ERA Finds Fire and Emergency New Zealand (FENZ) Breached Good Faith and Consultation Obligations in Major Restructure

A determination released on 18 March 2026 by the Employment Relations Authority (ERA) has found that Fire and Emergency New Zealand (FENZ) breached both its collective agreement consultation obligations and its statutory duty of good faith in connection with a sweeping organisational restructure proposed in November 2025. The decision in New Zealand Public Service Association Inc Te Pūkenga Here Tikanga Mahi and New Zealand Professional Firefighters’ Union Inc v Fire and Emergency New Zealand [2026] NZERA 161 provides a significant reminder to all employers about what genuine consultation requires — and what happens when it falls short.

Background to the restructure

FENZ is a Crown Entity established in 2017 that brought together 40 separate organisations. It employs approximately 1,632 NZPFU members and 380 PSA members. In May 2025, FENZ launched a refreshed strategic direction document covering the period 2025 to 2030, followed in June 2025 by a Strategic Implementation Programme (SIP) designed to translate that strategy into operational changes. Chief Executive Kerry Gregory communicated to staff at the time that while he could not share specifics, upcoming changes were on the horizon and he wanted staff to understand the reasons behind them.

The work proceeded internally through FENZ’s Executive Leadership Team (ELT), with each member tasked with designing a change plan for their respective branch. External contractors were engaged to assist with the process. The resulting consultation document — approximately 260 pages long — proposed changes affecting around 700 positions, including the disestablishment of approximately 140 roles. The proposal covered every branch of FENZ, from Operational Response to Corporate Services, with very few roles left entirely unaffected.

Critically, the ELT made a deliberate decision not to consult with the New Zealand Professional Firefighters’ Union (NZPFU) or the Public Service Association (PSA) before the proposal was released to the wider organisation. Instead, the unions were given the consultation document under embargo on 11 November 2025 — just 24 hours before it was disseminated to all FENZ employees.

How the consultation process unfolded

The evidence before the Authority painted a concerning picture of how the process was managed. On 29 October 2025, Mr Gregory telephoned the PSA organiser to give a heads-up about an upcoming consultation and followed up with a formal email to both unions advising that consultation would commence on 12 November. A 15-minute check-in was offered. Neither union took up that offer, though the PSA organiser requested the document earlier and asked for the consultation period to be extended — requests that went largely unaddressed.

On the evening of 10 November, before the unions had even received the embargoed document, FENZ’s Deputy Chief Executive Megan Stiffler sent meeting invitations to individual employees whose positions were affected by the proposal. The Authority heard evidence that recipients were very upset and stressed, assuming they were losing their jobs. The NZPFU was unable to provide support or guidance to its members because it had not yet seen the proposal.

The timing was particularly problematic. The consultation document was released on 11 November — the first day of the NZPFU’s three-day Annual Conference. Authority member Sarah Kennedy-Martin noted in the determination that Mr Gregory accepted he had not connected the release date with the conference dates. Ms Stiffler, who attended the conference to speak on 13 November, said she was aware the dates coincided but thought it was appropriate because she could answer questions in person. She said she was surprised by the union wanting to discuss the consultation process at the conference.

The PSA was simultaneously engaged in collective bargaining with FENZ. Members of the FENZ bargaining team discovered their own roles had been proposed for disestablishment during the process, leading the PSA to withdraw from day two of bargaining to deal with the fallout. The original two-week consultation period was later extended — but only after errors in the document were identified and significant criticism was received about the timeframe.

The ERA’s findings on consultation

The Authority found that FENZ had not complied with the consultation requirements set out in the collective agreements with either the NZPFU or the PSA. Both agreements contained materially identical consultation clauses requiring FENZ to consult the unions on any proposed changes that may impact terms and conditions of employment. Importantly, the clauses expressly stated that the obligation to consult was not limited to the consequences of a proposed change, but extended to whether the proposed changes should take place and the reasoning behind them. The clauses also required FENZ to make a genuine effort to respond to the unions’ views, motivated by a desire to reach consensus.

The Authority found that the November 2025 consultation document demonstrated how advanced the redesign work already was when it was presented to the unions. The level of detail in the 260-page document, Kennedy-Martin held, undermined the prospect of meaningful consultation in accordance with the collective agreements because the unions were being asked to respond to a substantially developed proposal rather than being consulted on whether change should occur in the first place.

The Authority drew on the well-established principles from Wellington International Airport Ltd v Air New Zealand Ltd and more recently from the Employment Court’s decision in Lyttelton Port Co Ltd v Maritime Union of New Zealand [2025] NZEmpC 167. In that case, Judge Holden emphasised that consultation must involve a proposal not yet finally decided upon, listening to what others have to say, considering their responses, and then deciding what will be done. The employer, while entitled to have a working plan in mind, must keep its mind open and be ready to change and even start afresh.

