REVIEW OF THE EMPLOYMENT RELATIONS ACT 2000: PART 9 PERSONAL GRIEVANCES

Transcription

1 REVIEW OF THE EMPLOYMENT RELATIONS ACT 2000: PART 9 PERSONAL GRIEVANCES Summry of sumissions April 2010

2 TABLE OF CONTENTS Exeutive Summry 3 Introution 6 Sumitter involvement in personl grievnes 9 Prt C: Opertion of the personl grievne system 1. The ost of prolem resolution Vrying qulity (n effet) of employment votes Blne of firness in the personl grievne system Ensuring ess to justie Negtive impt of the responsiveness n timeliness of servies Employment reltionship prolems pper to impt isproportiontely 39 on smll n meium-size enterprises (SMEs) 7. Eligiility rising personl grievne Effetiveness of remeies 47 Assistne to resolve prolems t n erly stge 50 Generl questions 54 Appenix 1: Sumission questions 57 Appenix 2: List of sumitters 61 2

3 Exeutive Summry The ll for puli sumissions on personl grievnes ws esigne to eliit views n personl experienes of the opertion of the personl grievne system. The sumissions provie sujetive view of the personl grievne system n finings from the sumissions nlysis will e supplemente y other more ojetive reserh onute y the Deprtment of Lour, proviing more empiril eviene on the opertion of the personl grievne system. Puli Consulttion isussion pper The Deprtment of Lour sought to unerstn the extent to whih stte prolems roun personl grievnes re genuine or re se on pereption. Pereptions of the system n proesses n hve rel influene on people s ehviour n the wy they interpret the system n proesses relte to personl grievnes. Pereptions n e se on numer of ftors inluing the interests represente y sumitters, personl experiene of the grievne proess n knowlege of the rights n oligtions in the lw. The Deprtment of Lour reeive 219 sumissions, with the mjority of sumissions proviing n employer perspetive (employers, employer ssoitions n inustry groups). This report summrises the sumissions reeive, ientifies key themes rise y sumitters n sets out their preferre options for ny hnge to the personl grievne system. Most sumitters fouse on issues relte to osts, representtion, lne of firness in the system n the test of justifition (setion 103A of the Employment Reltions At). Anlysis of sumissions Bse on our nlysis of sumissions n other reserh, the Deprtment of Lour onsiers tht the lne of firness provie in the urrent lw is out right. However, there re pervsive n enuring onerns expresse y mny employers tht the system is weighte ginst them euse they elieve tht their proesses (n ny minor errors in their proesses) re onsiere y the employment institutions to e more importnt thn the sustne of se. Hene, mny employers hol tht proeurl flws my rener n otherwise justifile tion unjustifie. Mny employers who hve h personl experiene of efening personl grievne lim (n lost ) o not onsier tht justie ws one; o not unerstn why proess is importnt in etermining whether n employer hs te in fir n resonle mnner; n ny weight given y the Employment Reltions Authority or the Employment Court to ulple ontriutory onut on the prt of the employee ppers to hve little impt on the employer s overll ssessment of the proess. Mei overge of ses, in generl, y glossing over why proeurl firness of the flw my hve een ritil, or y ignoring ontriutory osts, tens to reinfore the view tht eision ginst n employer ws unfir. Mny employers who hve not h personl experiene of the personl grievne system (pst meition) nevertheless hol strong views out the system, its osts n the likelihoo of suessfully efening personl grievne llegtion. Suh views were often ite s the reson for hoosing to py out n employee privtely or t meition. 3

