Employment Relations Amendment Act (No 2) 2016

  • latest version but not yet in force
1 Title

This Act is the Employment Relations Amendment Act (No 2) 2016.

2 Commencement

This Act comes into force on 1 March 2017.

3 Principal Act

This Act amends the Employment Relations Act 2000 (the principal Act).

4 Section 5 amended (Interpretation)

(1)

In section 5, definition of Judge, replace “a temporary” with “an acting”.

(2)

In section 5, insert in its appropriate alphabetical order:

lawyer has the meaning given to it by section 6 of the Lawyers and Conveyancers Act 2006

5 Section 187 amended (Jurisdiction of court)

After section 187(1)(k), insert:

(ka)

to hear and determine any application for review of the type referred to in section 237D:

6 Section 196 replaced (Contempt of court or Authority)

Replace section 196 with:

196 Contempt of court or Authority

(1)

This section applies if any person—

(a)

wilfully insults a member of the Authority, a Judge, an officer of the Authority, a Registrar of the court, any other officer of the court, or any witness during his or her sitting or attendance in the Authority or the court, or in going to or returning from the Authority or the court; or

(b)

wilfully interrupts the proceedings of the Authority or the court or otherwise misbehaves in an investigation meeting or a hearing of the Authority or the court; or

(c)

wilfully and without lawful excuse disobeys any order or direction of the Authority or the court in the course of an investigation meeting or the hearing of any proceedings.

(2)

If this section applies,—

(a)

any constable or officer of the court, with or without the assistance of any other person, may, by order of the Authority or a Judge, take the person into custody and detain him or her until the rising of the Authority or the court; and

(b)

the Judge may, if he or she thinks fit, sentence the person to—

(i)

imprisonment for a period not exceeding 3 months; or

(ii)

a fine not exceeding $5,000 for each offence; and

(c)

in default of payment of any such fine, the Judge may direct that the offender be imprisoned for any period not exceeding 3 months, unless the fine is sooner paid.

(3)

Nothing in this section limits or affects any power or authority of the court to punish any person for contempt of court in any case to which this section does not apply.

Compare: 2011 No 81 s 365

7 New section 198A inserted (Registrar may take affidavit)

After section 198, insert:

198A Registrar may take affidavit

A Registrar may take an affidavit.

8 Section 200 amended (Appointment of Judges)

(1)

Replace section 200(2) with:

(2)

A person may be appointed a Judge only if—

(a)

that person has for at least 7 years held a New Zealand practising certificate as a barrister or as a barrister and solicitor; or

(b)

that person—

(i)

holds a degree in law granted or issued by any university within New Zealand; and

(ii)

has been admitted as a barrister and solicitor of the High Court; and

(iii)

has held a practising certificate in a jurisdiction specified by Order in Council—

(A)

for at least 7 years; or

(B)

for a lesser number of years but when that number of years is added to the number of years the person has held a New Zealand practising certificate the total number of years is at least 7.

(2)

Replace section 200(4) with:

(4)

The Attorney-General must publish information explaining his or her process for—

(a)

seeking expressions of interest for the appointment of Judges of the court; and

(b)

nominating a person for appointment as a Judge of the court.

(5)

A Judge must not practise as a lawyer.

9 New sections 200AA and 200AB inserted

After section 200, insert:

200AA Judge not to undertake other employment or hold other office

(1)

A Judge of the court must not undertake any other paid employment or hold any other office (whether paid or not) without the approval of the Chief Judge.

(2)

An approval under subsection (1) may be given only if the Chief Judge is satisfied that undertaking the employment or holding the office is consistent with the Judge’s judicial office.

(3)

However, subsection (1) does not apply to another office if an enactment permits or requires the office to be held by a Judge.

200AB Protocol relating to activities of Judges

(1)

The Chief Justice must develop and publish a protocol containing guidance on—

(a)

the employment, or types of employment, that he or she considers may be undertaken consistent with being a Judge; and

(b)

the offices, or types of offices, that he or she considers may be held consistent with being a Judge.

(2)

The Chief Justice may develop and publish a protocol under subsection (1) only after consultation with the Chief Judge.

