RESEARCH REPORT: DETERMINATIONS OF THE
EMPLOYMENT RELATIONS AUTHORITY
| Volume 27 Number 3 | October 2002 |
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RESEARCH REPORT: DETERMINATIONS OF THE
EMPLOYMENT RELATIONS AUTHORITY
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Ian McAndrew is a senior lecturer in industrial relations at the University of Otago and until recently Chief of the New Zealand Employment Tribunal.
Introduction
The focus of this research note is the decisions or "determinations" of the Employment Relations Authority (the Authority) under the Employment Relations Act 2000 (the ERA). But the note also takes a look back to the adjudication decisions of the Employment Tribunal (the Tribunal) to examine whether the switch to the Authority and the change of legislation from the Employment Contracts Act 1991 (the ECA) have made any difference to decision outcomes and remedies in the employment jurisdiction. Some very preliminary comparative analysis was presented in McAndrew (2001), but the present paper takes the comparison much further.
For the past decade, a database of Employment Tribunal decisions has been under constant construction at the Industrial Relations Research Centre of the University of Otago Business School. The database records the details of all Tribunal adjudication decisions.
The variables captured for the database are in several categories: the issues involved in the case; characteristics of the parties, including gender, occupation, industry, and type of representation; characteristics of the Tribunal adjudicator, hearing and decision, including for example the gender of the adjudicator, location of the hearing, length of the hearing, Tribunal registry, and length and legal complexity of the decision; and various measures of the outcomes of the cases - who won, who lost, and the nature of remedies awarded, if any.
The Employment Institutions Information Centre of the Department of Labour generously provided comparable data on Authority determinations. That sample consisted of all determinations issued by the Authority in the first 18 months of its existence. So the Authority sample for the paper consists of the 624 determinations issued by the Authority from the inception of the Authority through April 2, 2002.
For comparison purposes, the Tribunal sample is all adjudicated decisions issued by Tribunal Members in the 18 months to September 30, 2000. That represents the final year and a half of the "permanent" Tribunal, before some Tribunal Members moved to the Authority and were replaced on the Tribunal by temporary Members. The makeup of the Tribunal was quite different thereafter, and the overall decision profile of the Tribunal was also quite different than it had been. The Tribunal sample numbers 1,566 issued decisions for the 18 month period.
For the balance of the paper, the data will be presented largely
in percentage terms. This allows for a more direct comparison between the two
institutions than would drawing raw numbers from two samples of such significantly
different sizes. In sheer numbers of decisions, the adjudication output of the
Tribunal was almost exactly two and one half times the determination output
of the Authority for the 18 month sample periods. For readability, figures will
be rounded to the nearest whole number, so percentages may not always sum to
precisely 100.
*Alternative versions of this paper were prepared for presentation at the 4th Work Relations NZ Conference, November 4-6, 2002 and (with Kathryn Beck) at the New Zealand Law Society Employment Law Conference, November 7-8, 2000 (Beck and McAndrew,2002), both in Wellington. The author is grateful to Kathryn Beck, head of the employment law team at Haigh Lyon, Auckland; Nancy Benington, legal research associate at the Industrial Relations Research Centre of the Otago Business School; and Rebecca Denmead and Jenny Waterworth, legal officers with the Department of Labour, for the very substantial contributions that each has made to this paper. The financial assistance of the New Zealand Law Foundation for the construction of the Employment Tribunal decisions database is also gratefully acknowledged. Only the author is responsible for opinions expressed in the paper.
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