All in a day's work: The employer strikes back...

Photo / Richard Robinson

Just as having a good striker has proven to be an excellent weapon for many of the soccer teams competing in the World Cup over the last few weeks, the right to strike is also a potentially strong weapon for unions and their members within a unionised workforce.

But beware - the employer can strike back. How, you may ask? In the form of a lockout.

As an example, while most of the talk of strikes and of strikers has more recently been linked to the World Cup (and of course, the much talked about performance of the All Whites), closer to home, things haven't been all white, or indeed alright, on the strike front, with employees of Auckland's Rendezvous Hotel striking, and then being locked out, for a period of 13 days.

The Service and Food Workers Union have reported that the lockout by the Rendezvous Hotel was one of the longest in the union's history.

The union and the hotel were bargaining over the terms of the collective agreement between the parties. The sticking point? The quantum of the pay increase being offered.

The employees and the Union argued that the pay increases offered in the collective bargaining (1.5 per cent) were insufficient, with the employees having not received pay increases in the previous two years. When the hotel refused to budge, the member employees chose to strike in an attempt to obtain leverage in their negotiations.

The response of the employer was to issue a notice that as a consequence of the strike, it was exercising its right to lockout the employees. The net effect - no payment for the employees.

Hitting them where it hurts (this time in a different context to the football!) - right in the pocket. The union sought an injunction attempting to prevent the lockout, on the basis that it was insufficient in the form of notice in that it did not give the employees sufficient information to be able to avoid the lockout. This was subsequently remedied.

The parties ultimately attended mediation in an attempt to resolve the dispute between them, which had resulted in the strike and then lockout, and agreed (after a reported 11 hour mediation) to a 2 per cent pay increase.

Because of its inherently disruptive nature, which is part of what makes the right to strike such a potentially powerful option, strikes tend to attract attention - both for the employer in question, but also more public attention.

Alongside that, there are necessarily restrictions in place under the Employment Relations Act 2000, which limit the right to strike. These restrictions include limits on the times at which employees can initiate a strike during the bargaining process and notice requirements.

Further, as you would expect, there are also limits on the right of an employer, both in relation to engaging staff to perform the services of the striking employees, and in relation to locking out employees.

So while strikes are not entered into lightly, it is important to remember that the employer does have the ability to fight back - through a lockout (or through the suspension of striking employees).

Depending on the disruption caused by a strike, unions and union members need to bear in mind that a strike may not be the best way to kick the issues to touch. Instead, it may result in a lockout and a loss of payment, more difficult to accept than a loss at the World Cup! And hey - we didn't lose!


Bridget Smith