Mediation and Facilitation of Collective Employment Disputes in New Zealand From a Historical and Comparative Perspective
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In Aotearoa (New Zealand) the State has provided employment dispute processes since 1894. The aim of this thesis was to build empirical and theoretical insights into the current dispute resolution processes, with a specific emphasis on facilitation, a process introduced in 2004 to assist parties experiencing difficulties in collective bargaining. It commences by reviewing the history of employment dispute resolution in New Zealand starting with the Industrial Conciliation and Arbitration Act 1894 before investigating the current processes provided for in the Employment Relations Act 2000, namely mediation and facilitation. To do this a literature review is undertaken. A review of all applications made for facilitation assistance, from October 2004 until 30th December 2017, was conducted, together with surveys and interviews with, the Minister of labour who introduced facilitation, and participants and providers of the processes. The survey also explores crucial attributes of effective facilitators and mediators and compares those findings to research undertaken in 1986. The contribution mediators and facilitators made to collective bargaining was explored [and the different styles and processes discussed]. Regardless of whether the collective was settled, both mediators and facilitators provide a process to; reduce areas in dispute, assist parties to focus on the issues and encourage communication. The legislation sitting behind these processes creates differences how they do this, the timing of interventions, confidentiality provisions and power to determine outcomes being different between the mediation and facilitation processes. Facilitation has emerged as a uniquely New Zealand process reserved for parties experiencing serious difficulties in collective bargaining. It is a more flexible process than mediation but is not widely used or understood. Propositions have emerged that facilitation is used; by Unions with less industrial muscle, employers concerned about the effect of industrial action on their business and as a mechanism to escalate a dispute. However, the contribution that facilitation has made to the objective in the Employment Relations Act 2000 to support collective bargaining and build constructive employment relationships is questionable. A thematic analysis added, to previous research findings, two new facilitation models; final offer arbitration and a joint problem-solving model. While differences were found between the facilitation processes provided by Members of the Employment Relations Authority and educative facilitation literature, one Employment Relations Authority Member’s process demonstrated similarities to educative facilitation and early assistance mediation literature. However, the flexibility given to an Authority Member to provide an unfettered process was found to create issues for parties. This research determined that while judicial intervention is required on occasions a process reliant on the provider’s decisions about which model of dispute resolution to use may not be appropriate. This thesis is timely [and important] because the new Labour Led Government is considering changes to collective bargaining frameworks. The empirical data provided about facilitation; the users of the process and how and when it is delivered provides valuable insights for policy development into the future of dispute resolution. Internationally, there is a move towards facilitated bargaining early in a dispute. Should New Zealand be following this trend by implementing state provision of [opportunities for] early intervention, to support good faith, address power imbalances and promote collective bargaining [or continue to require the escalation of disputes before facilitation assistance is provided]?