The following policy and procedure is used to determine whether to proceed with a personal case beyond the workplace.
The PSA’s aim in personal cases is to achieve settlement without recourse to the provisions of the Employment Relations Act. The PSA, as a legal entity, must work within the law in all its operations but our approach is that the law provides a framework within which the parties to a dispute or grievance can work to resolve the problems that have generated the dispute or grievance.
However, the PSA is committed to representing the legal interests of its members. Accordingly the PSA will generally take cases where it has been assessed that the affected member (or members) has a better than 50% chance of success before the Employment Relations Authority and the taking of the case is not inconsistent with the PSA’s objective and strategy . This applies to any decision to take a case to either mediation or beyond mediation to the Authority. The taking of any case is subject to the member taking the advice of the PSA and not authorising any other legal advocate.
It is also PSA policy to take legal cases that advance the strategic interests of the union and have organisational value. Accordingly the PSA may be willing to take a case where the chance of success is less than 50%, where it can be demonstrated that there is a strategic advantage in doing so. The following factors will be taken into account when making this decision:
Organisers are responsible for cases in their area and are the contact between the legal team and the member. Organisers are responsible for taking cases to mediation in most situations, in consultation with the legal team.
The legal team is responsible for representation of members and the PSA: in mediation if appropriate; in the Employment Relations Authority; in the Employment Court, and either as Senior or Junior Counsel in the Court of Appeal. The legal team will have a role in reporting back Employment Authority and Court decisions to members.
1. Organisers need to notify the legal team prior to deciding that a case will proceed to mediation. The legal team will advise the organiser and assistant secretary of any concerns they have regarding the mediation.
2. Where mediation is to proceed and assistance is required from the legal team adequate notice should be given by the organiser wherever possible.
3. If the matter is to proceed beyond mediation then the relevant assistant secretary and/or member of the Secretariat must assess the case with regard to:
(a) PSA and sector/enterprise strategy;
(b) Communication with the employer to date and mediation outcome;
(c ) The legal team’s advice on the potential cost of taking the case taking into account the resource that will have to be utilised and potential costs that may be awarded against the member (which are paid for by the PSA) and/or the PSA if unsuccessful;
(d) The overall merit and justice of the case
(e) Wider organising repercussions of taking or not taking the case further
(f) The legal team’s view on the strengths or weaknesses of the case and their recommendation on whether or not to take the case further
4. If the relevant assistant secretary and/or member of the secretariat recommend that the case should be taken further then an organiser is assigned to the case and retains a high degree of input throughout the process. The organiser will be responsible for updating and supporting the affected member(s) in consultation with the solicitor dealing with the case. The organiser and solicitor assigned to the case will report back to the assistant secretary and/or member of the secretariat regularly on the progress of the case so that the assistant secretary and/or member of the secretariat knows what is happening on the file and, if appropriate, the case is integrated into strategic planning on a consistent nation-wide basis.
5. The organiser will assist the solicitor on the case as required throughout the process including attending hearings.
6. Throughout the case the organiser maintains contact with the member. The organiser must discuss with the relevant organising team and legal team member the appropriate way to convey the decision to the member and to deal with the decision when it becomes available so as to maximise the strategic value of the case and our membership in the area.
7. Decisions on taking a case to the Employment Court or Court of Appeal need to follow the process outlined in paragraph 3 above.
8. In situations where the case is not taken further the team (consisting of the legal team, the organiser and the relevant assistant secretariat) decides how the decision is communicated to the member and, if appropriate, the affected membership.
Scope of the legal strategy for the PSA
The legal strategy for the PSA addresses all the legal work and advice provided by the union. It acknowledges that the legal team is at the heart of our legal activities but recognises that we operate within a legal framework, with a large number of lay people, mainly organisers, who give advice and advocate on legal matters.
The legal strategy also reflects the range of issues that are brought to the union by its members and by the environment within which the PSA operates. This includes not only employment law, but also ACC and matters related to professional competence and discipline.
Purpose of the legal strategy
The legal strategy also fits within the wider strategy of the PSA, Partnership for Quality, and contributes towards the achievement of the PSA’s objective.