4 The Deprtment of Lour onsiers tht the pervsive nture of suh ritiisms, leit not supporte y the reserh finings, y most emis or y mny professionl prtitioners in the system, work to unermine it. Its reiility, its effetiveness n purpose re ll unermine. Most importntly, it is possile tht some employers re pying out employees unneessrily s the llegtion might not stn, if efene. Any steps to ress these prolems must lso tke ount of ounterviling views, the finings of the reserh, n the serious usiness of (potentilly) mking hnges in well-estlishe n importnt prt of employment lw. Key themes: e f g h i j k mny sumitters si osts were unresonle, in prtiulr for smll usinesses onerns were linke to osts ssoite with representtion, unmeritorious lims n verse outomes opposition ws voie to the no-win-no-fee votes, in prtiulr from employers n legl professionls ut there ws eqully view tht the qulity of voy ws hrteristi of the iniviul representtive, rther thn of the metho of pyment ritiism of unethil prties ws trgete t rnge of employment voy proviers n there ws support for some form of regultion from ross ll groups the lw is not generlly onsiere omplex lthough mny employers fin it retes unertinty, it is iffiult n unler priniples of nturl justie were well supporte throughout the sumissions, lthough mny employer sumitters ommente tht there shoul e less fous on proess n more emphsis on sustne of personl grievne the urrent test of justifition reeive wiespre support ut mny sumitters vote n menment to expliitly reognise n employer my pply rnge of resonle responses in mnging prolem rriers rising from lk of knowlege n/or vie were ommon onerns in the sumissions for oth employers n employees n were onsiere to e of greter signifine for some groups in the ommunity thn others elys were ssoite s muh with the ehviour n vilility of representtives n prties to the ispute s with the witing times ssoite with the institutions mjority of employers n employer representtives felt tht tril perios h reue the risk of personl grievnes for SME employers n supporte n extension in the legisltion while employees n union were oppose to this. most sumitters i not support ifferent eligiility rules pplying to ifferent types of employees euse they onsiere tht the lw shoul pply eqully to ll employees l most employers n employer representtives onsiere tht the 90-y limittion perio ws not equte or pproprite nor i they onsier the three yer limittion perio ws pproprite m employer sumitters were more likely to suggest tht reinsttement is remove s the primry remey, ut felt tht it shoul still e n ville remey n 4

5 were onerne tht the urrent rnge of remeies were not effetive t reuiling employment reltionships n o p most suggestions for mking remeies more effetive were roun finnil remeies, inluing hving limits on the mount tht n e wre or inresing wrs to reflet the rel impt on employees mny sumitters were stisfie with the sttus quo n the urrent effetive servie offere y the Deprtment s meition servies n ientifie onstrutive role for meition in erly resolution of onflit, n the role of meition in filtering out meritless lims n in ssisting prties to ientify the issues n the risks of lim, in vne of meition, ws theme throughout the sumissions. Conlusion The ojetives of the personl grievne review were to onsier numer of ftors. Upon nlysing the sumissions, we foun tht it: strikes fir lne etween employer flexiility n employee protetion: isintereste people or groups feel the system is fir. Those with n interest in the outome of personl grievne lim (employers n employees) oth feel tht it is weighte ginst them in ifferent wys oes not impose unneessry osts or oligtions for employers or employees: oth employers n employees felt the system impose osts (iret n iniret). When ompre to other ispute resolution systems in New Zeln or overses, iret osts re reltively moerte. Some employers see these osts s eing orinry usiness osts. Most sumitters woul like to see osts reue supports improvements in workple proutivity: tht employment reltionship prolems inluing personl grievnes versely ffet workple proutivity, n hs met its ojetives (s set out in the Employment Reltions At 2000): roly, sumitters felt the personl grievne system is meeting its ojetives, lthough they lso presente ies out how it n e improve. 5

6 Introution 1 The Government is unertking review of the personl grievne system s estlishe uner the Employment Reltions At 2000 ( the At ). 2 The ojetives of the review re to onsier whether the personl grievne system: strikes fir lne etween employer flexiility n employee protetion oes not impose unneessry osts or oligtions for employers or employees supports improvements in workple proutivity is effiient n effetive, n hs met its ojetives (s set out in the Employment Reltions At 2000). In ition: where improvements re require, the nture n extent of the issues involve, n the steps tht might e tken to ress these (inluing, potentilly, whether ny menments to the legisltion re neessry or esirle). 3 The fous of this review is on the opertion n ssoite proesses of the system. The review oes not onsier the following mtters: the grouns on whih personl grievne my e rise, isrimintion, provisions relting to the rising of omplint uner the Humn Rights At 1993, n provisions relting to the funtions of the Lour Inspetorte. Summry report - Puli onsulttion isussion pper on personl grievnes 4 The im of the isussion pper ws to etter unerstn how wiespre the issues rought to the Minister of Lour n the Deprtment of Lour s ttention re n the experiene people hve of the employment institutions through whih personl grievnes re pursue n resolve. Clrifying the extent to whih prolems in this re re se on experiene or re pereptions of prolems is key ojetive of the review. 5 The isussion pper sought views on the personl grievne system y mking generl ll for written sumissions from the puli etween 2 Mrh n 31 Mrh 2010 n sking questions out the key issues. 6 This report summrises the sumissions reeive, ientifies key themes rise y sumitters n sets out their preferre options for ny hnge. 6

