|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
“Green Industrial Action”: Examining Workers’ Right to Strike for Climate Change in New Zealand
Nina Dally
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago, Dunedin, New Zealand - Te Whare Wānanga o Ōtākou
7 October 2022
Acknowledgments
To my supervisor, Dr Dawn Duncan, for your thoughtful guidance and feedback this year. You are a wealth of knowledge and I’m grateful you shared some of it with me.
To Mum and Dad, for never pressuring me to work hard but making me want to in return for your love and patience. It’s a special feeling to know that you will be proud no matter what. Extra mention to Mum for the stressed phone calls and care packages!
To Ella, for being my first role model.
To my grandparents, for your endless generosity and support.
To the Pavilion and Whitehouse girls, for all the laughs and late nights that made my time in Dunedin so wonderful. You lot are the type of friends that become family.
To Summer and Avia, for always being by my side during law school to tackle the workload. I’m excited to level up to Shortland St next year!
Writing this dissertation has sparked an enthusiasm for employment law which I hope will continue into the future. Thank you all for being a part of my journey.
Table of Contents
Introduction
Our current economic model is not only waging war on workers, on communities, on public services and social safety nets. It’s waging war on the life support systems of the planet itself. ... We have to stop running away from the climate crisis, stop leaving it to the environmentalist, and look at it.1
Climate change is among the defining challenges of our time. Human activities have already caused 1.0°C of global warming above pre-industrial levels. This will likely reach 1.5°C between 2030 and 2052 if warming continues at the current rate.2 Climate-related hazards in New Zealand are projected to include sea level rise, higher mean temperatures, reduced snow cover and changes to the frequency of flooding and drought events.3
The Paris Agreement is a binding international treaty that was adopted at the 2015 United Nations Climate Change Conference. It aims to limit warming below 2.0°C above pre- industrial levels to reduce the likelihood of catastrophic and irreversible climate change.4 New Zealand is one of 195 signatories to the Agreement. There is an emerging consensus that addressing climate change in this manner requires at least a 50% reduction in greenhouse gas (“GHG”) emissions by 2050.5 The economy must therefore restructure to decrease its environmental pressures and advance toward sustainability.6
Economic transformation will have implications for workers and labour markets. Despite this, the employment aspects of climate change have received little attention. Debates led by the Intergovernmental Panel on Climate Change (“IPCC”) largely focus on the impact of global warming on poverty eradication and other development goals.7 Labour law scholars must take note of the challenges and opportunities arising from large-scale interference in work,
1 Naomi Klein “Overcoming ‘Overburden’: The Climate Crisis and a Unified Left Agenda. Why Unions Need to Join the Climate Fight” (UNIFOR Founding Convention, Toronto, 1 September 2013).
2 Intergovernmental Panel on Climate Change Summary for Policymakers of IPCC Special Report on Global Warming of 1.5°C (8 October 2018) at A.1.
3 Ministry for the Environment “Arotakenga Huringa Āhuarangi: A Framework for the National Climate Change Risk Assessment for Aotearoa New Zealand” (September 2019) at 44-46.
4 Paris Agreement (opened for signature 22 April 2016, entered into force 4 November 2016), art 2.1(a).
5 Samuel Fankhaeser, Friedel Sehlleier and Nicholas Stern “Climate Change, Innovation and Jobs” (2008) 8(4) Climate Policy 421 at 421.
6 Guillermo Montt, Federico Fraga and Marek Harsdorff The Future of Work in a Changing Natural Environment: Climate Change, Degradation and Sustainability (ILO Research Paper Series, International Labour Office, 2018) at 13.
7 Anabella Rosemberg “Building a Just Transition: The Linkages Between Climate Change and Employment” (2010) 2(2) Int J Lab Res 125 at 128.
particularly as future legal and policy developments on climate change cause industrial disputes. To address this gap, this dissertation examines the intersection of climate change with workplace relations and collective labour law in New Zealand. Particular focus is given to the right to strike as currently exists in New Zealand’s employment legislation and the principles of the International Labour Organisation (“ILO”).
Chapter I discusses the impacts of climate change on the world of work. It considers the need for a “just transition” to a green economy to enhance adaptive capacity and reduce vulnerability to these impacts. The role of trade unions as environmental actors to assist this transition is explained. Once strike action as a tool to mobilise workers is introduced, Chapter II outlines strike law under the Employment Relations Act 2000 (“ER Act”) and points to its deficiency in an international context. Next, Chapter III explains the importance of strike action based on international labour and human rights norms. Analysis in these chapters indicates that “green industrial action” is a valuable mechanism for unionised workers to defend their collective interests in the climate crisis. As such, this dissertation argues that working people need stronger rights to strike in New Zealand. It holds that without further strengthening, unions lack the proper means to advocate for their members’ economic and social welfare.
Chapter IV assesses the scope of collective employment rights for workers to bring attention to climate change under the existing legal machinery. It then canvasses three possible avenues to improve New Zealand’s labour law in this field. These include ratifying the ILO Convention 87 on Freedom of Association; re-appraising the judiciary’s approach in light of progressive Canadian and European jurisprudence on the right to strike; and amending the ER Act to extend the lawful code for strike action. It concludes that while overseas jurisprudence provides helpful lessons for New Zealand, legislative reform is needed.
Chapter I Climate Change and the World of Work
A Employment Impacts of Climate Change
The world of work is intrinsically linked to the natural environment:8
Humanity’s influence on the Earth system, which has been accelerating since the 1950s, has led to unprecedented rates of biodiversity loss, the emission of novel entities, damage to the ozone layer, soil degradation and changes to global biogeochemical flows, and has altered the Earth system on a worldwide, and in certain cases irreversible, scale. Environmental damage is a feature of our present. Its likely continuation will define our future and, in particular, the future of work.
There are two aspects to consider in the linkages between climate change and the world of work. Firstly, climate change is directly shaping the labour process. Current trends of environmental degradation will impact jobs, productivity and working conditions if they continue unabated.9 Workers’ livelihoods in various economic sectors will be undermined. Secondly, climate change necessitates industrial transformation. Advancing toward a sustainable and low-carbon economy has the potential to create net employment.10 As the sectors most affected by emissions reductions are phased out, others will emerge causing jobs to be substituted or redefined.11 Part A explores these aspects in turn.
1 The Labour Process
Climate change has already caused job and productivity losses, which are expected to worsen in the coming decades.12 Two types of jobs will experience direct negative effects: (1) jobs that rely on the provision of ecosystem services; and (2) jobs that rely on the absence of environmental hazards for safe working conditions.13 As such, the sectoral composition of a
8 Montt, Fraga and Harsdorff, above n 6, at 1.
9 At 31.
10 At 13.
11 Rosemberg, above n 7, at 135.
12 International Labour Organisation The Employment Impact of Climate Change Adaptation. Input Document for the G20 Climate Sustainability Working Group (International Labour Office, August 2018) at 11.
13 At 14.
nation’s economy is a key determinant of employment outcomes in the ongoing climate crisis.14 The Ministry for the Environment’s first National Climate Change Risk Assessment aimed to improve stakeholders’ understanding of Aotearoa's specific climate risks.15 It considered interrelated risks to ecosystems, physical assets, infrastructure, the economy and society in a framework underpinned by Te Ao Māori and engagement principles.16
Firstly, climate change endangers ecosystem services that are vital to individuals and societies, including water purification, pollination of crops, agricultural pest control and storm protection.17 In 2014, approximately 1.2 billion jobs were sustained by industries that heavily rely on ecosystem services and climate-sensitive resources.18 Such industries include agriculture, forestry, fisheries, food, drink and tobacco, pharmaceuticals and wood and paper.19 For example, increasing temperatures and rainfall patterns affect irrigation and soil renewal, both of which are crucial to dryland farming. Changing ocean biodiversity and acidification modify fishery cycles and the predictability of stocks.20
The share of employment dependent on ecosystem services varies across G20 countries but is highest in the Asia-Pacific region. New Zealand’s unusual sectoral profile means that agriculture, forestry and fisheries are crucial to national and local economies. Rural employment in Canterbury and Otago will be impacted by biophysical changes, especially seasonal jobs of harvesting and crop processing.21 Measures to mitigate and adapt to the impacts of climate change are crucial to protect jobs and economic activity in the primary sectors. For instance, agricultural policies could expand non-farming activities and use crops that are resilient to variable weather conditions to maintain yields.22
Secondly, the availability of decent working conditions is inhibited by climate hazards. More frequent extreme weather events will slow down economic activity by damaging capital stock
14 International Labour Organisation Sustainable Development, Decent Work and Green Jobs (International Labour Office, 2018) at 21.
15 Ministry for the Environment, above n 3, at 7.
16 At 20.
17 ILO, above n 12, at 13.
18 Montt, Fraga and Harsdorff, above n 6, at 7.
19 ILO, above n 12, at 17.
20 Montt, Fraga and Harsdorff, above n 6, at 7.
21 Debbie Hopkins, Colin Campbell-Hunt, Lynette Carter, James E. S. Higham and Chris Rosin “Climate Change and Aotearoa New Zealand” (2015) 6 WIREs Clim Change 559 at 559.
22 Rosemberg, above n 7, at 133.
and infrastructure.23 The ILO estimated 23 million working-life years were lost annually between 2000 and 2015 due to climate-related disasters like cyclones.24 Vulnerable regions will be rendered entirely unproductive due to high sensitivity to hazards and limited adaptive capacity.25 This may induce migration in search of work and the proliferation of informal economies.26 Transport and tourism will be particularly affected by extreme weather events, given their activities are closely tied to the natural environment.27 The tourism sector could employ policies that develop different leisure activities or promote economic diversification to reduce adverse effects on its workers.28
Rising temperatures increase the risk of occupational harm and workplace injuries for over four billion people who live in hot areas globally.29 Heat stress will be the most pertinent effect. Assuming a global temperature increase of 1.5°C by the end of the century, 2% of total working hours, equivalent to 72 million full-time jobs, will be lost from heat stress.30 Workers must spend more working hours resting or cooling down to maintain a safe core body temperature. Labour productivity will be disproportionately impacted at three levels: (1) countries that are most exposed to extreme heat, including India and Indonesia; (2) sectors that rely on outside and daytime work, such as construction and agriculture; and (3) workplaces where insufficient adaptation measures are taken, like protective equipment and cooling systems.31
The European Trade Union Confederation (“ETUC”) found that Europe’s greatest job losses before 2050 will occur in retail, manufacturing, public utilities and business services.32 Although primary industries are intrinsically linked to the natural environment and suffer direct climate impacts, they do not evolve in a vacuum. Other sectors depend on their capacity to supply inputs, so there will be strong spill-over effects via downstream intersectoral linkages.33 For example, reduced wood production in forestry affects manufacturing, paper production,
23 ILO, above n 12, at 14.
24 At 14.
25 Ministry for the Environment, above n 3, at 64-65.
26 At 14.
27 Hopkins, Campbell-Hunt, Carter, Higham and Rosin, above n 21, at 573.
28 Rosemberg, above n 7, at 133.
29 Montt, Fraga and Harsdorff, above n 6, at 9.
30 At 9.
31 ILO, above n 12, at 15-16.
32 Syndicat European Trade Union Confederation A Guide for Trade Unions. Adaptation to Climate Change and the World of Work (2020) at 14.
33 At 14.
publishing and media.34 This highlights the importance of undertaking employment-related mitigation and adaptation throughout the entire economy. Measures include the adoption of resilient practices, protection and restoration of natural infrastructure, projects focusing on built infrastructure, capacity-building activities and financial support.35
2 Industrial Transformation
Scientific evidence shows that a business-as-usual scenario (“BAU”) will triple annual resource extraction by 2050.36 In the context of global consensus to limit warming to 2°C, energy-intensive sectors must undergo substantial changes. This will be difficult because economic activity is coupled with the use of natural resources and fossil fuels.37 Natural resource rents account for the largest shares of national GDP in Arab and African states, reaching 21% and 7.1% in 2015.38 Jobs are dependent on continuous GHG emissions due to the significance of oil and mining industries. Severe employment losses will be concentrated in crude petroleum extraction, petroleum refining, coal mining and electricity production by coal, ranging from 0.7 million to 1.6 million per industry.39 Job cuts will not be automatic, but occur from declining demand consequent to a lack of investment, stringent environmental regulation and competition from lower-emission energy sources.40 Loss of livelihoods from the downsizing of highly polluting activities may be a source of industrial conflict.41
Climate adaptation can cause net employment gains by creating “green jobs” and greening some existing jobs.42 The IPCC identified four major sources of GHG emissions between 2010 and 2019: energy supply (34%); industry (24%); agriculture, forestry and land use (22%); and transport (15%).43 These sectors will transition into a low-carbon future and provide new employment opportunities. Green jobs are defined as “those economic activities whose primary purpose is to reduce or eliminate pressures on the environment or to make more efficient use
34 ETUC, above n 32, at 14.
35 ILO, above n 12, at 12.
36 ILO, above n 14, at 8.
37 Montt, Fraga and Harsdorff, above n 6, at 5.
38 At 5.
39 At 17.
40 Rosemberg, above n 7, at 134.
41 Caleb Goods “Climate Change and Employment Relations” (2017) 59(5) JIR 670 at 671.
42 United Nations Environment Programme Green Jobs: Towards Decent Work in a Sustainable, Low-Carbon World (UNEP/ILO/IOE/ITUC, September 2008) at 277.
43 Intergovernmental Panel on Climate Change Summary for Policymakers of Working Group III Contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (2022) at B.2.1.
of natural resources”.44 Changes in the energy sector are likely to lead the green transition.45 Long-term dynamic innovation could also trigger new investment and job opportunities in engineering, climate change consultancy and low-carbon research and development.46
A shift in the energy matrix from fossil fuels to renewable sources implies a fundamental reallocation of labour within the market. Workers at offshore oil rigs and coal-fired power plants that are decommissioned may be redeployed to renewable energy stations.47 The shift will also activate changing demands for efficient inputs in industrial sectors like heating and electricity generation. For example, demands for rotor blades for wind turbines and silicone for solar panels will replace those for polluting equipment.48 Decarbonising the energy sector in this way will create 18 million net jobs globally.49 In New Zealand, the Ministry of Business, Innovation and Employment (“MBIE”) projected an increase of 410,000 jobs between 2014 and 2024 due to industry change, mostly among higher-skilled occupations.50 However, there are associated concerns. Matching workers with new jobs in the renewables industry takes time, especially if they require different skills to conventional fossil fuel production.51 While renewable technologies produce jobs during installation, labour intensity often decreases once the power station is fully exploited.52 Emerging evidence suggests that new green jobs have inferior wages, conditions and collective rights.53 These types of concerns should be addressed by trade unions as environmental actors.
Overall, New Zealand’s future labour market must be decoupled from resource extraction and restructured based on sustainable principles. Impacts are categorised as job elimination, job creation, job substitution and the transformation and redefinition of existing jobs.54 All sectors
44 Béla Galgoczi “The Changing Role of Trade Unions in the Sustainable Development Agenda” (2014) 24(1) Int Rev Sociol 59 at 62.
