RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
| Volume 25 Number 3 | October 2000 |
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RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
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Ian McAndrew is a senior lecturer in industrial and employment relations at the University of Otago. He has been a Member of the Employment Tribunal since 1993, and has recently been appointed Chief of the Tribunal. The views expressed here are, however, his personal views only. He is grateful to the New Zealand Law Foundation for continued funding support for the research reported here, and to Nancy Benington for legal research assistance.
Introduction
The New Zealand Employment Tribunal has been up and running for nine years under the Employment Contracts Act 1991, but is now approaching closure. It has operated as an accessible and functional "storefront" tribunal for the settlement of employment disputes, some criticism of creeping legalism, formality and expense in the adjudication function notwithstanding. The fact that the Tribunal has provided both mediation and adjudication processes through its Members made it a relatively rare species among industrial and employment tribunals throughout the world, and a valuable “laboratory” for the study of dispute resolution.
The New Zealand Labour-Alliance coalition government, elected in late 1999, has signalled the end of the Employment Tribunal with the implementation of the new Employment Relations Act 2000. The new law has an intended focus on the enhancement and preservation of employment relationships and a more emphatic reliance on a range of mediation services to achieve those objectives. For a number of reasons, much of the Employment Tribunal’s work under the Employment Contracts Act has consisted of mediating or adjudicating the terms of dissolution of employment relationships that had gone awry, with only relatively limited opportunities to intervene for the preservation of employment relationships.
The new government has determined as a matter of policy to change that emphasis, and has elected to do so by the creation of a wide-ranging mediation service within the Department of Labour, backed by the investigation and determination processes of the new Employment Relations Authority and somewhat revised functions for the Employment Court. While there have been changes in philosophy, grievance and rights disputes processes, and institutions, the substance of the law relating to grievances, contractual rights and their enforcement has not been subject to a major shift in the new legislation.
In the wake of the new legislation, the Employment Tribunal is not quite dead and buried yet. Indeed, it continues to function at pretty close to full pace and will do so for some time to come. Under s.249 of the Employment Relations Act, the "permanent" Tribunal remains in office until the end of January 2001 continuing to determine matters that are within its jurisdiction – which is to say, in broad terms, employment relations difficulties that arose before October 2, 2000 - in the same manner as it has done in the past. Even beyond January 2001, however, under s.250 of the new law the Tribunal is to continue through "temporary" Members to determine matters that are within its jurisdiction and formally filed with it by June 30, 2001.
Quite a number of Members who were serving on the Tribunal when the Employment Relations Act 2000 was passed into law were appointed to either the new mediation service or as Members of the Employment Relations Authority, thereby at least temporarily slowing the work of the Tribunal. Departing Members have now been largely replaced by new temporary Members, who join a core of Members continuing from the “permanent” Tribunal.
With a substantial case load already awaiting determination, and the requirement to accept case filings until the middle of 2001, it is presently expected that the Tribunal will continue to hear and determine cases in mediation and adjudication until early 2002. The Employment Relations Authority may act in the name of the Tribunal under s.252 of the Employment Relations Act, and it could be anticipated that the Authority will commence to do so in a final "mopping up" capacity once the Tribunal has determined essentially all cases commenced under the Employment Contracts Act.
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