Last week an estimated 4300 planned procedures and specialist appointments were postponed due to the nurses strike. Health care professionals do not take strike action lightly. It goes against all the reasons that they work long and hard for those New Zealanders who need care. But a large strike, with significant disruption, is a powerful and effective bargaining tool.
Currently, Te Whatu Ora Health NZ (effectively the government) is offering a 2 percent pay increase this year, a further 1 percent increase next year and a lump sum payment of $325. It also wants to extend the term of the agreement by three months to 27 months (which would dilute the actual annual percentage increases put on the table).
The Nurses Organisation (NZNO) is asking for a modest 3 percent increase this year (backdated to 7 April – the expiry of their last collective agreement) and 2 percent next year (effective April 2026). But the NZNO says pay is not the critical issue. Paul Goulter, Chief Executive of the NZNO says "The heart of this dispute is the failure of the government to provide guarantees that they will fund and resource staffing that meets what our patients need." He says it is too difficult for Health NZ to resource staffing levels because “the government won't support the resourcing necessary to do it."
Health NZ Acting chief clinical officer Dame Helen Stokes-Lampard said the offer made to the nurses was a fair one and Health NZ encouraged the union to focus its efforts on bargaining so outstanding issues could be resolved.
In 2022 a group of elite athletes representing New Zealand’s top rowers and cyclists formed The Athletes' Cooperative (TAC), a union, to represent them collectively to use the power of collective bargaining to obtain better support from their funder. The move came in the wake of a damning review into the culture of New Zealand's elite sporting environments following the suspected suicide of Olympic cyclist Olivia Podmore in August 2021. But a recent Court of Appeal decision has dashed the intentions of that elite group by confirming that they would need to be employees to collectively bargain.
TAC’s goals include pushing for a system where "our remuneration matches the expectation of our roles and responsibilities, and we have genuine financial stability". It said "the well-being and identity of all people are paramount".
Spearheaded by double Olympic rowing champion Mahe Drysdale, TAC issued a notice to initiate bargaining with High Performance Sport New Zealand Ltd (HPSNZ), the main funding body for these elite athletes and their programmes. HPSNZ does provide funding to some individual athletes but both TAC and HPSNZ agree that the athletes are not employees of HPSNZ.
HPSNZ declined to bargain with TAC on the basis that TAC’s members were not employees of HPSNZ. On two occasions the Employment Relations Authority ruled that TAC’s collective bargaining notices were validly issued and that HPSNZ was required to participate in collective bargaining.
On appeal, the Employment Court (sitting as a Full Court) determined that for a union to validly initiate collective bargaining it must be in an employment relationship with the employer and there can only be such a relationship when members of the union are employed by the employer.
TAC sought leave to appeal the decision to the Court of Appeal. The Court of Appeal declined the application in a decision given last month. It said “the approach of the Employment Court to its interpretation of the relevant provisions of the Employment Relations Act is unimpeachable”.
But in coming to its decision, the Employment Court had referred to two other decisions that had extended the definition of “employee” beyond a current employer/employee relationship. In Maritime Union of New Zealand Inc v China Navigation Co Pte Ltd the Court allowed an extended definition of “employee” for the purposes of collective bargaining where there was a future, prospective or potential employment relationship.
The Employment Court also considered the Supreme Court decision in AFFCO v NZ Meat Workers and Related Trades Union that ruled that “persons seeking employment” were employees for the purposes of the strike and lockout provisions of the Employment Relations Act. In that decision the Supreme Court held that the statutory language should include persons seeking employment but should not include strangers who had not agreed on terms of employment.
HPSNZ’s director, Steve Tew, said his agency welcomed the Court of Appeal’s decision. "HPSNZ remains available to liaise with TAC, and any other organisation representing athletes in the high performance environment, to consider any issues that are unable to be dealt with in their direct relationship with their National Sports Organisations.
While it is hard to criticise the reasoning of the Employment Court and Court of Appeal that have “kneecapped” TAC’s objectives to use the influence of collective bargaining, the words coming out of Health NZ and the government over the nurses strike sound very much like that of Mr Tew and HPSNZ. Nice to hear, but unlikely to result in any meaningful change. More strikes are likely to be needed by the nurses to achieve their modest pay rises, and better staffing levels for the benefit of their working conditions and their patients. Read more....