45 Montt, Fraga and Harsdorff, above n 6, at 15.
46 Fankhaeser, Sehlleier and Stern, above n 5, at 426-427.
47 Rosemberg, above n 7, at 135.
48 Fankhaeser, Sehlleier and Stern, above n 5, at 424.
49 At 15.
50 New Zealand Council of Trade Unions Just Transition – A Working People’s Response to Climate Change
(October 2017) at 13.
51 Fankhaeser, Sehlleier and Stern, above n 5, at 424.
52 Miguel Esteban and David Leary “Current Developments and Future Prospects of Offshore Wind and Ocean Energy” (2012) 90 Applied Energy 128 at 133.
53 Helen Masterman-Smith “Green Collaring a Capital Crisis?” (2010) 20(3) Labour & Industry 317 at 318;
Goods, above n 41, at 671.
54 Rosemberg, above n 7, at 134-135.
will be affected due to economic linkages across supply chains and borders.55 Workers need to be protected during this industrial transformation.
B The Need for a Just Transition Response 1 Conceptual Origins
A fundamental challenge for the world of work is how to protect workers in industries that suffer or disappear because of climate change. The projected impacts of environmental degradation on working conditions and the redundancy or realignment of jobs is likely to cause industrial conflict. Trade unions and governments have responded that workers will undergo a “just transition” towards an environmentally sustainable economy.56 The International Trade Union Confederation (“ITUC”) stated:57
Just transition is a tool the trade union movement shares with the international community, aimed at smoothing the shift towards a more sustainable society and providing hope for the capacity of a “green economy” to sustain decent jobs and livelihoods for all.
“Just transition” originates from the work of United States unions during the 1960s. It was included in financial demands for workers displaced by the closure of hazardous production facilities but later expanded beyond chemical sectors.58 This was aided by the trade union movement’s visibility in global environmental negotiations from the 1990s to advocate for the social pillar of sustainable development.59 In 1998, Brian Kohler (a Canadian union activist) described just transition as an attempt to reconcile the need to provide decent jobs and protect the environment.60 The ITUC gained success when just transition was included in the Paris Agreement.61 It requires the Parties to take into account “the imperatives of a just transition of the workforce and the creation of decent work and quality jobs in accordance with nationally
55 Montt, Fraga and Harsdorff, above n 6, at 25.
56 Goods, above n 41, at 671.
57 Rosemberg, above n 7, at 141.
58 Béla Galgoczi “Just Transition On the Ground: Challenges and Opportunities for Social Dialogue” (2020) 26(4) Eur J Ind Rel 367 at 369.
59 Dimitris Stevis and Romain Felli “Global Labour Unions and Just Transition to a Green Economy” (2015) 15 Int Environ Agreements 29 at 32.
60 Rosemberg, above n 7, at 141.
61 Galgoczi, above n 58, at 369.
defined development priorities”.62 Just transition has become a conceptual framework to encompass the complexities of moving labour markets to a low-carbon future.63
The United Nations Environment Programme (“UNEP”) promotes a “shared solution” approach to just transition. This views the greening of the economy as a mutually beneficial process for employment actors. The UNEP encourages union engagement with international negotiations and initiatives to reach shared understandings and ensure workers’ voices are heard within the balance of power.64 It focuses on job creation and opportunities within existing institutional settings, instead of advocating for transformative changes to the political economy.65 The shared solution approach has two pillars: (1) a clear future strategy for decarbonisation of the economy and labour market; and (2) meaningful social dialogue at all levels according to international labour standards to ensure effective transformation. Just transition envisions “a future where all jobs are green and decent, emissions are at net zero, poverty is eradicated, and communities are thriving and resilient”.66
2 Key Policy Areas
The ILO’s Guidelines for a Just Transition are a package of policy proposals that address the different vulnerabilities of working people.67 Setting the bar for the foundations of a just transition response aims to ensure no workers are left behind in a green future. Governments should use the guidelines when developing national plans for employment-related mitigation of and adaptation to climate change.68 The key policy areas are:69
(a) Macroeconomic and growth policies;
(b) Industrial and sectoral policies;
(c) Enterprise policies;
(d) Skills development;
62 Paris Agreement, above n 4, preamble.
63 Rosemberg, above n 7, at 141.
64 Stevis and Felli, above n 59, at 36.
65 At 36.
66 International Trade Union Confederation Just Transition - Where Are We Now and What’s Next? A Guide to National Policies and International Climate Governance (ITUC Climate Justice Frontline Briefing, D/2017/11.962/17, 2017) at 6.
67 Galgoczi, above n 58, at 369.
68 ILO, above n 12, at 34.
69 International Labour Organisation Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All (International Labour Office, 2015) at 7.
(e) Occupational safety and health;(f) Social protection;
(g) Active labour market policies;
(h) Rights; and
(i) Social dialogue and tripartism.
These cover a diversity of demands in the world of work. Given the scale and urgency of threats posed by climate change, it is necessary to tackle them jointly.70 However, examining all of the policy areas is beyond the scope of this dissertation. Given its focus on collective labour law and strike action, social dialogue and tripartism are relevant. Social dialogue is integral to promoting good governance within the just transition. It enables a certain level of employee participation in the design and implementation of climate change policies.71 Chapter III has further detail about social dialogue. Issues like social protection for job displacement and improving occupational health and safety regulation are cross-cutting by informing the substance of dialogue. This dissertation proceeds on the basis that trade unions should forecast the areas which are pertinent to their particular members’ interests.
Equity is a key challenge to a just transition. People situated in industries harmed by changes to environmental regulation must be adequately assisted via compensation, re-training and skills development packages.72 On the other hand, new employment opportunities created in a greener supply chain should be fairly distributed amongst workers and their communities.73 Equity acknowledges that the risks and hazards associated with environmental degradation tend to affect vulnerable workers the most.74 This includes women, youth, migrant workers, people in poverty, indigenous peoples and persons with disabilities.75 For example, workers in informal economies or who lack cover under national social protection schemes do not have a “safety net” to recover from extreme weather events.76 In New Zealand, the Māori economy is invested in primary industries and tourism offerings, and thus more reliant on climate-sensitive
70 ILO, above n 69, at 5.
71 Rosemberg, above n 7, at 143.
72 Romain Felli “An Alternative Socio-Ecological Strategy? International Trade Unions’ Engagement with Climate Change (2014) 21(2) Rev Int Polit Econ 372 at 379.
73 UNEP, above n 42, at 277.
74 ILO, above n 12, at 13.
75 At 14.
76 Montt, Fraga and Harsdorff, above n 6, at 11.
resources than other parts of the economy.77 Climate change will profoundly affect low-income families and coastal communities, in which Māori are disproportionately represented.78 These forms of inequality must be recognised and addressed by governments and social partners.
Fostering an equitable transition reflects labour law’s function of risk allocation. Employment actors share the risk of negative change to economies and industries caused by climate change. However, employees have limited ability to manage that risk due to the “inherent inequality of power in employment relationships”.79 This is especially for climate change issues, which are yet to be realised in many workplaces. Freedom of contract gives employers considerable power to shift risks to employees. Amelioration of employee risk thus requires legislative or third-party intervention, typically through collective representation in trade unions.80 Workers can use bargaining and strike action to demand protections from their employer at the enterprise and sectoral levels. In the context of climate-related risk, the Government should also implement national policies to guide the transition to a green economy.
Despite the ILO’s guidelines, actual commitments to a just transition are variable and unclear.81 In 2017, the NZCTU’s National Affiliates Council formally committed to a just transition policy to share experiences and coordinate ongoing action.82 The Labour Government established the Just Transitions Unit (“JTU”) under the MBIE.83 In May 2019, the JTU hosted a “Just Transition Summit” in New Plymouth to engage in dialogue with affected stakeholders on the Government’s commitment to a low-carbon future.84 Following the ban on new offshore oil and gas exploration permits, this Summit facilitated the co-design of a Taranaki 2050 Roadmap and Transition Pathway Action Plans.85 A similar approach will follow with the closure of Tiwai Point Aluminium Smelter in Southland.
77 Ministry for the Environment, above n 3, at 17.
78 At 17.
79 Employment Relations Act 2000, s 3(a)(ii).
80 Gordon Anderson and Dawn Duncan Employment Law in Aotearoa New Zealand (3rd ed, LexisNexis, Wellington, 2022) at 12.
81 Caleb Goods “A Just Transition to a Green Economy: Evaluating the Response of Australian Unions” (2013) 39(2) ABL 13 at 28.
82 NZCTU, above n 50, at 21.
83 Mark A. Graham ““No Jobs on a Dead Planet”: At the Interface of Employment - Climate Change Law” (2019) 44(2) NZJER 63 at 64.
84 At 64.
85 Jane Parker, Ozan Nadir Alakavuklar and Sam Huggard “Social Movement Unionism Through Radical Democracy: The Case of the New Zealand Council of Trade Unions and Climate Change” (2021) 52(3) Ind Rel 270 at 277.
3 Trade Unions as Environmental Actors
Trade unions are formed to promote their members’ welfare and collective employment interests.86 An incorporated society is entitled to be registered as a union if it meets s 14 of the ER Act. Unions may be affiliated with the New Zealand Council of Trade Unions (“NZCTU”). They historically focused on social rather than environmental justice but have shown a readiness to expand their sphere of interest.87 This is partly because environmental matters are intertwined with health and safety.88 Trade unions have gained an important space in workplace democracy and wider political representation. In anticipation of massive industrial disruption, they should use that space to be key agents in climate mitigation and adaptation efforts.89 Research indicates that “the social, economic and industrial implications of social change stemming from climate change provides possibilities for unions to renew themselves with a new sense of purpose”.90 Union responses to climate change are characterised by the concept of just transition to a green economy.91 Through this narrative, they advocate for greater consideration of environmental and social aspects in the existing capital-based approach.92 This is a notable shift from the previous preoccupation with job protection.93
Climate change has not always appeared on trade unions’ agendas.94 This is due to “jobs versus environment” debates. Labour and the environment has a conflicting relationship within general capitalist production.95 Businesses use a competitive logic to continuously expand their production and appropriation of resources. This increases profits at the expense of pollution and ecological harm.96 However, workers tend to support capitalism’s pursuit of exponential growth because it maintains jobs. Any forced redundancies resulting from environmental improvement threaten their lived realities.97 In recent history, jobs versus environment debates caused cooperation between trade unions and management to oppose environmental
86 Employment Relations Act, s 14(1)(a).
87 Galgoczi, above n 58, at 372.
88 Nora Räthzel and David Uzzell “Trade Unions and Climate Change: The Jobs Versus Environment Dilemma” (2011) 21 Glob Environ Change 1215 at 1217.
89 Paul Hampton “Trade Unions and Climate Politics: Prisoners of Neoliberalism or Swords of Climate Justice?” (2018) 15(4) Globalizations 470 at 472.
90 Darryn Snell and Peter Fairbrother “Unions as Environmental Actors” (2010) 16(3) Transfer 411 at 413.
91 Goods, above n 81, at 15.
92 Galgoczi, above n 58, at 372.
93 Snell and Fairbrother, above n 90, at 413.
94 Felli, above n 72, at 373.
95 Caleb Goods “Labour Unions, the Environment and ‘Green Jobs’” (2011) 67 JAPE 47 at 50.
96 Goods, above n 81, at 15.
97 Räthzel and Uzzell, above n 88, at 1216.
regulations in energy-intensive industries.98 Similar concerns prevail around the impacts of strong union engagement with climate change:99
When a union is confronted with the alternative of agreeing to the construction of a coal-fired power station that will guarantee new jobs, or joining environmentalists in fighting against its construction in the name of a green future promising more green jobs under conditions that are yet to be realised, then such a union will be confronted with the harsh reality of the environment versus jobs dilemma.
Unions counter this dilemma by referring to the employment potential of a low-carbon economy.100 While climate action will create winners and losers, the notion of new green jobs suggests there will not be a major aggregate impact on the labour market.101 Providing assurance is essential for workers in highly polluting industries that are downsized or phased out. People have legitimate interests in maintaining jobs which should be reconciled on the path to sustainability.102 Social dialogue promotes the design of solutions that are mutually beneficial to workers and long-term union efforts to combat climate change.103
Unions have a role at the national, sectoral and enterprise levels. Nationally, they carry out public administration.104 As an organised body of working people, trade unions engage with governments on the development of legislative instruments and policies.105 The NZCTU recommended the Government initiate a formal process of engagement with stakeholders to build consensus on a National Just Transition Plan (“NJTP”).106 This requires access to information and consultation on issues that directly concern workers. At the sectoral level, trade unions have a regulatory function.107 Unions must call upon public authorities and employers to negotiate sectoral adaptation strategies and collective agreements to protect workers against climate change.108 Strategies should focus on health and safety, skills development and social protection measures. The NZCTU encourages its affiliates to lead an industry-wide multi-employer pooling to redeploy workers affected by a just transition into
98 Felli, above n 72, at 373.
99 Räthzel and Uzzell, above n 88, at 1216-1217.
100 At 1216.
101 Galgoczi, above n 44, at 62.
102 Räthzel and Uzzell, above n 88, at 1221.
103 At 1221.
104 Keith D. Ewing “The Function of Trade Unions” (2005) 34(1) ILJ 1 at 4.
105 At 5.
106 NZCTU, above n 50, at 5.
107 Ewing, above n 104, at 4.
108 ETUC, above n 32, at 53.
new jobs.109 Lastly, trade unions perform a representative function to further their members’ interests in the workplace. This occurs through collective bargaining and social dialogue, which aim to identify the appropriate procedures to mitigate climate-related risks posed to workers.110
C Using Strike Action to Address Climate Change
Part B established that trade unions have an important role in the just transition, based on the dual objectives of reducing GHG emissions and achieving social justice.111 There are vast possibilities for how unions can support their members’ welfare. This dissertation focuses on their representative function in undertaking collective bargaining and industrial strike action.
Strike action lies in collective employment law. This comprises workers’ rights to associate in unions and negotiate with their employer regarding the terms and conditions of work. “Strike” is defined broadly in New Zealand to encompass virtually any protest or resistance action that is taken by employees.112 Strikes are a controversial element of employment relations because the withdrawal of labour in the course of everyday business tends to be disruptive and emotive.113 They are a last-resort tactic when workers are frustrated or negotiation has failed to pressure a concession from the opposing side.114 Nonetheless, strike action remains an effective strategy to visibly advocate on specific issues, including those related to climate change.115
Unions overseas are moving beyond typical industrial disputes on wages, hours and conditions to research and negotiate about climate change.116 Environmental terms increasingly feature in collective agreements and workplace policies. In the context of a just transition response, this requires social dialogue between relevant stakeholders in the world of work. In New Zealand, climate change can form part of collective bargaining under the ER Act. Numerous demands may be raised by unions to remedy impacts on workers, including:
(a) Health and safety protections against extreme heat and weather events;
109 NZCTU, above n 50, at 6.
110 ETUC, above n 32, at 56.
111 Felli, above n 72, at 380.
112 Anderson and Duncan, above n 80, at 543.
113 Jean-Michel Servais “ILO Law and the Right to Strike” (2009) 15(2) Canadian Lab & Emp LJ 147 at 147. 114 Bob Hepple “The Right to Strike in an International Context” (2009) 15(2) Canadian Lab & Emp LJ 133 at 139.
