Members of the Employment Relations Authority (Authority) recently attended a meeting of the Employment Law Committee.

Golf Simon Greening

Etiquette before the Authority was the subject of the day. Etiquette generally refers to a particular code of conduct. Sports have codes of conduct, none so more than golf. It seems golf provides the appropriate analogy to assist practitioners trundling down the fairway of the Authority.

“Replacing divots” and recording in the Employment Relations Authority

A fundamental rule in golf etiquette is to “replace the divots”. Keeping the course in good repair is the principle behind the rule. This is to ensure all golfers share in the benefits of a well-maintained course.

Likewise, it is important for practitioners to be reminded of the fundamental statutory principle on which the Authority operates. This was the response articulated by the Chief of the Employment Relations Authority, Member Crichton, in relation to questioning about whether recording should be allowed in the Authority.

Member Crichton reminded practitioners that the Authority is not a court of record. Despite the considerable costs involved with installation of recording equipment and transcribing, Member Crichton said this was not the main reason why hearings in the Authority should not be recorded. It is a matter of principle.

The Authority is principally a statutory body tasked with investigating employment relationship problems. It was suggested that witnesses on the fairway of the Authority may not “strike the ball so well” first time round. They would then have the opportunity in the Employment Court to have “another shot”, especially on a de novo challenge.

Because no recording facility exists in the Authority, concessions made in the Authority are like golf balls lost in ponds – never to be seen, or heard of, again.

Despite wayward shots in the Authority, practitioners are reminded to “replace the divots” and remember the fundamental purpose of the Authority.

“Out of bounds”

Of course, there are some forms of conduct on the fairway which are “out of bounds”.

It was brought to the attention of the Committee that a small group of lawyers and advocates sometimes behaves in a manner which might cause the Authority to have recourse to section 134A of the Employment Relations Act 2000. This provision allows the Authority to impose a penalty for behaviour which “obstructs or delays” an Authority investigation.

There was further discussion about whether a representative organisation and code of conduct is required for advocates. All practitioners should “remain on the fairway”. It does not serve anyone’s interest to act in a manner which results in spending time rummaging through bushes or snorkelling in ponds. Play the ball straight down the fairway.

Avoid “slow play”

There is nothing more frustrating than “slow play” in golf. Golf is a slow game, even if played at normal speed. There is nothing more frustrating for Members of the Authority than practitioners failing to comply with timetabling directions.

The PGA Tour rules suggest slow play can be avoided by beginning to plan your next shot as you approach the ball by studying the strength and direction of the wind.

This is good counsel for all practitioners who appear before the Authority. Plan ahead to ensure you comply with timetabling orders.

The key message from Members present at the meeting was that slow play interferes with an investigation. At the conclusion of the investigation meeting, the Authority is required, wherever practicable, to give its determination on the matter orally or give an oral indication of its preliminary findings on the matter. Slow play prevents this from happening, causing backlogs at various holes.

Member Campbell discussed the reality that oral determinations are sometimes not given because practitioners are not abiding by timetabling directions. This results in delayed determinations and defeats the purpose of the amendments to the Employment Relations Act 2000.

“On the green”

Member Arthur discussed issues arising from practising “on the green”. Practitioners are reminded not to discuss irrelevant matters with Members before, during or after a hearing has concluded. It is important that all of the parties are given a fair go. Practitioners are reminded not to engage in conduct which might give rise to a claim of apparent bias.

On the green, this means not standing where you might distract a fellow player, not stepping on fellow players’ putting lines, laying down the flagstick off the green to prevent damage to the green, and not making any noise when your fellow player is preparing to putt. This is good counsel for all practitioners on the green.

For example, ensure you are not rustling through your bag while the Member gives their introductory remarks. Do not discuss personal matters with the Member during the break. Make sure at the conclusion of the hearing that the Member is the first person to leave.

Remember – it can be nerve-racking for clients on the green. Abiding by these simple rules ensures all parties are given the chance to achieve their best score.

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