Partial strikes – when doing part of the job means getting part of the pay
Wednesday, 22 July 2026
David Burton is an employment law barrister at www.burtonlaw.co.nz.
OPINION: Last week 1300 public servants walked off the job at the Department of Internal Affairs for two hours in protest over pay and proposed changes to working conditions. The union, the Public Service Association, said that the largest group affected were Life and Identity Services Officers, most of whom earn about $65,000 a year.
In bargaining for a new collective agreement it is understood that DIA had offered a $700 pay increase to each midpoint of each pay band. The PSA says this equated to an average pay rise of about 0.8% (well below the current inflation rate which effectively means a pay cut given the current cost of living and inflation). The PSA acknowledged that the DIA had offered a one-off lump sum of $1500, but said this did not increase the workers base salaries. The PSA said it was seeking a $2000 increase to the mid-point of each pay band, which equated to a pay increase of about 2.3%.
Strikes used to be associated with workers walking off the job for days at a time. However, that meant that workers were not entitled to pay for those days. Increasingly the most effective industrial action is not a complete withdrawal of labour, it is employees continuing to do their jobs while refusing to perform parts of them – partial strikes.
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Last year, the government amended the law allowing employers to deduct pay from employees engaged in partial strikes without having to suspend or lock them out. Employers may now deduct either 10% of an employee’s pay or make a proportionate deduction. The changes were promoted as restoring balance to collective bargaining by ensuring that employees who deliberately withhold part of their labour can no longer expect to receive full pay while doing so.
The first significant case to test the change has now reached the Employment Court. It arose during collective bargaining between NZEI Te Riu Roa and the Secretary for Education. Union members employed as psychologists, speech language therapists, physiotherapists, learning support advisers and kaitakawaenga undertook partial strike action by refusing to work unpaid overtime, refusing to work more than 38 hours per week and refusing to accept new cases, while otherwise continuing to perform their ordinary duties. The Ministry of Education responded by deducting 10% of their pay.
The main legal issue being tested in the Court was deceptively simple: who must be notified before those deductions can lawfully be made? The majority of the Employment Court concluded that the ministry had complied with its statutory obligations by giving notice through the union. However, Judge Helen Doyle strongly disagreed. In a strong and carefully reasoned dissenting judgment, she concluded that the legislation requires notice to be given individually to each affected employee before deductions are made. In her view, Parliament had deliberately chosen language that contemplated personal notice and employees should not have their wages reduced without being directly informed.
It is difficult to argue that an employee should necessarily receive 100% of their wages while deliberately refusing to perform aspects of their role as part of industrial action. Equally, it would be disproportionate for an employer to deduct all of an employee’s pay where the employee continues to perform most of their duties. The difficulty lies in deciding where the balance should be struck.
The government’s solution of allowing employers to deduct a flat 10% of wages may appear administratively attractive. However, it inevitably produces arbitrary outcomes. In some cases, employees may be withholding work worth considerably more than 10% of their duties. In others, the deduction may exceed the actual value of the work being withheld. The legislation permits proportionate deductions, but calculating those deductions is often likely to involve difficult assessments of an employee’s duties and the value of particular work tasks.
As with many of the government’s recent changes to employment law, what sounds straightforward in theory has proved rather more complicated in practice. What the Secretary of Education found is that what should have been a straightforward deduction of 10% of pay has become a major litigation battle. The union, NZEI Te Riu Roa, has said it is appealing the Employment Court’s split decision to the Court of Appeal.
It is early days since the partial strike was taken last week at the DIA. It is unclear if the department has given notice that it intends to withhold pay for the workers taking part in that partial strike. If it does so, it might come with a hefty lawyer’s bill.