115 Graham, above n 83, at 71.
116 At 70.
(b) Compensation for climate-related redundancies or realignments;(c) Re-training and skills development packages in sunset industries;
(d) Adequate wages and conditions in green jobs; and
(e) Greater representative rights to participate in workplace environmental initiatives.
Strike action becomes important when bargaining is unsuccessful. The possibility of “green industrial action” is a new tool for worker mobilisation to compel other employment actors to address climate change.117 Two illustrations are given. Firstly, following the inevitable closure of coal-fired plants, employees could strike to support the creation of an industry-wide green training programme by the Government. This strike would aim to gain the requisite skills and competencies to transition into new jobs in the renewables sector or the wider economy. Secondly, as temperatures rise with global warming, construction industry unions could strike to demand adjustments to outdoor working conditions to reduce the foreseeable risk of heat stress. This strike would urge employers to adapt dress codes and the length of shifts and breaks to provide a safer working environment. Workers beyond those speculated need a legal avenue to remedy the collective harms posed by climate change. This dissertation proposes strike action as a potential framework for resolving climate-related industrial conflict.
This dissertation analyses the lawfulness of “green industrial action” at two levels: (1) strikes for health and safety reasons or in the course of collective bargaining at the enterprise and industry levels; and (2) protest strikes that aim to seek solutions to major economic and social policy questions at the national level. The former respond to the urgent need for employment- related mitigation and adaptation measures to protect workers in the climate crisis. The latter respond to the Government’s progress in developing legal and policy mechanisms to ensure a fair distribution of costs and benefits in the just transition. Chapter II outlines strike law under the ER Act. Thereafter, there is an assessment of the scope for “green industrial action” under existing principles of the right to strike in New Zealand and at international law.
117 Goods, above n 41, at 672.
Chapter II Strike Law in New Zealand
A Background to Strike Action
1 Common Law Developments
The right to strike has met legislative and judicial hostility in most countries, including New Zealand.118 The common law’s hostility is particularly notorious. It derives from its traditional underlying biases in favour of protecting private ownership, managerial prerogative and the subordinate status of employees.119 Based on these biases, judges presumed equality in contracting relationships at the expense of recognising collective labour rights. Strike action was largely considered a breach of contract by the participants. When a breach was committed in combination with others, the element of “unlawfulness” was met to pursue an economic tort claim.120 Economics torts provided injunctive remedies to employers to stop threatened strikes and ascribed liability to unions if action did occur.121 In the absence of statutory intervention to recognise collective rights, the common law made virtually all strikes unlawful.122
The Labour Relations Act 1987 (“LR Act”) enacted statutory protection for industrial action in New Zealand, although economic tort remedies remained available against unlawful strikes.123 It established a clear right to strike and improved the confusing situation which existed in common law before 1987.124 Thereafter, the right to strike developed slowly in common law jurisprudence. Several judgments throughout the 1990s addressed strike action, albeit under the former statutory regime. The Court of Appeal in Tranz Rail Ltd v Rail & Maritime Transport Union (Inc) held that the freedom to bargain collectively includes a right to strike in pursuit of the collective bargain, provided it is exercised in conformity with the statute.125 In Bickerstaff v Healthcare Hawkes Bay Ltd, Goddard CJ affirmed:126
118 Anderson and Duncan, above n 80, at 539.
119 Shae McCrystal “The Right to Strike and the Deadweight of the Common Law” (2019) 50(2) Victoria U Wellington L Rev 281 at 286.
120 At 282.
121 At 282.
122 Anderson and Duncan, above n 80, at 542.
123 McCrystal, above n 119, at 282.
124 Gordon Anderson “The Employment Contracts Act 1991: An Employers’ Charter?” (1991) 16 NZJIR 127 at
134.
125 Tranz Rail Ltd v Rail & Maritime Transport Union (Inc) [1999] NZCA 63; [1999] 1 ERNZ 460 at [35].
126 Bickerstaff v Healthcare Hawkes Bay Ltd [1996] NZEmpC 253; [1996] 2 ERNZ 680 at 687.
The right to strike should also be seen as being at the same time individual and collective. It has now reached the status of a fundamental right, despite being subject, as most rights are, to constraints. A strike is ordinarily lawful. A particular mode of striking is not to be seen as an abuse of the right to strike, there being no limitation on the nature of a strike.
The right to strike was increasingly acknowledged by the courts when interpreting relevant statutory provisions. However, such cases arose infrequently and did not involve substantive comment on the realities and general messiness of collective action.127 The introduction of a rational legislative system in 1987 signalled that the regulation of industrial conflict in New Zealand was properly within the role of the legislature.128
2 Legislative Developments
The LR Act was the first legislative intervention to determine workers’ rights and regulate industrial action in New Zealand. It transitioned the system of compulsory arbitration, which existed since 1894, to one based on collective bargaining at the enterprise and industry levels.129 The LR Act distinguished between lawful and unlawful strike action in what remains the foundation of New Zealand’s strike law. Based on this distinction, it afforded legal immunity from civil action founded on economic torts for participants in a lawful strike.130 The LR Act clarified that strike action is a normal and legitimate activity that can be taken by employees.131
The Government’s neoliberal reforms from the 1980s coincided with the new Employment Contracts Act 1991 (“EC Act”). This was perceived as “anti-union legislation”.132 The EC Act did not refer to trade unions in order to marginalise their status as actors in industrial relations.133 Unions are vulnerable to legislative settings as regards the extent of their ability to represent members. The EC Act shifted labour law’s focus to the individual worker and stressed the importance of freedom to choose one’s representatives.134 This radically departed
127 McCrystal, above n 119, at 291.
128 Anderson and Duncan, above n 80, at 542.
129 Anderson, above n 124, at 127.
130 Anderson and Duncan, above n 80, at 542.
131 At 542.
132 Parker, Alakavuklar and Huggard, above n 85, at 271.
133 Anderson, above n 124, at 130.
134 At 127.
from the LR Act’s pluralist system which prioritised collective representation to settle the terms and conditions of employment.135 The EC Act restricted the scope for lawful strikes in New Zealand to the negotiation of a collective contract for the employees concerned.136 Employers took an aggressive approach to participants in sympathy or secondary action. This effectively made collective representation futile for most workers to promote their interests.
Following the liberalisation of New Zealand’s industrialised and service-centred economy, union membership plummeted in the early 1990s. This occurred against the enactment of individual employment rights in the EC Act, which undermined incentives for employees to join unions.137 Union membership continued to decline under the current regime, reaching a historical low of 13.3% of the workforce in 2018.138 This was despite the ER Act’s attempt to create a more moderate scheme for labour relations.139
B The Employment Relations Act 2000 1 Features
The ER Act is the keystone statute in New Zealand. It introduced two structural reforms which built on the existing landscape of employment law. First was a strong statutory obligation of good faith that applies to all aspects of the employment relationship.140 The requirement that unions and employers deal with each other in good faith does not preclude certain strikes from being lawful.141 However, the ER Act’s emphasis on good faith necessitates a 40-day strike- free period after the initiation of bargaining for a collective agreement.142 The second was an effective legal framework to promote collective bargaining between unions and employers.143 Strike action is a key component of this bargaining regime. The ER Act reverted to afford unions legal support to carry out their representative function in industrial relations.144
135 Anderson, above n 124, at 127.
136 At 134.
137 Parker, Alakavuklar and Huggard, above n 85, at 271.
138 At 271.
139 Anderson and Duncan, above n 80, at 437.
140 Employment Relations Act, s 4.
141 Section 80(a).
142 Section 86(1)(b)(i).
143 Anderson and Duncan, above n 80, at 437.
144 At 430.
The ER Act aims to build productive employment relationships through the promotion of good faith.145 This object is enforced by acknowledging the inherent inequality of power in employment relationships and promoting collective bargaining.146 Section 3(a) reflects a pluralist model of labour law in contemporary New Zealand. Pluralism regards conflict as inevitable within organisations due to the varied goals of employees and employers.147 Those goals must be compromised for long-term mutual benefit in the employment relationship. Pluralism impliedly believes in social justice, which is achieved through acceptable terms and conditions of work and the equitable allocation of economic benefits.148 The ER Act also aims “to promote observance in New Zealand of the principles underlying ILO Convention 87 on Freedom of Association, and Convention 98 on the Right to Organise and Bargain Collectively”.149 Chapter III discusses freedom of association.
2 Part 8: Strikes and Lockouts
The right to strike is enshrined in New Zealand’s labour law, so long as it complies with the statutory provisions.150 The ER Act lists five forms of action, each of which provides a gateway to participation in a lawful strike:151
(1) In this Act, strike means an act that -
(a) is the act of a number of employees who are or have been in the employment of the same employer or of different employers -(i) in discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it; or
(ii) in refusing or failing after any such discontinuance to resume or return to their employment; or
(iii) in breaking their employment agreements; or
(iv) in refusing or failing to accept engagement for work in which they are usually employed; or
(v) in reducing their normal output or their normal rate of work.
145 Employment Relations Act, s 3(a).
146 Sections 3(a)(ii)-(iii).
147 Anderson and Duncan, above n 80, at 15.
148 At 15.
149 Employment Relations Act, s 3(b).
150 Secretary for Justice v New Zealand Public Service Association [2018] NZEmpC 129 at [24].
151 Employment Relations Act, s 81(1)(a).
This definition includes “go-slows”, picket lines and partial work bans which may not fall within the common law meaning.152 The ER Act requires the act of those employees to be “due to a combination, agreement, common understanding, or concerted action, whether express or, as the case requires, implied, made or entered into by the employees”.153 Participants in one of the gateways must be the same persons who are shown to have agreed. A formal agreement is not necessary but is typically inferred from members acting in their unions.154 The right to strike is collective by vesting in unions and employees as groups, but also individual in the sense that it is employees doing or omitting to do the qualifying actions in s 81(1)(a).155 The “combination” requirement in s 81(1)(b) converts action, that if taken by an individual employee might be ordinarily lawful, into a strike where it is taken by over two employees.
New Zealand’s strike law is based on granting workers statutory immunity from legal detriments if their strike is lawful.156 The ER Act provides that lawful participation in a strike shall not give rise to proceedings under s 99 that are founded on tort; proceedings under s 100 for the grant of an injunction; or any action for a breach of an employment agreement.157 This effectively prevents the use of remedies which are typically sought by employers at common law to retaliate against a strike. Emergicare (Henderson) Ltd v New Zealand Nurses Union summarised the approach to s 85(1):158
The ... legislation encourages parties to employment relationships to negotiate and settle their own arrangements as may best suit them. It allows, in limited circumstances, strikes and lockouts as part of that process. The Court should not intervene to make orders which would unduly advantage one side or the other in that process unless one is acting unlawfully and the interests of justice ... require such intervention.
Once a strike is deemed lawful, the courts have no discretion in the matter and must dismiss any claims brought by the opposing party. However, participants in an unlawful strike are
152 Breen Creighton, Catrina Denvir and Shae McCrystal “Defining Industrial Action” (2017) 45 FL Rev 383 at 386.
153 Employment Relations Act, s 81(1)(b).
154 Anderson and Duncan, above n 80, at 545.
155 Service and Food Workers Union Nga Ringa Tota Inc v Spotless Services (NZ) Ltd (No 2) [2007] ERNZ 539 at [35].
156 Anderson and Duncan, above n 80, at 541.
157 Employment Relations Act, s 85(1).
158 Emergicare (Henderson) Ltd v New Zealand Nurses Union [1991] NZLabC 243; [1991] 2 ERNZ 583 at 586.
subject to full liability for contractual and tortious wrongs at common law.159 The ER Act is thus premised on a fundamental distinction between lawful and unlawful action. Sections 83 and 84 are the only grounds for a lawful strike in New Zealand.
Section 83 has two criteria for lawful participation in a strike. Firstly, the strike must not be “unlawful” as that term is defined in s 86.160 Unlawful actions include strikes that occur without a secret ballot; while a collective agreement is in force; during the 40-day strike-free period after bargaining is initiated; where notice has not been given; and about a personal grievance or dispute.161 Secondly, the strike must relate to bargaining for a collective agreement that will bind each of the employees concerned.162 The phrase “relates to” requires courts to find as a matter of fact that collective bargaining was the real cause of or specifically related to the strike.163 Where mixed motives exist, a test seeking the “dominant purpose” of participants in the conduct has been occasionally adopted under the ER Act.164 The Employment Court has expressed this test adds a gloss to the words of ss 83 to 86 which goes beyond their plain meaning and does not serve the statutory purpose.165
Section 84 covers specific cases of industrial action. Participation in a strike is lawful if the employees have reasonable grounds for believing that the strike is justified on the grounds of safety or health.166 This is the only basis on which employees can collectively refuse dangerous work.167 Section 84 is wider than the individual right to refuse to carry out work under the Health and Safety at Work Act 2015 (“HSWA”), which requires a serious risk to the worker’s health or safety arising from immediate or imminent exposure to a hazard.168 Possession of “reasonable grounds” at the time of strike action is ascertained objectively.169 The onus lies with the party alleging the strike’s lawfulness to prove on the balance of probabilities that health and safety concerns were justifying the “most extreme step” of striking.170 The strike
159 Service and Food Workers Union, above n 155, at [34].
160 Employment Relations Act, s 83(a).
161 Section 86(1).
162 Section 83(b)(i).
163 SCA Hygiene Australasia Ltd v Pulp and Paper Industry Council of the Manufacturing and Construction Workers Union Inc [2008 ERNZ 301 at [41].
164 Spotless Services (NZ) Ltd v Service and Food Workers Union Nga Ringa Tota Inc [2008] NZCA 580; [2008] ERNZ 609 at [39].
165 SCA Hygiene Australasia Ltd, above n 163, at [37].
166 Employment Relations Act, s 84.
167 Anderson and Duncan, above n 80, at 580.
168 Health and Safety at Work Act 2015, s 83(1).
169 Counties Manukau District Health Board v Public Service Association Inc [2002] NZEmpC 215; [2002] 2 ERNZ 968 at [22].
170 Tranz Rail Ltd v Rosson EmpC Wellington WC30/03, 30 September 2003 at [22].
must therefore be proportionate to the risk in the relevant circumstances. In assessing justification, weight has been placed on other employees’ reactions and past conduct by those complaining of a health and safety risk.171 The Labour Court also variously applied an “imminent danger” test.172 While the plain words of s 84 do not warrant that an imminent danger presents itself, the use of that test suggests the provision should not be invoked lightly, nor used as an avenue to resolve other industrial issues.173
C New Zealand’s Position in an International Context
Sections 83 to 86 provide a complete code for lawful industrial action in New Zealand. The ER Act’s requirement that strikes must generally relate to bargaining for a collective agreement causes significant limitations. It makes unlawful any form of sympathy or protest strike action by employees.174 Sympathy strikes are those declared in support or solidarity with another strike that is being undertaken. Workers themselves have no grievance against their employer and pursue demands which do not immediately affect them.175 Protest strikes at the national level are those aimed at criticising or seeking solutions to major economic and social policy questions which are of direct concern to workers.176 In contrast to New Zealand, these actions are recognised as legitimate by the ILO’s Committee on Freedom of Association (“CFA”). The range of strikes theoretically available to workers in an international context is thus considerably wider than those categorised as lawful under the ER Act.177 The CFA and the Committee of Experts (“CE”) rejected the notion of confining the right to strike to industrial disputes that are likely to be resolved through negotiating a collective agreement.178 Chapter IV discusses this limitation of New Zealand’s current position.
