Determining collective agreement if breach of duty of good faith

Heading: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50J Remedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining

(1)

A party to bargaining for a collective agreement may apply, on the grounds specified in subsection (3), to the Authority for a determination fixing the provisions of the collective agreement being bargained for.

(2)

The Authority may fix the provisions of the collective agreement being bargained for if it is satisfied that—

(a)

the grounds in subsection (3) have been made out; and

(b)

it is appropriate, in all the circumstances, to do so.

(3)

The grounds are that—

(a)

a breach of the duty of good faith in section 4

(i)

has occurred in relation to the bargaining; and

(ii)

was sufficiently serious and sustained as to significantly undermine the bargaining; and

(b)

all other reasonable alternatives for reaching agreement have been exhausted; and

(c)

fixing the provisions of the collective agreement is the only effective remedy for the party or parties affected by the breach of the duty of good faith.

(4)

The Authority may make a determination under this section whether or not any penalty for a breach of good faith has been awarded under section 4A in relation to the same bargaining and whether or not the breach is the same breach.

(5)

The effect of a determination of the Authority fixing the provisions of a collective agreement is to make the collective agreement binding and enforceable as if it had been—

(a)

ratified as required by section 51; and

(b)

signed by the parties under section 54(1)(b).

(6)

Section 59 applies to the determination as if it were a collective agreement.

(7)

If the bargaining for the collective agreement was subject to facilitation under sections 50A to 50I, the member of the Authority who makes a determination under this section must not be the member of the Authority who conducted the facilitation if a party to the bargaining objects.

Section 50J: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).