New Zealand: Collective Employment Agreement Negotiations: The Battle For Hearts And Minds

Last Updated: 7 June 2007
Article by John Hannan

The battle for hearts and minds is, in the work place as much as in politics, a crucial dimension of success.

There are regular examples of employers believing that Unions are misrepresenting their position to staff during Collective Employment Agreement (CEA) negotiations, and trying to communicate directly with staff to explain their position. Similarly, there are examples of Unions claiming that employers have been communicating with staff in a way intended to undermine the Union’s negotiating position. Such disputes are often bitter. Employers claim a right to communicate freely with their staff. Unions say employers must not try to come between them and their members.

So the ways in which employers and Unions can communicate with Union-represented staff during CEA negotiations is one of the key issues in Union/employer relations. Unions and employers have regularly gone to Court about it. It is specifically dealt with in the Employment Relations Act (ERA).

A recent case from the local government sector has made some major changes to what is and isn’t permissible.

The Court of Appeal has now made a decision on the issue that largely puts the position back to what it was in the late 1990s under the Employment Contracts Act.

In Christchurch City Council v Southern Local Government Officers Union Inc the Council and Union were negotiating for a new collective employment agreement. The CEO of the Council communicated directly with staff on a number of occasions. The Union objected. It said the communications breached the ERA. The Employment Court held the communications did breach the ERA and the Council now appealed.

The basic question was whether the ERA imposes a complete ban on employers communicating with staff in any way touching on the topic of collective bargaining (or anything else) while CEA negotiations are under way.

This question arises because of section 32 of the ERA. This says that during bargaining employers and Unions must not try to bargain directly with the persons the other party represents; eg, employers must not try to bargain directly with employees who are Union members. The ERA also provides that a Union or employer must not do anything that undermines the bargaining or the authority of the other party in the bargaining.

What is ‘bargaining’? This is important because it determines the time frame in which employer/staff communications are restricted. The ERA defines bargaining as ‘all the interactions between the parties to the bargaining’ and includes ‘communications or correspondence that relate to the bargaining'.

The Employment Court decision had said that any communication touching on bargaining topics during the bargaining process was prohibited. Indeed effectively the Employment Court held that the Council could not communicate at all with staff in any way which could be regarded as relating to the bargaining.

The Employment Court also found that the restriction applied even before bargaining had commenced, if commencement of bargaining was likely in the near future.

The basic problem was that the Employment Court’s interpretation introduced a general ban on communications between employers and employees during bargaining. The Court of Appeal thought this was wrong. The intent of the ERA was to prevent communications between employers and staff only if they might undermine the bargaining or the Union’s authority in the bargaining.

The Court of Appeal said that ‘bargain’ in the Act means ‘negotiate’. What the ERA was trying to prevent was employers negotiating, or attempting to negotiate, directly or indirectly with staff, in other words going around a Union and trying to persuade staff directly to accept the employer’s proposals, rather than the Union’s recommendations. Clearly this sort of behaviour, of which there are documented incidents, can seriously undermine the Union’s position, or might do so. A Union is entitled to have its relationship with its members respected by the employer.

So employer communications with Union-represented staff during bargaining are now only prohibited if they are an attempt, whether direct or indirect, to negotiate with employees about terms and conditions of employment, or if they undermine or are likely to undermine the bargaining or the Union’s authority.

Outside of those areas, employers are free to continue to communicate with staff in the usual way. Provided they do not attempt to negotiate or undermine the authority of the Union, they might also be free to communicate with staff on factual matters or the employer’s opinion about its business. So there might be more general statements by the employer about the current status or viability of the business or organisation, its needs, and its requirements. Clearly that opens the door to PR or, more bleakly, propaganda campaigns during collective bargaining. Such campaigns have been mounted in the past under the old Employment Contracts Act system.

The Court of Appeal also said that the restrictions on communication which do exist under the ERA do not apply before bargaining has been formally initiated.

This decision has a significant potential impact on what will happen during collective bargaining processes. While employers will not be entitled to either try to bargain directly with staff, or say and do things which undermine the authority of the Union, they will be entitled to continue to communicate with staff about the affairs and general status of the organisation or business.

Undoubtedly such communications can be framed in such a way as to potentially influence the opinion of Union members about Union recommendations. The battle for hearts and minds during collective bargaining will continue. More controversy over what employers can say to staff during collective bargaining is likely.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.