171 Anderson and Duncan, above n 80, at 582.
172 Fletcher Development and Construction Ltd v New Zealand Labourers IUOW [1990] 2 NZILR 222 at 227; Accident Compensation Corporation v E [1991] NZCA 167; [1992] 2 NZLR 426; Walker v Northumberland County Council [1994] EWHC QB 2; [1995] ICR 702; Lyttleton Port Company Ltd v Rail and Maritime Transport Union Inc [2016] NZEmpC 179. 173 Anderson and Duncan, above n 80, at 582.
174 At 576.
175 Bernard Gernigon, Alberto Odero and Horacio Guido “ILO Principles Concerning the Right to Strike” (1998) 137(4) ILR 441 at 15.
176 International Labour Office Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (5th ed, International Labour Organisation, Geneva, 2006) at para 526-527.
177 Anderson and Duncan, above n 80, at 540.
178 Gernigon, Odero and Guido, above n 175, at 13.
In 2001, the International Labour Office confirmed the ER Act as a whole appears to be compatible with the Freedom of Association and Protection of the Right to Organise Convention (“Convention 87”) and Right to Organise and Collective Bargaining Convention (“Convention 98”).179 However, several areas remain inconsistent including unions, the promotion of collective bargaining and industrial action.180 Limits on sympathy and protest strikes, and the capacity of the Employment Court to issue compliance orders about such activity, were observed as a key problem:181
Such action must otherwise be permissible and not subject to penalty (provided that, in the case of a sympathy strike, the initial strike being supported is itself legal) for there to be full conformity with the principles of freedom of association and the right of workers’ organisations to organise their activities and formulate their programmes for the purposes of furthering and defending their members’ interests under Articles 3 and 10 of Convention No. 87.
This confirms that New Zealand’s strike law does not represent a full recognition of international labour standards. Relevant ILO principles are more flexible and open-ended and provide rich justifications for the right to strike.182
The ER Act aims to promote observance of the principles underlying ILO Conventions 87 and 98 in New Zealand.183 In Epic Packaging Ltd v New Zealand Amalgamated Engineering, Printing & Manufacturing Union Inc, the Employment Court held that s 3(b) emphasises the need to act in conformity with the specified Conventions but does not require “adherence to the words themselves or to the way in which they have been interpreted by the ILO’s Freedom of Association Committee”.184 This reflects customary judicial practice which seeks to interpret domestic laws in conformity with generally accepted international rules and New Zealand’s international obligations.185 At present, the principles underlying ILO Conventions 87 and 98 may be elucidated when they are relevant to factual questions in the application of Part 8.186
179 Paul Roth “International Labour Organisation Conventions 87 and 98 and the Employment Relations Act” (2001) 26(2) NZJIR 145 at 151.
180 At 151.
181 At 165-166.
182 Hepple, above n 114, at 135.
183 Employment Relations Act, s 3(b).
184 Epic Packaging Ltd v New Zealand Amalgamated Engineering, Printing & Manufacturing Union Inc [2006] NZEmpC 67; [2006] ERNZ 617 at [41].
185 Governor of Pitcairn and Associated Islands v Sutton [1994] NZCA 277; [1994] 2 ERNZ 492 at 500.
186 Roth, above n 179, at 145.
The strength of collective labour law is consequential to the realities of industrial relations in New Zealand. It determines the extent to which employees have a voice in improving terms and conditions of work, and whether they have a right to withdraw labour in a strike to advance their claims. Although the ER Act attempted to balance the employment landscape and return a greater role to unions, workers have been left in a weak position to assert their collective interests. The following Chapters argue New Zealand’s current law is insufficient, and that workers ought to have greater recourse to strike action in the context of climate change.
Chapter III The Importance of Strike Action for Collective Issues
As introduced in Chapter I, the world of work must undertake effective mitigation and adaptation to limit the impacts of climate change on workers, communities and enterprises. Strike action is one available response. This Chapter outlines the importance of strike action for collective issues in three domains: (1) as a key aspect derived from freedom of association;
(2) as an international human rights standard; and (3) as a sanction against the need for social dialogue. It demonstrates that the right to strike is a valuable tool to resolve industrial conflict and enable workers to protect their collective socio-economic interests.
A Freedom of Association
Freedom of association is an established human right based on international instruments.187 The ILO Constitution and Declaration of Philadelphia affirmed freedom of association as the fundamental principle on which the Organisation is based.188 The International Labour Conference thereafter adopted Conventions, Recommendations and resolutions, which constitute the main source of international law in this field.189 Per ILO Convention 87:190
Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.
Freedom of association allows for the establishment of workers’ and employers’ organisations that are independent and representative. They should have full freedom to formulate their activities and programmes, whilst respecting the laws of the land. The ILO regards freedom of association as a primary safeguard of social justice and sustainable peace.191 It includes the rights of union officers to hold meetings, access workplaces and communicate with
187 Anderson and Duncan, above n 80, at 540.
188 Constitution of the International Labour Organisation (opened for signature 1 April 1919, entered into force 28 June 1919); Declaration Concerning the Aims and Purposes of the International Labour Organisation, adopted at the 26th Session of the ILO, Philadelphia, 10 May 1944, art 1(b).
189 ILO, above n 176, at 1-2.
190 Convention C087 - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87) (opened for signature 9 July 1948, entered into force 4 July 1950), art 2.
191 ILO, above n 176, at 1.
management, as well as the right of workers to strike in their unions.192 This theoretically endows trade unions with the ability to express views and negotiate with employers on economic and social issues affecting their members’ occupational interests.193 However, difficulties in exercising these rights are frequently encountered in practice through national legislation which restricts political activities and strikes by organisations.194
Freedom of association is essential to the ILO’s tripartite structure. Tripartism is “the interaction of government, employers and workers (through their representatives) as equal and independent partners”.195 It posits that major actors in industrial relations should cooperate on issues of common concern to provide a certain amount of direction in the labour market.196 There cannot be effective representation of workers and employers at the international level unless they form organisations for this purpose.197 When a State becomes an ILO Member, it implicitly accepts the fundamental principles embodied in the Constitution and Declaration of Philadelphia.198 New Zealand’s Government is therefore required to observe obligations connected with the right to freedom of association under its membership.199 This commitment is reflected in the ER Act and New Zealand Bill of Rights Act 1990 (“NZBORA”).200
Obligations to respect freedom of association apply regardless of Members’ ratification of the Conventions. New Zealand ratified Convention 98 on 9 June 2003 but has not ratified Convention 87. In 2002, Dame Margaret Wilson (the Governor-General of the day) expressed the Government was continuing to assess measures that would enable Convention 87 to be ratified.201 The main issue was the status of sympathy and protest strikes, which the Government had no intention of making explicitly lawful.202 Freedom of association in an
192 International Labour Conference, 81st Session Freedom of Association and Collective Bargaining. Report of the Committee of Experts on the Application of Conventions and Recommendations (International Labour Office, Geneva, 1994) at para 128.
193 At para 128.
194 At para 129.
195 International Labour Conference, 107th Session Report VI: Social Dialogue and Tripartism (International Labour Office, Geneva, 2018) at para 6.
196 Anderson and Duncan, above n 80, at 16.
197 Tonia Novitz “Connecting Freedom of Association and the Right to Strike: European Dialogue with the ILO and its Potential Impact” (2009) 15(3) Canadian Lab & Emp LJ 465 at 470-471.
198 ILO, above n 176, at para 15.
199 Roth, above n 179, at 148.
200 Employment Relations Act, s 3(b); New Zealand Bill of Rights Act 1990, s 17.
201 Margaret Wilson “Government to Ratify Fundamental International Labour Convention” (press release, 20 December 2002).
202 Above n 201.
employment context remained controversial in the following 20 years. Its weight tends to be constrained by the statutory language of the ER Act, as noted in Chapter II.203 The Court of Appeal in New Zealand Amalgamated Engineering, Printing & Manufacturing Union Inc v Witney Investments Ltd stated “any freedom of association of an employer (or indeed union) must cede to the requirements of the statutory bargaining provisions in the ERA where they apply”.204 New Zealand’s judiciary has been reluctant to extend freedom of association beyond the right of workers to associate in trade unions.205 Extending its meaning to the collective promotion of employment interests, including a right to strike, would accord with international labour instruments.206
The right to strike derives directly from the principle of freedom of association.207 It is not expressly stated in the ILO Constitution or Conventions 87 and 98. Since 1952, the CFA recognised a right to strike as an “intrinsic corollary” to the right to organise protected by Convention 87.208 Article 3 provides for the right of workers’ organisations to establish their constitutions and rules, elect representatives in full freedom and organise their administration, activities and programmes.209 Article 10 defines the purpose of an ‘organisation’ as furthering and defending the interests of workers.210 Based on these provisions, workers who are free to associate in trade unions should also be free to take concerted strike action. A general prohibition of strikes constitutes a serious restriction of the opportunities open to organisations to further their members’ collective interests under Article 10.211
The CFA and CE take a broad view of the interests that unions may legitimately defend through strike action.212 These include better working conditions and collective claims of an occupational nature, but also the seeking of solutions to problems posed by major economic and social policy trends which directly concern workers.213 This links to Chapter I, which found
203 Anderson and Duncan, above n 80, at 439.
204 New Zealand Amalgamated Engineering, Printing & Manufacturing Union Inc v Witney Investments Ltd
[2007] NZCA 599; [2007] ERNZ 862 at [76].
205 Anderson and Duncan, above n 80, at 428.
206 At 428.
207 Servais, above n 113, at 150.
208 ILO, above n 176, at para 523.
209 Convention C087, above n 190, art 3.
210 Article 10.
211 International Labour Conference, above n 192, at para 147.
212 Tonia Novitz “Freedom of Association and ‘Fairness at Work’ - An Assessment of the Impact and Relevance of ILO Convention No. 87 on its Fiftieth Anniversary” (1998) 27(3) ILJ 169 at 185.
213 ILO, above n 176, at para 526.
that union activism is expanding beyond job protection to address the industrial implications of climate change. As the authors of the just transition strategy, the international trade union movement has highlighted environmental issues which will profoundly affect labour markets.214 This is particularly as regards employment, social protection and standards of living.215 Consequently, the use of “green industrial action” to advance a union’s position on issues of government policy is likely compatible with Conventions 87 and 98 and their underlying principles of freedom of association. This is conditional upon the strike’s objective being sufficiently connected to the socio-economic and occupational interests of members.216 Those of a purely political nature do not fall within the ambit of protection.
B Moral and Human Rights Standards
The International Covenant on Economic, Social and Cultural Rights (“ICESCR”) recognises the extended meaning of freedom of association described in Part A. Article 8 requires State Parties to ensure “the right to strike, provided that it is exercised in conformity with the laws of a particular country”.217 New Zealand ratified the ICESCR on 28 December 1978 and thus is responsible to strive for the promotion and observance of the Covenant’s rights.218 Kelly v Tranz Rail Ltd outlined the obligations which New Zealand has accepted at international law:219
There are, in addition, United Nations Organisation conventions that New Zealand has ratified and which seem to cover the same ground, albeit in somewhat different terms and in less detail than the International Labour Organisation conventions. I am, of course, referring to the International Covenant on Civil and Political Rights and more especially the International Covenant on Economic, Social and Cultural Rights. Both seem to contain, more or less directly, a guarantee of the right to strike as one of the fundamental freedoms, while recognising that it may be subject to limitations under national law as it is in New Zealand. ... The two conventions are plainly treaties establishing human rights norms, or obligations within the contemplation of Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257 (CA).
214 Tonia Novitz “Engagement with Sustainability at the International Labour Organization and Wider Implications for Collective Worker Voice” (2020) 159(4) ILR 463 at 467.
215 ILO, above n 176, at para 527.
216 At para 527-528.
217 International Covenant on Economic, Social and Cultural Rights 14531 UNTS 993 (opened for signature 16 December 1966, entered into force 3 January 1976), art 8.1(d).
218 ICESCR, above n 217, preamble.
219 Kelly v Tranz Rail Ltd [1997] NZEmpC 140; [1997] ERNZ 476 at 500-501.
Tavita v Minister of Immigration established the need to give practical effect to international instruments to which New Zealand is a party.220 The Court of Appeal confirmed that the executive should consider international human rights norms when exercising its discretionary powers, even if they are not mentioned in the statute.221 Failure to do so might imply New Zealand’s adherence to such instruments is “window-dressing”.222 Whilst this was decided in an immigration context, it is instructive to statutory interpretation by the courts more generally.
The status of strike action as an international human right has moral underpinnings. Firstly, the right to strike guards against the inherent imbalance of power within employment relationships. Freedom of contract, combined with common law implied terms, puts employees in an inferior position to employers in respect of managing risk.223 Without a right to strike, employees lack any means to place economic pressure on their employer to improve the terms and conditions of work.224 The CFA asserted that “the right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests”.225 Collective representation through one’s trade union is an alternative to abandoning employment, which has considerable financial consequences for the affected families.226 In this way, the right to strike gives employees dignity and autonomy in their working lives.227
Secondly, strikes are the most visible type of action by employees in the event of an industrial dispute.228 Strike action receives attention in the public realm, which is an effective measure to force or change a specific issue. It is perceived to carry a certain “social price” due to costs and disruptions to workers, employers and society.229 Therefore, the power of a strike derives from every individual’s decision to participate and assume the material and emotional risks associated with a high-risk action.230 This implies a strong motivation for the strike’s objectives and the advancement of economic and social rights.231 Strike action can sometimes have a
220 Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257 (CA) at 266.
221 At 266.
222 At 266.
223 Anderson and Duncan, above n 80, at 12.
224 At 539.
225 ILO, above n 176, at para 522.
226 Anderson and Duncan, above n 80, at 10.
227 Saskatchewan Federation of Labour v Saskatchewan [2015] SCC 4 at [54].
228 International Labour Conference, above n 192, at para 136.
229 At para 137.
230 Darko Marinković “Strikes in Transition - An Attempt at Defining New Theoretical Controversies” (2001) 4(1) SEER: Journal for Labour and Social Affairs in Eastern Europe 9 at 10.
231 At 10.
revolutionary flavour by working against everyday activities and social relations with one’s employer.232 Workers’ ability to stop the production process by temporarily withdrawing their labour is quite significant in our growth-oriented capitalist society.233
The power of unionised workers acting in solidarity reflects the type of response necessitated by climate change. According to climate activist Greta Thunberg:234
We are right now in the beginning of a climate and ecological crisis. And we need to call it what it is. An emergency. We must acknowledge that we do not have the situation under control and that we don’t have all the solutions yet.
