29 Jul 2020

Lockdown created 'perfect storm' for ERA backlog

11:17 am on 29 July 2020

Employment advocates are warning of significant delays for people who are going to the Employment Relations Authority (ERA) to have their disputes resolved.

Tired or stressed businessman sitting in front of computer in office

Photo: 123RF

The ERA intervenes when an issue between employer and employee hasn't been resolved either privately or through a mediator.

Experts are putting the backlog of cases down to the fact a large number of cases were postponed during the lockdown, as well as an increase in the number of people submitting applications to get their case heard to the ERA.

Roughly 10 percent of all employment-related disputes end up at the ERA.

Before Covid-19, the time it would take from an application being lodged to it being resolved was anywhere from a few weeks to a few months. But Rowland Ingram, an advocate who guides workers through the system, said that's not currently happening.

"This year, after the Covid shutdown, it's been really dragged out," he said.

"Cases have been vacated, or cancelled, without any real explanation. There's been no progress, no feedback about progress, it's just complete silence."

A number of high-profile cases have landed with the ERA, such as the New Zealand Airline Pilots' Association, which lodged an application after Airways New Zealand announced they were withdrawing their services from seven airports.

It's also had to deal with a number of cases directly caused by the pandemic, especially surrounding the wage subsidy.

During alert levels 3 and 4, all investigations were cancelled and re-scheduled by the ERA. That didn't mean that cases stopped coming in, however.

"It just kept getting bigger and bigger," Director of The Workers' Advocate, Nathan Santesso said.

"The main one that I'm seeing a lot of - [which] is clearly due to Covid - is breaches of contract, reducing salaries, and reducing hours, and not going through proper consultation, and not getting an agreement in writing to those changes.

"There's tonnes of those cases, but there would have been a burst of them during lockdown."

The ERA did resume some investigations via video or telephone conferences, before in-person meetings restarted on 2 June. But it wasn't at the same speed, Santesso said.

"It's definitely had a major impact on the process, and how efficient the process is, and also with those dates being vacated.

"It's basically the perfect storm for a big backlog of cases."

He said it's difficult to say how long the delays are, as at the moment, most people aren't even being given a date for the meeting to take place.

Ingram said his greatest concern is the impact the delays and lack of communication was having upon the applicants.

"When the worker doesn't receive any responses, it makes them even more frustrated and upset. Job problems are a bit like going through a divorce, or losing a family member, it's that stressful.

"When problems aren't resolved, there's a hell of a lot of stress. They just want to get their cases heard, and the delays are not good for all parties."

From 26 March - the first full day of Level 4 lockdown - to yesterday, just under 160 cases have been resolved by the ERA.

Over the same period last year, that number was 265.

The Community Law Centres chief executive, Sue Moroney, said they saw this coming back in April, after they noticed an uptick in their services-usage by 50 percent, which was being predominantly driven by employment-related issues.

She arranged a meeting with the ERA, and although solutions were pitched to prepare for the rise in cases, she said it mostly fell on deaf ears.

"There have been some attempts but I don't think there's been anything substantial enough to actually clear the backlog that is coming, and has probably landed with the ERA already."

One solution was to remove the compulsory mediation process, which she said is not an appropriate step for many cases, but instead is "a drag on the time that it takes to resolve these matters."

Another solution they offered was that the ERA issued a blanket approach to the 90 day rule, which means workers have 90 days to raise an issue which they believe is a personal grievance.

Moroney wants to see that rule removed.

"The ERA does have the ability to waive that 90 day provision in special circumstances: We believe the Covid-19 event is a special circumstance which can be applied in a blanket way.

"That alone would free up some time for the ERA, if they didn't have to consider the 90 day rule on a case-by-case basis, then that time would be freed up dealing with the actual cases themselves."

Additionally, Santesso said what would help sift through the backlog would be more ERA members to be able to evaluate and go through the cases.

The Ministry of Business, Innovation and Employment said, while all matters currently lodged with the ERA have been reviewed, they've organised a prioritised wait list to help them sort through the backlog.

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