7 Summry of sumitters 7 The Deprtment of Lour reeive 219 written sumissions s etile in the tles elow. Tle 1: Sumitters y type Sumitter Type Perentge of sumitters Employer 55 Employee 4 Employer representtive/inustry orgnistions 8 Union/Employee representtive 5 Legl servies (lwyers, Community Lw Centre) 13 Humn Resoures/Employment reltions visor 5 Employment vote 4 Aemis 2 Fmily n friens 1 Other (e.g. Smll Business Avisory Group, Politil Prty) 3 Totl The following tle shows rekown of employer y usiness size inluing oth privte n puli orgnistions. Tle 2: Sumitters y employer size Business size Perentge of employer sumitters Smll (1-19 employees) 33 Meium (20-49 employees) 12 Lrge (50+ employees) 55 Totl 100 7

8 9 The following tle shows rekown of the inustries the sumitters represent. Employer representtives, suh s Business New Zeln n employee representtives suh s the New Zeln Counil of Tre Unions, whih o not represent employers or employees in speifi inustry hve een inlue in the tegory other servies. The inustry groups re se on the Sttistis NZ ANZS1C level1 oe for inustry type. Tle 3: Sumitters y inustry Inustry Numer of sumitters Mnufturing 20 Eletriity, gs, wter n wste servies 6 Retil tre 27 Aommotion n foo servies 5 Trnsport, postl n wrehousing 11 Informtion mei n teleommunitions 6 Professionl, sientifi n tehnil servies (inluing emis) 46 Aministrtive n support servies 6 Puli ministrtion n sfety 4 Eution n trining 11 Helth re n soil ssistne 15 Other servies (inluing other setors) 1 38 Not elsewhere inlue 1 Not liste y sumitter 23 Totl Other servies inlues representtive oies suh s employer ssoitions, unions n inustry groups. The following setors hve lso een inlue in other servies s they h few sumitters: Agriulture, forestry n fishing; Mining; Constrution; Wholesle tre; Finnil n insurne servies; Rentl, hiring n estte servies; n Arts n reretion servies. 8

9 Sumitter involvement in personl grievnes 10 The mjority of sumitters (186) ommente tht they h een involve in personl grievne, with most of these ourring within the pst yer. Over hlf of the sumitters involve in personl grievne were from n employer kgroun, followe y representtives n employees. Sumitters were lso involve in personl grievnes in other pities suh s fmily memer, frien, support person or visor Most sumitters hve een involve in more thn 10 personl grievnes over the pst yers. However, of these sumitters mny hve een involve in severl (or hunres) of personl grievnes y virtue of their role suh s eing representtive or humn resoure or employment reltions visor. Mny firms with 50+ employees inite they h een involve in lrge numer of personl grievnes. The most ommon type of personl grievnes were unjustifile ismissl, unjustifile tion, sexul hrssment n reunny. 12 The mjority of sumitters hve experiene of the Deprtment s meition servies n the Employment Reltions Authority (the Authority) n few hve experiene of the Employment Court n the Court of Appel 3. Some representtives or visors si they ssiste lients through meition ut they were vise to seek legl representtion eyon this. Privte meition/ritrtion of personl grievnes ws not often utilise y sumitters, with most sumitters ressing the employment prolem through the personl grievne system. 13 Sumitters involve in personl grievnes generlly resolve them through meition. While finnil settlement ws most ommon, resolution involve oth monetry n non-monetry (e.g. pology, reinsttement) outomes. Sumitters si tht etermintions me y the Authority were more in fvour of the employer thn the employee. Some employer sumitters felt tht the Authority h given etter outome thn they expete. For exmple, one employer eie to efen se t the Authority even though they expete to lose euse of pereive Authority is, ut inste they were suessful. 14 Regrless of the outome, mny sumitters inite tht there re huge osts, prtiulrly legl osts, involve in resolving the prolem. 2 Avisor s ientifie through the sumissions oul e n internl or externl humn resoure/employment reltions visor or emi. 3 Six sumitters (mostly lrge employers n representtives) si they hve een involve in personl grievne se t the Court of Appel. 9

