The long-anticipated Fair Pay Agreements Bill was introduced to Parliament earlier this week.
The Bill proposes a framework for collective bargaining for Fair Pay Agreements that would set minimum employment terms across specific industries or occupations. It would supplement (but not replace) collective bargaining between unions and employers and bargaining for individual terms and conditions. As set out below, in many respects (and subject to how frequently it is used) it could take New Zealand back to a system of national awards not seen on these shores since the 1980s.
It is important to remember that this is a Bill only. It still needs to go through the usual Parliamentary process, including consideration by a Select Committee which will call for public submissions. We do not anticipate it will be in force before the end of 2022.
We have set out below how the Fair Pay Agreement process would work, if the Bill is passed in its current form. Given the early stage of the legislative process, we have kept this high level.
How would the Fair Pay Agreement process work?
In brief, the Fair Pay Agreement bargaining process looks a lot like traditional collective bargaining:
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A union initiates the bargaining process for a particular group of employees (defined by occupation or industry)
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Unions and employers appoint representatives
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Bargaining occurs. The parties are able to use mediation (through MBIE's Mediation Service) and facilitation (through the Employment Relations Authority) to assist with any difficulties.
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In extreme situations, the Employment Relations Authority can set terms and conditions if no agreement can be reached.
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The final agreement reached is subject to a ratification process (addressed in more detail below, and more extensive than for traditional collective bargaining).
We have included some more detail regarding each step below.
Initiation of a Fair Pay Agreement
A union can initiate bargaining for a Fair Pay Agreement if it meets either of the following tests:
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the representation test – at least 1,000 or 10% of all covered employees support initiating bargaining for the proposed FPA; or
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the public interest test – the relevant employees:
- receive low pay for their work
- have little bargaining power in their employment
- have a lack of pay progression in their employment (for example, pay rates only increase to comply with minimum wage requirements) or are not adequately paid taking into account matters such as long/unsocial hours or contractual uncertainty (eg short term seasonal work).
In establishing the relevant employees meet one of the tests above, the union needs to identify who would be covered by the initiation, including whether it was to be occupation or industry based. The Bill gives an example of an occupation-based agreement as one which would cover all commercial cleaners, whereas an industry-based agreement would cover (for example) all butchers and bakers in the supermarket and grocery industry.
A union commences the process by an application to the Chief Executive of the Ministry for Business, Innovation and Employment (MBIE), who must be satisfied that the relevant test has been met. MBIE may call for public submissions in deciding whether one of the tests are met. If the test is satisfied, MBIE must issue a public notification within five days.
A union with a successful application must identify and then notify all relevant employees and employers. Depending on how coverage has been defined, this could be difficult to do comprehensively. There are also obligations on employers to provide the contact details of relevant employees to unions for the purpose of notification around bargaining.
All employees and employers falling within the industry or occupation are then covered by the bargaining.
Bargaining for a Fair Pay Agreement
Once an application is approved, each side needs at least one "bargaining party". It is contemplated that this will be the union who initiated the process, and then other unions and employer associations who apply to MBIE. There are default public sector employers who will be involved where a process covers public sector employees. The Bill also contemplates default private sector employer bargaining parties (which will be specified in regulations that have not been released).
Each employer bargaining party appointed by MBIE is required to endeavour to represent the collective interests of all covered employers, not just those employers who are members of the employer association. Likewise, an employee bargaining party must endeavour to represent the collective interests of all covered employees, whether or not an employee is a member of the union. Both employee and employer bargaining parties are required to ensure effective representation of Māori employees and employers.
The Bill extends the duty of good faith to cover relationships on both sides of the bargaining process. This means that parties in the same bargaining must deal with each other in good faith. We anticipate practical difficulties could arise in these situations – particularly given that many employer parties will be competitors and could have different interests in the bargaining process.
The Bill contains various provisions regarding meetings, union access to the workplace and meetings of employees covered by the process. These arrangements roughly mirror rights and obligations in traditional collective bargaining.
The Bill also contains a number of provisions setting out what is to happen regarding bargaining parties, consolidation or processes and changes to scope during bargaining.
What must be included in a Fair Pay Agreement?
Fair pay agreements must include:
Provisions regarding pay and leave (even if above statutory minima) are considered minimum entitlements for enforcement purposes. This means a Labour Inspector could enforce a Fair Pay Agreement.
In addition, the parties must discuss the following (but need not include it in the agreement):
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the objectives of the Fair Pay Agreement
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health and safety requirements
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training and development
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flexible working
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leave entitlements
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arrangements relating to any redundancy
Disputes and finalising a Fair Pay Agreement
As above, parties would be able to access mediation and facilitation assistance. The parties could also apply to the Authority to fix the terms of a Fair Pay Agreement in particular circumstances.
Strike and lockouts would not be a lawful in relation to bargaining for Fair Pay Agreements.
In terms of ratification, in order to be finalised a Fair Pay Agreement would need to be:
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Approved by the Authority (it must do a compliance assessment)
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Ratified by employees and employers who would be covered by the agreement
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Verified by MBIE
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Brought into force by MBIE through regulations or orders.
Once finalised, all employers within coverage will be bound by it, regardless of whether they participated in the bargaining process.
What's next?
As above, the Bill is not yet law. There is still an extensive public submission process to go, and consideration by Parliament. Overall, the Bill adopts many of the traditional collective bargaining processes that will be familiar to employers with unionised workforces. However, the added (big) complicated factor is how this will work when the bargaining is intended to cover an entire industry or occupation, and whether it is really workable to appoint representatives to bargain for a potentially disparate group of employers.
Please get in touch with a member of the team if you would like to discuss in more detail, or if you would like assistance with preparing a submission on the Bill for consideration by the Select Committee.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.