From Contract to Relationship: The Employment Relations Approach of New Zealand James Wilson, Chief of the Employment Relations Authority Craig Smith Chief Adviser, Workplace Relationships October, 2007

Overview  From awards to contracts to employment relationships-a timeline  A new legislative environment unpackaged  Approaches to dispute resolution  Current issues and trends  Future possibilities

Historical perspective  1890 – 1970 Awards  The 70’s and 80’s enterprise bargaining  1990’s Employment contracts  2000 Employment relations

Employment Relations Act 2000 The Act’s overall objective is: “to build productive employment relationships through the promotion of mutual trust and confidence in all aspects of the employment relationship”.

This is achieved through…..  Good faith and mutual obligations of trust and confidence  Acknowledging and addressing the inherent inequality of power in employment relationships  Promoting collective bargaining  Protecting the integrity if individual choice  Promoting mediation as the primary problem solving mechanism  Reducing the need for judicial intervention  Promoting observance of the principles underlying ILO Conventions 87 (freedom of association) and 98 (collective bargaining)

The new approach-a framework for employment relations The Employment Relations Act 2000 establishes the overall regulatory framework for employment relations through setting the: −Legal framework for collective and individual bargaining −(new) Good faith obligation that underlies employment relationships −Personal grievance and problem resolution mechanisms for employees covered by individual and collective agreements

The new approach-continued Minimum employment standards are also contained in a number of other statutes, including: –Minimum Wage Act –Holidays Act –Equal Pay Act –Wages Protection Act –Parental Leave and Employment Protection Act

Key elements  Good faith  Unions  Employment agreements  Collective bargaining  Strikes and lockouts  Essential services

Problem Resolution Continuum Mediation Good Employment Relations Workplace Resolution ERA Courts 2,200,000 44,000 9,000 2,

Dispute resolution  Good employment practices  Workplace resolution  Information and education on the employment relations framework  Employers & employees encouraged to talk & listen to each other  Focus on solving problems at the earliest stage through information and education  Mediation as a primary problem-solving mechanism  Adjudication seen as the final option—Employment Relations Authority as primary decision-making body  Rights of appeal to specialist court

Mediation  Mediation is free, fast, and flexible  Confidential as far as the law allows  Personal grievances, employment relationship problems, and collective bargaining  Full and final settlement  Mediator may make decision by authority of parties  Neutrality and independence are cornerstones

The Employment Relations Authority “An investigative body that has the role of resolving employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, … without regard to technicalities.”

The Employment Relations Authority  Independent statutory officers  For problems not settled in mediation, the Authority is a low-level and speedy decision making body  Makes binding determinations based on the substantial merits of the case  Determinations may be challenged in Employment Court  Investigates claims of unjustified dismissal, interpretations of employment agreements, and wage claims  Can order reinstatement, compensation, and compliance

Powers of the Authority  The Authority investigates −Claims of unjustified dismissal and unjustified actions (PGs) −Interpretation of employment agreements −Wage claims  The Authority can order −Reinstatement (including interim reinstatement) −Compensation −Compliance (with Employment Agreements, mediated settlements or orders of the Authority)

 Hears cases where parties are dissatisfied with the outcome in the Authority (this is usually de novo)  Hears matters surrounding strikes and lockouts (injunctive)  May refer cases before it back for further mediation  Can have its decisions appealed on points of law Employment Court

Current trends and developments  Tripartism  Workplace productivity  Flexible work  Partnership  System improvement

What the research tells us The system works but we can do better  Most disputes settled privately  Costs  Fairness  Levels of satisfaction  Use of representatives  A different picture for SMEs compared to large businesses

What we are learning from practice  There are different views about the desired outcome of mediation  Different views about mediator style  Education services seen as important and need to be increased  Need to strengthen cross cultural practice  A call for greater consistency but also increased flexibility

Future Possibilities  Employment policy and legislation are political artifacts  There is an emerging research about what works- towards an evidenced practice  The changing nature of workplace and workforce requires a reflexive system  A clearer connection between workplace practices and productivity  Better responsiveness to small business through education, training and support

Websites  Department of Labour − −  Ministry of Justice − tive_guide_2000/chapter_18.html