10 Opertion of the personl grievne system 15 This setion resses sumitters responses to the eight issues s ientifie uner Prt C of the isussion pper: Opertion of the personl greivne system. 1. The ost of prolem resolution 16 The osts employers n employers inur in reltion to personl grievne my inlue the osts of representtion, lost inome, workple proutivity, n personl n fmily osts. This setion resses sumissions on three key res: sumitters views on the resonleness of osts sumitters views on the omprison with other legl isputes proesses, n sumitters views on reuing osts. Summry of sumissions Sumitters views on the resonleness of osts Summry The osts of personl grievnes were esrie in terms of ompenstion wrs, representtion osts, n personl or soil osts rising from oth the proess n the outome of personl grievnes. While mny sumitters si these osts were unresonle, in prtiulr for smll usinesses, often the onerns were linke to osts ssoite with unmerite lims n verse outomes. Eviene ws provie y sumitters who hel tht osts were resonle within New Zeln n interntionl ontext n integrl to upholing rights n responsiilities in lw. 17 The isussion pper note the verge ost of settling personl grievne ws $5000 n employer sumitters hel the view tht this ws unresonle. Mny inite tht the resonleness of osts epene on the outome of the se. As one employer si ll osts re too high unless the employer is wrong n nother si the osts were resonle if the employer is wrong n not resonle if the employer is right. The Smll Business Avisory Group (SBAG) note tht the osts to smll usiness were isproportiontely high ompre with osts for lrge usiness. They si there ws pereption tht employees took vntge of the usiness s lk of resoures to tke personl grievnes, quoting one employer who si: They will settle for n mount slightly lower thn the ost of proeeing s they re wre n smll n meium-size usinesses (SMEs) nnot ffor the time on top of this. 18 Employers, employees, unions, legl firms, ssoitions n emis onsiere the osts resonle or low. One sumission from n emi si tht the settlement of personl grievnes in New Zeln ws low ompre with other ountries, iting 2005 the Austrlin Chmer of Commere n Inustry estimte tht the verge ost of settlement for employers ws $A10,000 (ACCI, Unfir Dismissl Lws, August 2005). He lso quotes sttistis from the Unite Kingom tht inite, on the urrent exhnge rte, the verge ompenstion wr for unfir ismissl is out NZ$16,000 (without ompenstion for injury to feelings) n the mein wr is roun NZ$8,500 (Triunls Servie, Employment Triunl n EAT Sttistis (GB) 1 April 2008 to 31 Mrh 2009). A numer of sumitters si the weight of osts fell more hevily on employees thn employers. Unions n employees si tht in most ses employers re in muh 10

11 etter position to sor the osts thn employers n tht the system therefore fvoure employers. 19 The New Zeln Counil of Tre Unions (NZCTU) resse the ost of employment reltionship prolems ross the workfore s whole quoting 2007 Deprtment of Lour stuy to rgue tht osts were tiny. They ompre this with reruitment osts whih they si woul e ten times higher. The stuy si: there were 1.5 prolems per 100 employees, with personl grievnes eing smll suset of tht numer, n the iret ost of prolems ws 0.4% of totl privte setor wges, n the iniret ost ws 0.6%. 20 While the resonleness of osts ws very muh in the eye of the eholer, the view ws lso expresse tht suh osts were prt of eing in usiness. The Employment Lw Institute ommente tht if prties re to hve rights n responsiilities then when things go wrong there will e some osts ssoite with enforement. Furthermore, they si it is importnt to keep osts in perspetive there re orresponingly lrge osts in not resolving employment reltionship prolems. 21 Sumissions resse ifferent types of osts inluing ompenstion pyments, osts of representtion n personl osts: Compenstory wrs were onsiere unresonly high y mny employers. Some sumitters onsiere the size of the usiness shoul e tken into ount with tiere ompenstion reognising tht smll usiness h few resoures thn lrger firms. Other sumitters suggeste ompenstion wrs for proeurl efiienies shoul e less thn for sustntive efiienies. For instne, one employer suggeste tht proess fults shoul e vlue t $500 ompre with fults in sustne for whih $3,000 woul e more resonle. Other sumitters were onerne tht ompenstion wrs were too low. One lw firm si it s rely isinentive for employers to omply with the lw when they re looking t pying someone $3,000 to go wy quietly. The Polie Mnger s Guil note tht ompenstion i not wr workers for the istress use ut workers re fore to gree to these verges t meition euse this is refletion of wht is orere y the Authority n the Court if litigte. Sumitters suggeste tht inresing ompenstory pyments to workers woul inentivise employers to ress efiits in mngeril skills in orer to voi litigtion osts. A numer of lw firms me sumissions on legl osts wrs whih they onsiere too low. They vote muh higher, or full, osts wrs for suessful prties. The Lw Soiety sumission note the gulf etween one y hering t the Authority of etween $5,000 n $8,000 when the wrs routinely st etween $2,000 n $3,000. Minter Ellison suggeste higher osts wrs woul eter unmerite lims whih shoul e efene y employers who might otherwise mke ommeril eision to settle efore osts eslte. All groups who h een involve in personl grievnes esrie the personl n soil osts of grievnes. These osts inlue: the wier impt on the workple, inluing reue proutivity n morle; n the flow-on effets 11

