Observing an employment law clinic at one of the country’s community law centres, one would be hard-pressed not to reflect on the inherent imbalances of power present in the employment relationship. This is the starting point of my analysis of the employment relations framework in Aotearoa New Zealand, from the perspective of my role at Community Law Wellington and Hutt Valley. Whereas recognising and addressing such imbalances is helpfully set out as an object of the Employment Relations Act, this object is not adequately realised in the practice and institutions of employment law. At a time when we are facing unprecedented disruptions to the employment landscape as a result of the COVID-19 pandemic, it is more important than ever that our employment relations regime is sensitive to the needs of those who are most vulnerable.

The aim of this paper is to briefly identify the various obstructions to accessing justice experienced by community law centre clients with employment relations problems, and to suggest interventions that may go some way to removing these roadblocks.

Community Law Wellington and Hutt Valley provides free legal advice with the goal of meeting the many unmet legal needs in our community. We share this kaupapa with the 23 other community law centres across the country, and coordinate our activities through a central body. While there is some variation in the service models operated by the various community law centres, our work is primarily oriented towards providing initial legal advice on a drop-in basis, and to triaging clients to determine where to apply our limited capacity for ongoing representation. Much of our initial consultation service is undertaken by volunteer lawyers, whereas follow-up work is performed internally. We practise across a number of areas of law, reflecting both the needs of our community and the accessibility of other services. Employment, as well as tenancy, family, criminal, social security, immigration, and consumer law are our primary areas of practice. Operating across multiple jurisdictions, with a high volume of clients, inevitably impacts on our ability to provide comprehensive employment advice and support.

Our employment clientele are overwhelmingly on low incomes, and are commonly:

• in part-time or insecure work; and/or
• working for small scale employers; and/or
• migrant workers on temporary visas

Each of these circumstances exacerbates the imbalance of power already inherent in the employment relationship, and in turn affect not only the employment relationship between our clients and their employers, but also their ability to seek redress for employment relations problems.

Barriers to Accessing Justice

Where workers are on low incomes, their ability to address problems vis-à-vis their employer is diminished relative to workers on higher wages in two major respects. First, low-income workers are often barely operating within their budget with respect to food, accommodation, and childcare such that there is a powerful incentive not to jeopardise their employment by raising issues with their employer. While one might hope that there was sufficient confidence in the employment relations framework for low-wage workers to raise problems without fear or favour, this is not true at present. Secondly, there are very few options for low or even modestly paid workers to obtain affordable legal advice and representation should they choose to pursue an employment relations problem. Simply put, the fees that are charged by the legal profession are beyond the means of these workers, such that they are often unable to instruct counsel for ongoing representation. As for legal aid, there is a critical shortage of counsel willing and able to engage clients on this basis, particularly in the regions.

We seek to provide as much advice and support as possible to these workers, but we generally do not have the resources available to comprehensively meet their legal needs ourselves. At a minimum, we are able to provide our drop-in clients with advice as to their rights and obligations, and assist them in drafting correspondence. While this service can often be effective, it is our experience that clients’ employment relations problems require several rounds of correspondence to achieve satisfactory resolution, if not the preparation of proceedings. It is difficult for community law centres to satisfy these needs on a drop-in basis, and we have insufficient resources to otherwise engage all of our clients who require ongoing assistance. Where we do engage clients, however, we are able to take matters as far as necessary.

Workers for small scale employers — particularly lowpaid workers — face an additional obstacle when seeking redress for employment relations problems insofar as their employers often lack a human resource infrastructure, and otherwise have only a limited understanding of their legal obligations. Moreover, as the relevant decision makers within these organisations are typically the owners of the business, there is often no possibility of escalating an employment relations problem within the employing entity. Finally, where the relevant decision maker has a financial stake in the business, there is a tendency for employment relations problems to become particularly personal and adversarial. The combined effect of these tendencies among small-scale employers is to make it more difficult for workers to raise employment relationship problems in the first place, and also to resolve such problems on a negotiated basis. Where a negotiated resolution is not possible, clients face the prospect of either abandoning their employment relations problem, or else filing a statement of problem with the Employment Relations Authority (ERA). The latter option is often not viable, given both the lack of accessible representation, and significant delays in reaching adjudication. The possibility of a costs award against an employee party in the Authority is an additional barrier to accessing justice for low-income workers. Likewise, the naming of employee parties in decisions of the ERA is a deterring factor for workers seeking to resolve employment relations problems, as there is a perception that this will harm their future employment prospects.

