Bargaining for occupational contracts

To participate in bargaining, a worker organisation or engager organisation must be an incorporated society and register with the Registrar of Screen Industry Organisations.

The registration requirements under the Screen Industry Workers Act are similar to those for unions under the Employment Relations Act 2000.

To start bargaining, a worker organisation or an engager organisation must apply to the Employment Relations Authority(external link)

Before applying, an organisation must ensure a simple majority of their members (who would be covered by the contract) agree.

Only a worker organisation can apply to bargain the first contract for an occupational group, and they can do so at any time.

Initiating bargaining for a replacement occupational contract

If there is no existing occupational contract, or the last contract expired no more than two years earlier, bargaining for a replacement can be started by either a worker organisation or an engager organisation, and they can do this at any time.

If an occupational contract expired more than two years earlier, only a worker organisation can apply to start bargaining, and they can do this at any time.

If an existing occupational contract hasn’t expired, a worker organisation can start bargaining 180 days before the expiry date. An engager organisation can start bargaining 160 days before the expiry.

The Employment Relations Authority must approve the application if there is sufficient support, which is determined through a public submissions process.

• If a worker organisation has applied to initiate bargaining, sufficient support is when a simple majority of workers within coverage, who have submitted, support it.
• If an engager organisation has applied to initiate bargaining, sufficient support is when a simple majority of engagers within coverage, who have submitted, support it.

If there is sufficient support, the Authority will decide who the bargaining parties will be, and which worker organisation will run the ratification vote at the end of bargaining. These decisions will be published on the Authority’s website.

Bargaining parties can ask the Authority to be excluded from bargaining. The Authority cannot exclude the largest worker or engager organisation, or an organisation that represents a substantial number or distinct class of people. Bargaining cannot take place without at least one bargaining party on both the worker side and engager side.

Once the Employment Relations Authority approves the application to initiate, the organisation that applied must initiate bargaining. This is done by providing written notice to the other bargaining parties within 28 days of the Authority’s decision. If written notice is not provided, bargaining is automatically initiated.

The Government provides some funding for bargaining parties, after an application has been approved by the Employment Relations Authority. For more information, email siwa@mbie.govt.nz

Once notice of initiation is given, bargaining can start.

During bargaining, parties must act in good faith, which includes an obligation to produce an occupational contract.

All occupational contracts must contain certain terms (for example, pay, hours of work, breaks, termination).

If disputes arise during bargaining, parties can apply for mediation, facilitation or a determination by the Employment Relations Authority. If the dispute is about what a term in the occupational contract should be, bargaining parties can apply to the Authority to fix the disputed term.

Resolving disputes in the screen industry

Removing a bargaining party

During bargaining, a party can be removed if:

• they ask to be removed, and they are not the largest worker or engager organisation, or an organisation that represents a substantial number or distinct class of people covered
• their registration has been cancelled
• they were identified as a party as a result of providing false or misleading information to the Authority, or
• the Authority believes they no longer have any members to whom the occupational contract would apply.

Bargaining will stop if there is no longer at least one bargaining party representing workers or one bargaining party representing engagers.

Adding a bargaining party

After negotiations have begun, organisations who weren’t identified as a bargaining party during the initiation process can apply to the Employment Relations Authority to be added as a bargaining party.

These organisations must have members covered by the occupational contract being bargained. The organisation must show that a substantial number or distinct class of people covered would not have their interests represented if the organisation is not permitted to be a bargaining party.

For the organisation to be added, the Authority needs to be satisfied that allowing the organisation to be included will not undermine the bargaining taking place.

Once bargaining parties have negotiated a draft occupational contract, it is assessed by the Employment Relations Authority. The Authority checks that mandatory terms have been included, and that no prohibited terms have been included.

After the Employment Relations Authority has checked the draft occupational contract, it must be ratified by the workers who will be covered by the contract.

An occupational contract is ratified if a majority of eligible workers who vote, vote in favour.

A worker is eligible to vote if they have done work within coverage of the contract in the three years before the application for bargaining was publicly notified.

Ratification is always required, even if the Authority has fixed any terms in the occupational contract.

After ratification, the occupational contract must be signed by bargaining parties and sent to the Ministry of Business, Innovation and Employment (MBIE) at employmentagreements@mbie.govt.nz

It must also be accompanied by a statement describing the results of the ratification vote.

MBIE will then publish the occupational contract on its website and give notice in the New Zealand Gazette.

The occupational contract comes into force and applies to new individual and enterprise contracts six months after it has been notified in the Gazette. This means the occupational contract is deemed to be part of workers’ individual contracts from that date. More favourable terms in occupational contracts automatically apply to individual contracts. This means individual contracts do not need to be changed.

Individual contracts that are currently in force and were made prior to the date MBIE gave notice have an additional six months before the occupational contract is deemed to be part of them (12 months total).

The engager must send a written request to the occupational contract’s signatory parties outlining:

• the proposed less favourable term
• the number of individual contracts that will contain the less favourable term
• the term(s) of the occupational contract the engager is seeking an exemption from
• how the exemption threshold has been met.

Signatory parties have 14 days to respond to the request in writing. If they do not respond, they are considered to have consented.

If the exemption is needed immediately, it can be verbally agreed between workers and their engager. However, the engager must amend the workers’ individual contracts and notify (in writing) all signatory parties to the occupational contract as soon as is reasonably practicable.

When informing signatory parties, the engager must outline:

• what the less favourable term is
• the number of individual contracts that contain the less favourable term
• the term(s) of the occupational contract that the less favourable term in individual contracts relates to
• how the exemption threshold has been met
• why the less favourable term was immediately needed.