Strikes and lockouts are legitimate actions used by parties to advance their bargaining aims. These actions can have a significant impact on both parties and shouldn’t be taken lightly. They can:
- have major emotional and economic effects on the parties, their families and in some cases, on society
- significantly harm the relationships of those bargaining.
- Strikes and lockouts are also lawful where those striking or locking out have reasonable grounds for believing health or safety is being compromised.
Employees strike when a number of employees totally or partially:
- break their employment agreement
- stop work or don’t accept some or all the work they usually do
- reduce their normal output, performance, or rate of work.
Employees don’t have to stop work completely for them to be on strike.
To be a strike the action must be part of a combination, agreement, common understanding, or joint action made or done by the employees. Employees can do this action to try to make their employer give in to their demands. Employers can’t discriminate against employees for taking part in a lawful strike.
Employers lockout employees when they close, suspend, or discontinue their business or a part of it, break some or all of an employee’s employment agreement, don’t give them work they would usually give them, or suspend employees. To be a lockout, this action must be done to try to make their employees, (or to help another employer make their employees), accept terms of employment or comply with their demands. Employers may also lock out on health and safety grounds.
When employees can legally strike or be locked out
Employees can only legally strike or be locked out for health and safety reasons or in relation to collective bargaining if they will be bound by the collective agreement being bargained for. If a strike or lockout is legal (and the right notice has been given), it can’t be stopped by a court order. Strikes and lockouts related to collective bargaining may be legal:
- if they relate to bargaining for a single-party or multi-party collective agreement; and at least 1 of the employees’ existing collective agreements has expired; and the parties began bargaining at least 40 days earlier; or
- where part of a collective agreement is illegal and the Employment Court has made an order suspending that part
- if it is in an essential service (specified in Schedule 1 of the Employment Relations Act) but only if the requirements for notice have been met.
Employees can’t go on strike or be locked out if:
- less than 40 days have passed since the bargaining was initiated
- there is a current collective agreement
- it relates to including a bargaining fee clause in the collective agreement
- it relates to a personal grievance
- it relates to a dispute
- it relates to freedom of association
- it is in an essential service and the right notice hasn’t been given
- it is against a court order.
If a strike or lockout isn’t legal, a party can apply to the Employment Court for an injunction to stop it or to sue for loss caused by the strike or lockout. For example, loss of work or hours which has affected a contract and impacted on the earnings of a business. A party trying to stop the strike or lockout often applies for an interim injunction first because of the tight timeframes involved.