New Zealand employment law establishes fundamental rights regarding representation for both employees and employers. These rights are primarily outlined in the Employment Relations Act 2000 (the Act), ensuring that parties can seek support and guidance in various employment-related situations.
The Right to Choose Representation
Both employees and employers have the right to choose to be represented in employment relationship matters. An advocate is a person who represents another party, and a union is an organisation of employees that represents its members [Source: Employment Relations Act 2000, s 10, s 11, s 5(a)].
- For Employees: An employee may choose to be represented by an organisation (such as a union) or a person (an advocate) in all aspects of their employment relationship [Source: Employment Relations Act 2000, s 10]. This includes the right to join a union and participate in its activities, and employers must not discriminate against an employee for exercising this right [Source: Employment Relations Act 2000, s 9, s 104].
- For Employers: An employer also has the right to choose to be represented by an organisation or a person in employment relationship matters [Source: Employment Relations Act 2000, s 11].
Good Faith Obligations
The exercise of the right to representation is underpinned by the principle of good faith, which requires parties to an employment relationship to be active and constructive in establishing and maintaining a productive relationship [Source: Employment Relations Act 2000, s 4]. This includes:
- Dealing with each other in good faith [Source: Employment Relations Act 2000, s 4(1A)(a)].
- Being responsive and communicative [Source: Employment Relations Act 2000, s 4(1A)(c)].
- Not doing anything to mislead or deceive the other party [Source: Employment Relations Act 2000, s 4(1A)(d)].
Failing to allow an employee to have a representative present at a meeting where decisions affecting their employment are made (such as a disciplinary meeting) can be seen as a breach of good faith and may affect the fairness of any subsequent employment decisions [Source: Employment Relations Act 2000, s 4].
Scope of Representation
The right to representation extends to various stages and aspects of the employment relationship:
Negotiations and Agreements
- Individual Employment Agreements (IEAs): Before signing an IEA, an employee must be advised of their right to seek independent advice and be given a reasonable opportunity to do so [Source: Employment Relations Act 2000, s 69J(2)(a)]. This advice can be provided by a union or an advocate.
- Collective Bargaining: Parties engaged in collective bargaining for a collective employment agreement (an agreement between an employer and two or more employees who are members of a union) may be represented by a union or advocate [Source: Employment Relations Act 2000, s 32(1)]. Employees who are members of a union party to a collective agreement have the right to seek advice from their union about the agreement [Source: Employment Relations Act 2000, s 55(3)(b)].
Disciplinary and Investigation Processes
During employer-led investigations or disciplinary processes that could lead to a disadvantage or dismissal, employees have the right to have a representative present. The presence of a representative helps ensure fairness and natural justice. While not explicitly stated as a section in the ERA, the right to representation in such processes is a fundamental aspect of the employer's good faith obligations and the justification test (where an employer's actions must be what a fair and reasonable employer could have done in all the circumstances at the time) applied by the Employment Relations Authority and Employment Court [Source: Employment Relations Act 2000, s 4, s 103A].
Dispute Resolution
- Personal Grievances: An employee can raise a personal grievance (a complaint an employee has against their employer for an alleged wrong, such as an unjustifiable dismissal or discrimination) through their union or an advocate [Source: Employment Relations Act 2000, s 135].
- Mediation: During mediation services provided by the Ministry of Business, Innovation and Employment (MBIE), parties to an employment relationship problem may be represented by a union or advocate [Source: Employment Relations Act 2000, s 140(1)(c)].
- Employment Relations Authority and Employment Court: Parties appearing before the Employment Relations Authority or the Employment Court typically have representatives (often lawyers or employment advocates) to present their case [Source: Employment Relations Act 2000, s 174(a), s 198(a)].
When to Seek Independent Legal Advice
When facing an employment issue, particularly concerning disciplinary action, dismissal, or complex disputes, it is highly recommended that individuals seek independent advice. Organisations like Community Law Centres provide free legal assistance, and unions offer support to their members. The Ministry of Business, Innovation and Employment (MBIE) provides general information and mediation services.