Dundas Street Employment Lawyers – Susan Hornby-Geluk – If you have seen Les Miserables you will know that the French do protests and strikes well. They show passion and creativity in a way that seems to have alluded them on the football pitch recently.

Just this month there have been reports of French workers literally storming the barricades and ripping the shirts off the backs of their bosses. The company concerned, Air France, has said it will file a complaint for aggravated assault and is clearly of the view that, even for France, this went too far.

Extreme forms of industrial action are not uncommon in France, and appear to be part of the culture.  Unions have even resorted to kidnapping company managers and holding them hostage until their demands are met.

In New Zealand we are far more restrained in the expression of dissent. There may be the odd egg thrown in the course of a political protest, but generally we do not resort to physical violence, at least not since 1981.  You might be surprised though at the creativity shown by unions and workers in terms of the form that strikes can take.

The starting point is that if you do not turn up to work because you are on strike in New Zealand, you do not get paid. This is the natural counter-balance provided for in the legislation and at common law. Without this workers could strike indefinitely without any consequence, which would result in employers inevitability being pummelled into submission.

This has led to unions and workers coming up with clever ways of effectively striking without striking.  For example, employees may turn up to work for their full contractual hours, but refuse to perform certain tasks, such as answering emails or attending meetings.  Other forms of strike action have included employees refusing to fill in the paper work for assignments such that the employer is unable to bill clients for the services provided.

This is all lawful strike action because the Employment Relations Act defines a “strike” as “breaking an employment agreement” or “discontinuing that employment, whether wholly or partially”.  Therefore almost anything goes if it can be described as breaking an employment agreement or reducing the performance of duties, as long as it is part of a concerted industrial campaign.

Former Chief Judge Goddard of the Employment Court once referred to “the almost infinite capacity for ingenuity that has been exhibited by those engaging in strikes and lockouts”.

New Zealand Post was the subject of an ingenuous guerrilla style strike a couple of years back.  The posties set out on their daily runs but instead of delivering the mail, posted it back through the post boxes on their delivery route.  The company knew nothing about this until all of the already processed mail turned up again the next day in the mail centres.

Air New Zealand has also faced low level mutiny with cabin crew refusing to wear their proper uniforms in the name of strike action.  Imagine being served your cassava crisps by a hostess with scarf akimbo.

This type of situation led to an outcry from employers who argued that there had to be consequences for employees engaging in this type of activity.  Employers also said that it was only fair and reasonable that they be given notice of any intended strike.

The Employment Relations Amendment Act addresses both of these issues.  With effect from 6 March this year, where any employee engages in a “partial strike” – that is where they turn up to work but refuse to perform their duties fully or properly – they will have their pay docked.

The level of pay deduction depends on the extent of the reduction in performance and there is a formula in the Act which is based on assessing the estimated time the employee would have otherwise spent doing that work.  This type of calculation may prove difficult in many cases so there is also a default position which provides for a straight 10% deduction in pay for any employee participating in a partial strike.

The Act also now requires employees to give notice of strike action before it occurs, but there is no specific amount of notice required to be given.  This means that employees can literally tell their employer they are striking as they head out the door.

It is too early to tell what impact these law changes will have, although it is obvious that employees will be far less keen to engage in low level partial strike action if they are going to have their pay docked each time.  This effectively pushes unions and employees into an all or nothing situation.  In other words, if employees are going to suffer a pay cut, the impact of the strike will need to be worth it.

It is neither lawful nor within our culture to strike and protest like the French do it, but there is likely to be a change in the way Unions and employees approach industrial action here in light of our recent law changes.

See: Dundas Street Employment Lawyers

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