Budget Day action: strike rules

A lawyer specializing in labor law claims that employees who go on strike without notifying the employer risk disciplinary proceedings being initiated.

Te Pāti Māori is calling on all Māori and tangata Tiriti to strike on Thursday – Budget Day – to protest against the government’s Māori policies.

The Prime Minister said it would be illegal.

The word “strike” has particular meaning in the employment context, said Dundas Street employment lawyer Megan Vant Control point.

“There are very limited circumstances in which workers can legally strike in New Zealand.”

A collective action by employees to leave their jobs meets the definition of a strike under labor law.

“But for it to be legal it must either relate to collective bargaining, albeit for health and safety reasons. And your employer must be notified of this strike.

“If all workers get together and agree to walk off the job, it would be within the definition of a strike. But it is not a lawful strike, so it would be an unlawful strike.”

Prime Minister Christopher Luxon said a strike in this case would be inappropriate and illegal.

“People have a fundamental right to protest. What if we called it a protest and didn’t use the language of a strike? Regardless of whether we call it a protest or a strike, failure to report to work without the employer’s consent could still result in disciplinary action against the employee,” Vant said.

“So if you want to take part in planned industrial action, then ask for annual leave or unpaid leave in advance. Once your employer agrees to this request, you can proceed with your protest.”

She said an employer could not reject an application based on political opinions as this would be considered discrimination.

On Tuesday, Luxon said it was “inappropriate” for Te Pāti Māori to advise people to take the day off work.

“Feel free to protest, that’s why we have weekends, but let me just tell you: Te Pāti Māori, they are completely free to protest whenever they want – as long as it is legal, peaceful and lawful.”

Vant, however, said the purpose of the protests was to make an impact – which most likely happened during the week.

“Protests absolutely can take place during the working week, but employees must ensure they have their employer’s consent to be absent during a protest.

“You can take a lunch break or you can take a day off with your employer’s permission for annual leave or unpaid leave. “I don’t think we should suggest that the protests are limited to the weekend.”

However, she added that reporting sick in order to take part in the protest could result in disciplinary consequences.

Protesters should be aware of the impact this may have on their employer as some are subject to codes of conduct.

It’s a fine line and courts have typically weighed it, Vant said.

“The older you are, the closer this boundary is to what you do. So having a very senior government official with a badge appear on the front page will be more of a problem than someone younger. “

A “pragmatic” way to work from home

Police have warned that the hikoi, which is scheduled to start at 6.30am on Thursday, is likely to disrupt traffic and affect at least two dozen cities including Auckland, Hamilton, Palmerston North Wellington, Christchurch and Dunedin.

“We will strive to minimize these disruptions at every opportunity,” said Deputy Commissioner Mike Johnson.

He added that a “pragmatic step” would be for people to work from home whenever possible.

Police knew some of the routes protesters would take.

“We cooperate proactively with the organizers. At this stage, we do not have this information in every district.”

Whether the protest action was unlawful will have to be decided on a case-by-case basis, depending on the location and the effect it had, he added.

He told organizers: “Conduct a lawful protest, trying to minimize disruption, and we will be very happy to engage actively with the police in any district or location in your area so that we can ensure the safety of all involved.”

The fundamental right to protest

The Union Public Service Association said all workers had the right to participate in protest marches.

“There is no conflict with public sector workers’ obligations of political neutrality and their ability to exercise fundamental rights and freedoms, such as taking part in industrial action,” said PSA national secretary Kerry Davies.

She said the New Zealand Rights Act 1990 applied to public servants like anyone else.

“New Zealand has a proud history of protest and resistance, it is lawful and no government directive can take away these fundamental rights,” Davies said.

PSA said workers are free to participate in protests on their own time.

“If you participate in protests, it is important that you avoid public comments that could be perceived as an attempt to speak on behalf of your employer or share information that you only have in connection with your role,” the statement said.