FAQS

A collective agreement is the term used to describe a situation where a number of employees are party to an identical agreement—meaning they are bound by the same terms and conditions and are equally entitled to the same contractual rights. In New Zealand, collective agreements are recognised by the Employment Relations Act 2000 as binding and enforceable agreements. Collective agreements are classified by the configuration of the parties to them and come in two forms: either a multi-employer collective agreement (a “MECA”) or a single-employer collective agreement (a “SECA”).

As an employee, you will either be bound by an IEA (also known as an individual employment agreement, the parties to which are the single employee and the employer) or a collective agreement. There are a number of benefits attached to the collective nature of employment agreements—primarily, strength and safety in numbers.

The Labour Relations Act (1987) preceded the Employment Contracts Act (1991), which in turn was replaced by our current Employment Relations Act (2000).

Prior to the Employment Contracts Act, collective employment agreements (or their equivalent) were commonplace, and in the health sector were probably the primary form of employment agreement, or award, as they were then termed. Collective agreements in some form or another had been the predominant medium through which employment terms and conditions were negotiated for some 100 years, since the inception of New Zealand’s first industrial legislation, the Industrial Conciliation and Arbitration Act in 1894.

The first thing to understand is that collective agreements are not new. The Employment Contracts Act was a deviation from the norm in this sense; this Act prevented collective agreements and prohibited employees from striking in support of such a document.

Under the Employment Relations Act 2000, collective bargaining can occur only through a registered union such as APEX. Under this Act, a union can decide if they wish their collective agreement to cover one employer (i.e. a SECA) or more than one employer (i.e. a MECA). Currently, all APEX collective agreements are SECAs.

The strength of negotiating together to improve conditions for all cannot be ignored. A collective agreement also provides the opportunity to provide better career planning, to take an occupational class approach to our employment, and a national view on our training and conditions of employment. It is an opportunity to ensure that all members of a profession benefit and are protected.

A decision on whether a collective agreement will be negotiated is first made by a ballot of union members. All members of a union who are covered by the intended coverage clause of the collective agreement have the opportunity to be involved in the ballot. Each group of employees employed by any one employer votes on whether their employer should be involved in the collective agreement. Once this is completed, the Union will initiate bargaining with those employers for whom the employees have voted to include in the collective agreement.

You can view all of our current APEX collective agreements here.

As an overall rule, we support the right of employees to take industrial action (strike) in support of their negotiations. Both the decision to take strike action, as well as what are acceptable terms and conditions, are important ones that come with great responsibility. As those of our membership who have had to face these decisions know, it is not for us to second judge the nurses’ decisions: both the decision and the responsibility is theirs. The right of any employees to make these decisions, however, should be supported.

First, the Code of Good Faith for the Public Health Sector provides for the Union (NZNO) and Te Whatu Ora to provide sufficient cover for “life and limb preserving services” or LPS as they are known. So ahead of the strike, NZNO and Te Whatu Ora will have sorted this out. As a result no one should be concerned that the absence of nurses will put patient’s lives at risk.

Second, Section 97(3) of the Employment Relations Act 2000 provides that any non-striking worker has to agree to do the work of a striking worker – or put another way, you cannot be required to perform the duties of a striking nurse. It is our advice to you that you do not. If you are approached by a manager in this regard, we suggest you say, “no thank you” and if they persist, ask them to commit their request to writing and refer it to us. We will be writing to the employer formally to inform them of our advice to you, so fear not, they will know – albeit this probably won’t stop a few asking anyway!

What if you normally do the work of nurses. If the work you are asked to perform is your normal work, then yes you have to do it. But you do not have to do more than you would normally do, including changing rostered shifts. Some examples:

• Renal physiologists often work side by side with nurses performing the same work in a dialysis unit. It is therefore the renal physiologist’s normal duties to supervise a renal dialysis patient.
• In pharmacy, medications are not normally delivered direct to individual ward patients, therefore this would not be “normal work”, and could not be required of you.

And before you think “but what else can they do”, it is amazing what can be done at times like this. Remember that the hospital will be shut down to minimal work only, and all those nurse managers will have been credentialed to work! Medications can be contracted to a retail pharmacy to blister pack in anticipation of a strike etc.

If you have leave approved (in writing) or are on study leave, the employer cannot revoke your leave because of the strike. Any such suggestions, refer to us to respond to.

A delegate is an APEX member who has volunteered (or been nominated) and is supported by other APEX members to lead and represent them in the workplace.

