Proposed changes to ERA carry ‘substantial risk’

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The Government’s plans to streamline the Employment Relations Authority (ERA) will lead to erroneous determinations and an increased number of appeals, according to the bench of the Employment Court.

The latter recently made a submission to the Transport and Industrial Relations Select Committee, which is currently reviewing the Employment Relations Amendment Bill, in which they made forceful criticisms of the proposed changes contained in Clause 61. If enacted, this clause would mean that the Authority had to deliver an oral determination or provide an oral indication of preliminary findings at the conclusion of an investigation meeting.

“The Employment Relations Authority investigates and determines many complex proceedings which include difficult questions of law,” Chief Judge Graeme Colgan wrote in a letter to the select committee. In fact, some cases are no different to those determined in the Employment Court or the High Court, where decisions would be reserved in order to produce a reasoned judgement in writing.

If the Authority is compelled to give oral determinations, it may not be able to do so properly. If, for example, a case involves a complex question of law in which the ERA member is not well versed, and that member is not able to conduct research into this, there is a substantial risk that he or she will make an error in their determination, according to the letter.

In addition, the process that is proposed could reduce confidence in the determinations issued. “There is now a perception among employment law practitioners and their clients that … the delivery of an oral determination by the Authority or an oral judgment by the Court indicates a lack of adequate and careful consideration of the merits of the case,” the letter states.

In addition, ERA cases often involve “serious disputation and tension” and in order to circumvent the intensification of this tension, it is best to deliver a determination in writing, not when these parties are sitting in a room together.

Judge Colgan also argues that clause 61 would have unintended consequences, such as an increasing number of appeals of ERA determinations and applications for removal to the Employment Court.

Finally, according to the letter, the clause appears to ignore the fact that an increasing number of cases in the ERA (and in the Employment Court) are determined on paper without an investigation meeting. “However, clause 61 would seem to require that every matter before the Authority be investigated at an investigation meeting. If that is so, it would have the unintended consequence of delaying the disposition of proceedings and increasing the costs to parties,” the letter states.

“The Judges respectfully urge the Committee to consider changes to clause 61 which will both encourage, in appropriate cases, the Authority to deliver oral or other prompt determinations but to ensure that, in cases where it cannot or should not (for good reasons) do so, it has the flexibility to reserve its determinations for delivery in writing following the end of its investigations,” the letter concludes.

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