Special Residential Schools' Collective Agreement
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Section 7: Employment relationship problem resolution process
Special Residential Schools' Collective Agreement
Effective 28 February 2019 to 27 February 2021
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7.1 Statement of the Parties
7.1.1 It is the intent and purpose of the parties to this Agreement to promote harmony and co-operation between the employer and its employees, and to provide effective procedures for the prompt and equitable resolution of disputes which may arise from time to time between the employer and any employee covered by this Agreement.
7.1.2 In accordance with the provisions of the Employment Relations Act 2000 the following procedures and services are available to the employer and employee for the resolution of all employment relationship problems.
7.2.1 “Employment Relationship Problem” includes a personal grievance, a dispute and any other problem relating to, or arising out of, an employment relationship, but does not include any problem associated with the fixing of new terms and conditions of employment. An employment relationship problem may arise, (but is not limited to), when;
- a concern arises for an employee about any aspect of their employment or any action of their employer;
- a concern about an employee’s health and wellbeing arises for an employer;
- a complaint involving an employee is received by an employer;
- a concern involving employee conduct arises for an employer; or
- a concern involving employee competence arises for an employer.
7.2.2 “Personal Grievance” - An employee may have a personal grievance where:
- They have been dismissed without good reason, or the dismissal was not carried out properly;
- They have been treated unfairly;
- Their employment or a condition of their employment has been affected to their disadvantage by an unjustified action of their employer;
- They have experienced sexual or racial harassment, or have been discriminated against because of their involvement in a union or other employee organisation, or have suffered duress over membership or non-membership of a union or other employee organisation; or
- They have been discriminated against.
7.2.3 “Dispute” means a dispute about the interpretation, application or operation of an employment agreement (refer s129 Employment Relations Act 2000).
7.3 Resolving Employment Relationship Problems
7.3.1 Many employment relationship problems will be able to be resolved by discussion between the employer and the employee(s) concerned, without the need to take the matter any further. Wherever appropriate, employers and employees should seek to resolve employment relationship problems in this manner in the first instance.
7.3.2 If an employee believes they have an employment relationship problem then they should talk to their supervisor about it. They should tell him/her:
- there is a problem; and
- the nature of the problem; and
- what they want done about the problem.
If for any reason the employee feels unable to raise the matter with their supervisor the matter should be raised with the Principal.
7.3.3 The employee has the right to seek the support and assistance of the PSA at any stage of the process. The employer is entitled to seek advice and assistance from NZSTA or their adviser/representative of choice at any stage of the process.
7.3.4 Where the processes outlined above fail to resolve an employment relationship problem then;
- An employer may decide to initiate procedures in accordance with clause 8.1 or any other appropriate procedure considering the circumstance (i.e. competency procedures).
- An employee may consider the procedures outlined in clause 7.4. in order to resolve the employment relationship problem.
7.4 Personal Grievances
7.4.1 A personal grievance must be raised with the employer within 90 days of the grievance occurring or coming to the employee’s notice, whichever is the later. As with any employment relationship problem, the parties should always try to resolve a personal grievance through discussion in the first instance. A written submission is preferable but not necessary. Employees are entitled to have the PSA raise the grievance on their behalf.
7.4.2 If an employee believes they have a personal grievance based on discrimination, sexual or racial harassment, they may be able to make a complaint under the Human Rights Act 1993 to the Human Rights Commission. This is an alternative process as an employee cannot refer a personal grievance to both the Human Rights Commission and the Employment Relations Authority ("the Authority"). If in doubt advice should be sought before deciding.
7.4.3 If the problem cannot be resolved through discussion, then either party can request assistance from the Ministry of Business, Innovation and Employment, which may provide mediation services.
7.5 Other Services Available For Resolving Employment Relationship Problems
7.5.1 The Ministry of Business, Innovation and Employments (MBIE) Mediation Service is available at any time to help parties solve problems in a balanced and fair way. They may help by giving information about you’re the parties rights and obligations or they may suggest a meeting between the parties or anything else that they think might help.
7.5.2 To help resolve employment relationship problems, MBIE provides:
- An information service
- This is free. It is available by contacting MBIE by phoning toll free 0800 20 90 20. The Ministry’s Employment Relations Service internet address is https://www.employment.govt.nz/
- Mediation Service
- The Mediation Service is a free and independent service available through MBIE.
- This service helps to resolve employment relationship problems and generally to promote the smooth conduct of employment relationships.
- Mediation is a mutual problem solving process, with the aim of reaching an agreement, assisted by an independent third party.
- If the parties can’t reach a settlement they can ask the mediator, in writing, to make a final and binding decision.
- A settlement reached through mediation and signed by the mediator at the request of the parties is final, binding and enforceable. Neither party can then take the matter any further and, either party can be made to comply with the agreed settlement by court order.
- If the problem is unresolved through mediation either party may apply to have the matter dealt with by the Employment Relations Authority.
- The Employment Relations Authority
- This Authority is an investigative body that operates in an informal way. It looks into the facts and makes a decision on the merits of the case and not on the legal technicalities.
- Either an employer or an employee can refer an unresolved employment relationship problem to the Authority by filing the appropriate forms.
- The Authority may call evidence, hold investigative meetings, or interview anyone involved. It can direct the parties to try mediation. If mediation is unsuitable or has not resolved the problem, the Authority will make a decision that is binding on all parties. Any party can contest the Authority’s decision through the Employment Court.
NB: In relation to a dispute about the interpretation, application, or operation of this Agreement the employer shall act, if the Secretary for Education acting under delegation from the State Services Commissioner so requires, together with or in consultation with the Secretary for Education.