Find your delegates here. 

In terms of technical ability, a good delegate will have the following skills:

• A good understanding of their employment contract;
• A good understanding of employee and union rights in the workplace;
• The ability to effectively solve issues with payroll and HR;
• The ability to facilitate productive discussion between colleagues;
• Strong problem-solving and negotiation skills; and
• Strong communication skills, including knowing where/who to speak to when they are asked questions by members that they do not know the answer to.

APEX provides new delegates with the resources and training necessary to develop these skills. At their essence, however, a good delegate will be someone who understands the importance of collective action and has the determination to lead others in their field. A good delegate will be passionate about promoting the employment rights of APEX members, approaching their concerns with empathy and understanding, and taking a stand against workplace injustices.

APEX works hard to ensure that our delegates are provided with all the resources and training necessary to engage with members in a meaningful and productive manner. New delegates are sent a welcome pack which provides them with all the basic information they need to carry out their role. APEX also regularly hosts ‘new delegate training’ events. These provide new delegates with further guidance and gives them a forum where they can share and learn from other new delegates from the various Allied Scientific workforces APEX represents throughout New Zealand.

APEX also regularly hosts ‘delegate training’ and ‘advanced delegate training’ events to:

• • inform delegates of new reforms in the workplace and how they will affect employees;
  • provide guidance on how delegates should navigate common issues and conduct themselves in the workplace (e.g. how to engage with employers, how to speak to the media);
  • advise on how to effectively recruit new members; and
  • direct delegates to other helpful resources.

Delegate training, which is open for all delegates to attend, takes place in Auckland annually and is held for a period of two days. Advanced delegate training events, which aim at our more experienced delegates, take place on an as required basis.

Our team at the APEX office are always happy to provide further guidance and resources to delegates who contact us.

The Employment Relations Act 2000 provides various legal protections over APEX delegates. Delegates have an overarching right—and responsibility—to represent our members in relation to the following issues:

• • Any matter which involves members’ collective employment interests;
  • Any matter which involves members’ individual employment issues; and
  • The negotiation of collective employment agreements.

Delegates also have various other rights, including:

• • The right to access members’ workplaces where reasonable;
  • The right to attend union meetings (of up to two hours each) every year;
  • The right to engage in workplace discussions with APEX; and
  • The right to be granted Employment Relations Education Leave by their employer so that they may attend delegate training events.

Delegates are entitled to carry out all union work during their normal work hours (or otherwise be compensated for work outside of these hours), and employers must continue to pay delegates their ordinary salary. In the course of their work, APEX delegates also have an ongoing responsibility to make themselves available to members. They must be open to providing members with assistance and clarification as needed, as they will generally be the first point-of-call for members in their workplace.

Delegates have an overarching duty to engage with members on behalf of APEX and provide APEX with an understanding of members’ collective view. More specifically, delegates engage in the following duties and tasks:

• • Facilitating union meetings with members;
  • Representing members in collective bargaining;
  • Keeping members informed on new developments;
  • Providing guidance and support to members;
  • Resolving immediate issues in the workplace; and
  • Attending delegate training events and meetings with APEX.

Delegates are the communication link between APEX and their members as they provide APEX with valuable insight into each profession they represent and what is happening “on the ground” in the workplace. This informs the decisions APEX makes as delegates provide information on issues that have arisen and require attention.

Delegates are highly valued members of APEX; we cannot function without the help of our delegates.

APEX does not engage in collective bargaining negotiations without a delegate in the room. Delegates have the primary role of acting as a voice for members during bargaining. They offer insight into the collective perspective and ultimately act as a representation of members’ common feelings and concerns in relation to their employment agreements.

Delegates must also be involved as they provide transparency to their members of interactions; they also ensure that employers cannot misrepresent the workplace during bargaining as they are able to refute false information with their own experiences in the workplace. Delegates are also there to provide information and clarification on complex points to APEX advocates and their employer.

The time it takes to be a delegate will largely vary depending on how involved you wish to be. At the lower end, a delegate’s role will mainly revolve around facilitating members meetings, sharing updates with members, and offering assistance to members who have queries or concerns in relation to their employment agreement. As previously mentioned, delegates have the right to carry out—and be compensated for—their union work during their hours of employment, so the delegate role does not impact on personal time.

