Schedule 3 Provisions having effect in relation to Employment Court

s 191

1 Construction of employment agreements and statutory provisions

(1)

The court may, in exercising its jurisdiction, hear and determine 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 proceedings properly brought before the court:

(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 proceedings properly brought before the court.

(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 court is constituted) or of an Act under which the court operates in a particular case.

Compare: 1991 No 22 s 104(1)(f), (i)

2 Appearance of parties

(1)

Any party to any proceedings before the court, and any other person appearing before the court, 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)

In any proceedings the court may allow to appear or to be represented any person who applies to the court for leave to appear or be represented and who, in the opinion of the court, is justly entitled to be heard; and the court may order any other person so to appear or be represented.

Compare: 1991 No 22 s 123

3 Privileged communications

(1)

Where any party to proceedings before the court is represented by a person other than a barrister or solicitor, any communications between that party and that person in relation to those proceedings and to the matter in issue (if it has been before the Authority) 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 proceedings before the court, includes any person who, under clause 2(2),—

(a)

is allowed to appear or be represented in those proceedings; or

(b)

is ordered to appear or be represented in those proceedings.

4 Evidence

Any party to any proceedings before the court may give and call evidence.

Compare: 1991 No 22 s 123(1)

5 Rehearing

(1)

The court has in every proceeding, on the application of an original party to the proceeding, the power to order a rehearing to be had upon such terms as it thinks reasonable, and in the meantime to stay proceedings.

(2)

Despite subclause (1), a rehearing may not be granted on an application made more than 28 days after the decision or order, unless the court is satisfied that the application could not reasonably have been made sooner.

(3)

The application—

(a)

must be served on the opposite party not less than 7 clear days before the day fixed for the hearing; and

(b)

must state the grounds on which the application is made.

(4)

Those grounds must be verified by affidavit.

(5)

The application does not operate as a stay of proceedings unless the court so orders.

(6)

The rehearing need not take place before the Judge by whom the proceedings were originally heard.

Compare: 1991 No 22 s 125

5A Service outside New Zealand

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

(a)

by leave of the court; and

(b)

in accordance with regulations made under this Act.

Schedule 3 clause 5A: inserted, on 1 December 2004, by section 71 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

6 Witness summons

(1)

For the purposes of any proceedings before the court, the court may, on the application of any party to those proceedings, or of its own volition, issue a summons to any person requiring that person to attend before the court and give evidence at the hearing of those proceedings.

(2)

A summons may not be issued under subclause (1) to a member of the Authority.

(3)

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

(4)

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

Compare: 1991 No 22 s 126(2)(a), (b)

7 Witnesses’ expenses

(1)

Every person attending the court on a summons, and every other person giving evidence before the court, 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 court may disallow the whole or any part of any sum payable under subclause (1).

(3)

On each occasion on which the court issues a summons under clause 6, the court, or the person exercising the power of the court under subclause (4) 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) is to be the estimated amount of the allowances and travelling expenses (but not fees) to which, in the opinion of the court 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.

Compare: 1991 No 22 s 126(2)(d)

Schedule 3 clause 7(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

8 Evidence at distance

(1)

For the purpose of obtaining the evidence of witnesses at a distance, the court, or, while the court is not sitting, any Judge, 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 court 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 126(2)(f)

Schedule 3 clause 8(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Schedule 3 clause 8(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Schedule 3 clause 8(3): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

9 Power to take evidence on oath

(1)

The court may take evidence on oath, and for that purpose any Judge, or any other person acting under the express or implied direction of the court or a Judge, 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 126(2)(g), (h)

Schedule 3 clause 9(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

10 Party competent as witness

Any party to proceedings before the court is competent to give evidence in those proceedings and may be compelled to give evidence as a witness.

Compare: 1991 No 22 s 126(2)(i)

11 Power to dispense with evidence

In any proceedings the court may, if it thinks fit, dispense with any evidence on any matters on which all parties to the proceedings have agreed.

Compare: 1991 No 22 s 126(3)

12 Power to prohibit publication

(1)

In any proceedings the court may 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 court thinks fit.

(2)

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

Compare: 1991 No 22 s 109

13 Discovery

(1)

The court may, in relation to discovery that relates to proceedings brought or intended to be brought in the court, or intended to be brought in the Authority, make any order that the District Court may make under section 105 or 106 of the District Court Act 2016; and those sections apply accordingly with all necessary modifications.

(2)

Every application for an order under section 105 or 106 of the District Court Act 2016 (as applied by subclause (1)) is to be dealt with in accordance with regulations made under this Act.

(3)

Nothing in subclauses (1) and (2) limits the making of rules under section 212 or regulations under section 237.

Schedule 3 clause 13(1): substituted, on 1 April 2011, by section 39(2) of the Employment Relations Amendment Act 2010 (2010 No 125).

Schedule 3 clause 13(1): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

Schedule 3 clause 13(2): amended, on 1 March 2017, by section 261 of the District Court Act 2016 (2016 No 49).

14 Power to award interest

In any proceedings for the recovery of any money, the court may, if it thinks fit, order that the amount awarded include 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 judgment.

Schedule 3 clause 14: replaced, on 1 January 2018, by section 29 of the Interest on Money Claims Act 2016 (2016 No 51).

15 Power to dismiss frivolous or vexatious proceedings

(1)

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

(2)

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

Schedule 3 clause 15: substituted, on 1 April 2011, by section 39(2) of the Employment Relations Amendment Act 2010 (2010 No 125).

16 Power to proceed if any party fails to attend

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

Compare: 1991 No 22 s 124

17 Proceedings not invalid for want of form

No decision or order of the court, and no proceedings before the court, are 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)

18 Withdrawal of proceedings

(1)

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

(2)

To avoid doubt, if a matter is withdrawn under subclause (1), it does not affect any other matters before the court that form part of the same proceedings.

Compare: 1991 No 22 s 106

Schedule 3 clause 18(2): added, on 1 April 2011, by section 39(2) of the Employment Relations Amendment Act 2010 (2010 No 125).

19 Power to award costs

(1)

The court in any proceedings may order any party to pay to any other party such costs and expenses (including expenses of witnesses) as the court thinks reasonable.

(2)

The court 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 108

20 Proceedings to continue on change in court

Where any change takes place in the Judge constituting the court, any proceedings or inquiry then in progress do not abate and are not affected, but are to continue and are to be dealt with by the court as if no change had taken place; but the court may require evidence to be retaken where necessary.

Compare: 1991 No 22 s 128

21 Urgency

Where any party to any proceedings applies to the court to accord urgency to the hearing of the proceedings, the court must consider that application and may, if satisfied that it is necessary and just to do so, order that the proceedings be heard by the court as soon as practicable.

Compare: 1991 No 22 s 118

22 Proceedings not to abate by reason of death

(1)

Proceedings before the court do not abate by reason of the seat of any Judge being vacant for any cause whatever, or of the death of any party to the proceedings.

(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