The PSA’s objective is to build union organisation able to influence the social, political, economic and industrial environment to advance the individual and collective interests of PSA members. Partnership for Quality involves the PSA working alongside other parties, especially employers, industry and government, to create successful outcomes for all parties. Partnership for Quality is built on an understanding that the parties (union, employer, government) have many shared interests, particularly the delivery of high quality public services and high quality employment. Partnership for Quality means PSA members (through their union), working in partnership with employers and government to create the best possible public services for New Zealanders. Partnership for Quality means that the legal strategy of the PSA is focused on the workplace and places an emphasis on problem solving, quality and timely representation and advice, capability development and empowerment.
The PSA has a legal resource because, as a union and a legal entity, we must work within the law in all our operations. The law permeates all aspects of the union’s work and most teams in the organisation require some level of legal knowledge. This need to “internalise” knowledge of the law means it makes sense for the PSA to have its own legal resource, rather than relying on contracting in the services for particular purposes.
The purpose of the legal resource of the PSA is to equip the union to provide legal services effectively in support of the PSA’s objective, strategy and organising practice. The purpose of the legal strategy is to identify the pressures on the legal resource, to clarify responsibilities and establish priorities.
A legal strategy consistent with PfQ
Partnership for Quality means that the legal strategy of the PSA is focused on the workplace and places an emphasis on problem solving, quality and timely representation and advice, capability development and empowerment. The PSA must work within the law in all its operations but our approach is that the law provides a framework within which the parties to a dispute or grievance can work to resolve the problems that have generated the dispute or grievance. There is an emphasis on solutions that lead to disputes being settled early and, where practicable, in a manner that preserves the relationship with the employer.
PfQ places an onus on all parts of the union to think and act strategically. The legal resource must be utilised not only for the benefit of individual members, but also the collective good of the union and its members as a whole. It is acknowledged that there will at times be a tension between the two in the decisions over which cases to run and what approach to take.
As a consequence one of the objectives of the legal strategy is to ensure the early resolution of disputes and minimising the recourse to legal action. However this needs to be balanced against the PSA’s obligation to ensure members have quality representation and the need to manage the legal budget on behalf of all members.
The legal environment
The Employment Relations Act (ERA) provides the main legal framework within which the PSA operates. The object of the Act, as set out in S.3 is:'
“To build productive employment relationships through the promotion of mutual trust and confidence in all aspects of the employment environment and of the employment relationship”.
The Act does this through, among other things, the concept of “good faith”, acknowledging and addressing the inequality of bargaining power in employment relationships, promoting collective bargaining, protecting individual choice, promoting mediation and reducing the need for judicial intervention.
The PSA’s experience of the ERA has generally been positive. The emphasis on employment “relations” and “good faith” processes, as opposed to “contracts”, is consistent with PfQ and has supported the development of the PSA’s strategy. Provisions supportive of collective bargaining, including the establishment of MECAs, have facilitated the successes the union has achieved in such areas as health bargaining.
Our experience of the processes for dealing with employment relations disputes under the ERA is generally positive. The increased emphasis on mediation has been good as most disputes are resolved there (70% with a slightly higher resolution rate for individuals than for collective bargaining employment problems ). It is worth noting that the Department of Labour study found in their case studies “all parties expressed the view that the involvement of lawyers in a dispute tended to drag out the process and raised the expense much more than was the case if the employer worked with the relevant union. Employers generally reported unions as moving to resolve disputes more quickly and pragmatically than their lawyers did”.
In 2004 amendments introduced provisions dealing with “pass on” and the payment of a bargaining fee by non-union members.
The Act is now well established and a number of legal issues arising out of its application are now having to be confronted:
Pass-on: Under the ERA, pass on of union settlements to non-union members is generally unlawful. The no pass-on provisions of the ERA have come before the Employment Court on one occasion (NDU v Progressive Enterprises) but the court has not yet given its decision on that. Passing on is an issue that affects workers in both the public and private sector but one of the difficulties with pursuing passing on cases is that the legal test is a difficult one to meet.
