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Budget Day Action: The Rules Around Strikes

Employees risk disciplinary action if they strike without informing their employers, an employment lawyer says.

Te Pāti Māori is calling all Māori and tangata Tiriti to go on strike on Thursday - Budget Day - to protest the government's policies affecting Māori.

The prime minister said that would be illegal.

The word 'strike' had a particular meaning in the employment context, Dundas Street employment lawyer Megan Vant told Checkpoint.

"There are very limited circumstances under which employees can lawfully strike in New Zealand."

A concerted action by employees to walk off the job does meet the definition of a strike in employment law.

"But in order to be lawful, it has to either relate to collective bargaining, or be for a health and safety purpose. And your employer has to have been notified of that strike.

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"If all of these employees get together and they agree that they're going to walk off the job, then that meets the definition of a strike. But it is not a lawful strike, so it would be an unlawful strike."

Prime Minister Christopher Luxon said in this case striking would be inappropriate and illegal.

"People have a fundamental right to protest. So what if we called it a protest and didn't use the language of strike? Whether we call it a protest or a strike, not turning up to work without your employer's consent could still result in disciplinary action being taken against the employee," Vant said.

"So if you want to take part in a planned protest action, then request annual leave or leave without pay in advance. Once the employer has agreed to that request, off you go and you join the protest."

She said an employer could not decline a request over political opinion because that would count as discrimination.

Luxon on Tuesday said it was "wrong" for Te Pāti Māori to be advising people to take the day off work.

"Feel free to protest, that's what we have weekends for, but I just say to you: Te Pāti Māori, they're completely free to protest as they want - as long as it's legal and peaceable and lawful."

But Vant said the whole point of protests was to have an impact - which was most likely during the week.

"Protests absolutely can occur during the working week, but employees need to make sure they have their employer's permission to be absent during the protest.

"You could attend during your lunch break or you could take the day off with your employer's agreement on annual leave or leave without pay. I don't think we should suggest that protests should be confined to the weekend."

However, calling in sick to attend a protest could have disciplinary consequences, she said.

Those protesting should be mindful of the impact it could have on their employer because some are bound by codes of conduct.

It was a fine line, and that was usually considered by the courts, Vant said.

"The more senior you are, the closer that line is to whatever it is you might be doing. So, for a very senior public servant to be appearing on the front page with the placard is going to be more problematic than somebody more junior."

'Pragmatic' to work from home

Police are warning the hikoi, expected to start at 6.30am on Thursday, is likely to disrupt traffic and affect at least two dozen towns and cities, including Auckland, Hamilton, Palmerston North Wellington, Christchurch and Dunedin.

"We will be looking to minimise that disruption at every opportunity," assistant commissioner Mike Johnson said.

It would be "a pragmatic step" for people to work from home where possible, he said.

Police knew some of the routes the protesters would take.

"We're working proactively with the organisers. We don't have that information in every district at this stage."

Whether the protest action was unlawful would have to be decided on a case-by-case basis depending on the location and the effect it was having, he said.

To the organisers, he said: "Conduct a lawful protest, look to minimise disruption, and we'd be really keen for proactive engagement with the police in each district or in your location so that we can make it safe for all involved."

Fundamental right to protest

Union Public Service Association said all workers had the right to attend protest marches.

"There is no conflict with political neutrality obligations on public sector workers and their ability to exercise fundamental rights and freedoms like attending protest action," PSA national secretary Kerry Davies said.

She said the New Zealand Bill of Rights Act 1990 applied to public servants like everyone else.

"There is a proud history in New Zealand of protest and resistance and it is lawful and no directive from government can take away these fundamental rights," Davies said.

The PSA said workers were free to participate in protests in their own time.

"If you do attend protests, it's important you avoid making public comments that could be perceived as attempting to speak on behalf of your employer or share information you only have as a result of your role," it said in a statement.

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