Creeping Jurisdiction: Appeals under s 214 of the Employment Relations Act 2000 Event as iCalendar

(Commercial Law)

22 August 2017

12 - 1pm

Venue: The University of Auckland Business School, Level 2, Room 223, Owen G Glenn Building, 12 Grafton Road, Auckland

Presenter: Alan Toy, The University of Auckland

Abstract:
New Zealand employment law has traditionally upheld the specialist jurisdiction of the Employment Court and the Employment Relations Authority. However, the appellate jurisdiction of the Court of Appeal and the Supreme Court has been creeping into this specialist area. This has generated a line of case law that has strictly curtailed the Employment Court’s exclusive power of construction of an employment agreement. In recent cases, the Court of Appeal has been perceived to have jurisdiction over the application of interpretive principles to an employment agreement, and even to the construction of employment agreements provided this is consequent upon an operative error of interpretive principle. However, this paper argues that the Court of Appeal should not have jurisdiction over either the application of principles or the final process of construction of an employment agreement.

The paper further argues that the distinction between errors of fact and law does not assist in determining the limits of the appellate jurisdiction in matters of construction of an employment agreement. The paper also analyses a lacuna in the current law regarding a mischief of reverse passing on, which should be the subject of legislative amendment to prevent employers from taking advantage of a weakness that may undermine collective agreements. Ultimately, the paper argues that there are strong reasons for the construction of employment agreements to be confined to the specialist employment jurisdiction in New Zealand. A number of countries have limits on the appellate jurisdiction in employment matters, and this reinforces the suggestion that the New Zealand appellate jurisdiction has been misconstrued.

Bio:
Dr Alan Toy is a Senior Lecturer in the Department of Commercial Law at the University of Auckland Business School. He has previously worked as a Senior Tutor in this department, and as a Lecturer in Business Law at the University of Otago School of Business. Alan has published academic articles in the disciplines of auditing and law.
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Huigenia Ostik
Email: h.ostik@auckland.ac.nz
Ext: 87656