12 for fmilies n ommunities touhe y the ispute. These iniret osts were ttriute to rise from numer of ftors inluing: i ii iret finnil osts of representtion n monies pi in mges elys in the mngement of the grievne in the workple n the proesses of the institutions, n iii unertinty of outome n lk of onfiene in the system elivering fir outome. 22 SBAG spoke out the osts of time, personl stress, isruption to the workple n risk to the usiness s survivl. Two other exmples illustrte the experiene for oth employers n employees: One employer si: All employers know tht if n employee tkes PG ginst them, regrless of the sustne or lk of sustne it will ost them in terms of the finnil ost of representtion, iret settlement t meition, reruitment, trining/orienttion, time, effort, loss of proutivity. In ition, there n e loss of stff morle, reputtion n stress. A prtner of worker who h een involve in personl grievne si: There is terrile fer of oth the finnil ost n the emotionl ost not to mention the very puli wreness of hving to go through this proess. It is oth emrrssing n stressful n n hve etrimentl ffet on fmily s whole. The terrile elys to the stress n n ter fmily prt. I personlly hve felt suiil t times n hve suffere sleepless nights n restlessness. I hve not een le to onentrte n often feel isolte n lonely. Sumitters views on the osts of employment isputes ompre with other legl isputes proesses Summry Most sumitters si tht the osts ssoite with employment isputes were lower thn those ssoite with other legl isputes. The ess to erly ispute resolution ws ientifie s key ontriutor to the low ost of employment isputes. 23 The mjority of sumitters si tht the osts of n employment ispute were lower thn might e expete in other ivil or legl isputes, lthough the Humn Rights Commission n the Disputes Triunl were two exmples of proesses tht were onsiere similr or heper to ess. One sumitter ientifie low ost meition servies s ftor ontriuting to the low ost of employment reltions prolem resolution. Business New Zeln suggeste tht the ollr limittion eiling ple on lims file with the Disputes Triunl oul provie useful pproh for meition servies. 24 Other sumitters were onerne t mking omprtive ssessment. They highlighte tht: in other legl isputes itionl tools were ville to prties inluing interloutory remeies, suh s strike out n/or seurity for osts whih enle unmerite lims to e filtere out t n erly stge ll legl tions involve ost n it ws iffiult to reue those osts other thn y speey n effetive resolution of isputes 12

13 the osts relting to lost wges is guie y the Employment Reltions At (s 128 of the Employment Reltions At) n for ompenstion y the Authority or the Employment Court n this effetively estlishes wht is resonle in the employment eisions, n ommeril jugements re me in ll fiels out wht is resonle ost on the sis of n ssessment of risk to the usiness weighing up the vlue of prolonging ispute, losing se, or settling out of ourt. Sumitters views on reuing osts 25 Sumitters ientifie tht osts oul t s isinentive to employees tking lims or isinentive to employers filing to mnge employees firly. 26 Proposls from those wnting to see osts operte s isinentive to employees tking personl grievnes, in prtiulr, wht re pereive s unmerite lims, inlue: ensuring higher or full ost reovery in the Authority so employers n efen unmerite lims n to t s eterrent to employees tking unmerite lims imposing higher filing fees (one employer suggeste $250 n nother $500) to ensure tht it ws not too esy to loge personl grievne imposing penlty for unmerite lims, n introuing ps on oth wges reimursement ( ommon suggestion ws for one month) n for ompenstory pyments. 27 Sumitters wnting to see osts reue y inentivising employers to mnge employees in fir n resonle mnner propose: inresing the mount of mges pyments to urtely reflet the rel loss for employees more emphsis on erly resolution of prolems through: i ii essile informtion on the pproh of the ismissl proesses, speilist institutions n prolem resolution osts n vie line or other mehnism for employers n employees to get free vie, n iii investment in mngement pility roun ispute resolution. 28 Ojetions to the ost of legl representtion were pprent from employers n some employees with omments tht these osts te s eterrent to efening or tking ses. One employer referre to soliitors rtes s turn-off n n employment onsultnt suggeste tht legl osts ensure truth is the vitim in most ses. While unions, employers, n employees involve lwyers in personl grievnes there ws rnge of proposls to limit legl osts from ross ll groups. This inlue: ensuring osts tht n e wre in the Authority remin moest to prevent esltion of legl osts nning vrious types of representtive, inluing: i free servies 13

