To be legal strike notice is required to be given under section 74AC of the State Sector Act 1988.
1. Notice of Strike and what does it involve?
2. How do we know who will be on strike?
The union may compiled a list of its members in each school. But you should also seek confirmation from your staff on what their intentions are.
3. Do you get notice from the union?
Yes. The State Sector 1988 (s74AC (1)) provides that a strike by employees of any Board of Trustees is not lawful for the purposes of the Employment Relations Act 2000 unless the Commissioner (or Secretary for Education) and each Board of Trustees is given notice in written or electronic form of the proposed strike 3 days before the commencement of the proposed strike.
This enables suitable arrangements to be made in terms of the students and other staff.
So far we do not have formal notice under the Act but all of the unions communicates have indicated that it will occur on 15 September 2010.
4. Do you get notice from the union for any subsequent strike action?
The union must follow the process for each separate action. Failure to do so would make the action "unlawful".
5. What do boards do?
Follow the guidance which have been provided by the Ministry and the Q and A's in this document. Keep in contact with NZSTA.
6. Can the union members address the board on their claims?
When involved in collective bargaining the union(s), Ministry of Education and NZSTA sign a bargaining process agreement under the provisions of the Employment Relations Act part of which covers good faith and what the obligations are around communications. An example is set out below:
5. The parties and NZSTA will report progress to their respective constituents in a factual and accurate manner. Either party or NZSTA may, separately or together, make public and/or media statements concerning the negotiations and, if separately, that party will provide the others with a copy of the statement for their information prior to its release. Where either party makes a request for information under Section 34 of the Employment Relations Act 2000, the information will be provided as required under the Act. Any costs will be paid as agreed between the parties.
6. Neither party will attempt to communicate directly or indirectly with the principals or constituents for whom the other advocate or representative is acting, concerning the substance or process of negotiations with a view to influencing the bargaining position of the other during bargaining, unless expressly agreed otherwise. This document is not intended to restrict the normal activities of either party.
Approaches from the union or its members to boards would breach this agreement
7. What happens if we are approached by the media or should we make comments in the media?
Care is advised in terms of this. Obviously there will be varying views on the rights and wrongs of the action and what is involved but the boards role in the first instance is to ensure that the interest of students remains a focus.
There will be conflicting and confusing messages coming from a variety of sources. We try to ensure you have the current state of play on this through our memo's.
Our key message has been that this is something that will in the end require sensible negotiations from which an outcome can be achieved. For that to happen the parties need to be at the negotiating table.
The Ministry has put its media releases, information sheets and other information are on its website at: www.minedu.govt.nz/employmentagreements.
8. Who acts as the employer?
Whilst the Secretary assumes that role for the purposes of bargaining, boards still have responsibility for all other matters and part of this is to ensure they have provided the appropriate delegations to the principal for employment matters. For the purposes of the strike action as a minimum use the format in Template 1.
9. Can a staff trustee be involved in board decisions relating to strikes?
It is expected a trustee would declare a potential or real conflict of interest in any circumstances where this may arise. This extends to trustee who may not be a staff trustee but are covered by the negotiations (i.e. a secondary teacher who is on the board of another school).
Where a board is considering such matters then a trustee (and this may include the staff trustee) must be excluded from any consideration or decision making where the trustee will be directly affected by any decision made [ Education Act 1989 Sixth Schedule clause 8 (8) and (9)].
10. Can "volunteers" be used?
Care is advised here. It really depends on the situation. If in doubt discuss this with your Employment Adviser.
11. Can I have other staff or relievers cover the work?
The Employment Relations Act 2000 sets limitations in the case of a strike. An employer may employ another person to perform the work of a striking employee if -
employees/relievers already employed
the person is already employed by the employer at the time the strike commences; and
the person is not employed principally for the purpose of performing the work of a striking employee; and
the person agrees to perform the work.
short term relievers
there are reasonable grounds for believing it is necessary for the work to be performed for reasons of safety or health; and
the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health.
A person who performs the work of a striking employee in accordance with above must not perform that work for any longer than the duration of the strike.
An employer who fails to comply with this is liable to a penalty in respect of each person who performs the work concerned.
In terms of existing staff who are non members Courts have in recent times considered what "the work of a striking or locked out employee" means. When working through this the Court of Appeal determined that the parties need to focus on the work that, but for the strike, the striking employees would have been doing at the time in question.
In working out what "work" a striking employee would have been doing but for the strike, What needs to be considered is what, in general terms, the striking employee would have been doing over that work period. If the employer wants another employee to undertake that work or part of that work, and if that other employee would not have been asked to do such work but for the strike, then employer will need to obtain the non-striking employee's agreement to doing the work.
