Policy, Operations and Outcomes in the New Zealand Employment Jurisdiction 1990-2008

Abstract

This analysis of the policy for, and the operations of, the dispute resolution institutions established successively by the Employment Contracts Act 1991 and the Employment Relations Act 2000, examined the relationship between dispute resolution system design and success in meeting government employment policy objectives. The grounded theory research method was utilised to first gather archived material from the Department of Labour (now the Ministry of Business, Innovation and Employment) about policy for, and the operations of, the institutions of each period under review. This material was organised for each period under review by commencing with a narrative of the policy that established the institutions, and following with a description of the operations of those institutions, policy changes, and the outcomes (in terms of policy objectives) that resulted. Each institution created by statute is described separately. From these narratives common themes emerged as subjects of further analysis and this formed a concluding part of each operational chapter. The final chapter draws from this theme analysis. The dominant themes concerned the transition from collectivised to individualised approaches to dispute resolution, the arrival of lawyers to a jurisdiction that had historically excluded or restricted them, the speed with which individual disputes (personal grievances) dominated the work of the institutions, and the emergence of two distinct and different advocacy and resolution cultures: a collectivist culture of union and employer association advocates and mediators; and an individualist culture of lawyers, employment advocates and adjudicators. The individualist culture imposed the norms, practices, costs and outcomes of the civil courts on the employment institutions, notwithstanding specific policy prescription (in both statutes) against that form of resolution. This study concludes that the relationship of advocacy culture to institutional structure is key to predicting effects on policy objectives. It is furthermore possible that success in meeting those objectives may be more dependent on advocacy culture than institutional structure.