14 ii no-win-no-fee votes iii soliitors n lwyers, n iv representtion in the erly phses of ispute resolution, suh s meition. extening the vilility of low ost options, for instne, inresing legl i n funing to ommunity lw entres n proviing support for unions to represent employees in personl grievnes enhning erly n/or informl intervention in prolems, suh s i ii legislting to mke meition ompulsory, to reue eviting to the Authority with its ssoite osts introuing meition/ritrtion moel (pereive y some to reue the osts of the Authority ut y others to exerte the numers of prties ppeling to the Authority) iii enling the striking out of frivolous lims efore meition iv ompulsory phone filittion prior to meition v requirement tht prties meet to seek resolution n meet other riteri efore meition is provie, n e supporting employers n employees to e informe n skille to represent themselves through i ii free voy through the Deprtment of Lour/meition servies, n essile informtion n other relte support. 29 Other suggestions for reuing osts inlue: reuing the timefrme for sumitting personl grievne from 90 ys to 30 ys, primrily to limit the numer of lims, n filtering out of unmerite lims t n erly stge y empowering meitors to mke eisions on unmerite ses or enhning eision-mking y meitors. 30 Costs lerly plye ig prt in the eisions me y sumitters in tking n efening ses, lthough some sumitters were ler tht it ws the priniple or the merits of the se tht itte how it woul e mnge. Most employers si tht eision ws me on the enefits of settling ispute erly over the osts of proeeing with litigtion. This resulte in strong pereption y sumitters tht money ws eing pi to employees euse of the risks ssoite with efening ses, regrless of its merits. While this ws referre to y some employers s lkmil, others esrie weighing up the osts n enefits s norml usiness eision. Disussion n nlysis 31 The min themes in reltion to osts of personl grievnes re tht: The osts of personl grievnes re too high reting uren for smll usinesses, prtiulrly SMEs n enourging unmerite lims ginst employers. 14

15 The osts relting to personl grievnes re too low so tht employees re not firly reompense when they re unjustifily ismisse nor re employers enourge to mnge their employees firly. The osts of representtion re signifint ftor in the overll osts of personl grievnes. The osts re low reltive to osts of resolving non-employment isputes n when ompre to osts in other ountries. 32 The osts of personl grievnes inlue personl n soil osts, ompenstory wrs n representtion osts. Both employees n employers esrie the impt of these osts s signifint. The question is lso whether these osts re pproprite n therefore, resonle. A numer of ftors nee to e onsiere in suh n ssessment: Any proess tht supports employers n employees to resolve prolems tht re se on legl rights n responsiilities will entil the osts of entering into tht proess n osts ssoite with ny eision rising out of tht proess. The resonleness of the ost my reflet omprisons with other ispute resolution systems in New Zeln n interntionl omprisons. There re osts ssoite with not resolving employment reltionship prolems, inluing proutivity loss n turnover in the workple. 33 Mny employer sumitters sy tht the osts re too high n enourge py-outs to employees to prevent litigtion, regrless of the merits of the se. These pyouts re ttriute in prt to the fer of the osts ssoite with efening se. While this ws onsiere norml usiness prtie y some it ws symptomti of n unfir system for others. 34 Disinentives to employees to tke unmerite personl grievne lims inlue rising the filing fees for employees, enling employers to reover full osts for efening suh lim, imposing penlties for lims etermine to e unmerite, n/or filtering out unmerite lims t n erly stge of the proess. Some relevnt onsiertions re: Inresing filing fees my well inhiit employees mking lims ut eqully this penlises those with justifie lims n generlly limits ess to justie. Deprtment of Lour t inites tht less thn two perent (1.8%) of lims over three yer perio ( ) were lelle unmerite or vextious y the Authority or Court. Enling prties to reoup onsierly higher, or full, osts for suessfully efening n unmerite lim woul give onfiene to employers to proee with litigtion rther thn elivering py-out to mke the prolem go wy. It is relevnt, however, tht the Authority n the Court urrently hve isretion to wr higher osts to prty who hs to efen n unmerite lim or who fes n unmerite efene to lim. Inemnity osts n lso e wre in rre irumstnes (Brury v Westnk Bnking Group [2009] NZCA 234). Filtering out unmerite lims to reue osts woul still require time n osts ssoite with mking eision on the vliity of the lim n is more omplex in tht it oul potentilly involve hnges to the wy tht the 15