Matters become more complicated still where workers’ immigration status is bound up with their employer. In this situation the disparity in power between employers and employees is further entrenched, and workers are justifiably hesitant about raising employment relations problems. A similar dynamic exists for employees on open work visas who hope to be sponsored by their employer in an essential skills category upon expiry of their existing visa. These vulnerabilities are further compounded for these workers by language barriers, a lack of awareness of employment rights, and an inability for migrants on work visas to access benefits in the event that they are dismissed from employment. The accumulated effects of the above make migrant workers particularly vulnerable to abuse by their employers. This dynamic is readily apparent among community law clients, although I suspect that the same factors that affect these workers’ employment relationships prevent many of them from discovering and accessing their local community law centre.

Where a migrant worker on a bonded work visa does raise employment relations problems and/or reports breaches of the minimum conditions to the Labour Inspectorate, the timeline and process for resolving that worker’s visa status is unclear. In many instances, Immigration New Zealand’s determination as to whether or not to grant a visa variation depends on a worker’s employment relations problem being investigated by the Labour Inspectorate, or else raised in the Authority. A worker in this situation has no control as to the operation of the Labour Inspectorate, and may lack the resources to effectively advance a case in the Authority. The lack of clarity as to if or when a visa variation will be granted itself serves to make it less likely that migrant workers will seek to enforce their employment conditions

Negotiation Versus Adjudication

A significant feature of the employment relations framework as it exists now is that parties are required to undergo extensive negotiation towards settlement — first between the parties, and thereafter at mediation — before third-party adjudication is available. All things being equal, I do not dispute that it is desirable to resolve employment relations problems on a negotiated basis; however, it is my view that the employment relations framework is overly weighted towards negotiation given the inherent imbalance of power between employers and employees — particularly with respect to vulnerable classes of worker.

On the question of negotiation and adjudication in the employment jurisdiction, I share the view of His Honour Justice Miller in a paper delivered to the 2019 “Barriers to Participation” symposium —that an accessible, or “viable”, system of adjudication is necessary both to underpin the integrity of rules, and to encourage “quality settlements” prior to the point of adjudication. His Honour defines this term as follows:

A quality settlement is one that is not distorted by the combination of an imbalance of power between the parties and the inaccessibility of adjudication

Regrettably, the absence of accessible and timely adjudication in the employment jurisdiction has a flow-on effect for negotiated settlements, such that it is difficult for workers to access negotiated outcomes that are comparable to what they might be awarded upon adjudication. In this respect, the relative inaccessibility of adjudication exacerbates the power imbalance between employers and employees.

First, it is not uncommon for employers to simply ignore attempts by our clients to resolve employment relations problems. While disappointing, this practice is not surprising insofar as the remedy for a worker’s employment relationship problem will tend to come at a financial cost to the employer. In the absence of a reliable sanction for failing to engage in good faith with employment relations problems, there is a perverse incentive for unscrupulous employers to call the bluff of their employees and wait for proceedings to be initiated with the Authority before responding to a worker’s attempts at resolution. It is also not uncommon for workers — given the cost, risk, and delay occasioned by seeking adjudication — to abandon attempts at resolution in the face of an unresponsive employer.

