The proposed frequency of meetings

      8. The proposed venue for meetings and who will be liable for any costs incurred

      9. The proposed timeframe for the bargaining process

      10. Advice on preferred positions in respect of the type and structure of agreements

      11. The manner in which proposals will be made and responded to

      12. The manner in which any areas of agreement are to be recorded

      13. Advice on ratification and signing-off procedures

      14. Communication to interested parties during bargaining

      15. The provision of information and costs associated with such provision

      16. Appointment of, and costs associated with, an independent reviewer should the need arise

      17. Any process to apply if there is disagreement or areas of disagreement

      18. Appointment of a mediator should the need arise

      19. In the case of multi-party bargaining, how the employer parties will behave towards one another and how the union parties will behave towards one another

      20. When the parties consider bargaining is deemed to be completed


  3. Meetings

    1. The parties must meet each other, from time to time, for the purposes of bargaining.

    2. The frequency of meetings should be reasonable and consistent with any agreed bargaining arrangements.

    3. The meetings will provide an opportunity for the parties to discuss proposals relating to the bargaining, provide explanations of proposals relating to the bargaining, or where such proposals are opposed, provide explanations which the relevant party considers support the proposals or opposition to it.

    4. The parties are not required to continue to meet each other about proposals that have been considered and responded to.


  4. Bargaining

    1. To promote orderly collective bargaining, the guidelines set out below should be followed in the course of the bargaining:

    2. The parties will adhere to any agreed process for the conduct of the bargaining.

    3. The parties must consider and respond to proposals made by each other.

    4. A union and employer must provide to each other, on request, and in a timely manner information in accordance with sections 32(e) and 34 of the Act that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes of bargaining.

    5. The parties will consider the other's proposals for a reasonable period. Where a proposal is not accepted, the party not accepting the proposal will offer an explanation for that non-acceptance.

    6. Where there are areas of disagreement, the parties will work together to identify the barriers to agreement and will give further consideration to their respective positions in the light of any alternative options put forward.

    7. The parties should attempt to reach an agreed settlement of any differences arising from the collective bargaining. To assist this the parties should not behave in ways that undermine the bargaining for the collective agreement.


  5. Breach of Good Faith Bargaining

    1. Where a party believes there has been a breach of good faith in relation to collective bargaining the party shall, wherever practicable, indicate any concerns about perceived breaches of good faith an early stage to enable the other party to remedy the situation or provide an explanation.

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