FAQs: Collective Bargaining

What is collective bargaining?

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

How does APEX make decisions?

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

What is a bargaining process agreement?

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

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

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

What are claims and counter-claims?

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

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

What happens when APEX and employer bargaining teams meet to discuss claims?

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

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

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

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

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

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

What is an offer?

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

What is a ‘terms of settlement’?

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

How does a settlement or offer for settlement become a new contract or agreement?

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

What happens after a collective agreement is signed?

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

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

What is mediated collective bargaining?

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