Second, the relative inaccessibility of adjudication in the employment jurisdiction impedes the abillity of low-paid and vulnerable workers to negotiate an appropriate settlement. These workers typically have very few resources with which to pursue resolution of an employment relationship problem, both in absolute terms and relative to their employer. This lack of resource creates an incentive to settle matters employment law bulletin April 2020 35 sooner rather later, despite the potential for a more satisfactory settlement upon adjudication. This dynamic is particularly evident where workers have been unjustifiably dismissed, and are therefore anxious to receive some income and/or negotiate a favourable reference. Section 225 of the Social Security Act 2018 further aggravates this problem by creating a presumptive 13-week stand-down period before workers who have been dismissed for misconduct are able to obtain a work-tested benefit. While it is possible to overturn the operation of this provision upon application, this creates an additional legal need for clients. There is also considerable variation as to how the Ministry of Social Development exercises its discretion in this respect.

It is important to note that the absence of accessible and timely adjudication is true not only with respect to personal grievances, but also to simple matters such as adherence to minimum standards and enforcement of entitlements in employment agreements. The lack of effective recourse for simple and fundamental breaches of workers’ rights is not only a glaring injustice, but also creates the conditions for industries such as hospitality, hotels, and building to develop cultures of widespread non-compliance with basic employment law obligations. While I acknowledge that the Labour Inspectorate has parallel jurisdiction in this area, I believe that empowering workers to effectively enforce minimum conditions of their own volition would go some way towards increasing compliance with employment standards.

Suggested Interventions

The obstacles facing community law centres’ clientele who hope to resolve their employment relations problems are many and varied, and there is no single intervention nor one set of actors that are capable of resolving these issues. The following list has been prepared based on my own experience (at Community Law, and before that in the union movement) and those of my colleagues at community law centres throughout the country.

Access to Representation

There is considerable scope for improving access to justice within the employment jurisdiction by making comprehensive legal advice and advocacy available to workers. This could be achieved in a number of ways, none of which are mutually exclusive.

First, additional funding could be made available to community law centres that is earmarked for hiring lawyers to provide ongoing employment representation. I suggest that this would be an efficient use of funding given that most community law centres already provide this service on an ad hoc basis. As such, funding could be applied directly towards its intended outcome, without need for spending on additional infrastructure. As an interim measure, a number of community lawyers have, or plan to, become accredited for civil legal aid in order to provide an additional revenue stream to support employment law clients.

Second, it would be desirable for trade unions to expand their advocacy services to workers who fall outside of traditionally unionised workplaces. As a general rule, there is a tendancy for unions to organise and represent workers at large-scale employers. This is not surprising, both in the sense that this model takes account of economies of scale, and because the collective bargaining provisions of the Employment Relations Act 2000 are oriented towards bargaining on an employer-by-employer basis. There are many workers, however, who are excluded by this approach and are therefore not able to avail themselves of employment advocacy from union delegates, organisers, and lawyers. To expand the accessibility of trade unions to the many workers in need of employment advocacy, the following might be considered:

• The creation of new classes of union membership targetted at vulnerable workers across industries rather than individual employers. While collective bargaining would not be viable for this class of membership in the current legislative environment, unions could nonethless provide advice and representation to these workers. It would also be possible to undertake education and campaigning towards better employmentconditionswithoutusing formalcollectivebargaining. A good example of this model is the Union Network of Migrants (UNIMIG), a subsidiary body within FIRST Union.
• If, or when, Fair Pay Agreements ever materialise, these could make provision for an employment advocacy service for employees covered by the relevant award.

Third, legal aid for employment relationship problems is inccessible to workers given the low number of practitioners accredited to provide employment legal aid, and the smaller number who do so with any regularity. While I cannot speak from experience on this issue, my colleagues advise that the application process for employment legal aid is too time-consuming and bureaucratic to be an attractive practice option. This is particularly true in context of the discrepancy between legal aid rates and those chargable on a private basis. It may be that streamlining the application process for legal aid — if not providing presumptive but revocable grants — would serve to increase the number of employment lawyers providing legal aid services. So too would increasing the remuneration payable for legal aid work.

