The Employment Relations Authority (ERA) is meant to be a tribunal process to solve employment relationship problems, without having to face the more formal Employment Court. The ERA hears matters such as personal grievances, unpaid wages, and disputes about meeting the terms of an employment agreement.
The ERA holds ‘investigation meetings’, rather than court hearings. The ERA’s decision on a matter is called a ‘determination’, and is legally binding. At the end of the investigation meeting, the Authority Member may make an oral determination or give an oral indication of what the determination is likely to be. The final written determination will be issued by email or post to both parties or their representatives.
Legislation currently requires that the ERA must deliver its written determination within three months. Such a timeframe is already ridiculously drawn-out, given the District Courts deal with more legally and factually complex matters every day of the week up and down the country, yet still manage to issue instant decisions. In fact, it used to be the case that the ERA would deliver on-the-spot determinations, which makes the three month wait time hard to fathom.
Receiving a written determination is of great interest to both employees and employers, given the ERA has the power to award a range of remedies, including reinstatement of position, compensation and penalties. The ERA has become unacceptably slow in delivering determinations:
• Despite being bound by a legislated timeframe of three months, the Employment Relations Authority took 732 days - over two years - to deliver a determination in 2022.
• The maximum number of days for delivering a determination has exceeded 450 days for every year since 2019. In total, the proportion of determinations delivered outside the legislated timeframes has increased from 9% in 2020 to 13% in 2023.
• The average number of days to deliver a determination is also rising, from 54 days in 2019 to 75.7 days in 2023.
• In fact, the performance of the Employment Relations Authority is getting worse: the number of applications it receives has decreased, and it is taking longer to deliver determinations, yet Employment Relations Authority Member remuneration has increased by 47 percent.
Waiting on an ERA decision is damaging for all parties involved. It stops both employers and employees being able to move on with their lives, and contributes to financial uncertainty too, particularly for employees.
ACT would require all ERA decisions to be delivered within a month of the investigation meeting concluding. Such an expectation is entirely reasonable given the ability for comparable judicial institutions to be able to cope with issuing instant decisions. And ACT will ensure that ERA members who fail to meet this expectation will be fired (after going through a fair performance management process).
Editor’s note:
In a follow-up article Lawrence Anderson will explain a significant contributing factor to the delays that are outside the ERA’s control (and the political parties including ACT are unlikely to have visibility of).
Leighton Associates is not affiliated to any political party.
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