Employment Relations (Validation of Union Registration and Other Matters) Amendment BillFirst Reading Speaking Notes

  • Margaret Wilson

10 October 2001Speech Notes

Mr Speaker, I move that the Employment Relations (Validation of Union Registration and Other Matters) Amendment Bill be read for the first time.

It is intended to refer this Bill to the Transport and Industrial Relations Select Committee for their consideration and reporting back to this House by 24 October 2001.

This Bill amends the Employment Relations Act 2000 to ensure that Parliament’s intentions for employment relations are given full effect.

This Bill addresses two recent Court judgments. The first regards the ruling of the Court of Appeal that the legal status of the National Union of Public Employees and effectively 39 other unions were invalid because they were registered or applied to be registered prior to the principal Act’s commencement date of 2nd October 2000. The invalid registration and the process that accompanied it were in fact technical irregularities. The societies in question would have had a statutory right to be registered as unions because they were able to meet all the statutory criteria. The only issue was the timing of the application and processing. Notably none of the unions sought to exercise their rights as a union before 2 October 2000.

The decision of the Court arose, not from any deficiency in the Employment Relations Act, but from an interpretation of s.11 of the Acts Interpretation Act, that was meant to be designed to assist the introduction of legislation. The decision is likely to have implications beyond the Employment Relations Act.

In terms of that Act however, the Government has the responsibility to deal with its significant and disproportionate effects on the societies concerned. It means that actions taken by them since 2 October 2000 are unlawful or of no effect. This has the potential to affect 270,000 employees represented by those unions who were registered or applied to be registered prior to 2 October 2000. Significantly it also affects the many employers who dealt in good faith with these unions.

The Bill therefore validates the registration of those unions who were registered or applied to be registered under the Employment Relations Act prior to the commencement date. It ensures that all action taken by those unions since 2 October last year are lawful. The effect of the Bill will be to return the situation to that which applied before the Court’s decision.

The Court’s decision was not made on the basis that NUPE did not meet the qualifications for registration under the Employment Relations Act. It was a matter of timing only – NUPE was originally registered on Friday 29 September 2000 rather than Monday 2 October 2000.

At that point, there was and remains nothing to prevent re-registration, as all the criteria for registration are currently able to be met, as they were at the time. The Bill simply validates the original registration decisions and the past acts of NUPE and the other societies who sought, in good faith, to comply with the requirements of the Employment Relations Act at the earliest possible opportunity.

No substantive benefit will be lost to the New Zealand Employers Federation or any other party by the validation of NUPE’s registration and that of the other societies. Indeed, there has been substantial reliance on those societies’ registration by the unions and employers concerned, which is now jeopardised by the effects of the Court’s decision. They face the situation where their status as unions, and acts undertaken by them in good faith, are of no legal force or effect simply because of a technical point of timing.

While the Court granted the decision sought by the New Zealand Employers Federation that NUPE’s registration was invalid, it also expressly noted that validating legislation might be seen as an appropriate option in dealing with the consequences of the decision. That is certainly my view and the course that we have now decided to take to resolve this matter.

Mr Speaker, this Bill also addresses the implications of a decision of the Employment Court in relation to cross-examination in the Employment Relations Authority. The Court’s decision has, in some cases, added unnecessarily to the formality and time taken in Authority hearings.

The Bill therefore confirms the principal Act’s intention that the Authority is not required to allow cross-examination, but may do so at its discretion. This is consistent with the Act’s intent of avoiding the expensive frustrating delays experienced in the former Employment Tribunal by making the Authority’s hearings accessible, inexpensive and timely.

In doing this the Bill does not affect the Act’s requirement that the Authority observe the principles of natural justice, nor the rights of parties to engage in cross examination when before the Employment Court. It is important to remember that all hearings before the Employment Court are de novo and that no parties’ rights are affected by the proceedings in the Authority.

An added advantage of taking this opportunity to clarify the intent of the Act, is that the Crown will be able to withdraw its appeal against the Employment Court decision, thus saving needless legal costs, while providing certainty for the parties.

The operative clauses of the Bill are 4, 6, 7, 8, 10 and 11.

Clause Four validates applications, and registrations of unions, prior to the commencement of the Act on 2 October 2000.

Clause Six provides that nothing done by a person including the Crown, Registrar of Union, a society or an employer, is to be treated as unlawful or of no effect because a society applied for or was registered as a union before the commencement of the principal Act.

Clause Seven provides that no-one, including those unions who registered early and the employers who have dealt with them, will be under any liability because the unions were registered early or applied to be registered early. However, the Bill in clause 8 ensures that people’s actions do not retrospectively become breaches of the principal Act or of employment agreements. This clause provides that the Bill does not make anything done or omitted to be done by a person before the commencement of the Bill, a breach of an employment agreement or the principal Act.

Clauses 10 and 11 provide that sections 157(2) and 173(1) of the principal Act do not require the Authority to allow cross-examination but that the Authority may, at its discretion permit such cross-examination.

Mr Speaker, this Bill confirms the intentions of the principal Act. The Employment Relations Act recognises that employment relationships must be built on good faith behaviour. This Bill will correct a technicality to recognise that parties who acted in good faith under the Act should not have their actions challenged simply on the basis of a technical irregularity. The Bill will also support the intention that the Employment Relations Authority is to make determinations according to substantial merits without being hindered by technical procedural requirements.