The Government has introduced legislation today in an attempt to reverse the effect of two recent decisions of the Employment Court and Court of Appeal. The ‘Employment Relations (Validation of Union Registration and Other Matters) Amendment Bill’ is primarily concerned with validating the registration of 40 unions whose registrations were effectively declared invalid by the Court of Appeal (New Zealand Employers Federation Inc v National Union of Public Employees & Ors, 24 September 2001, CA 32/01).
The legislation proposed by the Government would validate both the registration of unions who were registered before 2 October 2000, and unions who applied for registration before that date but whose applications were not processed until after 2 October 2000. The Bill also seeks to remove any liability of any person and provides that no compensation is payable to any person, on the basis that a union applied for registration or was registered before 2 October 2000.
Interestingly, the Bill contains two additional clauses which would override the Employment Court’s decision in David v Employment Relations Authority & Ors WC16A/01. In that case, the Court concluded that cross-examination was an indispensable part of the application of the principles of natural justice, and therefore the Employment Relations Authority could not, in regulating its own procedure, prevent cross-examination if it was desired by the parties.
In the explanatory note to the Bill, the Government makes it clear that it considered the Employment Court’s decision "adversely affected the investigative role of the Employment Relations Authority". It further states that "the Authority is intended to operate in an actively investigative way, and to make determinations according to the substantial merits of the case without regard to technicalities or strict procedural requirements". If the proposed change is passed into law, the Authority will not be required to allow cross-examination, but rather would be given the "absolute discretion" to permit cross-examination if it so desired.
Interestingly, the Government has noted that "the parties are not prevented from pursuing their case in the Employment Court on the basis of a full hearing de novo". Essentially, the desire for speedy, inexpensive and informal resolution in the Authority has been given weight over the added time and expense required of people who want more watertight resolution and the ability to cross-examine in the Employment Court.
It will be interesting to see whether the ‘two birds with one stone’ approach of the proposed legislation hampers its progress through the House. We will keep you informed as this issue develops.
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3.Courts are imposing larger fines and compensation for non-economic loss for contraventions of the Fair Work Act.
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