Reducing legalism: The impact of the Employment Relations Act 2000.

Abstract

In 1991 the Employment Contracts Act came into force, bringing with it a significant change to New Zealand's industrial relations structure. It shaped a move towards an individual framework that was based on the freedom of contract within a small remaining set of minimum rights. This fundamental change towards individual rights brought about an explosion of personal grievance claims. Some commentators have claimed that the settlement of these grievances within the specialist institutions set up to deal with them has resulted in excessive legalism. When the new Labour led coalition government was elected in 1999, little time was spent before they introduced one of their election promises; the new Employment Relations Act 2000.

One of the policy intentions behind this change was to reduce excessive legalism within the lower levels of the employment institutions set up to deal with disputes.

The most significant change was to abolish the Employment Tribunal which had fulfilled both the roles of mediation and adjudication, and replace it with the Mediation Service and the Employment Relations Authority, as two separate institutions set up to deal with mediation, and an investigatory style of adjudication respectively. Other changes included making mediation a compulsory first step in the resolution of rights disputes and to remove the Court's right to supervise practice and procedure in the lower institutions. The Department of Labour expected the rest of the change to come from altering the operational processes within the institutions to

be less formal, simpler and less legalistic. They also pointed out that legal representation should normally be unnecessary and that the changes to process would ensure that parties could represent themselves successfully without disadvantage. In keeping with this de-emphasis on the need for legal representation, legal aid availability for mediation was ceased, and policy from the Legal Service's Agency stated that aid for adjudication in the Authority should the exception rather than the rule.

Interviews with Mediation Service mediators and Employment Relations Authority members were carried out to determine the extent to which legislative changes and policy direction reduced legalism, or been the cause of other consequences. In recognition or their heavy involvement in personal grievances, employment lawyers and union organisers were also surveyed. These were included to gauge any difference in perception these key stakeholders may have had in comparison to those interviewed, and to help triangulate the data.

Results show that some changes have an effect on reducing legalism, while some do not, and others have different consequences to what was intended. The research concludes that the Employment Relations Authority shows a greater change than does the Mediation Service. The change in process that was envisioned by the Department of Labour is not as substantial as intended. This with the ongoing heavy use of legal advocates as representatives, are the two key areas which are determined to be limiting more of a reduction in legalism. Factors that do not affect legalism positively include the separation of institutions, mandatory mediation, or de novo hearings in the Court. Further research is required to determine how the processes could be changed to further reduce legalism, more in line with the Department of Labour policy intentions. More detail on the costs and benefits to the dispute resolution process in having representation; particularly research that investigates the interaction between these two in more detail is also required.