Employer calls it 'reasonable'; union calls it 'unlawful' and beyond collective agreement
The Employment Relations Authority (ERA) recently dealt with a dispute between a port company and a maritime union regarding the implementation of a mandatory health monitoring policy for employees.
The union argued that the new policy went beyond the scope of health monitoring outlined in their collective agreement and that any changes to health monitoring practices should be subject to collective bargaining.
This case highlights the tension between workplace safety measures and established employment agreements, raising questions about how far employers can go in implementing new health and safety policies without renegotiating existing contracts.
The dispute arose when Lyttleton Port Company Limited (LPC) sought to implement a comprehensive health monitoring policy for all employees. This initiative was partly in response to recommendations from the Transport Accident Investigation Commission (TAIC) following two fatal stevedoring accidents in New Zealand ports in April 2022.
On 20 June 2024, LPC implemented mandatory health monitoring for all of its employees, effective from 1 July 2024. The new policy aimed to expand health monitoring beyond what was explicitly stated in the collective agreement.
The existing agreement only covered "hearing, sight and respiratory conditions," while the new policy included cardiovascular disease, diabetes, and fitness assessments.
LPC started the process by meeting with unions in June 2022 to discuss the proposed health monitoring project. In October 2022, an occupational physiotherapist, Katie Croft, worked with union members to review the functional demands of their roles and released a report.
LPC then conducted a pilot programme of the proposed health monitoring with a cross-section of operational employees in October 2022.
The Maritime Union of New Zealand (MUNZ), representing about 38% of LPC's 653 employees, objected to the new policy. They argued that the health monitoring provisions in the collective agreement were specific and limited in scope.
MUNZ said that while they agreed health monitoring was a reasonable step for LPC to take, changes to the existing agreement must be subject to collective bargaining.
They rejected LPC's argument that the new policy could be implemented based on general health and safety obligations.
On 20 June 2024, MUNZ sent a letter to LPC seeking bargaining for a variation to the Collective Agreement on the proposed health monitoring. Despite this, LPC released the Health Monitoring Policy and Procedure on the same day, with health monitoring commencing on 1 July 2024.
The ERA examined the relevant provisions of the collective agreement, particularly focusing on Section 10, which dealt with health and safety matters. The authority noted:
"Clause 10.3 of the Collective Agreement provides for specific health monitoring, that is, regular testing and monitoring of hearing, sight and respiratory conditions."
The ERA found that while the agreement acknowledged LPC's health and safety obligations, it did not give the company permission to implement new procedures unilaterally. The authority stated:
"Clause 10.1 of the Collective Agreement does not permit [the employer] to unilaterally implement new procedures in respect of health and safety, the clause acknowledges and therefore binds the parties to, existing practices."
The ERA considered LPC's position, given its obligations under health and safety legislation and the TAIC recommendations. LPC argued that its ongoing obligations under the Health and Safety at Work Act 2015 and the TAIC recommendations effectively meant it must implement further health monitoring as set out in the new policy.
The ERA acknowledged LPC's efforts, saying:
"I acknowledge that [the employer] accepted the TAIC recommendations and conducted extensive reviews of employee health requirements in that regard. It engaged Ms Croft to comprehensively assess this and the Croft Report recommended monitoring in the form set out in the Health Monitoring Policy and Procedure."
However, the ERA added:
"However, I do not accept that the obligations [the employer] has arising out of the Health and Safety at Work Act 2015, the TAIC recommendations and the Croft Report provides [the employer] with a basis to implement the Health Monitoring Policy and Procedure for [union] Members without agreement obtained through collective bargaining."
In its final analysis, the ERA concluded that the new health monitoring policy was inconsistent with the collective agreement and amounted to an attempt to unilaterally change union members' terms and conditions of employment. The authority said:
"The Health Monitoring Policy and Procedure is inconsistent with the Collective Agreement; allowing [the employer] to implement it would permit a variation to the existing terms of employment for [union] Members and that can only be done by agreement."
Furthermore, the ERA said:
"There is no basis upon which [the employer] can unilaterally vary [union] Members' terms and conditions of employment in connection with health monitoring."
Consequently, the authority said:
"Therefore, the Health Monitoring Policy and Procedure is not lawful for [union] Members."
This decision highlights the importance of adhering to collective agreements and the need for negotiation when introducing new policies that may affect employees' terms and conditions. It also shows the ongoing challenge of balancing workplace safety obligations with established labour relations processes.
