November 17, 2003
Herald agreement breaches law, says employment court
The Employment Court has found that part of the New Zealand Herald journalists’ collective agreement is inconsistent with the law, and therefore unenforceable.
In a decision likely to have ramifications for other agreements, the court has found that workers covered by a collective agreement cannot leave that agreement and sign an individual agreement without resigning from the union.
The case arose after Herald managers told two senior journalists that if they wanted pay rises, they would have to leave the collective. The journalists’ union, the Engineering, Printing and Manufacturing Union, complained to the Employment Relations Authority that the move was in breach of the good faith requirements of the Employment Relations Act.
But authority member Yvonne Oldfield said that there were serious questions about whether some parts of the collective agreement were legal, and she asked the Employment Court to rule on those questions before she would consider the case further.
In a ruling released today, a full bench of the court found that:
1. A worker covered by a collective agreement may
withdraw from that coverage by resigning from the
2. A clause in the NZ Herald journalists’ collective allowing people to leave the collective while remaining members of the union was inconsistent with the ERA.
3. The actions of workers who purported to withdraw from the collective by signing individual agreements or giving notice to the union and the employer were ineffective.
Union lawyer Tony Wilton said that the ruling meant that the only way a worker could leave a collective was by resigning from the union, and workers who had not were still covered by the collective.
The court also said that any move by the Herald to make a pay rise conditional upon a worker leaving the collective agreement would breach the ERA and International Labour Organisation conventions.
“Insistence upon salaried employees leaving the coverage of the collective agreement would fall down on a number of counts,” the court said.
“It would be inimical to promoting observance of the principles of ILO convention 87 on freedom of association. It would not promote collective bargaining. It would at least indirectly undermine the effect of s8 and 9 providing that membership of unions should be voluntary and prohibiting any arrangements that confer any preference on employees turning on whether the particular employee is or is not a member of a union.”
Mr Wilton said that the union welcomed the decision, which clarified an important aspect of the Employment Relations Act.
Meanwhile, the NZ Herald journalists’ collective agreement has expired, and bargaining is under way for a new agreement.