Open-Minded Discussion on Employment Law

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Welcome to my blog page. It's designed to open viewer's minds to current and new employment law issues while providing some commentary that may be of general interest and maybe even of some assistance.

Changes to the Employment Relations Act

Some significant changes to the Employment Relations Act 2000 (the ERA) came into effect on 6 March 2015. The changes can be summarised as falling into six particular areas:
- The processes of the Employment Relations Authority;
- The collective bargaining framework;
- Part 6A relating to the continuity of employment for relevant employees;
- Flexible working arrangements;
- The application of good faith and
- Rest and meal break rules.

I do not intend to to visit the general thrust of all of the changes. Rather, I am particularly interested in two specific areas: the changes to the processes of the Authority, and the possible consequences of the changes to to collective bargaining framework and the associated good faith provisions. I will discuss the latter in a future publication.

The Changes to the Processes of the Authority
Section 174 of the ERA provides that the Authority must give an oral determination or oral indication of its preliminary findings "wherever practicable". It's difficult to ascertain what is to be achieved by s.174 as there did not appear to be any particular need or demand for this change emanating from parties to proceedings or their lawyers or advocates. Indeed, some practitioners have expressed serious reservations about the consequences of hasty decisions being reached by the Authority, with a possible outcome being a higher appeal rate to the Employment Court. Perhaps this amendment may eventually go the same way as the 2011 amendment (s.173A) whereby the parties to an employment relationship problem can agree, in writing, to confer upon the Authority the power to make a recommendation to resolve the matter at issue. But only a handful of such recommendations have ever been issued. A clear indication that parties to employment disputes have not seen this a meaningful resolution process and s.173A just takes up space in the Act and is not even of academic interest now.

Perhaps the new s.174 is designed to speed up the the decision making process, effectively converting the Authority to something resembling a disputes tribunal model, where the parties walk away from a hearing with an instant result. But a perusal of current written determinations suggests that while in some cases, the parties obtain an oral determination or indication, the subsequent written version indicates that it is business as usual as far as format and content is concerned, with Authority members still having the onerous duty of writing often detailed decisions, not withstanding that the parties already know the outcome in some cases.

An oddity is that despite the use of the word "must", s.174 seems to allow the Authority considerable discretion as to whether it will give an oral determination or oral indication of its preliminary findings on a matter before it. Firstly, the Authority can decide if it is "practicable" to do so. This discretion is expanded upon at s.174C(1) for the Authority "may reserve its determination" if it is satisfied that "there are good reasons" as to why it is not practicable for it to provide an oral determination or an oral indication of its preliminary findings at the conclusion of the investigation meeting.
According to the MBIE Employment Law Data Base, the application of the discretion available to the Authority appears to have been liberally applied, as at 31 July 2015, some five months after s.174 becoming effective, only 18 oral determinations have been issued. And it is only the opening title: "Oral Determination of the Authority" on determinations, that gives any clue that the parties to the dispute received an oral indication at the hearing. It also seems that some Authority members appear to have eschewed the opportunity to give oral indications or determinations, whereas other members are more enthusiastic about doing so. Does this reflect a greater application of the "where practicable" discretion by some members more than others or is it too early to tell yet, as applications to the Authority can take some time to get from lodgement to hearing.? Or is the new s.174 going to go the same way as the 2011 amendment, as there is a common factor? This is that there was no demand for either from the consumers of the product!