Thunberg instigated the “School Strike 4 Climate” outside Parliament House in Stockholm to urge Sweden’s alignment with the Paris Agreement.235 This fostered an international youth movement against the destruction of their futures by climate change. New Zealand’s School Strike on 27 September 2019 attracted 170,000 attendees, making it the second largest protest in national history.236 Perhaps the revolutionary flavour of the School Strike 4 Climate could inspire a powerful labour-climate movement. This dissertation argues that collective employment rights should be used to promote climate action at all levels of the labour market. Chapter IV explores whether there is a future for protest strikes on climate change issues that are of direct concern to workers and trade unions.
Ideas about the morality of strike action should encourage the courts to interpret the ER Act consistent with freedom of association as internationally recognised.237 On Article 8 of the ICESCR, Gault J in Eketone v Alliance Textiles (NZ) Ltd confirmed it is appropriate to have regard to international instruments when interpreting the scope of those rights under the legislation.238 However, it is not open to the courts to depart from the plain meaning of statutory words.239 Chapter II found the ER Act provides a narrow code for lawful strike action in New
232 Servais, above n 113, at 147.
233 Marinković, above n 230, at 12.
234 Laura Snapes “‘Time to Rebel’: Greta Thunberg Adds Voice to New Song by The 1975” The Guardian
(online ed, United Kingdom, 25 July 2019).
235 Suyin Haynes “Students From 1,600 Cities Just Walked Out of School to Protest Climate Change. It Could Be Greta Thunberg’s Biggest Strike Yet” TIME (online ed, 24 May 2019).
236 Peter McKenzie “Auckland Chapter of New Zealand’s School Strike 4 Climate Group Admits Racism and Disbands” The Guardian (online ed, New Zealand, 15 June 2021).
237 Eketone v Alliance Textiles (NZ) Ltd [1993] 2 ERNZ 783 at 795.
238 At 784.
239 At 795.
Zealand. This illustrates the need for labour law reform to recognise a wider range of strikes as legitimate based on well-settled human rights standards. Doing so would provide a stronger platform for workers to advance their claims on collective issues like climate change.
C Social Dialogue
Social dialogue is a strategic pillar of the ILO’s Decent Work Agenda. It includes “all types of negotiation, consultation and exchange of information between or among representatives of governments, employers and workers on issues of common interest relating to economic and social policy”.240 Dialogue may occur as a tripartite process with the government as an official party, or as bipartite relations between trade unions and management. Preconditions for successful social dialogue include (1) independent workers’ and employers’ organisations with the requisite technical capacity; (2) political will and commitment to engage in dialogue by all parties; (3) respect for the fundamental rights of freedom of association and collective bargaining; and (4) an enabling legal and institutional framework.241 According to the UNEP:242
The main goal of social dialogue is to promote the building of a consensus and the democratic involvement of the main stakeholders in the world of work. Successful social dialogue structures and processes have the potential to resolve important economic and social issues, encourage good governance, advance social and industrial peace and stability, and boost economic progress.
Social dialogue lies at the centre of delivering a just transition. Progress towards low-carbon economies need not necessarily limit the potential for job creation.243 Industrial transformation to energy-efficient industries will yield new green jobs, as discussed in Chapter I. However, environmental sustainability is only compatible with decent work when it is supported by effective policy tools.244 Policy themes may include occupational health and safety, skills development and social protection.245 Social dialogue facilitates the design and implementation
240 International Labour Conference, above n 192, at para 6.
241 International Labour Organisation “21. Social Dialogue and Tripartism” (2022) International Labour Organisation <https://www.ilo.org/global/topics/dw4sd/themes/s-dialogue-tripartism/lang--en/index.htm>. 242 UNEP, above n 42, at 280.
243 Montt, Fraga and Harsdorff, above n 6, at 13.
244 At 31.
245 ILO, above n 69, at 7.
of policies by generating a common vision among major actors in industrial relations.246 In particular, workers must participate in climate mitigation and adaptation because it will directly affect their wellbeing, jobs and working conditions.247 The ILO’s Guidelines for a Just Transition urge governments and social partners to actively involve unionised workers in dialogue at the enterprise, sectoral and national levels to assess opportunities and resolve challenges posed by the just transition.248 Efforts to reduce GHG emissions may therefore create new possibilities for worker voice in decision-making.249
Strike action is a sanction aimed at fostering social dialogue. Collective bargaining at the enterprise level is a common form of dialogue. Chapter IV analyses how climate change could form part of bargaining demands under New Zealand’s existing legal machinery. The ER Act aims to ensure that employees and unions who wish to bargain collectively have an effective legal framework within which to do so.250 It strongly encourages the parties to conclude an agreement as the final objective, although this is not mandatory.251 Where bargaining reaches an impasse, workers should be prepared to take strike action to further their demands.252 In this sense, the right to strike is a basic right but not an end in itself.253
Strikes accompany the bargaining process because their disruptive nature provides a sanction aimed at forcing the other side to continue in dialogue. Suspending profit generation via the withdrawal of labour can convince employers to return to the bargaining table to fix more favourable conditions.254 The use of this “strike weapon” is a valuable last-resort tactic available to trade unions to seek a meaningful outcome.255 The strike weapon matches the greater economic and social power of employers through a countervailing force of workers acting in solidarity.256 A high incidence of strikes indicates that dialogue has broken down between stakeholders. It also tends to be symptomatic of more diffuse issues in a country.257
246 Montt, Fraga and Harsdorff, above n 6, at 28.
247 ILO, above n 12, at 36.
248 ILO, above n 69, at 9-10.
249 Goods, above n 41, at 672.
250 Employment Relations Act, s 3(a)(iii); Anderson and Duncan, above n 80, at 457.
251 At 457.
252 At 457.
253 International Labour Conference, above n 192, at para 137.
254 Marinković, above n 230, at 12.
255 Hepple, above n 114, at 139.
256 At 140.
257 International Labour Conference, above n 192, at para 138.
Overall, effective climate adaptation requires industrial change across every sector and enterprise. Building an institutional setting where people are consulted and provided with resources about those changes will be crucial to achieving their support.258 If social dialogue loses its appeal to stakeholders or fails to resolve differences between them, industrial conflict can arise. Strike action is important thereafter for workers to protest against unilateral changes to terms of employment.259 If the right to strike is removed, freedom of association in an industrial relations context is meaningless because workers have no way to force their employer to bargain with them.260 Chapter IV argues that New Zealand should improve its collective labour law by strengthening the right to strike.
258 UNEP, above n 42, at 280-282.
259 Lene Olsen “Supporting a Just Transition: The Role of International Labour Standards” (2010) 2(2) Int J Lab Res 293 at 302.
260 Re Service Employees’ International Union, Local 204 and Broadway Manor Nursing Home (1983) 4 DLR (4th) 231 (Ont HCJ) at 249.
Chapter IV Improving Labour Law’s Response to Climate Change
The real choice is not jobs or environment. It is both or neither.261
This dissertation has established that climate change is inextricably linked to employment relations. The ILO’s Guidelines for a Just Transition outline numerous employment and environmental challenges that will arise on the path to environmentally sustainable development. Given the scale and urgency of the climate crisis, tackling these challenges jointly is “not an option, but a necessity”.262 Chapter IV explores industrial strike action as one potential avenue to respond to climate change within the world of work.
A Strike Action under Existing Legal Machinery 1 Health and Safety
As covered in Chapter I, the adverse impacts of climate change on working environments will become pronounced in future decades. Health and safety hazards may arise from heat stress, reduced air quality and exposure to vector-borne diseases.263 The Australian Industrial Relations Commission (“AIRC”) discussed hazards relating to high temperatures and inclement weather. Melbourne City Council v Australian Municipal, Administrative, Clerical and Services Union and others concerned a Heat and Sun Protection Policy for parking and traffic officers.264 The AIRC held that outdoor employees working in hot weather must take precautions to ensure that undue risk of heat stress does not eventuate.265 Heat stress can cause severe headaches, dizziness, extreme thirst and disabling fatigue.266 The Policy’s work-rest regime instructed employees to reduce their workload when temperatures reached 30.1°C and cease work at 32.2°C.267 The Western Australian Builders, Labourers, Painters and Plasterers Union of Workers v Blastcoasters Pty Ltd and Others reviewed the inclement weather
261 Brain Kohler, Communications, Energy and Paperworkers Union of Canada “Sustainable Development: A Labor View” (Persistent Organic Pollutants Conference, Chicago, Illinois, 5 December 1996).
262 ILO, above n 69, at 5.
263 Graham, above n 83, at 69.
264 Melbourne City Council v Australian Municipal, Administrative, Clerical and Services Union and others
[2007] AIRC 116 (20 March 2007) at [1].
265 At [41].
266 At [15].
267 At [39] and [44].
provisions applying to construction sites under the National Building and Construction Industry Award.268 “Inclement weather” means the existence of rain or abnormal climatic conditions which make it unreasonable or unsafe to continue working.269 The AIRC required that factory employees be trained on measures to avoid harmful effects from inclement weather and that employers implement appropriate workplace environmental controls and practices.270 This case law was decided on its facts and does not directly pertain to climate change. However, it exemplifies discussion which could emerge from New Zealand’s judiciary under the ER Act and HSWA as unions take bolder climate action.
There are unique hazards in green jobs which promote energy efficiency in manufacturing, construction and transportation.271 For instance, fire and explosion risks of hydrogen transportation, increased concentrations of carcinogenic radon from efficient insulation in buildings and exposure to toxic chemicals in solar panel manufacture and carbon capture.272 In the just transition to a green economy, employers should assess new occupational health and safety risks arising from climate change and identify adequate protection measures.273 This engages a PCBU’s primary duty under the HSWA to take all reasonably practicable steps to ensure the health and safety of workers and affected persons.274
Employees could use “green industrial action” to remedy climate-related occupational harms which are not addressed by a PCBU. Section 84 of the ER Act provides for lawful strike action where the participants have reasonable grounds for believing the strike is justified on the grounds of safety or health.275 Chapter II noted an “imminent danger” test is occasionally applied in this context. It encompasses issues relating to physical injury, industrial disease and purely emotional harm.276 The test has not been adopted as a general principle, and workers are also entitled to strike if there is an important safety issue that cannot be alternatively resolved.277 Section 84 seemingly covers health and safety concerns associated with climate change, such
268 The Western Australian Builders, Labourers, Painters and Plasterers Union of Workers v Blastcoasters Pty Ltd and Others [1996] WAIRComm 153 (16 August 1996).
269 Above n 268.
270 Above n 268.
271 Graham, above n 83, at 69.
272 At 69.
273 ILO, above n 69, at 15.
274 Health and Safety at Work Act, ss 36(1)-(2).
275 Employment Relations Act, s 84.
276 Accident Compensation Corporation v E, above n 172.
277 Fletcher Development and Construction, above n 172, at 7.
as heat stress and acute respiratory and nervous system illnesses from toxic chemical exposure.278 Strikes are an effective mechanism to pressure employers to implement safer work management systems. A notable health and safety strike was by the US Oil, Chemical and Atomic Workers Union (“OCAW”) in 1973. It organised strikes at five oil refineries following Shell Oil’s resistance to any form of workplace health and safety committees or monitoring.279 The OCAW demanded a national health and safety agreement to reduce the hazards of pollution and environmental contamination caused by poor plant practices.280 Unfortunately, in the New Zealand context, the Employment Court in Rail and Maritime Transport Union Inc v Northland Port Corporation Ltd observed that:281
The cases which have reached the Court involving strike action on the grounds of a reasonable belief that the action is justified for health and safety reasons are notable for their lack of success in establishing that justification.
Use of the s 84 machinery requires an objectively reasonable belief by employees that a health or safety issue had increased to an unacceptable level.282 Strike action may be perceived as too extreme a step in the absence of imminent danger.283 Examples of unlawful strikes include on the grounds of stress resulting from a perceived lack of job security284; in the presence of detailed contingency arrangements to deal with sickness and understaffing285; and where asbestos dust was maintained at safe levels according to the Asbestos Regulations 1983 to avoid endangering workers.286 This high threshold for justification reflects the material and emotional costs of strikes posed to employers and society, as discussed in Chapter III.
Section 84 is a feasible avenue for fossil-fuel and renewable industry employees to respond to particularly harmful chemicals or dangerous processes used in the workplace.287 Beyond
278 Graham, above n 83, at 69.
279 Robert Gordon “‘Shell No!’: OCAW and the Labor-Environmental Alliance” (1998) 3(4) Environmental History 460 at 469.
280 Todd E. Vachon and Jeremy Brecher “Are Union Members More or Less Likely to Be Environmentalists? Some Evidence from Two National Surveys” (2016) 41(2) LSJ 185 at 189.
281 Rail and Maritime Transport Union Inc v Northland Port Corporation Ltd EmpC AEC 14/97, 21 February 1997.
282 Smith v New Zealand Public Service Association [1990] 2 NZILR 110 at 2.
283 At 3.
284 Weddel New Zealand Ltd v New Zealand Freezing etc Clerical IUOW [1990] 3 NZILR 551.
285 Griffin v Attorney-General [1995] NZEmpC 18; [1995] 1 ERNZ 119 (EmpC).
286 Coates Brothers (New Zealand) Ltd v Auckland Chemical etc IUOW [1989] 2 NZILR 702.
287 Graham, above n 83, at 72.
addressing immediate safety concerns, using social dialogue and collective bargaining might be more effective to remedy ongoing climate-related health and safety issues at this stage of the just transition. In 2018, French construction unions agreed with the Federation of Public Workers on the implementation of preventive measures in extreme heat.288 These included monitoring weather forecasts, adjusting working conditions, providing adapted clothing and the possibility of unemployment compensation for work interruption.289 Generalising this type of agreement at the sectoral level of outdoor industries would assist PCBUs’ compliance with the HSWA and preclude the need for strike action by employees.
2 Collective Bargaining
Collective bargaining is the main tool for dialogue between workers and management in the just transition.290 Promoting collective bargaining is a principal object of the ER Act to build productive employment relationships.291 Parties are strongly encouraged to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to.292 The legislation does not restrict its substantive contents, thus Chapters I and II found that climate change can feature in a union’s package of demands. Should bargaining result in an impasse, strike action becomes available. Section 83 of the ER Act provides for lawful strike action where it relates to bargaining for a collective agreement that will bind each of the employees concerned.293 A union’s dominant motive in bringing the strike must be to further bargaining after the 40-day-strike-free good faith period passed (see Chapter II).294
The UNEP encourages bargaining to include “green clauses” in enterprise agreements.295 Such agreements should establish joint commitments on environmental issues and create a structure for developing policies and procedures on those issues.296 Given that workplaces are a major source of GHG emissions, negotiating green clauses will have a long-term cumulative effect
288 ETUC, above n 32, at 55.
289 At 55.
290 Victoria Lambropoulos “Greening Australian Workplaces: Workers and the Environment” (2019) 34(3) Alt LJ 189 at 192.
291 Employment Relations Act, s 3(a)(iii).
292 Section 33(1); Emergicare (Henderson) Ltd, above n 158, at 586.
293 Section 83(b)(i).
294 Capital and Coast District Health Board v Public Service Association, Te Pukenga Here Tikanga Mahi
[2022] NZEmpC 33 at [34].
