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Why the Election Might Not Matter to Employment Lawyers - by Karen Davis

Updated: Oct 18


Jacinda Ardern and the Labour Party just had a big election victory. They got more than half the seats in Parliament. Congratulations to them.


But that doesn’t matter to employment lawyers, who claim what Parliament says does not apply to them.

Parliament gave workers and employers rights and duties and it set up the Employment Relations Authority and the Employment Court, all by an Act of Parliament. It said that employment relationships must be conducted in good faith and the Authority and the Court could deal with disputes about employment agreements between employers, employees and unions.


All New Zealanders and all New Zealand businesses have to obey the laws made by Parliament, right?


Not necessarily! Not according to the very clever employment lawyers and Authority members and judges! They have held they can make an Act of Parliament mean they can do what they like, to anyone, if they say it is an "employment agreement" or just something they "interpret" the Act of Parliament to mean.

Such as a manager agreeing to give a contract or money from a public sector organisation to his or her friends and relations for no good reason.


Such as paying public money to lawyers to arrange those agreements and make them look legal.


Such as gagging anyone or fining them for some imaginary offence, just because they want to.


Such as putting people out of business and blacklisting them, if they try to speak up about what these lawyers and members and judges are doing.


The lawyers and members and judges say they don’t have to have the good faith that Parliament said employers and employees have to have for each other. They are not the employers.

The Law Society didn’t control the lawyers bending and breaking the rule of law. President Kathryn Beck said they left it to the members and judges. Now nobody controls the lawyers and Kathryn Beck is one of the judges.

Ministers Ian Lees-Galloway didn’t control the members. Or himself.


Andrew Little didn’t control the members or judges. Instead of that, he supported Attorney-General Chris Finlayson trying to make it an offence to criticise judges. Parliament wouldn’t let Andrew Little go that far but he ended up making it an offence not to do whatever a member said.


So the members kept making whatever orders they like, including ones Parliament has said are illegal. All the employment lawyers had to do was ask.

The judges kept deciding that the law is whatever they say it is. If Parliament hasn’t said what the members can do what they want, they make a random “statutory interpretation” and the judges sign it off.

Parliament has kept saying it can’t interfere with what the judges are doing. That’s a new rule too.

Parliament has a constitutional convention that it cannot interfere with any case, but it can change how cases are dealt with. That is what Parliament is for. Parliament is supposed to decide what the law is and to make sure it is used. Parliament is supposed to be "supreme" and give the members and judges their powers.

But Andrew Little said that Parliament is actually subject to the members and judges. They say they can do what they like, and let employment lawyers and employers do what they like, even if Parliament has actually said they can’t because it’s a criminal offence.


When regulators and Ministers of Parliament openly refused to deal with officers who were out of control, there wasn’t much hope for any of us.

Let’s see if the new Parliament can stand up.

Let’s see if Jacinda takes control now.


Let's hope so.


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