The PSA is already negotiating union-only provisions such as partnership premiums, and is committed to implementing bargaining fees in the right circumstances. However, there are currently several government departments who appear to be quite openly passing on terms and conditions negotiated by the PSA and this could become a bigger issue for the PSA.
Good Faith: The other area where there is still considerable uncertainty is the broader issue of good faith. The introduction of the concept has been helpful but there is no real limit to the kinds of behaviour that may amount to a breach of good faith and there is no shortage of examples of apparent breaches of good faith, particularly around employer behaviour during bargaining.
Test for justification in relation to personal grievances: One of the most significant Employment Court decisions of recent times is the Hudson v Air New Zealand case which was the first case to deal with s103A of the ERA (Test for justification in relation to personal grievances). In broad terms it has made it more difficult for employers to justify dismissals or any other act that may give rise to a personal grievance, which has implications for which cases are taken and how far we go with them.
New Law: In very general terms the ERA provides a framework in which unions can potentially develop legal strategies to advance the interests of members, although this is tempered by the conservative nature of the Employment Court. This potential has yet to be fully realised.
Relationships within the PSA
Within the PSA the legal team interacts primarily with the organising function, but is also part of the strategy and support function of the union. It reports directly to the Secretariat.
The interaction with organising practice means that the relationship with organisers is very important. Organisers should be the face of the union that manages the relationship with members in difficulty. Their advice in the early stages of disputes can contribute to the ultimate success or failure of legal action. The knowledge and ability of organisers therefore has a direct impact on what the legal team do and their overall workload. Organiser capability and the lines of responsibility are therefore important considerations for the legal team, as is their relationship with the assistant secretaries who manage the organising function.
Delegates usually handle the early stages of disputes and personal grievances. While they also should be working through their organiser, their legal knowledge and ability will be important for the successful outcome of cases. Delegate capability is therefore also an important consideration for the legal team.
Other teams within the strategy and support function of the PSA are less important to the focus of the team, but they can and should support each other where their responsibilities overlap. Of particular importance is the relationship with the policy team, for example in the development of new policy and the preparation of submissions on law changes.
The Secretariat must manage the legal team and has a particular concern for the strategic aspects of the team’s work. The Secretariat must be aware of pressures on the team and the strategic implications of decisions that are made on which cases to advance. One of the assistant secretaries is designated as the primary liaison with the legal team and works with the secretariat to assess priorities.
1. Representation of members and advice on employment law - the workplace is the focus of legal team activity.
2. Providing organisers with the legal support they need for collective bargaining.
3. Minimise the use of legal action and support the early resolution of disputes and grievances.
4. Organiser and delegate legal capability is appropriate to the legal challenges they face. Regular training is provided to equip organisers to manage most legal issues that arise in the course of their work. Legal information provided as part of delegate training is suited to purpose.
5. Providing organisers with legal advice about pass-on and reviewing the possibility of a legal challenge to apparent passing on should a suitably strong case arise.
6. Ensure the merits of personal grievances are considered in light of the Hudson v Air New Zealand case, and that the interests of individuals and the collective interests of the PSA are balanced.
7. Support any work that might arise to clarify what good faith might mean in a particular sector or agency, such as a code of good faith, and be open to the possibility of a judicial clarification in appropriate cases.
8. Identify some of the key areas of 'new law' in the ERA which have the potential to further the interests of PSA members and be more proactive in raising legal challenges to offensive employer behaviour.
9. Co-ordinate with the other Strategy and Support functions of the PSA, particularly policy and communications.
10. Providing legal support to the strategic, management and policy functions of the PSA. External advice is sought when specialist legal knowledge is needed.
11. Clarifying the respective responsibilities of the legal team and organisers by regularly reviewing the Legal Case Policy and Procedure (see below).
Legal case policy and procedure
The policy and procedure for the progression of legal cases is set out in Part Two. The revised policy has been developed to provide a clearer framework to determine whether and how to proceed with legal steps beyond the workplace in individual cases.
The revised policy and procedure makes the following changes from previous practice:
Note: the legal strategy was approved by the executive board in October 2006.