10 Section 201 amended (Seniority)

In section 201(3), replace “temporary” with “acting”.

11 Section 207 amended (Appointment of temporary Judges)

(1)

In the heading to section 207, replace temporary with acting.

(2)

In section 207(1), replace “temporary Judges” with “acting Judges”.

(3)

Replace section 207(4) with:

(4)

A person may, subject to subsection (2), be appointed as an acting Judge under this section if he or she is a former Judge of the court or a current or former District Court Judge.

(4A)

A superannuation subsidy must not be paid to a person who is appointed as an acting Judge under this section.

(4B)

Subsection (1) does not apply to a compulsory employer contribution within the meaning of section 101A of the KiwiSaver Act 2006.

12 New sections 222A to 222F inserted

After section 222, insert:

222A Information regarding reserved judgments

The Chief Judge must, in consultation with the Chief Justice,—

(a)

publish information about the process by which parties to proceedings before the court may obtain information about the status of any reserved judgment in those proceedings; and

(b)

periodically publish information about the number of judgments of the court that he or she considers is outstanding beyond a reasonable time for delivery; and

(c)

publish information about reserved judgments that he or she considers is useful.

222B Recusal guidelines

The Chief Judge must, in consultation with the Chief Justice, develop and publish guidelines to assist Judges to decide if they should recuse themselves from a proceeding.

222C Judge may make order restricting commencement or continuation of proceeding

(1)

A Judge may make an order restricting a person from commencing or continuing civil proceedings in the Employment Court.

(2)

The order may have—

(a)

a limited effect (a limited order); or

(b)

an extended effect (an extended order).

(3)

A limited order restrains a party from commencing or continuing civil proceedings on a particular matter in the Employment Court.

(4)

An extended order restrains a party from commencing or continuing civil proceedings on a particular or related matter in the Employment Court.

(5)

Nothing in this section limits the court’s inherent power to control its own proceedings.

222D Grounds for making section 222C order

(1)

A Judge may make a limited order under section 222C if, in civil proceedings about the same matter in the court, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.

(2)

A Judge may make an extended order under section 222C if, in at least 2 proceedings about any matter considered by the court, the Judge considers that the proceedings are or were totally without merit.

(3)

In determining whether the proceedings are or were totally without merit, the Judge may take into account the nature of any other interlocutory application or appeal involving the party to be restrained, but is not limited to those considerations.

(4)

The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.

(5)

For the purpose of this section and sections 222E and 222F, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.

222E Terms of section 222C order

(1)

An order made under section 222C may restrain a party from commencing or continuing any civil proceeding (whether generally or against any particular person or persons) of any type specified in the order without first obtaining the leave of the court.

(2)

An order made under section 222C, whether limited or extended, has effect for a period of up to 3 years as specified by the Judge, but the Judge making it may specify a longer period (which must not exceed 5 years) if he or she is satisfied that there are exceptional circumstances justifying the longer period.

222F Procedure and appeals relating to section 222C orders

(1)

A party to any proceeding may apply for a limited order or an extended order.

(2)

A Judge may make an order under section 222C (a section 222C order) either on an application under subsection (1) or on his or her own initiative.

(3)

An application for leave to continue or commence a civil proceeding by a party subject to a section 222C order may be made without notice, but the court may direct that the application for leave be served on any specified person.

(4)

An application for leave must be determined on the papers, unless the Judge considers that an oral hearing should be conducted because there are exceptional circumstances and it is appropriate to do so in the interests of justice.

(5)

A Judge’s determination of an application for leave is final.

(6)

The party against whom a section 222C order is made may appeal against the order to the Court of Appeal.

(7)

The appellant in an appeal under subsection (6) or the applicant for the section 222C order concerned may, with the leave of the Supreme Court, appeal against the determination of that appeal to the Supreme Court.

(8)

A court determining an appeal under this section has the same powers as the court appealed from has to determine an application or appeal, as the case may be.

