What is facilitation?
Facilitation is a procedure provided for in the Employment Relations Act 2000, which provides for the Employment Relations Authority to become involved in collective bargaining processes and make recommendations.
The purpose of facilitation is to enable parties having ‘serious difficulties’ concluding a collective agreement to seek the assistance of the Employment Relations Authority.
What is the Employment Relations Authority?
The Employment Relations Authority or ERA is the tribunal, which operates in a mostly informal way to resolve employment relationship problems.
Usually, the first step resolving employment problems is mediation – a confidential, impartial, voluntary service provided by the government to help parties resolve issues and disputes. Ordinarily, the next step if mediation is unsuccessful to resolve a problem like an unfair dismissal, unpaid wages or breach of good faith, is an investigation of the ERA.
ERA Members are the experts appointed by the government to investigate and decide on employment problems and challenges.
When is facilitation applied for?
Facilitation is used when parties are having “serious difficulties” concluding a collective agreement. This typically looks like an impasse, between parties positions, most often around remuneration or salaries.
If a party or parties applies for facilitation it can be granted because of a breach good faith, unduly protracted bargaining, protracted or acrimonious strikes/lockouts, or someone has proposed strikes/kickouts which would likely affect the public interest substantially.
Sometimes parties will disagree on whether facilitation should occur, in which case the ERA will make a decision on whether they think these grounds have been met or not.
What happens when facilitation is referred?
If parties are referred to facilitation then an ERA member is allocated the bargaining, and will then work with the parties to set up dates and locations for bargaining, and to clarify the key issues ahead of the bargaining.
Facilitation can involve the ERA meeting with both parties together, or meeting with parties separately or a combination of both.
Parties must deal with the ERA in good faith, which means they cannot mislead or deceive the ERA or the other party, and should work actively and constructively to conclude a collective agreement.
What will members be told about what happens in facilitation?
Unfortunately very little. Facilitation occurs in private, and any public statements we make are limited only to the process of facilitation. Updates to members during facilitation are typically brief and limited to how things are progressing.
If a settlement is reached at facilitation, then that will be presented to members to vote on. If no settlement is reached, the ERA may make a recommendation.
What is a recommendation?
A recommendation may be given to the parties or publicly, to help the parties achieve settlement. Frequently a public recommendation is the ERA giving a view on what they think the parties should agree to in the collective agreement.
Both parties must give thoughtful and sincere consideration to any recommendation the ERA makes, although a recommendation is not binding.
Is facilitation helpful?
Facilitation can be very helpful when bargaining is at a stalemate. Although the ERA is not deciding terms and conditions, they can help push parties together to see a settlement they would not otherwise be able to see. They can add a dollop of reasonableness and focus into the mix when bargaining may be lacking these qualities. They can help parties to clarify issues, and to communicate more clearly and effectively with each other.
What impact does this have on bargaining and industrial action?
Parties being in facilitation does not prevent them from taking or continuing industrial action. Sometimes we will consider it helpful to pause strike action during facilitation, but sometimes not. Parties will also often continue direct negotations to attempt to resolve the bargaining, parallel to a facilitation process.