295 United Nations Environment Programme Labour and the Environment: A Natural Synergy UN Doc DPD/0856/NA (2007) at 11.
296 At 11.
on carbon output.297 A 2017 survey of 131 green clauses in Canadian and Australian agreements revealed three types: (1) the joint commitment by parties to improving environmental impacts;
(2) the implementation of specific workplace environmental actions; and (3) consultation via the establishment of an environmental committee or green representative rights.298
Mitigation under the first type limits the negative effects of climate change and environmental degradation on workers and enterprises.299 For example, the Canadian Union of Public Employees Collective Agreement 2013 affirmed the joint objective of parties “to cooperate and promote jointly the objective of a pollution-free environment at work and in the community”.300 Other initiatives include recycling to eliminate excessive packaging and purchasing policies that favour low-energy, low-fuel and biodegradable materials.301 Adaptation under the second type requires anticipating climate impacts and taking suitable action to prevent any potential damage.302 Investing in adaptation and climate-resilient infrastructure is a matter of genuine urgency to ensure growth and job creation in a low-carbon economy.303 The third type reflects the importance of employee participation in identifying appropriate measures to reduce GHG emissions and respond to climate change at the enterprise level.304 Since these measures influence work practices and skills requirements, employees have a direct interest in their development.305 The Trades Union Congress’ “Green Workplaces” campaign in 2015 exemplifies successful consultation.306 Over 1300 union representatives were trained to conduct audits, identify energy savings and represent employees on workplace environmental committees in organisations across the UK.307
Limited resources, a lack of bargaining power and managerial prerogative over workplace practices contribute to the low incidence of “climate bargaining” in New Zealand.308 The
297 Lambropoulos, above n 290, at 189.
298 Goods, above n 41, at 674.
299 ILO, above n 12, at 11.
300 Canadian Union of Public Employees Collective Agreement (2013), art 25.09.
301 UNEP, above n 295, at 11.
302 ILO, above n 12, at 11.
303 At 11.
304 Raymond Markey, Joseph McIvor and Chris F. Wright “Employee Participation and Carbon Emissions Reduction in Australian Workplaces” (2016) 27(2) Int J Hum Resour Manag 173 at 173.
305 At 173.
306 At 177.
307 At 177.
308 Raymond Markey and Joseph McIvor “Environmental Bargaining in Australia” (2019) 61(1) JIR 79 at 97.
Tertiary Education Union (“TEU”) is the only union that has bargained for a green clause. See the New Zealand Council for Educational Research Collective Agreement 2021:309
Clauses 25.1 and 25.2 are broad commitments to climate mitigation and adaptation. While a beginning step, the Agreement demonstrates positive action using the power of collective agreements to ensure decent work for future members. It reflects Australian research that the majority of green clauses refer to the existence of environment-related policies and procedures, without specific detail of what is required of employees.310
Climate-facing activity by New Zealand trade unions has otherwise been limited.311 In 2016, only two NZCTU affiliates had developed basic climate policies while all others were inactive or non-committal.312 Most have since formally committed to a just transition.313 Action beyond these commitments varies significantly. The TEU amended its Rules to include “supporting climate justice, just transition and kaitiakitanga of our natural environment”.314 It also established Tiakina te Taiao (Climate Action Network) to engage in dialogue with the Tertiary Education Commission about a sector-wide strategy for carbon reduction, climate justice and
309 New Zealand Council for Educational Research Collective Agreement (1 October 2021 to 30 September 2022), cl 25.
310 Markey, McIvor and Wright, above n 304, at 183.
311 Graham, above n 83, at 71.
312 Julie Douglas and Peter McGhee “Trade Unions and the Climate Change Fight” (briefing papers, Auckland University of Technology, 5 July 2016).
313 NZCTU, above n 50, at 21-22.
314 Tertiary Education Union Rules 2021 (amended at conference May 2021), cl 3.17.
a Te Tiriti-centered future.315 Ongoing work by E tū endorses the creation of training centres in communities like Taranaki as energy and mining corporations shift to renewable sources.316 This emphasis on skills development and social protection meets key policy areas of the ILO’s Guidelines for a Just Transition. Unite Union is building member activism on climate issues through collaborative workshops with Climate Justice Aotearoa.317 New Zealand mirrors Australian activities, where the education sector has comparatively high participation in collective bargaining and the development of environmental initiatives.318
New Zealand’s union leadership still seems underprepared to campaign for urgent climate action. Climate change is providing a renewed sense of purpose for worker mobilisation overseas, yet New Zealand unions face difficulties in addressing environmental and social issues outside of wages and conditions.319 Unions are bound by their capacity in space and time, meaning they must act on account of the particular industry and members they represent.320 This reflects the “jobs versus environment” conflict, where unions’ traditional focus on job security clashes with the medium- to long-term approach necessitated by climate change (see Chapter I).321 However, the prospect of major industrial disruption in the just transition is pertinent to workers’ future needs, thus any reluctance by union leadership to raise climate concerns for fear of backlash is problematic.322
This explains the lack of “green industrial action” in New Zealand so far. A novel example was the Minneapolis-based SEIU Local 26 trade union for property services employees. SEIU 26 bargained for green proposals in addition to conventional issues of increased pay and sick leave.323 After four months of negotiation, 4000 janitors, security guards and window cleaners went on strike on 20 February 2020. SEIU 26 successfully concluded an agreement on 7 March 2020 which conceded to a green janitorial training initiative, the use of non-toxic cleaning products and closure of the local rubbish incinerator which ranked first nationally for arsenic
315 Tertiary Education Union “Positive Action to Address Climate Change” (30 August 2022) TEU
<https://teu.ac.nz/news/positive-action-to-address-climate-change/>.
316 E tū “Just Transition” (2022) E tū <https://www.etu.nz/justtransition/>.
317 NZCTU, above n 50, at 22.
318 Markey, McIvor and Wright, above n 304, at 187.
319 Parker, Alakavuklar and Huggard, above n 85, at 277.
320 Snell and Fairbrother, above n 90, at 85.
321 Julie Douglas and Peter McGhee “Towards an Understanding of New Zealand Union Responses to Climate Change” (2021) 31(1) Labour & Industry 28 at 39.
322 At 39.
323 Graham, above n 83, at 70.
emissions.324 This motivates a labour-environmental coalition, but in reality, the success of negotiating collective agreements depends on union strength.325 New Zealand’s trade unions must construct a greater environmental role for themselves before climate strikes are likely to accompany the bargaining process.
This Part showed that existing machinery under the ER Act can be used to effect change on workplace environmental issues. Enterprise- and sectoral-level bargaining has a major role to transform existing workplaces and production processes greener, given there is no appetite for a full-fledged restructuring of New Zealand’s political economy. Occupational health and safety hazards of climate change are the “low hanging fruit” for unions to include in collective bargaining. Issues that are linked to efficiency, safety and consultation on the environment have also been prevalent in Australia.326 Overseas experience suggests that full implementation of green clauses is only possible where unions have full freedom to organise their activities.327 Compliance with the principles of freedom of association in ILO Conventions 87 and 98 will therefore be essential for workers’ interests to be represented in the climate agenda.328
B A Possible Future for Protest Strike Action?
Part A emphasised that social dialogue and collective bargaining are key forms of employee participation. They can seek appropriate solutions to climate change by implementing specific workplace policies and contractual obligations on employers.329 Given the scale and urgency of the climate crisis articulated by youth activist Greta Thunberg, it is necessary to consider responses at the national level in conjunction with bargaining processes.
As stated in Chapter I, the MBIE established a JTU to facilitate the co-design of “Transition Pathway Action Plans” which identify regional opportunities for a low-carbon future.330 Activation is concentrated in Taranaki and Southland, where sunset industries in oil refinement
324 Caleb Brennan “Will SEIU Local 26’s Climate-Based Demands be the Future of Strikes?” (2020) Strike Wave <https://www.thestrikewave.com/original-content/seiu-local-26s-climate-based-strike>.
325 UNEP, above n 295, at 13.
326 Markey, McIvor and Wright, above n 304, at 177.
327 UNEP, above n 295, at 13.
328 At 13.
329 Lambropoulos, above n 290, at 192.
330 Ministry of Business, Innovation and Employment “Just Transition” (15 November 2021) MBIE
<https://www.mbie.govt.nz/business-and-employment/economic-development/just-transition/>.
and aluminium account for large proportions of the local economy. The NZCTU recommends the creation of an NJTP, and an independent Climate Commission to oversee its implementation, as the Government strives to meet its obligations under the Paris Agreement.331 A formal process of tripartite engagement is required to build consensus on national strategies across all industries and sectors.332 FIRST Union also supports national ambition to tackle climate change and social goals.333 It calls for a new “Ministry of Green Works”, alongside significant resourcing for iwi, hapū and Māori entities, to deliver a coordinated model for public housing and green infrastructure.334 Workers must contribute to all decision-making points in national just transition planning because they have valuable on- site knowledge of how policies may be carried out fairly and efficiently.335 Having overarching governance would structure New Zealand’s union activity on climate change, thereby prompting a shift beyond informal alliance-building and activism.336
This Part argues that New Zealand’s labour law ought to properly reflect the Government’s commitment to international labour and human rights standards on the right to strike. Providing scope for lawful protest strikes would allow trade unions to express their dissatisfaction regarding major issues in government policy on climate change that directly affect workers’ interests.337 This includes advocating for the development of an NJTP. Three options are suggested to improve labour law’s response in this field: (1) ratifying ILO Convention 87; (2) drawing lessons from overseas jurisprudence; and (3) amending the ER Act.
1 Ratifying ILO Convention 87
ILO Conventions 87 and 98 are the cornerstone of employee participation in decision- making.338 Both Conventions must be ratified and fully implemented to better protect working people.339 New Zealand abstained from ratifying ILO Convention 87 since its adoption in 1948.
331 E tū “Just Transition” (2022) E tū <https://www.etu.nz/justtransition/>.
332 NZCTU, above n 50, at 5.
333 Max Harris and Jacqueline Paul A Ministry of Green Works for Aotearoa New Zealand: An Ambitious Approach to Housing, Infrastructure, and Climate Change (FIRST Union Policy Report, October 2021) at 6. 334 At 40.
335 New Zealand Council of Trade Unions Next Steps on Just Transition to Good, Green Jobs (15 October 2019) at 6; UNEP, above n 295, at 18.
336 Parker, Alakavuklar and Huggard, above n 85, at 278. 337 Gernigon, Odero and Guido, above n 175, at 33-34. 338 Olsen, above n 259, at 302.
339 Green Party of Aotearoa New Zealand “Workforce Policy” (18 February 2020) at 2.
The use that each country makes of ILO standards depends on its political, social and economic struggles.340 In New Zealand, demands for a right to strike have not recovered since the introduction of the EC Act and neoliberal reforms in the early 1990s, which eroded union membership against the backdrop of individual employment arrangements.341 While the Government must notionally respect freedom of association by virtue of its ILO membership, that is not enough. Ratifying the rights conveyed in ILO Convention 87 could bolster the general right to strike in the ICESCR. In particular, Articles 3 and 10 provide a reference point for the correct approach to analysing strike action in Part 8 of the ER Act. Ratification also triggers the ILO’s supervisory mechanisms which monitor the practical implementation and effect of the Conventions in Member States.342
Ratifying ILO Convention 87 provides scope for the full endorsement of ILO principles in New Zealand. Goddard CJ in Ivamy v New Zealand Fire Service indicated the courts may not always share the ILO’s view on the binding nature of the principles underlying Convention 87 without ratification.343 Principles of freedom of association cover national strikes which seek solutions to economic and social policy questions or labour problems of any kind that directly concern workers.344 They recognise that the interests of working people encompass legitimate issues beyond industrial disputes which may be resolved through signing a collective agreement. In the context of climate change, such interests include the promotion of green job opportunities, investment in low-carbon development strategies, formal education and re-training programmes and social protection measures.345 All of these could be addressed in an NJTP. In 2001, the International Labour Office observed that protest strike activity must be permissible and not subject to penalty under the ER Act to achieve full conformity with the principles of freedom of association.346 A prohibition of protest strikes is only acceptable for public servants exercising authority on part of the State or workers in essential services whose interruption could endanger the personal safety of the population.347
340 Hepple, above n 114, at 135.
341 Parker, Alakavuklar and Huggard, above n 85, at 271-272.
342 Eric Gravel, Isabelle Duplessis and Bernard Gernigon The Committee on Freedom of Association: Its Impact Over 50 Years (International Labour Office, 2001) at 12.
343 Ivamy v New New Zealand Fire Service [1995] NZEmpC 190; [1995] 1 ERNZ 724.
344 Gernigon, Odero and Guido, above n 175, at 14 and 55.
345 NZCTU, above n 50, at 5.
346 Roth, above n 179, at 165-166.
347 Gernigon, Odero and Guido, above n 175, at 17.
Ratifying ILO Convention 87 would be a positive step toward greater weight being given to international labour commitments by the Government. Implementation of ILO standards that secure participatory rights is vital to ensure working people are not excluded from top-down decision-making processes.348 Soft law measures have long been endorsed for generating social dialogue at the national and regional levels between stakeholders.349 This will help employment actors to reach deliberate consensus on common issues in the just transition.
2 Lessons from Overseas Jurisprudence
Even if Convention 87 is ratified, the value and significance of ILO standards depend on their interpretation in a domestic context.350 The principles underlying ILO Conventions 87 and 98 are relevant to a purposive interpretation of the ER Act.351 However, Chapters II and III discussed the judiciary’s reluctance to extend the meaning of freedom of association beyond the mere right to join a trade union. This is despite Tavita v Minister of Immigration, which confirmed that the courts must attempt to interpret legislation in a manner consistent with New Zealand’s international obligations.352
International labour and human rights norms have received greater attention in the jurisprudence of Canadian and European legal systems. In Health Services and Support- Facilities Subsector Bargaining Association v British Columbia (“B.C. Health”), a successful appeal challenged terms and conditions in the employment agreements of healthcare workers which were unilaterally imposed by statute.353 The Supreme Court of Canada (“SCC”) found the right to freedom of association guaranteed in s 2(d) of the Canadian Charter of Rights and Freedoms impliedly protects a procedural right to collective bargaining.354 The ICESCR and Convention 87 reflect international consensus that Canada committed itself to uphold by ratification, and thus are important to the interpretation of guarantees in the Charter.355
348 UNEP, above n 295, at 18.
349 Novitz, above n 197, at 468.
350 Gravel, Duplessis and Gernigon, above n 342, at 1.
351 Employment Relations Act, s 3(b).
352 Tavita v Minister of Immigration, above n 220, at 266.
353 Health Services and Support-Facilities Subsector Bargaining Association v British Columbia [2007] 2 SCR 391 at 392.
354 At 393.
355 At 434.
B.C. Health was refined in Ontario (Attorney-General) v Fraser, which held the Charter requires meaningful discussion and consultation about significant workplace issues with employers.356 This includes unions’ right to have their representations considered in good faith.357 A majority of the SCC in Saskatchewan Federation of Labour v Saskatchewan developed the jurisprudence further.358 It established that:359
A meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement.
