Institutions, Continued Notes

Labour Law Lecture 3rd May 2011: Institutions, cont.: Not many cases go to court, probably attests to the success of mediation services. Key section is s161 which sets out the various powers of the Employment Relations Authority: - Various causes of action - Deals with most of them The Second Schedule to the ERAct contains important provisions relating to the authority. S157 - Key thing here is that the Authority is charged with resolving legal disputes in a quick and fair way, without undue reliance on legal technicality. Authority has recommendatory power that becomes legally binding if chosen. Authority basically deals with investigating the facts about a complaint. One issue over the last 10 years: to what extent will cross-examination be allowed in the Authority? Institution is supposed to be quite flexible. At the very beginning the Authority said no cross examination, but did have a discretion to allow cross-examination if it thought it was appropriate. Cross-examination is a very important technique or way of testing evidence. Object of crossexamination is to get to the truth; testing. Lawyers were particularly put out when they were told no cross-examination in the Authority - so, as of last month, cross examination is normally allowed. Good if you're a lawyer but not good if you need the process to go quickly and informally. Employment Court will not normally deal with any sort of appeal or review until the Authority has rendered its final decision, because with constant appeals on interlocutary decisions the case goes up and down a lot before reaching a resolution. Employment court has first authority in relation to tort issues when there is a strike. Also has first instance jurisdiction over injunctions relating to strikes/lock outs, and Anton Pillar orders. Key sections are ss99 and 100. Can have a de novo hearing or a non de novo hearing - can re-run your case from the Authority in the Court if you want. Good faith reports apply if you want a de novo hearing - if you've behaved well in the Authority and haven't been obstructive or obnoxious. For some matters a party will just be dragging their feet through the authority and not being very co-operative, to keep their case for the Court - you can't do this. You apply for leave to appeal to CA, and the matter has to be of general or public importance, or can be granted leave at discretion of CA. Appeal right is regulated in CA and SC in relation to Employment law matters is questions of law only. SC and CA will not deal with interpretation of contracts, whether individual or collective. This is a matter for specialist institutions (Authority, EC). Questions of fact can be reframed as questions of law (ways around the problem) - articles written on this. Example of this is the Tisco case. The Tisco case basically dealt with the interpretation of Mr Riley's contract - did he breach the implied term etc. But the way the appeal was framed was that it dealt with general principles i.e. the scope of the implied duty of trust and confidence.

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