If delegates wish to get more involved, however, APEX offers the opportunity for delegates to expand their role and represent members at a national or regional level. Delegates may also elect to be part of APEX’s governing body, the National Executive. While these positions require delegates to devote more time to their role, they are extremely fulfilling and offer delegates the opportunity to be the leaders of positive change in their profession.

As the link between members and APEX, delegates regularly meet with APEX to provide any information we need in relation to our members. APEX may also instruct delegates to hold meetings with members for the purpose of gathering a consensus on information to be sent back to the APEX office.

The relationship between APEX and delegates is very much reciprocal as APEX also provides delegates with ongoing support and guidance as needed.

Delegates are encouraged to run meetings on an “issues” basis, rather than a “regular” basis. This means that meetings should be held as issues occur, rather than set at a specified frequency every month. During the collective bargaining process, members’ meeting often occur at a more frequent rate as they are necessary for getting members’ views and communicating bargaining updates back to them.

Outside of these meetings, delegates ensure that members in their workplace are always updated on new developments which will directly affect them. These communications occur as they come.

Delegates may stay in the role for as long as they wish—there is no time limit.

Facilitation is a procedure provided for in the Employment Relations Act 2000, which provides for the Employment Relations Authority to become involved in collective bargaining processes and make recommendations.

The purpose of facilitation is to enable parties having ‘serious difficulties’ concluding a collective agreement to seek the assistance of the Employment Relations Authority.

The Employment Relations Authority or ERA is the tribunal, which operates in a mostly informal way to resolve employment relationship problems.

Usually, the first step resolving employment problems is mediation – a confidential, impartial, voluntary service provided by the government to help parties resolve issues and disputes. Ordinarily, the next step if mediation is unsuccessful to resolve a problem like an unfair dismissal, unpaid wages or breach of good faith, is an investigation of the ERA.

ERA Members are the experts appointed by the government to investigate and decide on employment problems and challenges.

Facilitation is used when parties are having “serious difficulties” concluding a collective agreement. This typically looks like an impasse, between parties positions, most often around remuneration or salaries.

If a party or parties applies for facilitation it can be granted because of a breach good faith, unduly protracted bargaining, protracted or acrimonious strikes/lockouts, or someone has proposed strikes/kickouts which would likely affect the public interest substantially.

Sometimes parties will disagree on whether facilitation should occur, in which case the ERA will make a decision on whether they think these grounds have been met or not.

If parties are referred to facilitation then an ERA member is allocated the bargaining, and will then work with the parties to set up dates and locations for bargaining, and to clarify the key issues ahead of the bargaining.

Facilitation can involve the ERA meeting with both parties together, or meeting with parties separately or a combination of both.

Parties must deal with the ERA in good faith, which means they cannot mislead or deceive the ERA or the other party, and should work actively and constructively to conclude a collective agreement.

Unfortunately very little. Facilitation occurs in private, and any public statements we make are limited only to the process of facilitation. Updates to members during facilitation are typically brief and limited to how things are progressing.

If a settlement is reached at facilitation, then that will be presented to members to vote on. If no settlement is reached, the ERA may make a recommendation.

A recommendation may be given to the parties or publicly, to help the parties achieve settlement. Frequently a public recommendation is the ERA giving a view on what they think the parties should agree to in the collective agreement.

Both parties must give thoughtful and sincere consideration to any recommendation the ERA makes, although a recommendation is not binding.

Facilitation can be very helpful when bargaining is at a stalemate. Although the ERA is not deciding terms and conditions, they can help push parties together to see a settlement they would not otherwise be able to see. They can add a dollop of reasonableness and focus into the mix when bargaining may be lacking these qualities. They can help parties to clarify issues, and to communicate more clearly and effectively with each other.

Parties being in facilitation does not prevent them from taking or continuing industrial action. Sometimes we will consider it helpful to pause strike action during facilitation, but sometimes not. Parties will also often continue direct negotations to attempt to resolve the bargaining, parallel to a facilitation process.

‘Collective bargaining’ is the process of negotiation that occurs between one or more employers and APEX to decide on the minimum terms that will be included in a proposed collective employment agreement. This bargaining process encompasses all aspects of an employment agreement—from salary, hours of work, and leave entitlements to general health and safety in the workplace and working conditions. Collective bargaining is crucial to the formation and renewal of collective employment agreements as it allows APEX advocates and elected delegates to raise issues on behalf of members and advocate for better terms and conditions in the workplace.

