The changing face of public dispute resolution in New Zealand

• Published date: 01 July 2023
• Author: Erling Rasmussen,Danaë Anderson
• Date: 01 July 2023
• DOI: http://doi.org/10.1111/irj.12407

DOI: 10.1111/irj.12407

SPECIAL ISSUE ARTICLE

The changing face of public dispute resolution

in New Zealand

Erling Rasmussen Professor |Danaë Anderson Lecturer

Department of Management, Auckland

University of Technology, Auckland,

New Zealand

Correspondence

Erling Rasmussen, Department of

Management, Auckland University of

Technology, Auckland, New Zealand.

Email: erling@ejrasmussen.co.nz

Abstract

New Zealand provides a unique comparative case with

its well‐embedded, comprehensive and flexible public

dispute resolution services. Changes from collective to

individual disputes and a resulting rise in institutional

caseload have occurred since 1990, culminating in

increased public information, enforcement and dispute

resolution efforts. However, debates exist about im-

proving access to justice, reducing legalism and

providing proactive conflict resolution.

1|INTRODUCTION

Developed first in the 1890s, New Zealand's institutional dispute resolution system has had a

remarkably long history. A core feature of this system has been its ability to adjust to changes in

its economic, social and employment relations environment (see Table 1). At the same time,

political influences have also played a pivotal role in shaping the character and activities of

public dispute resolution institutions. For example, the Employment Contracts Act 1991 (ECA)

triggered a dramatic departure from the near 100‐year traditional collective focus of dispute

resolution mechanisms as it sought to reorient the system toward individualized forms of

conflict management. This attempt at repurposing conflict management institutions was

reversed with the adoption of the Employment Relations Act 2000 (ERA). The core purpose of

this new legislative framework was to rein in the shift toward individualism and promote

collectivism once again inside the bargaining and dispute resolution systems.

This paper discusses the evolution of New Zealand public dispute resolution systems. It

assesses how dispute resolution agencies have endeavoured to keep pace with fast‐changing

Ind. Relat. 2023;54:341–358. wileyonlinelibrary.com/journal/irj

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© 2023 Brian Towers (BRITOW) and John Wiley & Sons Ltd.

New positions since 1 February 2023: Dr Erling Rasmussen, Director, ER Publishing Ltd, Auckland, New Zealand and

Dr Danaë Anderson, Lecturer, Victoria University, Wellington, New Zealand.

labour market and employment conditions. It also evaluates how the obviously politically

contested nature of the public conflict management system has not only affected the activities

of dispute resolution agencies, but also their legitimacy among employers and unions.

This article is structured as follows. First, the historical institutional context of conflict

resolution is outlined, highlighting the longevity and embeddedness of public dispute

resolution and its effectiveness in dealing with the challenges of a growing demand for

(individual) conflict resolution and the development of a new legislative framework brought

TABLE 1 Employment Institutions and their changing roles and processes, 1894–2022.

Legislation Institutions Processes

Industrial Conciliation &

Arbitration Act,

1894–1973

(Original IC&A Act was

adjusted through several

IC&A Amendment Acts)

Changed several times but

mainly:

Labour Inspectorate

Conciliation Boards

‐Besides a judge, they also

included business & union

representatives

Arbitration Court

‐Developed legal precedent and

national award settings

Conciliation Boards dealt with most

collective bargaining decisions. The

Boards and the Court were setting

binding & de facto minimum wages &

conditions through comprehensive

awards. There was limited, direct

(employer‐union) collective

bargaining.

Industrial Relations Act,

1973–1987

Labour Inspectorate

Industrial Mediation Service

Industrial Conciliation Service

Arbitration Court

Incorporated Mediation Service from

1970 Amendment Act.

Distinction between rights and interest

disputes, with rights disputes

dominating workload of employment

institutions.

Compulsory Arbitration

abolished in 1984

Kept IRA 1973 institutions, but

limited arbitration decisions

of the Arbitration Court

Removed the ability of unions to demand

negotiations & agreement outcomes

Labour Relations Act,

1987–1991

Labour Inspectorate

Mediation Service

Arbitration Commission

Labour Court

Adjust IRA 1973 institutional set‐up with

an emphasis on mediation &

facilitating direct collective bargaining

Employment Contracts Act,

1991–2000

Starting widespread provision

of information and advice

Labour Inspectorate

Employment Tribunal

Employment Court

Tribunal had dual emphasis on

mediation and adjudication (so‐called

‘med‐arb’approach)

Employment Court cases had significant

legal precedent impact, although

there was often disagreement with the

Court of Appeal over decisions

Employment Relations Act,

2000‐current

Expansion of provision of

information and advice

Labour Inspectorate

Mediation Service

Employment Relations

Authority

Employment Court

The emphasis on low level, low cost and

pro‐active dispute resolution

increased support and capabilities of

information, enforcement &

mediation, with mediation prescribed

as the first, default formal dispute

resolution mechanism

Source: Based on Rasmussen and Greenwood (2014, pp. 450–453), Rasmussen et al. (2022).

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