Looking at the matter as one of substance, the Employment Court held that the use of contractors, who themselves habitually performed some of the work of striking employees (although a small proportion of it) was not in the circumstances performance of "the work of the striking employee".
In some circumstances it may in fact be appropriate for a non union teacher to be required to also undertake the duties of a striking teach but that may be limited and preferable to seek the agreement.
The circumstances will be different if for instance you have a support worker "supervising" than what would happen if you require a teacher to undertake that supervision, which is not teaching.
Situations where it may be appropriate for boards to use relief teachers is where there is a need to ensure safety of students e.g. no one to supervise students or where they have already been rostered to cover for an absent teacher.
12. What if someone goes on sick leave that day?
Instances may arise that a person who you anticipated would be going on strike instead called in sick on the day. Each situation needs to be looked at according to the circumstances but the employment agreement has a provision for confirmation that the sick leave is genuine:
6.2.3 (iv) An employer may delegate to the principal, authority to grant leave of up to five days but any exercise of this authority must be reported to the employer immediately. While a medical certificate will not normally be required for leave of up to five days, where it is considered warranted, an employer may require a teacher to produce a medical certificate or other evidence satisfactory to the employer.
If it is genuine sick leave then the teacher is not on strike and that teacher's work can be covered by a reliever.
Where the employer believes that the employee has misused a sick-leave entitlement, this issue can be dealt with as an employment relationship problem under the Employment Relations Act. The normal processes for raising, progressing and determining problems of employee performance should be followed, Discuss this with your Employment Adviser
13. What if they are already on approved leave?
Depends on the situation, discuss with your Employment Adviser.
14. Can non union members strike?
No - if an employee decides to not present themselves for work in the day then they would be absent without leave and appropriate processes would follow - which may include disciplinary measures
15. Can union members who are covered by a different collective agreement strike?
No - it is only those covered by the collective agreement that will bind each of the employees concerned.
16. What happens to non striking employees?
Where possible you must provide them with work (this applies to teaching and non teaching staff). If they do not undertake their full and normal duties then this may be considered unlawful strike action. It is strongly suggested that principals talk to staff and their representatives to establish what is happening and ensure that the rules are clear.
17. Can we lockout or suspend?
Boards cannot lock out or suspend (in relation to negotiation of a collective agreement) unless the Secretary for Education (acting under delegation from the State Services Commissioner) directs them to (section 74(3) State Sector Act).
18. What about ongoing action?
If ongoing action occurs then some teachers may be teaching normal scheduled classes [for years/forms not "rostered home"] for part of the day and will be on strike for part of the day. The union is required to provide notice of what is intended to happen.
The obligation on boards is to ensure that data on the time lost by each striking teacher is recorded. If any cases arise of unlawful (sometimes referred to as "wildcat") action contact your Employment Adviser.
19. What happens if we have a picket?
Clearly that is a legitimate action of any union, but not common in New Zealand schools.
20. Status of "rostering home"
In previous situations the industrial action comprised "rostering home" of students by some teacher unions, in that they will refuse to teach particular groups or classes of students.
While employees can lawfully strike in support of the negotiation of a new CA, they cannot determine that students should be "rostered home". Only the board of trustees has the right to determine whether students should be sent home or not during strike action.
21. What notice do we give to parents?
See the MoE template letters in its guidance. They cover both instances (i.e. open or closed for instruction).
Boards should prepare a notice to parents outlining:
· that the union has advised that its members will be taking strike action; and
· the process that will be followed on the day.
If there are subsequent periods of industrial action they will need to be dealt with on a case by case basis.
22. Do we keep the school open for instruction?
More detailed advice is provided in the Ministry guidance on your legal requirements. But we encourage you to make every effort to keep as much of the school operation going as possible.
Partial closure is not an option under the Education Act.
23. Who makes the decision as to whether we open or close the school?
The board, but if a decision is made to close for instruction then the Ministry need to be advised at the national level by fax 04 463 8159 or email firstname.lastname@example.org.
There is also a section on the industrial action forms that will be sent out that allows you to complete this step.
24. Do we HAVE to keep the school open?
Having all students attend may be impractical or undesirable during a strike; staffing would be reduced and uncertain.
Accordingly, if regular instruction is not possible, boards may:
· remain open for instruction but invite parents and caregivers to keep children at home if they can; and
· close the school for the purposes of instruction under s65A(2A) Education Act 1989 ("a strike closure").
25. What is a "Strike Closure"?
Section 65A(2A) Education Act provides that boards may determine that because of the strike the school is unable to either offer instruction and/or provide for a safe environment for students who attend. In which case they may decide to close the school for instruction.
