What is the ERA?

The Employment Relations Authority, also known as the ERA, is an investigative tribunal that can make determinations about employment related problems.  The ERA’s processes are usually less formal than a court, but its determinations are binding, as if they were made in the District Court.

The ERA is made up of the Chief of the Authority and about 15 other members. The members are not necessarily lawyers, but have wide-ranging employment law or employment relations backgrounds (for instance union officials, business and management professionals, government officials, and academics).  

Each investigation hearing will have one member who hears evidence from the parties, and then makes a determination.

What can the ERA investigate?

The ERA has the power to hear disputes about the following matters:

• Disputes about the interpretation, application or operation of an employment agreement;
• Claims of breach of an employment agreement;
• Certain aspects of collective bargaining;
• Personal grievances;
• The recovery of wages or other money;
• Claims for penalties;
• Requests for compliance orders;
• Objections to demand notices issued by Labour Inspectors;
• Requests for orders for interim reinstatement; and
• In respect of employment agreements, to make certain orders available under enactments or rules of law relating to contracts.

How to make an application in the ERA

Either an employer or an employee can lodge a Statement of Problem online, by post, or by hand.  

The applicant will need to provide the ERA with the following information:

• The name of the party on the other side of the dispute (“the Respondent”);
• An explanation of what the problem is;
• The background to the problem and what gave rise to it;
• How they would like the problem resolved;
• Any documents that relate to the problem which may include employment agreements, payslips, correspondence between parties, and meeting notes; and
• An explanation of the steps which have already been taken to resolve the problem.

The ERA will acknowledge the application and send a copy to the Respondent, who has to lodge a Statement in Reply within 14 days.

How to respond to an ERA application

Once a Statement of Problem has been lodged with the ERA, the other party will have an opportunity to respond.

The Statement in Reply should include:

• The Respondent’s view of the problem;
• The Respondent’s version of the background to the problem and what gave rise to it; and
• An explanation of the steps that have already been taken to resolve the problem.

If the Respondent does not file a statement in reply, the ERA will decide the next steps, which can include a direction for mediation, a case management conference, or an investigation meeting.

The Investigation process in the ERA

Case management conference

The first formal step in the ERA is usually a Case Management Conference.  The Conference will typically take place by phone and is fairly brief and informal.  Both parties (and their representatives, if they have them) will be present.

At the Case Management Conference the member will:

• Ensure the issues that need to be resolved are clear;
• Consider whether mediation is necessary (if it has not already occurred);
• Provide details of people that are required to provide evidence;
• Provide information about the investigation meeting and the process;
• Set a time and date for the investigation meeting.

Once these preliminary matters have been resolved, the matter can proceed to the investigation meeting. 

The investigation meeting

At the investigation meeting, the ERA member will be in charge of the process, and ensure that the investigation is conducted fairly. The member will make introductions and outline how the meeting will proceed. This will involve determining the order that the parties will speak and any witnesses who will give evidence.

Members of the public may attend the investigation meetings, unless the authority members directs otherwise. 

The ERA member will ask questions of the parties about the information and facts contained in his or her Statement of Problem or Statement in Reply. If a third party has provided a witness statement then he or she will be required to attend the investigation meeting. All parties will be asked to formally confirm that the information provided is true and correct.

At the conclusion of the investigation meeting, either of the parties or their representatives, may summarise their arguments and the relevant law. This may happen orally, or by written submissions, depending on what the member directs.

The ERA member may indicate the outcome verbally or he or she will take time to consider the evidence. The ERA will then release a written decision, called a determination, detailing the result of the dispute. All ERA decisions are published, and available to the public.

Do you need representation in the ERA?

The ERA member presiding over the matter will ensure that the process is run fairly, regardless of whether a party has representation.  It is often useful to have a representative present, if the representative has expertise in employment law, or experience in the employment relations area.

A representative can help by providing:

• Advice on an employment dispute;
• Assistance in preparing for the investigation meeting; and
• Representation at the investigation meeting with the ERA member.

A representative may be any person or an organisation, including a union, employer’s association, a lawyer, an employment relations advocate, a family member or a friend. 

The ERA cannot provide legal advice to either party, and to ensure a fair and impartial process the ERA member will not discuss the matter without the other party or their representative being present.

Representation by a professional maximises the possibility of a successful outcome, but does require an investment for having that expert help to present the case. The ERA member may order the unsuccessful party to help contribute towards the successful party’s legal costs.

Outcomes of the ERA investigation meeting

The ERA has the power to award a wide range of remedies. These may be the remedies which the parties sought in their Statement of Problem or Statement in Reply, but the ERA has the power to award the remedies it thinks fit. These remedies include:

• Interim reinstatement — if the employee has been dismissed, he or she can be allowed to return to work temporarily while the ERA determines whether permanent reinstatement is appropriate.
• Permanent reinstatement — if an employee has been unjustifiably dismissed, he or she may be reinstated. However, this only occurs if the employee would like to return to employment and it is feasible to do so.
• Reimbursement of wages — if an employee has lost wages as a result of some action by the employer, he or she may be entitled to reimbursement for wages. This can be for a specific period of time, for example, the period between dismissal and the determination, or until he or she gains new employment.
• Compensation — an employee may receive compensation if he or she has suffered hurt or humiliation caused by the employer.
• Costs — the ERA may order that one party is to contribute to the other party’s legal costs incurred in preparing and attending the investigation meeting. These are usually based on a set rate per day of hearing and not what you actually invest in getting experienced legal assistance.

If a party is dissatisfied with the result of a determination, he or she can file a challenge in the Employment Court. This could be a challenge to the whole of the determination or based on a particular point of law or fact.

It is not possible to file a challenge based on the procedure of the investigation meeting, but a challenge to the whole determination can result in a new hearing with all of the evidence and submissions given again.

While the process of filing a challenge is similar to an application to the ERA, it is not the same. It is best if a person seeking to file a challenge has professional advice from a lawyer or professional experienced in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.