APEX ensures that the members affected by a proposed collective agreement sit at the heart of all decisions made. Prior to the collective bargaining process, APEX meets with or canvases the affected members to gauge their concerns and determine the issues that will inform claims raised in bargaining. Issues which have arisen over the term of the last agreement, or technical changes necessary will also be added to the list of claims. At the end of the bargaining, once the terms of the agreement have been settled and an offer has been made, this is sent to members to review and discuss. APEX or the elected delegates may then hold a meeting with members to answer any questions on the proposed agreement and ensure that they have a clear understanding of its terms. Finally, APEX sends out a secret ballot to the affected members, and the agreement is only ratified if 50% + 1 of those members affected vote in favour.

A bargaining process agreement (BPA) is a preliminary contract between the parties to a collective bargaining process which sets out their expectations. This document covers every aspect of the bargaining process, including details such as:

• who will be involved in each stage;
• obligations for the parties to act in good faith;
• information sharing and confidentiality;
• timeframes;
• how delegates will be paid for their attendance to bargaining meetings; and
• in the case of healthcare, who will be the gatekeeper and clinical expert should a strike occur—these positions are necessary to determine the legitimacy of requests for striking members to provide labour during a strike.

Ultimately, a bargaining process agreement ensures that the collective bargaining process is carried out in an efficient and orderly manner.

Claims are formal proposals put forth by APEX and the employer in the collective bargaining process which set out what each party wants to be included in the proposed collective agreement. Claims relate to specific terms in the agreement, for example, a claim may be made for: an increase in pay, an increase in leave entitlements, or a requirement for employees to attend conferences.

Counter-claims are reformulations or responses to claims made by the other party, tabled after the original claim has been raised. Counter-claims are rare and may be raised by a party seeking to delay or disrupt a bargaining process.

During their bargaining meetings which can be one day, two days or half a day APEX and the employer’s bargaining teams meet either in person or Zoom to discuss claims and work through to resolution. Bargaining teams for employers will usually include a mix of HR and service managers and professional leaders. Union teams are a number of advocates, and a representative batch of delegates.

Usually bargaining begins with a round of introductions, opening statements, parties reading through their claims and then the other party asking questions or raising points of clarification. Typically, union parties go first, as they have initiated bargaining. After a break for the teams to consider the other party’s position in private, the parties will then give an initial response to claims. The initial response will signal to the other party claims which are agreeable, claims which are not agreeable, and claims which may need further work before being agreed.

Financial claims may need to be “costed” by the employer, to figure out the impact on budgets and finances. And employer claims may need to be sent to union members to consider their impact. Written documents and information may also be shared during these meetings.

The parties will then continue meet and work through the claims and as they do, start recording agreements on claims. This document will then form an agreed set of terms which will change, and once each party is satisfied with this document, it will be the basis of a terms of settlement and new proposed collective agreement.

Generally, both parties will take detailed notes of what is being said, however there may also be what are called “short line outs” between the lead advocates of both sides, to sound each other out on different proposals or in order to speak more frankly or efficiently than what can be said across the table.

All parties have a legal obligation to act in good faith throughout the collective bargaining process. This means that they must genuinely consider each claim put forth and provide sufficient reasoning for any counter-claims, or refusals to accept the claim.

At some point after bargaining has occurred, APEX and the employer may put forward an offer which either the other party accepts or puts forward a counter-offer to. An offer is a complete set of proposed terms and conditions of a collective agreement. The offer will include the term of the proposed collective agreement, (when it will expire), which cannot be more than three years from when it begins. Formal offers may be put out to members to vote on either indicatively or in a ratification ballot. An employer may label something a “final offer” or a “full and final offer” to induce or pressure employees into believing they will not further improve their bargaining position.

Once the bargaining process has concluded and APEX and the employer bargaining teams have agreed on the terms to be included in the collective agreement, they both sign a ‘terms of settlement’ agreement and finalised the new proposed collective agreement. The terms of settlement is basically a summary of the changes in terms and conditions of the contract, as well as their effective dates. The terms of settlement may also include other agreements reached at the bargaining table, which will not go into the final proposed collective agreement, for example lump sum payments.

Before an offer for settlement can become a binding collective agreement, the affected employees must ratify the offer through APEX’s ratification process of secret ballot voting. Before voting begins all union members covered by the proposed agreement must be provided with a copy of the collective agreement they will be voting on. APEX or delegates may also hold meetings with the affected members to further explain the terms and conditions to be included in the collective agreement, as well as answering any questions they may have. APEX will then send a secret ballot via SurveyMonkey to be voted on by the members, and the collective agreement is ratified if 50% + 1 of all affected members who vote, vote in favour of ratifying the agreement. After ratification the agreement will then be signed by representatives of both parties.

