The Executive of ELINZ has asked me, in my role as Patron and a Life Member, to write to members about recent criticism of the Institute concerning possible regulation of lay employment advocates.Members may have seen directly, or heard anecdotally, of intemperate and inaccurate attacks on social media against ELINZ and its immediate Past President. Those criticisms have included allegations, or at least strong inferences, that ELINZ, along with the former Chief of the Employment Relations Authority, is part of a conspiracy to put a particular complainant lay advocate out of business, including by promoting a regulatory licencing scheme for lay employment advocates. Other than to say that I think these criticisms of ELINZ are scurrilous and contemptible, I will not comment on the allegations against the ERA. I understand that there are current proceedings before the Employment Court in relation to penalties imposed by the ERA. I simply invite readers to read the relevant ERA determination(s) and, in time, the Court’s judgment. However, I can say that as far as I know, it is quite simply untrue that there is any conspiracy involving ELINZ to harm the complainant or his business interests.
I focus instead on ELINZ’s considered promotion of a regulatory or licencing system for lay employment advocates and what I understand to be the reasons for this.
First, some background. Historically, only qualified and currently practicing lawyers have been entitled to represent persons before courts and, more latterly, legal tribunals. To allow for representation in what we would now call collective bargaining but then known as award-setting, trade union officers and employers’ association advocates were allowed rights of audience before the relevant judicial bodies, the Arbitration and Industrial Courts. Until the 1990s, these were the only lay people (i.e. non-lawyers) who, in practice, represented employees, unions and employers.
The deregulated and ‘one-law-for-all’ approach of the Employment Contracts Act 1991 spawned the appearance and growth of the lay employment advocate sector which now includes non-practicing lawyers, law graduates, HR practitioners, ex-grievants and others whose representational practices are almost entirely unregulated. Their quality, in my experience, runs from the appropriately competent at one end, to the dangerously incompetent at the other extreme. So too are their ethical practices. Their costs, again in my experience, cover a range from appropriately reasonable, to exorbitant. You may say, ‘ah but that is the case with some lawyers also’! And doesn’t that support the case for regulation? These vital elements of competence, cost and ethical-adherence are all reasons for regulatory licencing.
I do not understand ELINZ to be advocating that lay employment advocates should not represent persons in employment disputes. Nor do I understand that ELINZ advocates that membership of it alone, should be a licencing requirement. Rather, it says that those who wish to represent others in mediation or adjudication of employment disputes or other employment-related activity such as bargaining and negotiation, should meet and be held to minimum standards of qualification and ethical conduct.
Critics of this view emphasise what they claim to be the benefits of free-market competition: all-comers should be able to compete in the employment dispute market, I assume, unregulated other than by general statutory, consumer and common law. Notably absent from this discourse, however in my observation of it, is the party represented, the consumer, in practice the dismissed employee or the small business employer. The regulation of professions, trades and, increasingly other occupations, has traditionally been driven by this consumer-protection imperative. That is especially in circumstances where people are emotionally and financially vulnerable, there are sometimes complex legal issues to be advised upon, and there are inbuilt systemic expectations of high ethical standards.
I agree that lay employment advocacy does provide access to justice for many and neither I nor ELINZ advocate for this to be lessened by outright prohibition of lay employment advocacy. But access to justice must also itself be facilitated justly, fairly and ethically. Although anecdotal, complaints that it is not are so numerous, consistent and serious, if not egregious, that they cannot be ignored. Founded on grounds of consumer protection, ELINZ’s advocacy of regulation is hardly self-interested and indeed its members might be forgiven for thinking that the scurrilous and inaccurate attacks on it more aptly fit that epithet. But none of us, proponents or opponents of regulation of employment lay advocacy, should fear the debate, albeit one conducted with respect and reason, not invective and inaccuracy.