The SCC concluded the right to strike is a necessary component of the bargaining process through which workers can pursue their collective workplace goals.360 For that reason, it is constitutionally protected by s 2(d) of the Charter.361
The European Court of Human Rights (“ECHR”) produced similar findings. Demir and Baykara v Turkey involved a Turkish municipality’s purported annulment of its obligations under a collective agreement.362 The ECHR found the right to bargain collectively is an essential element of the rights to freedom of assembly and association in Article 11 of the European Convention on Human Rights.363 Demir was reinforced by Enerji Yapi-Yol Sen v Turkey, where the ECHR determined a prohibition on civil servants participating in a national one-day strike could not be upheld in a democratic society.364 Article 11 of the Convention allows unions to act in defence of their members’ interests. In particular, the ECHR held that “strike action, which enables a trade union to make its voice heard, constitutes an important aspect in the protection of trade union members’ interests”.365 This jurisprudence has been cited with approval for giving pre-eminence to social and economic rights over the logic of competitiveness within labour law.366
356 Ontario (Attorney-General) v Fraser [2011] 2 SCR 3 at [49].
357 At [42].
358 Saskatchewan Federation of Labour, above n 227, at [3].
359 At [75].
360 At [75].
361 At [77].
362 Demir and Baykara v Turkey, Application No. 34503/97, 12 November 2008 at para 17.
363 At para 154.
364 Enerji Yapi-Yol Sen v Turkey, Application No. 68959/01, 21 April 2009.
365 Above n 364.
366 New Zealand Council of Trade Unions “Submission of the New Zealand Council of Trade Unions to the Constitutional Advisory Panel on New Zealand’s Constitutional Arrangements July 2013” at 17.
Both the SCC and ECHR have recognised that freedom of association comprises some degree of collective representation.367 In Canada, international human rights obligations mandate judicial protection of the right to strike as part of collective bargaining.368 This points to the deficiency of strike protections in New Zealand. While the CFA’s decisions are not binding, they are highly persuasive and have been adopted by courts and tribunals globally.369 Human rights is an evolving field of law, and our current position likely needs re-evaluation in light of overseas developments.370 New Zealand’s courts should attribute greater weight to ILO standards to provide a legal framework that is compatible with the pursuit of social justice.
3 Amending the Employment Relations Act
New Zealand can learn from overseas jurisprudence in its approach to collective employment rights under the ER Act.371 However, judicial recognition of the right to strike as a human right based on ILO standards may not be enough.372 Extending the meaning of freedom of association at common law does not necessarily empower industrial action, since the right to strike is accompanied by considerable restrictions on its aims and scope.373 The rights to bargain collectively and strike are largely statutory rights, thus amending our domestic legislation is required to ensure enhanced protection in practice.374
Firstly, workers’ rights should be expressly incorporated into the NZBORA:375
17 Freedom of association
Everyone has the right to freedom of association, including the right to bargain collectively and the right to strike in conformity with the law.
367 Anderson and Duncan, above n 80, at 429.
368 Saskatchewan Federation of Labour, above n 227, at [62].
369 At [69].
370 NZCTU, above n 366, at 17.
371 Anderson and Duncan, above n 80, at 440.
372 Novitz, above n 197, at 494.
373 At 468-469.
374 Anderson and Duncan, above n 80, at 439; Novitz, above n 197, at 494.
375 New Zealand Bill of Rights Act, s 17.
Amending the NZBORA to include a right to strike would conform with the ICESCR, which New Zealand has ratified.376 While the NZBORA is not supreme law, it often has a profound effect through a rule of statutory interpretation.377 Wherever an enactment can be given a meaning consistent with the rights and freedoms contained in the NZBORA, that meaning shall be preferred.378 This strengthens the consideration of human rights in the legislative process. The rights set out in the NZBORA are also justiciable:379
As well as having jurisdiction to award damages for breach of those rights and other remedies such as declarations, the courts may indicate that an ordinary enactment is inconsistent with the NZBORA. Such an indication does not require Parliament to remedy the inconsistency or give rise to a right to relief, but may be seen as imposing an obligation (of a political or moral nature) on Parliament to reconsider the legislation in question and justify any decision not to rectify it.
New Zealand’s courts would be empowered to declare that the ER Act is inconsistent with freedom of association in the NZBORA. Such declarations may urge Parliament to reconsider its position. Parliament is likely to face resistance by unions on any decision not to reform collective employment rights. Given the global political consensus on the need to reduce GHG emissions, efforts by NZCTU affiliates to promote the just transition ought to be supported by legislative mechanisms for industrial action in a broader context.
Secondly, the principle of protest strike activity should be incorporated into the ER Act:
85A Lawful strikes and lockouts related to economic and social policy
(1) Participation in a strike or lockout is lawful if the strike or lockout -
(a) is not unlawful under section 86; and(b) relates to a major issue in the economic and social policy of the present Government. (2) Subsection (1) applies where the employees who strike, or the employer who locks out, have reasonable grounds for believing that the strike is justified on the grounds that the policy will have a direct effect on their employment or a provision in a collective agreement.
376 NZCTU, above n 366, at 23.
377 At 11.
378 New Zealand Bill of Rights Act, s 6.
379 Joss Opie “A Case for Including Economic, Social and Cultural Rights in the New Zealand Bill of Rights Act 1990” (2012) 43(3) VUWLR 471 at 479.
Simultaneously, the limit on strikes and lockouts that relate to any matter dealt with in Part 3 should be removed.380 Part 3 legislates voluntary union membership and a prohibition on preference in obtaining employment because of a person’s membership or non-membership.381 It is acknowledged that amending the ER Act to allow any type of protest strike activity would significantly depart from the current code for lawful action. Sections 83 to 86 are based on the premise that strikes must generally relate to bargaining for a collective agreement. However, the current Labour-led Government reversed several anti-union legislative provisions and re- emphasised a tripartite model of industrial relations.382 This occurred alongside the passing of the Climate Change Response (Zero Carbon) Amendment Act 2019 and an overhaul of the Resource Management Act 1991. In a state of transition, New Zealand is well-placed to continually improve its response to climate change, acknowledging that working people will be among the worst affected. If the Green Party’s Workforce Policy progressed, it would establish the right of unions to take industrial action for social and environmental issues:383
Support the right of working people and their unions to campaign for political, environmental, social and work-related industrial issues, including the right to strike in support of these.
The 1970s “Green Bans” in Australia exemplifies strike action that could be taken under this Policy. The New South Wales Builders Labourers Federation (“NSWBLF”) fought for environmental protection by refusing to construct luxury complexes on bushland in Sydney’s Greenbelt.384 It also selectively embargoed demolition work to protect heritage buildings for local communities.385 The “Green Bans” campaign maintained that “all work performed should be of a socially useful and of an ecologically benign nature”.386 Following lobbying by local environmentalists, the NSWBLF directed workers to down tools on a proposed development, thus constituting industrial action aimed at stopping the project.387
380 Employment Relations Act, s 86(1)(e).
381 Sections 7-9.
382 Douglas and McGhee, above n 321, at 41-42.
383 Green Party, above n 337, cl 4.6.
384 The Australian Greens “Green Bans” (2022) The Australian Greens <https://greens.org.au/about/green- bans>.
385 Snell and Fairbrother, above n 90, at 413.
386 Above n 384.
387 Graham, above n 83, at 71.
New Zealand could safely remove the limits on sympathy and protest strikes on the basis that such forms of action are likely to be rare.388 Union strategies predominantly focus on the peaceful resolution of industrial conflict through social dialogue, tripartism and collective bargaining.389 Protest strike activity at the national level would also necessitate efficient management and financial power.390 Strikes are complex actions requiring a high degree of solidarity, given that managerial prerogative and third-party interests are affected (see Chapter III).391 Unfortunately, union density stabilised at approximately 17% after New Zealand’s shift to market liberalisation, despite the ER Act’s intended re-balancing of power and introduction of a good faith approach to employment relations.392 New Zealand is described as having a “weak form of competitive, self-help unionism” that is subservient to the Government’s interests in accommodating economic goals.393 The law is partly responsible for this situation, so the value of reform to collective employment rights should not be negated. Unions’ democratic nature, communication channels and ability to access workplaces are unsurpassed by other social organisations.394 Amending the ER Act may encourage NZCTU affiliates to draw upon their existing structures to mobilise workers in respect of climate change.395
This Part suggested that legal provision for collective worker voice has a significant effect.396 It would improve New Zealand’s current labour law regime, which unduly restricts strike action based on the scope of its objectives. Ratifying ILO Convention 87 and recognising the right to strike as an intrinsic aspect of freedom of association at common law are two possible solutions. However, New Zealand has a dualist legal system that requires the passing of legislation to make international law binding at the domestic level.397 Amending the ER Act would secure protection by making protest strikes a lawful mechanism for workers to defend their economic and social interests, as envisaged by the CFA and CE.398
388 Roth, above n 179, at 168.
389 Marinković, above n 230, at 18.
390 At 12.
391 McCrystal, above n 119, at 284.
392 Employment Relations Act, s 4; Anderson and Duncan, above n 80, at 455.
393 At 455.
394 Douglas and McGhee, above n 321, at 40.
395 At 31.
396 Novitz, above n 214, at 468.
397 NZCTU, above n 335, at 11.
398 Novitz, above n 214, at 477.
Concluding Remarks
Climate change will define the future of work and life as we know it. It poses detrimental effects on jobs, working conditions and economic activity. These must be addressed through a “just transition” response that anticipates the vulnerabilities of working people and seeks an equitable distribution of the costs and benefits of a green transformation.399 In the near future, those displaced by the phase-out of sunset industries will require support to find new decent jobs. As such, tripartite dialogue at the national level is crucial to create a coherent NJTP that spans enterprises and industries in New Zealand.400
Unions are expanding their environmental mandate to represent workers in the just transition. As articulated by senior lecturers at Auckland University of Technology:401
Not only will jobs, occupations and industries disappear or change but the health and safety of workers will be threatened and more broadly, food and water security compromised. The initial challenge to unions is to see these threats as core to union work and why action is imperative to ensure their unions are ready to respond, educate members, and also to work with firms to develop strategies which allow for a just transition to a more sustainable workplace and world.
This dissertation argued that social dialogue is an integral part of union responses to climate change at the enterprise and sectoral levels. Successful dialogue supports workplace democracy and consensus-building in the design and implementation of just transition policies.402 In particular, unions must facilitate bargaining to include specific environmental provisions in collective agreements. The subject matter of these “green clauses” includes, but is not limited to, GHG emissions reductions, skills development and cooperation on sustainability initiatives in the workplace. The ER Act promotes collective bargaining in this manner to maintain stable labour relations and reduce industrial conflict.403
399 ILO, above n 69, at 4-6.
400 NZCTU, above n 50, at 10-11.
401 Douglas and McGhee, above n 312.
402 Maarten Hermans, Jan Van Ongevalle and Huib Huyse “Social Dialogue as a Driver and Governance Instrument for Sustainable Development” (draft, KU Leuven, 12 September 2016) at 11.
403 Tayo Fashoyin “Tripartite Cooperation, Social Dialogue and National Development” (2004) 143(4) Int Lab Rev 341 at 363.
However, there cannot be a meaningful exercise of the rights to organise and bargain collectively without guaranteeing recourse to strike action.404 The right to strike is a fundamental right to be enjoyed by workers to match their employers’ countervailing power.405 It ameliorates employee risk and contributes to the pursuit of social justice. These are vital functions of New Zealand’s pluralist labour law.406 Yet, the ER Act currently restricts the right to strike to immediate health and safety issues and the negotiation of collective agreements.407 While these grounds provide some scope for “green industrial action”, a more progressive approach is needed. If New Zealand is to adhere to international labour and human rights standards, unions must have full freedom to organise their activities to further workers’ interests.408 That freedom necessarily includes taking national protest strikes aimed at seeking solutions to major issues in the Government’s economic and social policy.409
New Zealand’s slow progress towards a decarbonised future will face increasing criticism by civil organisations, as illustrated by the School Strike 4 Climate. If New Zealand wishes to meet the ambitious targets of the Paris Agreement, urgent climate mitigation and adaptation are imperative. In the process of change, it must be acknowledged that working people will experience significant impacts. Giving unions the tools to lead a representative labour- environment movement does not seem unreasonable in our democratic society. Accordingly, this dissertation argued that the legitimate objectives of strikes should be revisited to make “green industrial action” lawful. New Zealand’s Government is urged to grant stronger collective employment rights to protect workers in the ongoing climate crisis.
