It is now officially summer here in New Zealand and to completely confuse me I had my first mince pie on the first day of summer! No white Christmas for me this year!
Since my last blog I have visited the Employment Relations Authority (ERA), something I have mentioned in a couple of my previous posts. On its website it is described as a body which “helps to resolve employment relationship problems. It does this by looking into the facts and making a decision based on the merits of the case, not on technicalities”. The ERA is where most of the cases which are not resolved in mediation are determined. Before making a determination statute says that the ERA must direct the parties to attempt to resolve the matter by mediation unless it believes it will not be constructive or appropriate and as a result most cases do not even reach the ERA.
The ERA is an investigative body, not an adversarial process but still has powers to make enforceable determinations. It holds ‘investigation meetings’ rather than ‘hearings’. There are no statutory qualifications for appointment as a member of the ERA (as the Judges are called). Some members are lawyers, however others are not. Most have some experience of employment law or employment relations as lawyers, union officials or business professionals. Similarly you do not needs rights of audience to appear in the ERA with a proliferation of lay advocates appearing for employees in particular.
The ERA has the power to call for evidence and require any person to attend as a witness. There is a very fluid structure to the meetings, allowing the ERA member to determine the flow of the evidence, for example asking a witness for their response to another witness’ evidence. In the hearings I observed, cross-examination by the parties was permitted, but only to the extent that it did not repeat what has already been ascertained by the ERA member’s questioning (which occurs first). The result is a very different style of advocacy from the representatives.
One of the cases I observed was brought by the Labour Inspectorate. Labour Inspectors are employees of the Ministry of Business, Innovation and Employment who have powers of inspection and enforcement. A Labour Inspector may take an action before the ERA on behalf of an employee to recover wages, holiday pay or other money under the Minimum Wage Act or the Holidays Act. In this case, an employee had complained about not being paid minimum wage (indeed he said he had not been paid at all) and the Labour Inspector, after its own investigation, brought the case on the employee’s behalf to the ERA. The Labour Inspector uses the services of a government lawyer who represents the Inspector rather than the employee directly. It gives an interesting dynamic to proceedings with the ERA member effectively cross examining the Labour Inspector about the weaknesses in her investigation as well as questioning both parties.
The Christmas season is well and truly underway with our Christmas team BBQ being held next week, but I will write again before Christmas with my last update of the year.
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