Applying these principles, the Authority concluded that FENZ failed to consult the unions on whether change should occur, did not engage at a time when union input could genuinely influence the proposal, and did not consult in a way that demonstrated a genuine effort to be motivated by a desire to reach consensus.

Breach of good faith

Beyond the breach of the collective agreements, the Authority also found that FENZ breached its statutory obligation of good faith under the Employment Relations Act 2000. Kennedy-Martin was particularly critical of the timing and manner of the consultation, noting that the document was released while the PSA was tied up with bargaining and the NZPFU was holding its annual conference.

The Authority stated in terms that bear repeating for any employer managing a restructure: these were not the actions of an employer who was being active and constructive in establishing and maintaining a productive employment relationship that involved being responsive and communicative with the unions.

The Authority found that after consultation commenced, FENZ had not demonstrated it engaged with the unions motivated by a desire to reach consensus or used genuine effort to respond to their views. Instead, FENZ approached the unions after it had already gathered internal feedback on the proposal and then concentrated discussions on that feedback rather than on the underlying design and the reasons for change.

The undermining of bargaining claim

The unions also alleged that the restructure undermined collective bargaining that was under way between the parties. The ERA reserved its position on the compliance order aspect of the claims, with FENZ indicating it would consult with the unions in accordance with the Authority’s conclusions going forward.

Response from the parties

In a statement to RNZ following the determination, FENZ acknowledged the findings, stating it recognised it could have done more regarding consultation with the unions and was considering the findings and working through next steps.

PSA National Secretary Fleur Fitzsimons was unequivocal in her response, describing the ruling as damning for FENZ and a significant victory for all FENZ workers. She noted that FENZ had worked up a sweeping restructure in secret for months and then gave unions just 24 hours’ notice before releasing it to the wider organisation during the NZPFU annual conference and while PSA bargaining was under way — conduct the Authority confirmed was unlawful. The PSA has called on FENZ and the Government to permanently withdraw the restructure proposal and guarantee that no workers will lose their jobs.

NZPFU National Secretary Wattie Watson called for the restructure to be stopped entirely, noting that some workers had been living with uncertainty about their future employment through repeated cycles of restructuring since FENZ’s establishment in 2017.

Key lessons for employers

This determination reinforces several well-established but frequently overlooked principles that apply to any employer contemplating organisational change — not just Crown entities.

First, consultation must occur early enough for the views of those being consulted to genuinely influence the outcome. An employer who presents a substantially developed proposal and then invites feedback is unlikely to satisfy the requirement of genuine consultation, particularly where the collective agreement requires consultation on whether change should occur — not merely its consequences. Employers who are managing or considering a redundancy process should take particular note of this point.

Second, timing matters. Releasing a major restructure proposal during union conferences, bargaining sessions, or at times that restrict the ability of unions or employees to respond meaningfully will attract scrutiny from the Authority. An employer acting in good faith should be actively considering whether the timing allows for genuine participation.

Third, the level of detail in a consultation document can work against an employer. A highly developed, detailed proposal may demonstrate to the Authority that the thinking was already so advanced that meaningful consultation was no longer realistically possible. The Authority in this case found that the specificity of the 260-page document illustrated how advanced the work was and undermined the prospect of genuine input.

Fourth, the duty of good faith under the Employment Relations Act is a substantive obligation. It requires employers to be active, constructive, responsive, and communicative. A formulaic approach — offering a brief check-in or providing an embargoed copy 24 hours before a public release — is unlikely to satisfy this standard, particularly in the context of major organisational change affecting hundreds of roles.

Finally, the obligation to consult with unions under a collective agreement sits alongside, but is distinct from, the obligation to consult with individual affected employees. Engaging with individual staff — as FENZ did when it contacted affected employees on the evening of 10 November — does not discharge the separate requirement to consult with the union as a party to the collective agreement. Employers undertaking a disciplinary or restructuring process should ensure that both obligations are met in sequence and with sufficient time for meaningful engagement.

The broader context

The FENZ determination sits against a backdrop of significant upheaval in the organisation. The NZPFU has been engaged in industrial action since August 2025, including rolling one-hour strikes at career-staffed stations, as part of a protracted dispute over a successor collective agreement that expired in June 2024. The restructure was widely seen by both unions as undermining the bargaining process that was simultaneously under way.

For employers across New Zealand, regardless of sector, this case is an important reminder that consultation is not a box to be ticked. It is a substantive process with legal consequences when it falls short. The distinction between informing employees of a decision and genuinely consulting them before a decision is made remains at the heart of good faith obligations under New Zealand employment law.