What is distinctive about New Zealand’s Employment Relations Act 2000?

ABSTRACT

This article aims to analyse New Zealand’s Employment Relations Act 2000 (ERA) in a historical perspective and identify its distinctive features compared to three previous labour law regimes: the last phases of the conciliation and arbitration system (1973–1984 and 1984–1991) and the Employment Contracts Act (1991–2000). The article draws on an analytical approach first applied to analyse the historical position of the Fair Work Act in Australia. This approach identifies the significance and level of priority accorded to different processes of rule-making under each of the regimes. It shows that since 1973 there has been considerable change in New Zealand labour law. The most conspicuous is the decline of delegated regulation as industrial tribunals and their awards have lost their previously central role. Collective agreement-making has fared only marginally better. The ‘long shadow’ of the Employment Contracts Act can still be detected in the minimal role of delegated regulation and the much reduced role of collective agreement-making. It is, therefore, the very dynamic and unresolved contest between, on the one hand, individual contracting and, on the other hand, more comprehensive and detailed statutory regulation, that makes the ERA distinctive compared to previous frameworks.

KEYWORDS:

• Employment relations
• legislation
• rule-making model

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Correction

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. It needs to be emphasised that the framework focuses on responsibility for determining the substantive rules that govern the employment relationship, as opposed to procedural regulation. For example, it may appear that legislation authorising an agency to set a minimum wage or regulating the process of collective bargaining could be termed ‘statutory regulation’. But in our framework, those examples fall into the second (delegated regulation) and third (collective agreement-making) categories, respectively because the legislature is not directly fixing substantive terms of employment.

2. The original article also included here ‘the legal priority accorded to that process compared to others’ (Bray and Stewart 2013, 25–6), but this unnecessarily conflates legal hierarchy and operational priority and we have therefore excluded it here.

3. Another example of overlap is the notion of ‘collective contracting’ under the Employment Contracts Act where many so-called collective contracts were standardised individual contracts developed by the employer and signed individually by employees (see discussion in the section about the Employment Contracts Act, 1991–2000).

Additional information

Notes on contributors

Erling Rasmussen

Erling Rasmussen is the Professor of Work & Employment at Auckland University of Technology, New Zealand. He has worked in employment relations in a number of different countries since the late 1970s.

Mark Bray

Mark Bray is the Foundation Chair in Employment Studies at University of Newcastle, Australia. He has researched and published on a range of employment relations topics and is the author of Australia's leading employment relations textbook.

Andrew Stewart

Andrew Stewart is the John Bray Professor of Law at University of Adelaide, Australia. His main interest lie in employment law, contract law, intellectual property law and workplace relations and he has published extensively in those and other areas.