26. Do we have to make the half days up?
No - If, because of a strike or lockout, a school is not open for instruction on any half-day, the school is, for the purposes of the Education Act, deemed to be open for instruction on that half-day.
27. Do we have to make the half days if we are only providing supervision?
Where there is a mix of classes being operated as normal and others that require supervision then the school is "open for instruction".
28. Do we need to keep a register of students if we are only open for supervision? If so, how do we account for students who do not arrive at school….are they marked 'absent' on their school record?
There really is no legal "open for supervision". The school is either open for instruction or closed for instruction. Clearly that will be a call by the board in terms of whether you consider the situation is such that no instruction is able to be undertaken. This may mean that some classes may have teachers providing instruction and some being supervised for the day.
In terms of the school record, follow normal procedures. Clearly if the school is open for instruction then a roll is kept of who attended. Absent will therefore be identified but that will be subject to the caveat of why (i.e. explained absence)?
29. What do we do with students who turn up to school?
Ensure supervision for them whether the school is open for instruction or not. It's a matter of safety.
30. What happens to pay if strike action occurs?
Those taking strike action do not expect to be paid for it. The "no work-no pay" principle is applicable. This includes full and partial withdrawal of labour.
The board is responsible for ensuring that time lost due to employees failing to undertake normal work [i.e. taking strike action] is:
recorded for both payroll and legal reasons. This is a requirement of the State Sector Act, the Wages Protection Act and the Employment Relations Act
returned to the Ministry via fax 04 463 8159 or email email@example.com (not directly to your normal payroll servicing agency) to ensure that the pay deduction occurs
Under the provisions of the State Sector Act all members of the relevent union covered by the Collective Agreement will have pay deducted unless their board notifies the Secretary for Education as soon as practicable after the strike commences that they are not participating in the strike.
Forms will normally be provided by the Ministry for recording this information and ensures payroll make the correct pay deductions. These form will have the names of teachers already entered into them of those for whom deductions will be made. There should be no need to enter names yourself.
31. Does the board need to meet to determine pay deductions occur?
No, but boards will need to confirm with the principal that the appropriate processes are in place during any strike action. This includes making sure they have the delegations to act on behalf of the employer. Remember that you can meet electronically.
The principal is the day to day manager of the school and currently has responsibility to ensure time sheets etc are accurate when they are returned to the payroll agency. If the board has delegated the function to the principal regarding pay then it is up to the principal to advise employees and ensure the process for the deduction is correctly undertaken.
Boards may wish to confirm with the principal the requirement to ensure pay deductions are handled appropriately during the strike action
32. How much gets deducted?
The MoE will determine the appropriate deductions at the time.
33. Effects on banking staffing
The effect of ensuring pay deductions occur for teachers becomes more critical under the banking staffing scenario. This is because the unpaid (TS) salary will be credited to the schools banking staffing and may be used to pay for relievers or other staffing on the day or later in year if required
34. What happens to employees who do not strike?
Individual employees at your school will determine whether they intend to strike. For that reason recording intention and actual attendance needs to be very accurate.
Any teacher wishing to attend school and who is available to undertake their normal scheduled duties will not be on strike and should be provided with work and paid for the day
35. What happens to those striking who want to do other activities?
The action does not normally cover voluntary activities for which an employee is not paid, such as extracurricular events outside school hours.
36. What happens about Acting Principals? e.g. An AP currently acting as a Principal while the school is on strike
There are a number of schools where the principal is on leave or the position is vacant. If the acting Principal is a union member they are still covered by the teacher collective and therefore the strike notice applies to them.
37. Can union members get dispensation from their union to work?
The union usually provide a process where in certain situations they will give dispensation to their members i.e. in emergency, where they are required for safety reasons, the day. It is important that this is recorded so that pay deduction does not occur.
38. Are senior management required to work irrespective of union membership?
If they are union members covered by that collective then the strike notice applies to them. It is their decision if they chose to work to undertake their normal duties.
39. Do we need to keep a register of employees who do/do not work?
Yes - see templates supplied by MoE. The Ministry will have the information on who they are and will have already entered details
40. What do we do with union members who turn up to work?
If they attend work and undertake their normal duties then they are not on strike.
41. If its teachers then do other staff (teacher aides, support staff, cleaners caretakers) work as normal or do we tell them to stay home?
That is for the board/principal to determine. There are available for normal work and you are required to provide that work and pay them. See Template 2.
42. Do we have to pay the other staff if we close for instruction?
If they normally work on that day - Yes.