404 Novitz, above n 214, at 476.
405 Gernigon, Odero and Guido, above n 175, at 55.
406 Anderson and Duncan, above n 80, at 15.
407 Employment Relations Act, ss 83-84.
408 Convention C087, above n 190, arts 3 and 10.
409 Gernigon, Odero and Guido, above n 175, at 55.
Bibliography
A Cases
Accident Compensation Corporation v E [1991] NZCA 167; [1992] 2 NZLR 426
Bickerstaff v Healthcare Hawkes Bay Ltd [1996] NZEmpC 253; [1996] 2 ERNZ 680
Capital and Coast District Health Board v Public Service Association, Te Pukenga Here Tikanga Mahi [2022] NZEmpC 33
Coates Brothers (New Zealand) Ltd v Auckland Chemical etc IUOW [1989] 2 NZILR 702
Counties Manukau District Health Board v Public Service Association Inc [2002] NZEmpC 215; [2002] 2 ERNZ 968
Eketone v Alliance Textiles (NZ) Ltd [1993] 2 ERNZ 783
Emergicare (Henderson) Ltd v New Zealand Nurses Union [1991] NZLabC 243; [1991] 2 ERNZ 583
Epic Packaging Ltd v New Zealand Amalgamated Engineering, Printing & Manufacturing Union Inc [2006] NZEmpC 67; [2006] ERNZ 617
Fletcher Development and Construction Ltd v New Zealand Labourers IUOW [1990] 2 NZILR 222
Griffin v Attorney-General [1995] NZEmpC 18; [1995] 1 ERNZ 119
Governor of Pitcairn and Associated Islands v Sutton [1994] NZCA 277; [1994] 2 ERNZ 492
Ivamy v New New Zealand Fire Service [1995] NZEmpC 190; [1995] 1 ERNZ 724 Kaikorai Service Centre Ltd v First Union Inc [2018] NZEmpC 160 Kelly v Tranz Rail Ltd [1997] NZEmpC 140; [1997] ERNZ 476
Lyttleton Port Company Ltd v Rail and Maritime Transport Union Inc [2016] NZEmpC 179
New Zealand Amalgamated Engineering, Printing & Manufacturing Union Inc v Witney Investments Ltd [2007] NZCA 599; [2007] ERNZ 862
New Zealand Dairy Workers’ Union Inc v Open Country Cheese Country Ltd [2011] NZCA 56
Rail and Maritime Transport Union Inc v Northland Port Corporation Ltd EmpC AEC 14/97, 21 February 1997
SCA Hygiene Australasia Ltd v Pulp and Paper Industry Council of the Manufacturing and Construction Workers Union Inc [2008] ERNZ 301
Secretary for Justice v New Zealand Public Service Association [2018] NZEmpC 129
Service and Food Workers Union Nga Ringa Tota Inc v Spotless Services (NZ) Ltd (No 2)
[2007] ERNZ 539
Spotless Services (NZ) Ltd v Service and Food Workers Union Nga Ringa Tota Inc [2008] NZCA 580; [2008] ERNZ 609
Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257 (CA)
Tranz Rail Ltd v Rail & Maritime Transport Union (Inc) [1999] NZCA 63; [1999] 1 ERNZ 460 Tranz Rail Ltd v Rosson EmpC Wellington WC30/03, 30 September 2003 Walker v Northumberland County Council [1994] EWHC QB 2; [1995] ICR 702
Weddel New Zealand Ltd v New Zealand Freezing etc Clerical IUOW [1990] 3 NZILR 551
Wendco (NZ) Ltd v Unite Inc [2018] NZEmpC 67
Melbourne City Council v Australian Municipal, Administrative, Clerical and Services Union and others [2007] AIRC 116 (20 March 2007)
The Western Australian Builders, Labourers, Painters and Plasterers Union of Workers v Blastcoasters Pty Ltd and Others [1996] WAIRComm 153 (16 August 1996)
Health Services and Support-Facilities Subsector Bargaining Association v British Columbia
[2007] 2 SCR 391
Ontario (Attorney-General) v Fraser [2011] 2 SCR 3
Re Service Employees’ International Union, Local 204 and Broadway Manor Nursing Home
(1983) 4 DLR (4th) 231 (Ont HCJ)
Saskatchewan Federation of Labour v Saskatchewan [2015] SCC 4
Demir and Baykara v Turkey, Application No. 34503/97, 12 November 2008
Enerji Yapi-Yol Sen v Turkey, Application No. 68959/01, 21 April 2009
B Legislation
Climate Change Response (Zero Carbon) Amendment Act 2019 Employment Contracts Act 1991Employment Relations Act 2000 Health and Safety at Work Act 2015 Labour Relations Act 1987
New Zealand Bill of Rights Act 1990 Resource Management Act 1991
C Treaties
Constitution of the International Labour Organisation (opened for signature 1 April 1919, entered into force 28 June 1919)
Convention C087 - Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (opened for signature 9 July 1948, entered into force 4 July 1950)
Convention N098 - Right to Organise and Collective Bargaining Convention, 1949 (No. 98) (opened for signature 1 July 1949, entered into force 18 July 1951)
Declaration Concerning the Aims and Purposes of the International Labour Organisation, adopted at the 26th session of the ILO, Philadelphia, 10 May 1944 (DECLARATION OF PHILADELPHIA)
International Covenant on Economic, Social and Cultural Rights 14531 UNTS 993 (opened for signature 16 December 1966, entered into force 3 January 1976)
Paris Agreement (opened for signature 22 April 2016, entered into force 4 November 2016)
D Books and Chapters in Books
Gordon Anderson and Dawn Duncan Employment Law in Aotearoa New Zealand (3rd ed, LexisNexis, Wellington, 2022)
International Labour Organisation Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (5th ed, International Labour Office, Geneva, 2006)
E Journal Articles
Alex Gourevitch “The Right to Strike: A Radical View” (2018) 112(4) APSR 905
Anabella Rosemberg “Building a Just Transition: The Linkages Between Climate Change and Employment” (2010) 2(2) Int J Lab Res 125
Béla Galgoczi “Just Transition On the Ground: Challenges and Opportunities for Social Dialogue” (2020) 26(4) Eur J Ind Rel 367
Béla Galgoczi “The Changing Role of Trade Unions in the Sustainable Development Agenda” (2014) 24(1) Int Rev Sociol 59
Bernard Gernigon, Alberto Odero and Horacio Guido “ILO Principles Concerning the Right to Strike” (1998) 137(4) ILR 441
Bob Hepple “The Right to Strike in an International Context” (2009) 15(2) Canadian Lab & Emp LJ 133
Breen Creighton, Catrina Denvir and Shae McCrystal “Defining Industrial Action” (2017) 45 FL Rev 383
Caleb Goods “A Just Transition to a Green Economy: Evaluating the Response of Australian Unions” (2013) 39(2) ABL 13
Caleb Goods “Climate Change and Employment Relations” (2017) 59(5) JIR 670 Caleb Goods “Labour Unions, the Environment and ‘Green Jobs’” (2011) 67 JAPE 47
Colin Gill “Employers, Trade Unions and Environmental Problems in Europe” (1995) 26(3) Ind Relat J 179
Darko Marinković “Strikes in Transition - An Attempt at Defining New Theoretical Controversies” (2001) 4(1) SEER: Journal for Labour and Social Affairs in Eastern Europe 9
Darryn Snell and Peter Fairbrother “Toward a Theory of Union Environmental Politics: Unions and Climate Action in Australia” (2011) 36(1) LSJ 83
Darryn Snell and Peter Fairbrother “Unions as Environmental Actors” (2010) 16(3) Transfer 411
David Doorey “A Law of Just Transitions?: Putting Labor Law to Work on Climate Change” (2016) 12(7) Osgoode Legal Studies Research Paper Series 164
Debbie Hopkins, Colin Campbell-Hunt, Lynette Carter, James E. S. Higham and Chris Rosin “Climate Change and Aotearoa New Zealand” (2015) 6 WIREs Clim Change 559
Dimitris Stevis and Romain Felli “Global Labour Unions and Just Transition to a Green Economy” (2015) 15 Int Environ Agreements 29
Gordon Anderson “The Employment Contracts Act 1991: An Employers’ Charter?” (1991) 16 NZJIR 127
Helen Masterman-Smith “Green Collaring a Capital Crisis?” (2010) 20(3) Labour & Industry 317
Jane Parker, Ozan Nadir Alakavuklar and Sam Huggard “Social Movement Unionism Through Radical Democracy: The Case of the New Zealand Council of Trade Unions and Climate Change” (2021) 52(3) Ind Rel 270
Jean-Michel Servais “ILO Law and the Right to Strike” (2009) 15(2) Canadian Lab & Emp LJ 147
Jeffrey S Vogt “The Right to Strike and the International Labour Organisation (ILO)” (2016) 27(1) KLJ 110
Joss Opie “A Case for Including Economic, Social and Cultural Rights in the New Zealand Bill of Rights Act 1990” (2012) 43(3) VUWLR 471
Julie Douglas and Peter McGhee “Towards an Understanding of New Zealand Union Responses to Climate Change” (2021) 31(1) Labour & Industry 28
Keith D. Ewing “The Function of Trade Unions” (2005) 34(1) ILJ 1
Lene Olsen “Supporting a Just Transition: The Role of International Labour Standards” (2010) 2(2) Int J Lab Res 293
Mark A. Graham ““No Jobs on a Dead Planet”: At the Interface of Employment - Climate Change Law” (2019) 44(2) NZJER 63
Martin Manning, Judy Lawrence, Darren Ngaru King and Ralph Chapman “Dealing with Changing Risks: A New Zealand Perspective on Climate Change Adaptation” (2015) 15 Reg Environ Change 581
Miguel Esteban and David Leary “Current Developments and Future Prospects of Offshore Wind and Ocean Energy” (2012) 90 Applied Energy 128
Nora Räthzel and David Uzzell “Trade Unions and Climate Change: The Jobs Versus Environment Dilemma” (2011) 21 Glob Environ Change 1215
Paul Hampton “Trade Unions and Climate Politics: Prisoners of Neoliberalism or Swords of Climate Justice?” (2018) 15(4) Globalizations 470
Paul Roth “International Labour Organisation Conventions 87 and 98 and the Employment Relations Act” (2001) 26(2) NZJIR 145
Raymond Markey and Joseph McIvor “Environmental Bargaining in Australia” (2019) 61(1) JIR 79
Raymond Markey, Joseph McIvor and Chris F. Wright “Employee Participation and Carbon Emissions Reduction in Australian Workplaces” (2016) 27(2) Int J Hum Resour Manag 173
Robert Gordon “‘Shell No!’: OCAW and the Labor-Environmental Alliance” (1998) 3(4) Environmental History 460
Romain Felli “An Alternative Socio-Ecological Strategy? International Trade Unions’ Engagement with Climate Change (2014) 21(2) Rev Int Polit Econ 372
Tayo Fashoyin “Tripartite Cooperation, Social Dialogue and National Development” (2004) 143(4) Int Lab Rev 341
Todd E. Vachon and Jeremy Brecher “Are Union Members More or Less Likely to Be Environmentalists? Some Evidence from Two National Surveys” (2016) 41(2) LSJ 185
Tonia Novitz “Connecting Freedom of Association and the Right to Strike: European Dialogue with the ILO and its Potential Impact” (2009) 15(3) Canadian Lab & Emp LJ 465
Tonia Novitz “Engagement with Sustainability at the International Labour Organization and Wider Implications for Collective Worker Voice” (2020) 159(4) ILR 463
Tonia Novitz “Freedom of Association and ‘Fairness at Work’ - An Assessment of the Impact and Relevance of ILO Convention No. 87 on its Fiftieth Anniversary” (1998) 27(3) ILJ 169
Tom Farnhill “Union Renewal and Workplace Greening – Three Case Studies” (2018) 56(4) Br J Ind Relat 716
Samuel Fankhaeser, Friedel Sehlleier and Nicholas Stern “Climate Change, Innovation and Jobs” (2008) 8(4) Climate Policy 421
Shae McCrystal “The Right to Strike and the Deadweight of the Common Law” (2019) 50(2) Victoria U Wellington L Rev 281
Shae McCrystal “Why Is it So Hard to Take Lawful Strike Action in Australia?” (2019) 61(1) JIR 129
Victoria Lambropoulos “Greening Australian Workplaces: Workers and the Environment” (2019) 34(3) Alt LJ 189
F Parliamentary and Government Materials
Green Party of Aotearoa New Zealand “Workforce Policy” (18 February 2020) Ministry for the Environment “Arotakenga Huringa Āhuarangi: A Framework for theNational Climate Change Risk Assessment for Aotearoa New Zealand” (September 2019)
New Zealand Council of Trade Unions “Submission of the New Zealand Council of Trade Unions to the Constitutional Advisory Panel on New Zealand’s Constitutional Arrangements July 2013”
G Non-Governmental Papers and Reports
Eric Gravel, Isabelle Duplessis and Bernard Gernigon The Committee on Freedom of Association: Its Impact Over 50 Years (International Labour Office, 2001)
Guillermo Montt, Federico Fraga and Marek Harsdorff The Future of Work in a Changing Natural Environment: Climate Change, Degradation and Sustainability (ILO Research Paper Series, International Labour Office, 2018)
International Labour Conference, 81st Session Freedom of Association and Collective Bargaining. Report of the Committee of Experts on the Application of Conventions and Recommendations (International Labour Office, Geneva, 1994)
International Labour Conference, 107th Session Report VI: Social Dialogue and Tripartism
(International Labour Office, Geneva, 2018)
International Labour Organisation Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All (International Labour Office, 2015)
International Labour Organisation Sustainable Development, Decent Work and Green Jobs
(International Labour Office, 2018)
International Labour Organisation The Employment Impact of Climate Change Adaptation. Input Document for the G20 Climate Sustainability Working Group (International Labour Office, August 2018)
Intergovernmental Panel on Climate Change Summary for Policymakers of IPCC Special Report on Global Warming of 1.5°C (8 October 2018)
Intergovernmental Panel on Climate Change Summary for Policymakers of Working Group III Contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (2022)
International Trade Union Confederation Just Transition - Where Are We Now and What’s Next? A Guide to National Policies and International Climate Governance (ITUC Climate Justice Frontline Briefing, D/2017/11.962/17, 2017)
Max Harris and Jacqueline Paul A Ministry of Green Works for Aotearoa New Zealand: An Ambitious Approach to Housing, Infrastructure, and Climate Change (FIRST Union Policy Report, October 2021)
New Zealand Council of Trade Unions Just Transition - A Working People’s Response to Climate Change (October 2017)
New Zealand Council of Trade Unions Next Steps on Just Transition to Good, Green Jobs
(15 October 2019)
Syndicat European Trade Union Confederation A Guide for Trade Unions. Adaptation to Climate Change and the world of work (2020)
United Nations Environment Programme Green Jobs: Towards Decent Work in a Sustainable, Low-Carbon World (UNEP/ILO/IOE/ITUC, September 2008)
United Nations Environment Programme Labour and the Environment: A Natural Synergy
UN Doc DPD/0856/NA (2007)
H Internet Materials
The Australian Greens “Green Bans” (2022) The Australian Greens
<https://greens.org.au/about/green-bans>
Caleb Brennan “Will SEIU Local 26’s Climate-Based Demands be the Future of Strikes?” (2020) Strike Wave <https://www.thestrikewave.com/original-content/seiu-local-26s-climate- based-strike>
E tū “Just Transition” (2022) E tū <https://www.etu.nz/justtransition/>
International Labour Organisation “21. Social Dialogue and Tripartism” (2022) International Labour Organisation <https://www.ilo.org/global/topics/dw4sd/themes/s-dialogue- tripartism/lang--en/index.htm>
Ministry of Business, Innovation and Employment “Just Transition” (15 November 2021) MBIE <https://www.mbie.govt.nz/business-and-employment/economic-development/just- transition/>
Tertiary Education Union “Positive Action to Address Climate Change” (30 August 2022) TEU <https://teu.ac.nz/news/positive-action-to-address-climate-change/>
I Newspaper and Magazine Articles
Laura Snapes “‘Time to Rebel’: Greta Thunberg Adds Voice to New Song by The 1975” The Guardian (online ed, United Kingdom, 25 July 2019)
Peter McKenzie “Auckland Chapter of New Zealand’s School Strike 4 Climate Group Admits Racism and Disbands” The Guardian (online ed, New Zealand, 15 June 2021)
Suyin Haynes “Students From 1,600 Cities Just Walked Out of School to Protest Climate Change. It Could Be Greta Thunberg’s Biggest Strike Yet” TIME (online ed, 24 May 2019)
J Press Releases
Margaret Wilson “Government to Ratify Fundamental International Labour Convention” (press release, 20 December 2002)
J Speeches
Brain Kohler, Communications, Energy and Paperworkers Union of Canada “Sustainable Development: A Labor View” (Persistent Organic Pollutants Conference, Chicago, Illinois, 5 December 1996)
Naomi Klein “Overcoming ‘Overburden’: The Climate Crisis and a Unified Left Agenda. Why Unions Need to Join the Climate Fight” (UNIFOR Founding Convention, Toronto, 1 September 2013)
K Other Resources
Canadian Union of Public Employees Collective Agreement (2013)
Julie Douglas and Peter McGhee “Trade Unions and the Climate Change Fight” (briefing papers, Auckland University of Technology, 5 July 2016)
Maarten Hermans, Jan Van Ongevalle and Huib Huyse “Social Dialogue as a Driver and Governance Instrument for Sustainable Development” (draft, KU Leuven, 12 September 2016)
New Zealand Council for Educational Research Collective Agreement (1 October 2021 to 30 September 2022)
Tertiary Education Union Rules 2021 (amended at conference May 2021)
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/UOtaLawTD/2022/10.html