There are usually many stages in collective bargaining. In each of these stages, the duty of good faith must be met. These stages can include:
- making the first decisions about bargaining – who, when, what and how
- deciding on proposed coverage
- dealing with bargaining notices
- joining existing bargaining and consolidating bargaining
- entering into a process agreement
- meeting to present, consider and respond to bargaining claims
- continuing to bargain when other issues are at a standstill
- dealing with representatives
- communicating during bargaining
- requesting and disclosing information
- using independent reviewers for information that may be confidential
- resolving problems
- ratifying the agreement.
Best practice bargaining involves thinking about:
Understanding the issues and the people, and equipping the team for the process.
Developing a strategy for maintaining the relationship before, during and after negotiations.
Building trust by applying an open communication style.
Exploring options and strategies for reaching agreement.
- Good faith applies before, during and after collective bargaining and in relation to all correspondence and communication that relates to the bargaining.
- Generally, communication that relates to direct or indirect bargaining must go through the representative and not directly to the employees represented by the union.
- An employer can still communicate directly with employees while bargaining for a collective employment agreement. This includes communicating about the employer’s proposals for the collective agreement, but any communications must be consistent with the duty of good faith. This includes:
- unions and employers must not undermine or do anything that is likely to undermine the bargaining process or the bargaining representatives
- employers can’t bargain directly or indirectly with the employees during collective bargaining unless both the union and employer agree
- unions and employers must respect the role and authority of each other’s representatives. Any negotiations must always be done by the union and employer representatives officially involved in the bargaining.
- It is helpful if information is clear, accurate and in writing.
Other things to consider:
- Reaching agreement between the parties about the timing, nature and scope of communications (including media releases).
- Agreeing in advance of negotiations on disclosure of information and any independent reviewer arrangements.
- Having someone assigned to assess proposed communications from the point of view of the other bargaining party.
- Making joint communications.
Experienced and inexperienced negotiators may benefit from help with collective bargaining. Getting advice early can avoid disputes later on. Experienced employment mediators from the Employment Mediation Services are available free of charge to help parties at any stage of the collective bargaining.
In some circumstances, the parties to collective bargaining can agree to a bargaining fee arrangement.
The Code of Good Faith for collective bargaining states that the bargaining process should take into account tikanga Maori (Maori customary values and practices). If also states that bargaining should take into account any cultural differences or protocols in the bargaining environment. If bargaining is not going well and a party wants help from the employment mediation service to overcome a road block, they can ask for consideration of tikanga Maori or other cultural practices to be included.
Initiation of collective bargaining
An employer or union can initiate bargaining by giving the other parties an initiation of bargaining notice. If a party receives a notice meeting the requirements, they have to enter into bargaining.
Preparing for bargaining
Preparing for collective bargaining may include choosing and training the bargaining team, drafting a potential collective agreement, and setting up the bargaining process agreement.
Preparing your team
Choosing and training the bargaining team in preparation for collective bargaining.
Negotiating the agreement
Negotiations are part of the collective bargaining process. They refer to any form of discussion, either formal or informal, that is used to reach an agreement.
After the negotiations
When the bargaining parties have reached agreement, their agreement must be ratified and signed before it is a collective employment agreement.
Tools and Resources
Collective Employment Agreement Template - DOCX 107KB
A framework for a collective agreement, plus a range of draft clauses. Currently being updated to reflect the Employment Relations Amendment Act 2018.
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