16 institutions urrently operte, whether this is meition servies or the Employment Reltions Authority. One option not rise y sumitters is the notion of penlising lwyers or other pi representtives who help efen unmerite lims, or provie n unmerite efense. In Austrli, in ertin irumstnes, Fir Work Austrli n mke ost orer ginst lwyer or pi gent. 35 Other sumitters propose reuing the overll osts of personl grievnes y enhning mngement pility, whih woul in turn reue the numer of tions tken y employees. Some sumitters i not gree there were lrge numers of unmerite lims initing inste tht employers lke pility in mnging grievnes n the low levels of ompenstion i little to inentivise these employers to rise the stnrs. Proposls to rise ompenstion levels through sttute nees to e lne ginst the urrent role of the Authority n the Courts in setting pproprite levels of ompenstion tht then guie meition n privte settlements. 36 Erly resolution of grievnes is preferle euse it will ten to support proutive employment reltionships n low ost effiient mngement of the usiness. However, ny osts ssoite with in-house resolution of prolems re likely to reflet omintion of ftors eyon simple sttutory solutions inluing: the ost of ny legl vie the verge settlements likely shoul the se go to the Authority ny sttutory guine, suh s lost wges (s 128 of the Employment Reltions At), n wht the prties gree is resonle, or o-le, in negotition. 37 The osts of representtion re feture of most sumissions n while some sumitters sy legl representtion is importnt to e ssure of mking the right eision n hieving the est outome, others inite tht there is little hoie. A ontriuting ftor to prties engging representtives ws their lk of knowlege of their rights n oligtions in hnling personl grievne n lk of unerstning out the system. 38 Enhne oligtions to support erly resolution of prolems inlue sttutory options, suh s mntory meition n enhne ritrtion. The sttutory options woul hnge the urrent nture of meition s highly flexile n lrgely voluntry proess n potentilly trnsform the pproh to meition where prties n tlk in n open n onfientil environment tht fosters mutully gree outomes. 39 Non-sttutory options inlue requirement for the prties to meet n ttempt to resolve the prolems prior to meition n n oligtion to islose the nture of representtion in vne of meition. These options ress onern tht there is insuffiient work one y prties efore they tten forml meition. Without reourse to legisltive menments prties oul e supporte with the following options: phone filittion y meition servies prior to forml meetings, tht nvss efforts to resolve the prolem prior to ttening meition with ssoite vie in the event tht no efforts hve een me or the nture of representtion of eh prty to ensure trnspreny 16

17 emphsising the importne of ttenne t meition y ensuring prties seeking to voi meition re not given preferene in the system in either the Authority or meition servies, n ensuring prties unwittingly filing t the Authority without prior meition re referre to the meition servies without the ost of filing fee. 17

18 2. Vrying qulity (n effet) of employment votes 40 The ojetives of the Employment Reltions At 2000 support low level pproh to prolem resolution, inluing the provision of ispute resolution servies tht o not require legl representtion n reognition of the importne of goo fith in ll spets of the employment reltionship. The role of representtives is ftor in the effetiveness of the legisltion with respet to these ojetives. This setion resses experienes n pereptions out the role of representtives, fousing in prtiulr on the following res: the type of representtion experiene y sumitters sumitters experiene in reltion to representtives, n proposls to improve the qulity of representtion. Summry of sumissions Sumitters views on the qulity of employment votes Summry Sumitters were generlly hppy with their representtives for personl grievnes, lthough they were less hppy with the opposing prty s representtion. No-win-no-fee votes were seen y some sumitters s enourging the pursuit of unmerite lims n the settlement of lims t low n unfir level. However, ross ll sumitter groups the qulity of voy ws more often linke to the qulity of the iniviul s oppose to the metho of pyment y the employee. There ws wiespre support for some form of stnristion n monitoring of voy n n inrese emphsis on erly ispute resolution to reue the osts of representtion overll. Sumitters experiene of ifferent types of representtion 41 Most sumitters h experiene some form of representtion in the ourse of trying to resolve grievne, whether these representtives were legl prtitioners, employment onsultnts, unions or employer representtive orgnistions. Some sumitters offere no-win-no-fee servies n others h engge with these representtives in some pity. Only hnful of sumitters self-represente or esse only in-house servies n so, while they were hppy with the outome, the numers were too smll to e informtive. 42 Mny sumitters foun the experiene stressful or upsetting regrless of the nture of the representtion n often the qulity of the voy ws iretly linke to positive outome ut in most instnes where prties were represente, their experiene of the representtives they engge, ws positive one. For exmple, they tlke of the employment votes eing very professionl n resonle or offering goo vie ; legl prtitioners eing well-vise n exellent. 43 There ws less onsisteny when sumitters spoke out the opposing prty s vote. Some employer sumitters expresse onern out no-win-no-fee votes. For exmple, one person si they ten to e ggressive n ullying n nother si they were lkmile. However, ritiism ws lso irete t legl prtitioners, who one employer si woul wring out the se n oost their fees n nother remrke tht the involvement of lwyers on either sie turns the proess wy from prtil prolem solving, it is sometimes etter when goo non-lwyer vote is involve. A ommunity-se lw professionl 18

