Schedule 2 Provisions having effect in relation to Employment Relations Authority

s 165

1 Construction of employment agreements and statutory provisions

(1)

The Authority may, in performing its role, deal with any question related to the employment relationship, including—

(a)

any question connected with an employment agreement, being a question that arises in the course of any investigation by the Authority:

(b)

any question connected with the construction of this Act or of any other Act, being a question that arises in the course of any investigation by the Authority.

(2)

Subclause (1)(b) has effect in relation to a question even though that question concerns the meaning of this Act (being the Act under which the Authority is constituted) or of an Act under which the Authority operates in a particular case.

Compare: 1991 No 22 s 79(1)(h), (i)

2 Representation of parties

(1)

Any party or person involved in a matter before the Authority, or called upon to appear before the Authority, may—

(a)

appear personally; or

(b)

be represented—

(i)

by an officer or member of a union; or

(ii)

by an agent; or

(iii)

by a barrister or solicitor.

(2)

The Authority may order any person to appear before it or be represented before it.

Compare: 1991 No 22 s 90

3 Privileged communications

(1)

Where any party to any matter before the Authority is represented by a person other than a barrister or solicitor, any communications between that party and that person in relation to those proceedings are as privileged as they would have been if that person had been a barrister or solicitor.

(2)

In subclause (1), party, in relation to any matter before the Authority, includes any person who—

(a)

appears or is represented before the Authority; or

(b)

under clause 2(2) is ordered to appear or be represented before the Authority.

4 Reopening of investigation

(1)

The Authority may order an investigation to be reopened upon such terms as it thinks reasonable, and in the meantime to stay the effect of any order previously made.

(2)

The reopened investigation need not be carried out by the same member of the Authority.

Compare: 1991 No 22 s 91(1), (4)

4A Service outside New Zealand

Any document relating to a matter before the Authority may be served out of New Zealand—

(a)

by leave of the Authority; and

(b)

in accordance with regulations made under this Act.

Schedule 2 clause 4A: inserted, on 1 December 2004, by section 70 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

5 Witness summons

(1)

For the purposes of any matter before the Authority, the Authority may, on the application of any party to the matter, or of its own volition, issue a summons to any person requiring that person to attend before the Authority and give evidence.

(2)

The summons must be in the prescribed form, and may require the person to produce before the Authority any books, papers, documents, records, or things in that person’s possession or under that person’s control in any way relating to the matter.

(3)

The power to issue a summons under this clause may be exercised by the Authority or a member of the Authority, or by any officer of the Authority purporting to act by the direction or with the authority of the Authority or a member of the Authority.

Compare: 1991 No 22 s 96

6 Witnesses’ expenses

(1)

Every person attending the Authority on a summons, and every other person giving evidence before the Authority, is entitled, subject to subclause (2), to be paid, by the party calling that person, witnesses’ fees, allowances, and travelling expenses according to the scales for the time being prescribed by regulations made under the Criminal Procedure Act 2011, and those regulations apply accordingly.

(2)

The Authority may disallow the whole or any part of any sum payable under subclause (1).

(3)

On each occasion on which the Authority issues a summons under clause 5, the Authority, or the person exercising the power of the Authority under subclause (3) of that clause, must fix an amount that, on the service of the summons, or at some other reasonable time before the date on which the witness is required to attend, is to be paid or tendered to the witness.

(4)

The amount fixed under subclause (3) of this clause is to be the estimated amount of the allowances and travelling expenses (but not fees) to which, in the opinion of the Authority or person, the witness will be entitled, according to the prescribed scales, if the witness attends at the time and place specified in the summons.

(5)

Where the Authority, on its own volition, issues a summons to any person under clause 5(1),—

(a)

that person, if he or she attends the Authority on that summons, is entitled, subject to subclause (2), to be paid by the department the amount of the witnesses’ fees, allowances, and travelling expenses specified in subclause (1); and

(b)

the department must provide any amount fixed under subclause (3) as the amount required to be paid or tendered to that person.

Compare: 1991 No 22 s 96

Schedule 2 clause 6(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

7 Evidence at distance

(1)

For the purpose of obtaining the evidence of witnesses at a distance, the Authority or, while the Authority is not sitting, any member of the Authority, has all the powers and functions of a District Court Judge under the District Court Act 2016.

(2)

The provisions of the District Court Act 2016 relating to the taking of evidence at a distance apply, with the necessary modifications, as if the Authority were the District Court.

(3)

Despite subclause (2) evidence may, for the purposes of this Act, be taken at a distance by a Registrar of the District Court.

