Rob Towner, Andrew Scott-Howman and Jennifer Mills of Bell Gully reflect on a landmark year in employment law
Employment lawyers such as Jennifer Mills, senior solicitor at Bell Gully, are catching up on their sleep after an incredibly busy year. "From the enactment of the new legislation and leading up to it coming into force, we have been incredibly busy advising clients on the implications of the new legislation. More recently, we have been working long hours reviewing our clients' contracts to ensure compliance with the new law."
The new legislation is expected to result in new types of work for lawyers practising in employment law. Rob Towner, who heads the Bell Gully employment group, expects a greater focus on mediation and the investigative function of the Employment Relations Authority - an avenue of dispute resolution unavailable under the former Employment Contracts Act. "There will probably be less conventional trial work in the employment area but more advocacy work overall, taking into account the greater emphasis on mediation and investigation under the ERA".
However, litigation will be needed to clarify the meaning of "good faith" under section 4, as "the definition is very wide and there is very little assistance in the Act", according to Mr Towner.
While it is a commonly held belief among employers that there will be more industrial disputation under the ERA than the ECA, Mr Towner says it is still too early to tell whether this will eventuate. "As a corporate law firm, there will be a greater need for us to advise clients who are employers as a consequence of the policies underpinning the new legislation, namely promoting collective bargaining and an increased influence of trade unions."
The legislation has allowed some clients to explore new avenues for managing employment relationships. Andrew Scott-Howman, a senior associate in Bell Gully's Wellington office, advised the first organisation, a collective of professional sports-people, to be registered as a union. "Many of our clients are reacting positively to the change offered by the legislation, taking the opportunity to work with unions and defining the rules for their workplace-management through good faith agreements."
Other key ERA issues identified include a potential increase in unfair bargaining claims as a result of lowering the "harsh and oppressive" threshold under the ECA. Fixed-term agreements and the phrase "genuine reason based on reasonable grounds" (section 66) are also expected to lead to increased work, especially with respect to employers using fixed term agreements to retain key employees.
However, according to Mr Towner, "changes to important legislation usually lead to work for lawyers, because changes require advice. With the ERA, there will be an initial period of assisting clients to comply with changes in the law. This will be followed by a longer period for us, in our capacity as advocates, adjusting to the new roles we are to play under the ERA as well as the courts clarifying new concepts such as good faith bargaining."
This is a general summary only and should not be taken as a substitute for specific advice.
Rob Towner, Andrew Scott-Howman and Jennifer Mills specialise in employment law at Bell Gully.
Web site:
Bell Gully Rob Towner email: Rob.Towner@bellgully.com
Andrew Scott-Howman email: Andrew.Scott-Howman@bellgully.com
Jennifer Mills email: Jennifer.Mills@bellgully.com
March 2001