13 Section 237 amended (Regulations)

After section 237(f), insert:

(faa)

in relation to a service performed by a Registrar of the court under this Act and specified in regulations made under paragraph (fab), authorising a Registrar of the court to charge a reasonable fee calculated on the actual expense incurred in performing the service:

(fab)

specifying the services (other than services for which a fee is already prescribed under this Act) performed by a Registrar of the court under this Act for which that person may charge a fee:

(fac)

making provision in relation to the postponement, under the regulations, of the payment of any fee, which provision may (without limitation) include provision—

(i)

for the recovery of the fee after the expiry of the period of postponement; and

(ii)

for restrictions to apply (after the expiry of the period of postponement and so long as the fee remains unpaid) on the steps that may be taken in the proceedings in respect of which the fee is payable:

(fad)

providing for the manner in which an application for the exercise of a power specified in section 237B(1) or 237C(1) is to be made, including, without limitation, requiring the application to be in a form approved for the purpose by the chief executive:

(fae)

providing for the refund of fees paid for a review of a decision of a Registrar of the court, if the decision is overturned in its entirety by a Judge:

14 New sections 237B to 237D inserted

Before section 238, insert:

237B Regulations providing for waiver, etc, of fees

(1)

In order to promote access to justice, the Governor-General may, by Order in Council, make regulations authorising a Registrar of the court to waive, reduce, or postpone the payment of a fee required in connection with a proceeding or an intended proceeding, or to refund in whole or in part a fee that has already been paid.

(2)

Regulations made under subsection (1) must provide that a Registrar of the court may exercise a power under the regulations only if he or she is satisfied on the basis of prescribed criteria that—

(a)

the person responsible for payment of the fee is unable to pay or absorb the fee in whole or in part; or

(b)

unless 1 or more of those powers are exercised in respect of a proceeding that concerns a matter of genuine public interest, the proceeding is unlikely to be commenced or continued.

(3)

For the purposes of subsection (2), regulations may prescribe criteria—

(a)

for assessing a person’s ability to pay a fee; and

(b)

for identifying proceedings that concern matters of genuine public interest.

(4)

No fee is payable for an application for the exercise of a power specified in subsection (1).

Compare: 1947 No 16 s 123(1)(ba), (bb), (2)

237C Postponement of fees

(1)

The Governor-General may, by Order in Council, make regulations authorising a Registrar of the court to postpone the payment of a fee pending the determination of—

(a)

an application for the exercise of a power specified in section 237B(1); or

(b)

an application for review under section 237D.

(2)

No fee is payable for an application for the exercise of a power specified in subsection (1).

Compare: 1947 No 16 s 123(1)(bc), (2)

237D Reviews of decisions of Registrars concerning fees

(1)

A person who disagrees with a decision of a Registrar of the court under regulations made under section 237B(1) may apply to a Judge for a review of that decision.

(2)

The application must be made within—

(a)

20 working days after the date on which the applicant is notified of the decision; or

(b)

any further time that the Judge allows on application, which may be made either before or after the expiry of that period.

(3)

The application may be made informally.

(4)

A review is—

(a)

conducted by way of rehearing of the matter in respect of which the Registrar of the court made the decision; and

(b)

dealt with on the papers, unless the Judge directs otherwise.

(5)

The Judge may confirm, modify, or reverse the decision of the Registrar of the court.

(6)

No fee is payable on the application.

Compare: 1947 No 16 s 123A

15 Section 253 amended (Existing appointments)

In section 253(2), replace “temporary Judges” with “acting Judges”.

16 Schedule 1AA amended

(1)

In Schedule 1AA, replace clause 1 with:

1 Interpretation

In this schedule,—

2014 Act means the Employment Relations Amendment Act 2014

2016 Act means the Employment Relations Amendment Act 2016

2016 (No 2) Act means the Employment Relations Amendment Act (No 2) 2016.

(2)

In Schedule 1AA, after clause 3, insert:

4 Application, savings, and transitional provision arising from 2016 (No 2) Act

A person holding office as a temporary Judge under section 207 immediately before the commencement of this clause continues to hold office on the same terms as if he or she were appointed as an acting Judge under section 207.

Legislative history

14 September 2016

Divided from Judicature Modernisation Bill (Bill 178–2) as Bill 178–3O

11 October 2016

Third reading

17 October 2016

Royal assent

This Act is administered by the Ministry of Business, Innovation, and Employment.