Compare: 1991 No 22 s 96

Schedule 2 clause 7(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Schedule 2 clause 7(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Schedule 2 clause 7(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

8 Power to take evidence on oath

(1)

The Authority may take evidence on oath and, for that purpose, any member of the Authority, or any other person acting under the express or implied direction of the Authority or a member of the Authority, may administer an oath.

(2)

On any charge for perjury it is sufficient to prove that the oath was administered in accordance with subclause (1).

Compare: 1991 No 22 s 96

Schedule 2 clause 8(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

9 Party competent as witness

Any party to a matter before the Authority is competent to give evidence in the matter and may be compelled to give evidence as a witness.

Compare: 1991 No 22 s 96

10 Power to prohibit publication

(1)

The Authority may, in respect of any matter, order that all or any part of any evidence given or pleadings filed or the name of any party or witness or other person not be published, and any such order may be subject to such conditions as the Authority thinks fit.

(2)

Where a matter is resolved by the Authority making a consent order as to the terms of settlement, the Authority may make an order prohibiting the publication of all or part of the contents of that settlement, subject to such conditions as the Authority thinks fit.

Compare: 1991 No 22 s 97

11 Power to award interest

(1)

In any matter involving the recovery of any money, the Authority may, if it thinks fit, order the inclusion, in the sum for which judgment is given, of interest, calculated in accordance with Schedule 2 of the Interest on Money Claims Act 2016, on the whole or part of the money for the whole or part of the period between the date when the cause of action arose and the date of payment in accordance with the determination of the Authority.

(2)

Without limiting the Authority’s discretion under subclause (1), in deciding whether to order the inclusion of interest, the Authority must consider whether there has been long-standing and repeated non-compliance with a demand notice.

(3)

[Repealed]

Schedule 2 clause 11: substituted, on 1 April 2011, by section 39(1) of the Employment Relations Amendment Act 2010 (2010 No 125).

Schedule 2 clause 11(1): replaced, on 1 January 2018, by section 29 of the Interest on Money Claims Act 2016 (2016 No 51).

Schedule 2 clause 11(3): repealed, on 1 January 2018, by section 29 of the Interest on Money Claims Act 2016 (2016 No 51).

12 Power to proceed if any party fails to attend

If, without good cause shown, any party to a matter before the Authority fails to attend or be represented, the Authority may act as fully in the matter before it as if that party had duly attended or been represented.

Compare: 1991 No 22 s 100

12A Power to dismiss frivolous or vexatious proceedings

(1)

The Authority may, at any time in any proceedings before it, dismiss a matter or defence that the Authority considers to be frivolous or vexatious.

(2)

In any such case, the order of the Authority may include an order for payment of costs and expenses against the party bringing the matter or defence.

Schedule 2 clause 12A: inserted, on 1 April 2011, by section 39(1) of the Employment Relations Amendment Act 2010 (2010 No 125).

13 No invalidity for want of form

No determination or order of the Authority, and no matter before the Authority, is to be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form.

Compare: 1991 No 22 s 104(4)

14 Withdrawal of matter

(1)

Where any matter is before the Authority, it may at any time be withdrawn by the applicant or appellant.

(2)

For the purposes of subclause (1), a matter before the Authority must be treated as having been withdrawn if no action on the matter has been taken by a party or the Authority for at least 3 years.

Compare: 1991 No 22 s 88(8)

Schedule 2 clause 14(2): added, on 1 April 2011, by section 39(1) of the Employment Relations Amendment Act 2010 (2010 No 125).

15 Power to award costs

(1)

The Authority may order any party to a matter to pay to any other party such costs and expenses (including expenses of witnesses) as the Authority thinks reasonable.

(2)

The Authority may apportion any such costs and expenses between the parties or any of them as it thinks fit, and may at any time vary or alter any such order in such manner as it thinks reasonable.

Compare: 1991 No 22 s 98

16 Investigation to continue on change in Authority

Where any change takes place in the member constituting the Authority, any investigation then in progress does not abate and is not affected, but is to continue and is to be dealt with by the Authority as if no change had taken place; but the Authority may require evidence to be retaken where necessary.

Compare: 1991 No 22 s 128

17 Urgency

Where any person applies to the Authority to accord urgency to an investigation, the Authority must consider that application and may, if satisfied that it is necessary and just to do so, order that the investigation take place as soon as practicable.

Compare: 1991 No 22 s 118

18 Investigation not to abate by reason of death

(1)

An investigation by the Authority does not abate by reason of any vacancy in the membership of the Authority, or of the death of any party to the matter being investigated.

(2)

In the latter case, the legal personal representative of the deceased party is to be substituted in the deceased party’s stead.

Compare: 1991 No 22 s 129