Plenty has happened in the last year. There’s a raft of proposed amendments to the Employment Relations Act, some worthy of consideration, some well meaning but flawed, and some downright dangerous.
Like the Privacy of Parties to Proceedings Amendment Bill, which has horrendous implications if passed into law. We’ll explain in the coming weeks.
Meanwhile, lobbying for regulation of lay employment advocates has been stepped up as per this Newsroom report. As we are yet to see what regulation will look like, we’ll have an educated guess.
Statistically, most advocates’ clients are employees, and personal grievance claims usually end up in mediation. If all advocates are to be regulated, provided with Continuing Professional Development opportunities and bound by a code of conduct, that should make the most difference in the murkier, grittier areas of employment dispute resolution. How, then, should an advocate respond, when representing a client in mediation and confronted with the following:
An offer of a secret commission to throw the employee client under a bus
Threats to destroy the employee’s career, through blacklisting, if they don’t sign
A demand for a non-disclosure clause, including non-disclosure of the fact that there was a mediation, in situations where the employee is a whistleblower reporting serious wrongdoing under the Protected Disclosures Act
A demand for a non-disclosure clause that also binds the employer in such a way that serious wrongdoing is able to continue.
Blackmail, which is illegal, dressed up as simple duress, which is not illegal.
There are recidivists as in most industries, but a regulatory code of conduct if drafted right could empower advocates to terminate a mediation early if legal chicanery (or worse, as above) is encountered.
The Law Society are inviting submissions on regulation, not limited to employment law, with a deadline of 12 August. We are in discussions with the Teaching Council and the fraud investigation community about their views and submissions on the employment jurisdiction, especially in relation to Section 149 (mediation and NDAs).
Legal shenanigans with unexpected outcomes have received international media attention, although not we’re not quite into CNN or BBC territory yet. We occasionally see the wind change direction in courtrooms in a way that suggests that years of evangelising at employment law seminars is now being reversed in situations where media engagement would be inconvenient to one or both parties.
Interesting times. We hope the industry doesn’t mind if we hang around a bit longer...
Nga mihi nui
Acting leader, Leighton Associates