Fourth, the fees charged by employment practitioners are well beyond the means of many workers. While it is a matter for clients, practitioners, and the Law Society to determine what is or is not a reasonable fee, the effect of the status quo is to reduce access to justice in the employment jurisdiction. In order to address this, employment practitioners may wish to consider advertising and providing reduced-rate services to low-income or otherwise vulnerable employees. At Community Law Wellington and Hutt Valley we are lucky to have a relationship with a small number of practitioners who are able to provide this service. In doing so, these practitioners are able to secure outcomes for clients who would not otherwise have been able to remedy their employment relationship problems.

Finally, pro bono support has an important role to play in increasing access to justice in the employment jurisdiction. At the outset, I note that many community law centres rely on volunteer lawyers to provide much of our core legal services to clients, and that without this volunteer support our services would be significantly diminished. In the context of the unprecedented employment challenges presented by the COVID-19 pandemic, Community LawWellington and Hutt Valley in particular has been very fortunate to have seen increased participation from many of our employment law volunteers. We are extremely grateful for this support.

An area, however, where there is room for further pro bono (or “low bono”) assistance in the employment jurisdiction is the ongoing representation of clients with complex employment law needs. As a matter of policy, however, I am cautious about relying too heavily on pro bono support as a panacea for increasing access to justice. Pro bono legal work is an important supplement in this area, whereas the core changes necessary are structural in nature.

Immigration Law Reform

The conditionality of many working visas to employment with a named employer creates a significant barrier to accessing justice, and creates the systemic conditions for migrant exploitation. I am conscious that migrant exploitation has already been identified as a priority area for the government, and that this is a very complicated area of policy and law. Nonetheless, some suggested reforms include:

• that the standard conditions of bonded work visas be modified to allow workers to be employed in a comparable role by another employer without requiring a variation of their visa;
• that visa holders in breach of a condition to remain employed by a particular employer be allowed, as of right, to remain in the country to look for other work for the balance of their visa period; and
• that working visa holders who report migrant exploitation, or whose roles are unjustifiably terminated, are able to access a short-term Work and Income benefit while the provenance of their claim is assessed. In the event that such claims are verified, access to such benefits should be extended until alternative work can be found.

Increasing Capacity of Labour Inspectorate

The consistent feedback from my colleagues at community law centres around the country is that the Labour Inspectorate lacks sufficient resourcing to be a reliable means of redress for clients whose minimum entitlements are not being met. Increasing the funding and capacity of the Labour Inspectorate would be of considerable benefit to vulnerable employees.

Access to Adjudication

As outlined earlier, the relative inaccessibility of adjudication for employment relations problems exacerbates the imbalance of power in employment relationships, and acts as a barrier to justice for employees. Reforms that might be undertaken to resolve this problem include:

• increasing the number of Employment Relations Authority members, in order to reduce waiting times for adjudication; * creating a fast track within the Employment Relations Authority for employment disputes, breaches of minimum standards, and discrete questions of law such as the validity of 90-day trial clauses;
• cheduling investigation meetings at the same time as making directions to attend mediation. As a general proposition, a direction to mediation is only necessary where a party has declined a request for mediation. In these circumstances, employees having to delay adjudication while waiting for mediation with an intransigent employer is a further barrier to justice;
• a presumptive removal of cost orders in the Employment Relations Authority, reversible where it can be established that litigation is vexatious or otherwise pursued in bad faith; and
• anonymisation of employee parties in decisions of the ERA.

Conclusion

The issues raised, and solutions proposed, in this article, are unapologetically framed from the perspective of employees, and vulnerable employees in particular. I believe, however, that addressing barriers to accessing justice is ultimately beneficial for all parties to the employment relationship. First, a better functioning employment relations regime will expedite the resolution of employment relations problems, and create the conditions where such problems are less likely to arise in the first place. Secondly, redressing the inherent imbalances of power in the employment relationship will remove impediments to the successful operation of the core doctrine of our employment relations regime: good faith.