Employment Relations Authority visit to ADLS’ Employment Law Committee

The ADLS Employment Law Committee recently hosted three members of the Employment Relations Authority – the Chief Authority Member, James Crichton, together with Members Eleanor Robinson and Robin Arthur.

There were three points of interest that the Members raised with the Committee.

Oral determinations

First, the Authority Members reflected on feedback they had received from practitioners regarding the oral determination regime that was introduced in 2015.

That regime requires the Authority to give an oral determination, or oral indication, wherever practicable to do so. If not practicable, the Authority may reserve its determination.

The Authority was concerned that oral determinations might give the appearance that decision-making was being rushed. In any case, it is often not possible for Members to give an oral determination other than in simple matters, such as wage recovery claims. More often, the matters with which the Authority is dealing are far more complex, with a trend towards multi-day investigation meetings, for which large bundles of documents are produced.

The Authority Members are mindful that expeditious decision-making should remain a priority. However, the issue is whether oral determinations at the conclusion of an investigation meeting should be the primary mode by which those decisions are delivered.

In light of these concerns, the Authority is seeking a change to the regime to permit Members to have greater discretion over whether an oral determination should be made, but without compromising speedy resolution of employment disputes.

Regulation of advocates

A second issue raised was whether advocates who appear in the Employment Relations Authority, who are not practising lawyers, might be regulated in some way.

Under section 236 of the Employment Relations Act 2000, any person may represent a party in the Authority. This has given rise to a body of employment law advocates who specialise in such representation and charge a fee for their services.

The Chief Authority Member relayed his concerns at the performance of a few lay advocates, whose conduct is causing the Authority difficulty in some matters. Their behaviour has led to investigations being delayed, contributed to unnecessary costs and hampered the Authority’s ability to resolve the problems before it.

While the Authority wants to ensure that parties who are otherwise unable to find adequate representation will have someone to look after them, there is a real concern that some lay advocates are not providing their clients with good service.

At present, the services provided by lay advocates are not regulated, but regulation would be a means of ensuring such advocates provided good service to the parties they represent, while also assisting the Authority’s decision-making process.

Possible solutions for regulating lay advocates who charge for their services could include:

  • requiring them to be a member of a professional organisation, such as the New Zealand Law Society or the Employment Law Institute, thus allowing proper recourse to raise a complaint against the person concerned;
  • a statutory framework akin to that which regulates immigration advisors; or
  • amending section 236 to allow the Authority or the Court to prohibit certain lay advocates from representing parties.

Pay equity claims

Finally, the Members advised that they are presently dealing with a large number of pay equity claims.

These claims are filed under Equal Pay Act 1972, and seek a determination of rates of pay for low-paid female workers in industry sectors not covered by the recent pay equity settlement.

There are over 100 claims filed at present, with almost all having been filed in Wellington. At present, these claims are being managed by one Authority Member.

The Authority is aware that the Pay Equity Bill is presently before Parliament. However, it is not clear how the Authority is to treat the claims being filed at present. That is a matter that the Employment Court will need to consider, as the Equal Pay Act 1972 requires the Employment Court to determine certain matters before the Authority can make determinations of specific claims.

The Authority indicated that it is likely that one or more of those claims will be removed to the Employment Court for consideration, following which the Authority will be better positioned to determine the remainder of these claims.

The issue of pay equity is one of the topics to be covered at ADLS’ forthcoming Burning Issues Forum. For more information or to register for this event, please visit www.adls.org.nz/cpd

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