Once a collective agreement is ratified and signed, it comes into effect and the rights contained within the agreement are fully enforceable by APEX and the employer. Any changes to remuneration will be applied by payroll from the effective dates and employer’s may develop an implementation plan to ensure operational issues are resolved or modified by the new contract in a consistent manner.

If you are an APEX member and are concerned your contract has not been implemented, either in part of full, please do not hesitate to contact your local delegate or APEX office on ask@apex.org.nz or (09) 526 0280.

The collective bargaining process may be overseen by a mediator from the Government’s Employment Mediation Services at any stage of the process but typically when bargaining has either broken down, reached an impasse or if strike action has been notified. Mediation is voluntary and not confidential during collective bargaining. Mediation may assist the parties in working through any differences or at least clarifying what issues are dealbreakers or critical to resolution. Mediators also allow “shuttle diplomacy”, whereby bargaining teams are separate and the mediator works between the parties to bridge a gap.

A strike or strike action is essentially a refusal to work which has been organised by a union in support of negotiations for a collective employment agreement. Strikes are legal acts and are protected by law.

We have to give at least 14 clear days notice.

For an employer representative to approach, email or attempt to engage in conversation a union member about strikes or any aspect of the collective bargaining, is illegal at law – termed bypassing and is deemed to not be acting in good faith (hence is an illegal act). If faced with this scenario, you should advise them that you do not wish to discuss the matter, refer them directly to us and let us know!

No. Strike action is a right you have as an employee under the law. You cannot be penalised in any manner for taking such action.

You do not get paid when you are on strike because technically you are suspended. The suspension continues until the end of the strike. On resumption of work, your service must be treated as continuous and your pay will recommence.

But “be warned”; DHBs in the past have tried issuing legalistic looking (even threatening) suspension notices to employees going on strike. They don’t have to issue a suspension notice as the automatic effect of being suspended during a strike is provided for at law. They do it to try and upset employees – so if you get one of these, don’t panic, just email it through so we can take a look at it and advise you further as necessary.

You cannot be required to undertake anything, but your normal duties nor can you be required to undermine your own strike. Refer any such requests to APEX.

Great care is taken to ensure that patients are not put at risk during a strike; the law provides that it is the responsibility of the employer to provide for the patients. The employer is also required to contingency plan and reduce all non-urgent services – such as postponing elective surgeries, during the strike period. Non-members have to work, however if the employer believes assistance from APEX members is required to provide life or limb preserving services (also known as LPS) they can request such from us (but not an individual employee).

This is a legally prescribed process. As above, if your employer believes they need the assistance of RDA members to provide LPS then they can make a request of APEX (but not an individual employee). If cover by members under LPS is agreed, you WILL know if you are to work during the strike or not, because APEX will have informed you. If you get approached by your employer but have NOT heard from us, give us a call!

Not necessarily. This will depend on what has been arranged during the LPS process.

Yes. Study leave/conference leave/CME leave whatever you call it is considered work at law and if you are working then you will continue to be paid. Exam candidates on study leave please take note!

You are in luck because you would not be getting paid for those days anyway.

As far as you like. However, if a strike is called off once it has started you have to return to work as soon as practicably reasonable.

Yes, but this is unusual. If this does happen, only the advice of the union (over and above any media statement or other advice) to return to work should be heeded.

All members of the APEX (including locums and casuals) who are covered by the collective are entitled to strike.

No one wants to strike. Collective action is one option that employees may choose to undertake when seeking to gain collective benefit. Decisions on strike action are made collectively through the democratic process of voting. If we want the benefits of the collective, we must support it.

Note that the only employees who can lawfully strike are those who will be bound by the collective agreement being bargained for i.e. are members of APEX covered by the MECA.

A lockout is an employer’s strike. It is done with a view to compelling employees to accept certain terms of employment or to comply with other demands made by your employer. Whilst there has been one lockout in Health, it did not last long and did not go well for the employers as you can probably imagine!

No. The best advice to give is to have a think about what might be needed (e.g. mortgage, holiday) in advance and if necessary, put something aside now.

Yes of course. Here are some suggestions; catch up on some study, complete a paper or presentation, spend quality time with friends and family (quality of work life-balance improves performance at work), do some volunteer work for a charity or quite frankly get some rest!