A Practice Note is an outline of steps that the Employment Relations Authority (ERA) will usually follow in a case brought before it. The ERA has recently updated its Practice Note following the 1 April 2011 law changes.
There are, essentially, three changes:
Parties are now permitted to cross-examine witnesses, provided the questions are relevant, necessary, courteous and not repetitive. (Previously, the ERA Member had a discretion as to whether to allow cross-examination or not).
If all the parties request, the Authority member may provide a written recommendation to resolve their problem. (The written recommendation comes into effect on a certain date unless one of the parties disagrees with the recommendation, in which case the ERA Member continues to investigate and ultimately decide the case.)
The Practice Note observes that ERA determinations (decisions) are generally public documents which can be accessed through www.era.govt.nz. (This has always been the case.)
The Practice Note is set out below.
Practice note - Steps in Proceedings
Proceedings are commenced in accordance with the requirements of the Employment Relations Authority Regulations 2000. A case is begun by lodging a statement of problem (or statement of matter). A response is given through a statement in reply. The forms are available from the Auckland, Wellington or Christchurch offices of the Authority and from the website of the Employment Relations Authority (www.era.govt.nz).
Authority Support Officers will check to see that the wording and contents of the statement of problem and statement in reply are such as to fully, fairly and clearly inform all parties and the Authority. If not, either by telephone or other convenient method, a Support Officer will seek clarification or any necessary additional information from the author of the statement.
Once an Authority member has considered the information provided by the parties in their statements a preliminary case management conference will be held with them or their representatives, if any. This will be either by telephone, in person, or other convenient means of communication. The purposes of the case management conference include:
Identifying factual and/or legal issues central to the employment relationship problem and its determination, and if possible agreeing upon the resolution of related non-contentious matters;
Giving the parties an opportunity to identify issues and witnesses they believe are relevant;
Considering the need to formally give orders or make directions, either at the request of any party or by the Authority of its own initiative;
Setting a timetable for necessary steps to be taken by the parties or anyone required to attend before the Authority;
Fixing the date, place and time for a meeting to start the investigation (to be confirmed by written notice);
Outlining how the member intends to conduct the investigation meeting and addressing any concerns regarding the proposed process.
Investigation meetings will commence with the Authority member confirming the procedure to be followed in the particular case, including the order in which witnesses are to provide information. A formal opening is not required from parties. Information will usually be provided to or obtained by the Authority in the form of sworn or affirmed evidence. Depending on any directions previously given, a witness may read a prepared statement or give oral evidence. This evidence may be added to at the request of the party or the party’s representative. Following this or at any other time the Authority may fully examine the witness. Cross examination of witnesses by the parties will then be permitted provided that such questions are relevant, necessary, courteous and not repetitive.
Further inquiries for the Authority to make in relation to the evidence or anything else of relevance to the investigation may be proposed by the parties or their representatives. The Authority will consider any such proposals and make such inquiries it thinks necessary.
At any time while any case is before the Authority for determination, the parties may be directed to undertake mediation or further mediation (see section 159 of the Act). During the course of the investigation the Authority member may offer the parties the opportunity to consider seeking further mediation or discussing between themselves whether they wish to settle the matter.
At any time while any case is before the Authority for determination, the parties may agree in writing to confer on the Authority the power to make a written recommendation in relation to the matters in issue (see Section 173A of the Act).
At the close of an investigation meeting parties, or their representatives, may sum-up by making points about the information gathered by the Authority and in doing so may refer to any applicable legal principles. A citation of any case law should be given where a copy of the decision is not being provided.
The determination of the Authority will be in writing, to be issued either in a reserved decision or as a record of an oral decision given at the end of the investigation meeting. The Authority will aim to issue reserved decisions as soon as practical after the meeting and will endeavour to issue a determination within 6 weeks of the receiving the last information and/or submissions from the parties.
The public may attend any investigation meeting unless excluded by order of the Authority.