Your rights: Possible breach of good faith

BY CHRIS PATTERSON

Q. Can a chief executive call a compulsory meeting only for all fulltime staff who identify as having a mental illness to discuss collective employment conditions?

I would have thought this was unlawful discrimination in the workplace.

If I am correct, what acts would this breach and what is the best way to complain? Does it constitute enough for a complaint to be lodged with the chief executive?

A. The Employment Relations Act 2000 (ERA) and the Human Rights Act 1993 (HRA) are both relevant. The ERA provides rules and obligations relating to collective bargaining. All collective bargaining has to be conducted in good faith. It is unlikely that the obligation to bargain in good faith will be satisfied if one of the bargaining parties is directly or indirectly engaging in unlawful discrimination.

The HRA makes it unlawful to discriminate against anyone in employment on the grounds that they have a disability, which includes any psychiatric illness, intellectual or psychological disability or impairment. However, the discrimination needs to create some form of disadvantage to be regarded as being unlawful.

Whether calling a meeting with staff who have been identified as having a mental illness amounts to unlawful discrimination will depend a lot on whether there is any actual disadvantage.

The chief executive can initiate bargaining for a collective employment agreement if there is no applicable agreement in force. If there is one in force, specific time requirements must be kept to.

The chief executive initiates bargaining by providing a written signed notice to each intended party to the collective agreement and identifies the intended coverage of the agreement.

Once bargaining has begun then the parties are obliged to bargain in good faith. Obviously, to satisfy this requirement the staff will have to meet the chief executive if he or she has called a meeting.

A compulsory meeting called without adequate notice which applies only to staff who have been identified as having a mental illness is probably not in good faith.

The Department of Labour's

website

contains the Code of Good Faith. The code provides some general guidelines on good faith in collective bargaining.

I would start by submitting any complaint directly to the chief executive. If the complaint remains unresolved it would then be sensible to seek mediation assistance. You would be entitled to refer the complaint to the Employment Relations Authority and possibly the Human Rights Commission if matters cannot be resolved between the chief executive and the affected staff.

Is it possible under New Zealand legislation to "cash out" accrued annual leave?

Not if the employee receives only three weeks annual leave each year. However, if the employee receives more than three weeks then, by agreement, the balance of the accrued leave above the statutory minimum can be cashed up.

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