Fixing - an addendum
A brief update on my last post. It has been pointed out to me that there was a second case where the Authority fixed a collective agreement: the details are reported in Reunited Employees Association Incorporated v Nelmac Limited [2021] NZERA 530 which was upheld in Reunited Employees Association Incorporated v Nelmac Limited [2023] NZEmpC 74. Thanks to Simon Scofield for the reference and see Simon’s view on the dispute at https://www.rnz.co.nz/news/national/573609/era-intervention-could-break-doctors-pay-dispute-deadlock-legal-expert-says
In Nelmac it was the union that was alleged to have engaged in bad faith conduct. The bad faith complained of took place in the context of what appeared to be a history of fractious bargaining between the parties. However, the two particular issues relating to bad faith were first, the union’s refusal to acknowledge a resolution to the dispute that it had accepted during facilitation and secondly a refusal to acknowledge Nelmac’s representative. The Authority found that the refusal to acknowledge the agreement reached in facilitation “was misleading and it does evidence bad faith.” It found further that the refusal to recognise the representative was “not constructive and does not contribute to a relationship which is responsive and communicative with the overall effect of frustrating bargaining. In relation to bargaining it is more than bad behaviour or tactics, it is positioning or actions that frustrate the process and impede bargaining taking place effectively.”
Does this alter my conclusion that fixing is not relevant to the ASMS dispute? Not really. The position remains that unless Te Whata Ora can demonstrate bad faith conduct that has significantly undermined the bargaining the threshold for fixing will not have been reached. Of course such conduct may be able to be established but to date at least there is no indication of bad faith by the ASMS. The Authority’s view of the Te Whata Ora – Ministerial tag-teaming on the dispute might also be of interest.