New Zealand Journal of Industrial Relations Online

Volume 26 Number 1

February 2001

Special Symposium:
The Employment Relations Act 2000

Introduction
Paul Roth

The author introduces this issue as a forum for the discussion of the Employment Relations Act 2000. The issue begins by providing a "tripartite" analysis of the legislation with submissions reflecting the views of the three main social partners concerned. The Hon. Margaret Wilson represents the government, Ross Wilson trade unions, and Barbara Burton the employers. The ERA 2000 is then placed in it's legislative context before three articles explore the underlying principle of the Act, the concept of "good faith". The symposium concludes with the Chief of the Employment Relations Authority, Alastair Dumbleton, providing an introduction to this new institution.

The Employment Relations Act: A Statutory Framework for Balance in the Workplace
Hon. Margaret Wilson, Minister of Labour

Margaret Wilson discusses how the new legislation restores equity to employment relationships. The Act balances both the employers' prerogative in making employment decisions with the right of employees to be fairly treated, and the freedom of choice of individual employees with those organising to bargain collectively. As such, the Act can "be seen as representing a middle course between the extreme Employment Contracts Act, and outdated systems of the past which no longer make sense in the modern labour market."

Working Under the Employment Relations Act 2000
Ross Wilson

Ross Wilson, President of the New Zealand Council of Trade Unions, places the new legislation in a human and human rights context, and discusses it as part of a wider vision. Although many of the fundamental reforms introduced by the Employment Contracts Act are carried over into the new regime, the author argues that the Employment Relations Act establishes a fairer framework for employment law.

The Path to Subjectivity: The Decline of Certainty in Industrial Relations Law
Barbara Burton

This paper focuses on some of the extended individual rights in the new legislation. A thirty year trend in the expansion of the personal grievance provisions in both scope and application is traced, culminating in a number of areas of uncertainty and subjectivity in the Employment Relations Act. The concern is that the excessive employee protection of the new legislation and its overly subjective legal tests will have the effect of discouraging new employment.

Evaluating Continuity and Change in the Employment Relations Act 2000
Peter Boxall

This paper undertakes an overall assessment of the Employment Relations Act in terms of labour market reform, and places it in its historical and policy context. The paper concludes that the legislation represents a sound re-balancing of rights within essentially the same decentralised wage-fixing framework of the previous legislation. There are issues, however, concerning possibly excessive protections for individual workers, as well as uncertainties with the new institutions and the concept of good faith.

Good Faith Bargaining, Direct Dealing and Information Requests: The US Experience
Ellen Dannin

This paper describes the role of the concept of 'good faith' in US labour law, particularly as it relates to three key areas which have yet to be worked out in New Zealand jurisprudence: collective bargaining, direct dealing with employees, and the disclosure of information. The paper cautions that each country's law is unique and is coloured by its context. This means that New Zealand law will have to be worked out in local terms. The US example, however, can usefully indicate what sorts of issues are likely to arise, and how similar laws have been interpreted and applied elsewhere.

The Collective Bargaining Code of Good Faith
John Hughes

This paper deals with the background to the the formulation of the interim Code of Good Faith, and places it in the context of the political and policy debates surrounding the enactment of the Employment Relations Act. The paper also examines the provisions of the Code in light of the current statutory and case law. It concludes that because of a failure to reach consensus in the committee that formulated it, the Code has left a number of key issues for ultimate determination by the courts.

Unions and Good Faith
Rodney Harrison

This paper focuses on how the Employment Relations Act's broad concept of 'good faith' and the wide range of 'employment relations' to which it applies, might operate specifically in relation to union conduct, and in particular to the relationships between a union and its members. Comparison is made with the union duty of 'fair representation' in North America. The paper also raises the issue whether the concept of 'good faith' - at least outside the context of bargaining for a collective agreement - involves matters of substance as well as process.

The Individual and the Employment Contracts Act
Gordon Anderson

This article considers the Employment Relations Act from the perspective of the individual, non-unionised, employee working in an unorganised workplace and asks what the reforms have achieved for such employees. It raises the question whether future changes to the law should pay greater attention to the position of such employees.

The Employment Relations Authority Gets Under Way
Alastair Dumbleton

One of the principal changes to the specialist institutional arrangements under the new legislation is the establishment of the Employment Relations Authority. The Chief of the Employment Relations Authority surveys the functions, powers and procedures of the Authority. He compares the Authority with the Tribunal, and suggests that the Authority is not simply an altered Tribunal, but a markedly different and unique institution.

CHRONICLE:

October 2000 - January 2001
Erling Rasmussen and Ian McIntosh

A round-up of recent New Zealand industrial relations events. Some of the most memorable being the implementation of the Employment Relations Act, the beginning of the major industrial relations dispute in several South Island ports, and changes to minimum wage regulations.