19 ommente tht it ws stressful s the rrister h no experiene with hnling PG issues/proeures, noting the proeure ws rwn out, the proess versril, the outome unsuessful for oth prties n the legl osts to oth sies were huge. Sumitters experiene in reltion to representtives No-win-no-fee voy servies 44 Disussion out no-win-no-fee votes presente omplex piture of this form of representtion. Mny employers expresse fers of inrese litigtion in the event their employees engge suh votes lthough they h no iret experiene of these representtives. Other sumitters relye negtive experienes with no-win-no-fee votes uring negotitions. 45 Umrell orgnistions for legl prtitioners n employers voie numer of onerns sying: these votes fouse on monetry outomes rther thn the est solution, inluing shift in emphsis to exit pkges tht employees rrie no risk when engging no-win-no-fee votes n were therefore more likely to mount n unmerite lim n put pressure on employers to mke py-out to voi litigtion. 46 Legl representtives who ritiise no-win-no-fee votes i this on the sis of the qulity of the voy n suggeste there ws some ishonesty in the wy they presente their servies. One lw firm si there were too mny owoys n unethil votes who re unskille n re simply spping money off lrey injure employees. Another si this form of representtion ws not stritly speking risk-free for employees who were often require to py something even if there ws not suessful outome. 47 Two suggestions propose lifting the stnrs n onsisteny of representtion: some form of uthoristion, regultion, or Coe of Prtie n/or professionl oy tht fixes stnrs n mnges omplints the ility for the Authority or the Employment Court to wr osts ginst representtive, personlly, if they hve inurre osts unneessrily. 48 Sumitters supporting no-win-no-fee votes rgue tht levels of servie n professionlism relte to the prtiulr prtitioner s oppose to the type of pyment rrngements entere into with lient. Meitors, legl prtitioners, emis n employment votes si tht it oul not e ssume tht there ws reltionship etween the type of representtive n the qulity of representtion. Further it ws rgue tht vrile representtion ws feture of ny re of ispute resolution. Some of the votes onteste the view tht nowin-no-fee rrngements enourge unmerite lims or presente more ggressive style of voy. They rgue: the Employment Lw Institute si tht its memers were governe y Coe of Conut to ress onut n professionlism n this supporte ethil ehviour n not unmerite lims one vote, who worke perioilly on ontingeny sis, si tht some soliitors lso operte in suh pity n the only ifferene ws the fees for the soliitor were lot higher 19

20 e some sumitters rgue tht unmerite ses were not the preserve of the nowin-no-fee votes ut oul eqully e mounte y legl prtitioners there ws strong inentive for no-win-no-fee votes to settle lims to prevent lrge osts eing inurre y proeeing to the Authority n this supporte low ost prompt resolution of ses, n often workers tke ses, not euse of the money, ut to ler their nme from the stigm of hving ismissl on their reor, to get referene or ring some losure to ispute. For low pi workers, without union representtion, no-win-no-fee votes provie vile lterntive. Other types of representtion 49 Sumissions were lso reeive from orgnistions proviing free servies for memers or lients n those not essing ny externl support ut epening on their own skills or in-house resoures. This inlue orgnistions tht i not hrge t ll for servies, suh s unions, ommunity-se servies suh s ommunity lw entres n workers rights servie. Supporting the urrent sope for representtion, the following points were me: ttrting wie rnge of representtives shoul e seen s supporting ess to justie n is similr to pprohes in other jurisitions limiting the rnge of representtives oul result in employees eing isvntge y fing n uneven plying fiel in ny ispute resolution proess where the employer engges representtive, n the NZCTU note tht union representtion provies n effiient n effetive wy to resolve workple isputes euse most prolems re sorte out efore meition n the Authority, where the osts eslte for ll onerne. Sumitters proposls to improve the qulity of representtion 50 Sumissions reommening improvements to the qulity of voy fouse on hnging the types of representtion ville; shifting the fous of ispute resolution wy from the more ostly institutions, where pi representtion is more ommon; n, putting some heks n lnes in the system to foster ethil ehviour. Proposls for more punitive tion to eter unmerite lims, often ssoite with poor voy eisions, is resse in the osts setion (see pr 26). 51 At one en of the spetrum sumitters propose nning professionl legl representtion or no-win-no-fee votes from the personl grievne proess lthough mny sumitters h positive experienes of eh type of legl representtion. Of those proposing limits to the role of legl voy, some speifie tht suh limits shoul e impose only t the erly stges of ispute resolution, for instne t meition. There ws lso view tht prties sometimes sought to mth their opponent s type of representtion n this oul result in n unneessry esltion of osts. They vote tht prties e require to islose the nture of their representtion in vne of ny meeting so osts were not unneessrily wste on wht oul e onsiere over-representtion. 52 Shifting the fous of ispute resolution to the erly stges of onflit to voi unneessry osts ws supporte y employer n union sumitters. Mny people si tht representtion in the institutions ws require for suessful outome or s one sumitter si to mnge risk. However, it ws rgue tht 20