Employment update - Week 2, July

Calderbank offer two weeks out from investigation was irrelevant

Calderbank offers are offers of settlement made by one party to the other party prior to an Employment Relations Authority investigation meeting or a Court hearing and expressed to be without prejudice except as to costs. The failure of a party to accept a Calderbank offer can potentially influence the exercise of the discretion of the Court or Authority against granting the successful party any representation costs if it has recovered less by proceeding with the case than it would have by accepting the offer.

A number of factors will determine whether a Calderbank offer is taken into account or considered relevant by the Authority or Court in its determination of awarding representation costs. One of those is how far in advance of the Authority investigation or Court hearing the offer was made. The closer a Calderbank offer is made to the date of the hearing or investigation, the less influence it is likely to have on a determination of costs as the closer the parties are to a hearing or investigation the more representation costs the parties will have already incurred in preparation.

In a recent costs determination, the Authority refused to take the rejection of a Calderbank offer into account as it had been presented two weeks before the date of the scheduled investigation meeting.

The Authority considered that by the time of the offer the parties had already incurred costs in preparation for and attendance at the investigation meeting. In such circumstances, the Authority was not satisfied an adjustment to the award of costs was appropriate.

See Beatty v Protective Paints Ltd [2018] NZERA Auckland 236.

Select Committee recommends passing Equal Pay Bill

The Education and Workforce Committee reported back on the Equal Pay Amendment Bill on 13 May 2019, recommending that the Bill be passed with some amendments.

The long-awaited Bill aims to address gender pay equity.

Key changes to the Bill recommended by the Select Committee include the following:

  • Providing a benchmark for determining a “predominantly female” workforce as being one that is, or historically was, approximately 60% or more female.

  • Removing the requirement to undergo facilitation before seeking a determination in disputes, to maintain a low threshold to commence bargaining and provide the Courts with greater discretion.

The Bill still needs to pass through the Committee of the Whole House and third reading stages before it can become law. However, the Government advised that the Bill is expected to be passed into law later this year.

Reproduced by permission of Wolters Kluwer NZ