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Strikes and lockouts are some of the most serious actions that employees or employers can take during collective bargaining. Strikes involve employees stopping their work or breaking their employment agreement. Lockouts involve employers ‘locking out’ their employees from work by discontinuing their business or part of it, suspending employees, or when they stop giving their employees work. Both strikes and lockouts are only lawful under certain considerations. This article will set out what strikes are, what lockouts are, and the conditions under which strikes and lockdowns are legal.

What Is A Strike?

A strike is a serious action that employees can undertake to try to advance their case in bargaining with an employer. Unions typically organise the strikes. However, it is a risky strategy, as it can seriously harm the relationship between employees and the business.

The legal definition of a strike includes a few different actions. This includes when a number of employees either totally or partially:

  • break their employment agreement;
  • stop work or do not accept some or all the work they usually do; or
  • reduce their normal output, performance, or rate of work

Employees do not have to stop work completely for them to be on strike. However, to be a strike, there must be a joint action by employees – not just a single employee acting unilaterally. Employers cannot discriminate against employees who choose to take part in a strike. This is as long as that strike is legal.

What Is A Lockout?

Like a strike, a lockout is a serious action that employers can take during bargaining against employees. However, like with strikes, lockouts are risky in that they almost always escalate tensions between employees and employers. They may also have serious economic and emotional impacts on employees and their families.

The legal definition of a lockout is when an employer either:

  • closes, suspends, or discontinues their business or a part of it;
  • break some or all of an employee’s employment agreements;
  • does not give employees work they would usually give them; or
  • suspends employees.

To be a lockout, these actions taken by the employer must be done to try to make their employees accept terms of employment or comply with their demands. Employers may also initiate a lockout on health and safety grounds.

When Are Strikes and Lockouts Lawful and When Are They Unlawful?

A key starting point is that strikes and lockouts can only be lawful if notice is given, following the required legal process. There are strict notice requirements for strikes and lockouts, which are designed to allow an opportunity for negotiation between the sides and to allow for contingency plans to be prepared. A strike or lockout is unlawful if it fails to give the required notice.

Before any strike or lockout action starts, the union(s) or employer must give written notice to the:

  • other party (either the employer or relevant union); and 
  • Chief Executive of the Ministry of Business, Innovation and Employment.

For both strikes and lockouts, the notice must:

  • be signed by a representative of the employer (for lockouts) or the union (for employees);
  • say how long it is before the strike or lockout starts (this is known as the period of notice);
  • say where it will happen; and
  • say the date and time it will start and end (or what event will end it).

Lawful Strikes

Employees can only lawfully strike or be locked out if they will be bound by the collective agreement being bargained for. In other words, employees can only strike or be locked out if they are represented by a union who is bargaining on their behalf. When that bargaining results in a strike or lockout, only those employees represented in that process can be involved.

In addition, employees cannot go on strike or be locked out if:

  • less than 40 days have passed since the bargaining was initiated;
  • it relates to a personal grievance;
  • it relates to a dispute; or
  • the right notice has not been given.

There are other relevant factors that determine whether a strike or lockout is legal, and these can change depending on the industry. 

For instance, for essential services such as hospitals and ambulances. Here, there are additional requirements to give extra notice when planning a strike or lockout.

For this reason, you should get specific legal advice if considering a strike or lockout.

Key Takeaways

Strikes and lockouts are tools used by parties in collective bargaining, in order to pressure the other side to agree to their demands or terms. Strikes involve employees stopping or limiting their work or breaking their employment agreement. Lockouts involve employers ‘locking out’ their employees from work by discontinuing their business to some extent, suspending employees, or when they stop giving their employees work. There are a range of legal considerations to think about with strikes and lockouts, particularly in terms of notice and which employees can be involved. You should get specific legal advice if your business is either facing a strike or considering a lockout. If you want to know more about strikes and lockouts, contact LegalVision’s New Zealand employment lawyers on 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

What is a strike?

Strikes involve employees stopping or limiting their work or breaking their employment agreement. They do not need to completely stop work in order for the action to be considered a strike.

What is a lockout?

Lockouts involve employers ‘locking out’ their employees from work by discontinuing their business to some extent, suspending employees, or when they stop giving their employees work.

Why do strikes and lockouts occur?

Both strikes and lockouts are tactical maneuvers aimed at getting the other side (either the employer or the group of employees) to agree to their demands or new terms of employment. They are high risk as they tend to escalate tensions between the parties and harm the relationship. They can also cause emotional and economic hardship to employees and their families. 

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