Aly joined Franks Ogilvie in 2024 as a Senior Solicitor. After graduating from Victoria University and completing her professional studies, she worked in general private practice gaining experience across a wide range of matters.
In her first two years of practice Aly appeared in the Employment Relations Authority, District Court, High Court, Court of Appeal and the Court Martial of New Zealand. She was involved in numerous mediations and negotiations, and in multiple successful judicial review challenges to Government decisions.
Aly is particularly interested in Government decision making processes and the evolution of New Zealand’s uncodified constitution. She takes satisfaction in problem solving and in providing both legal and practical advice that is comprehensive, concise and easy to understand.
In her personal time she enjoys being out in nature, going tothe driving range or tennis court, and being creative.
Summary
This decision of the Employment Relations Authority declined an application to fix a Fair Pay Agreement following the repeal of the Fair Pay Agreements Act. The Legislation Act allows initiated processes to continue despite a repeal of its underlying Act, but legislative context allowed the Authority to determine that Parliament intended all bargaining processes to cease.
Background
In 2022, Parliament passed the Fair Pay Agreements Act (“FPAA”). The FPAA was designed to bring employee and employer associations to the table to bargain for minimum employment terms and conditions that would apply to a whole industry or occupation. These bargaining processes could be brought by a relatively small proportion of an industry sector.
In 2023, Unite Union applied for a fair pay agreement for the hospitality industry. The preliminary requirements to initiate bargaining were met and on 29 May 2023 public notice of approval of the application was given. Employee and employer bargaining sides were formed and notified, with additional unions and employer organisations joining the respective sides. The employer bargaining side did not produce an inter-party side agreement or appoint a lead advocate within the FPAA prescribed timeline.
National and ACT campaigned to repeal the FPAA during the 2023 election, and subsequently repealed the FPAA under urgency in late 2023.The Repeal Bill contained no transitional provisions and made no mention of ongoing bargaining processes.
On the same day as the Repeal Bill was introduced, Unite lodged an application in the Employment Relations Authority (“ERA”) to fix (unilaterally determine) a fair pay agreement for the hospitality industry. It claimed that the failure of the employer associations to come to an inter-party side agreement was a breach of the FPAA’s requirements for good faith, and it had no reasonable alternative to reach a fair pay agreement without the ERA fixing one.
The Case
As the FPAA was repealed shortly after Unite’s application for a fixed agreement, the issue before the ERA was jurisdictional: could it still fix a fair pay agreement even after the legislation empowering it to do so had been repealed?
In its application for the fair pay agreement process to continue, Unite relied upon section 33(1)(c) of the Legislation Act 2019, which provided that certain processes commenced under the authority of an act may continue until their completion even if the underlying act was repealed. Unite argued that proceedings were to be determined under the law at the time they were filed, relying on the principle against the retroactive application of legislation as a lens to view section 33(1)(c).
The employer associations argued that section 33(1)(c) was limited to processes and did not resurrect substantive remedies (such as the fixing of an agreement), and relied upon the Minister’s speeches to the House to show Parliament’s intention that the ongoing bargaining processes would cease upon repeal. Further, the presumption against retroactive enforcement of legislation was not to be used to undermine government policy. They also argued the application was moot: the repeal of the FPAA meant there was no underlying structure for any award to have effect.
Section 33(1)(c) of the Legislation Act is subject to section 9 of that Act. Section 9 excludes the provisions in Part 2 of the Act (which includes section 33) if the provisions of the legislation in question, or the legislative context, require otherwise. The Government had the chance (and declined) to amend the repeal Bill to either explicitly allow ongoing processes to continue or to state that they were to end. Each party argued that this was beneficial to their own side.
The ERA determined that without the empowering legislation the ERA had no resources to draw on to make the necessary investigations for fixing an FPA, and in any case there would have been no legislative mechanism to enforce an FPA going forward. Parliament must therefore have intended that the repeal of the FPAA was to put a stop to ongoing bargaining processes, and so the legislative context of the case required that section 33(1)(c) not apply.
Result
The ERA determined they did not have jurisdiction and declined to proceed with Unite’s application to fix a fair pay agreement.
This decision highlights the importance of thorough statutory drafting. The Repeal Bill was very barebones, and despite the Minister’s speeches in Parliament about her clear intention to end the bargaining processes it still took the issue going through the ERA and the use of the peripheral legislative context, not a clear intention within the Bill itself, to settle the issue.
For further information on this case or similar issues, please contact Director Rob Ogilvie.
Note: Hospitality NZ, one of the employer associations involved in this case, was represented by their General Counsel Tim Blake. Tim also works as a Consultant for Franks Ogilvie. Franks Ogilvie was not itself involved in this case.
Summary
The High Court declined Te Runanga O Ngati Whatua’s application to judicially review the Kaipara District Council’s decision to disestablish its Māori Ward. The key issue was whether the Council was required to consult with local iwi and hapū before making the decision.
Background
In July 2024, the Local Electoral Act 2001 was amended to require local authorities who had established a Māori Ward by resolution under the previous Labour Government’s change, to decide by 6 September 2024 whether to retain or dissolve the Ward. You can read more about Māori Wards and the Amendment Act changes, here.
On 7 August 2024, the Kaipara District Council decided to disestablish its Māori ward. This drew considerable public debate and media attention as it was the only local authority to do so.
If authorities decided to disestablish its ward, the Amendment Act required Councils to decide on an initial proposal for a “representation review” by 13 September 2024. Previously, in 2018, such a proposal had taken the Kaipara District Council (“Council”) 3 months to decide upon.
The Chief Executive of the Council had concluded there was no requirement to consult with the community on the decision, including Māori, partly because there was no time to do so without jeopardising the (potential) representation review.
The Case
Te Runanga O Ngati Whatua (“Ngati Whatua”) (a Māori Trust Board representative of iwi and hapū occupying lands between the Hokianga Harbour and Auckland), brought a judicial review application seeking a declaration that the Council failed to adequately consult with local iwi and hapū before making the decision.
Ngati Whatua claimed the decision was in breach of the Local Government Act (“LGA”), and in particular the Council’s obligation:
There was a further claim that Ngati Whatua had a legitimate expectation that they would be consulted.
Sections 81 and 82 of the LGA, the Court concluded, did not mandate consultation with Māori. Consultation with Māori may be one way in which a local authority provides opportunities for Māori to contribute to decision-making processes under section 81, but it is not the only way. The Council’s Chief Executive held monthly meetings with representatives of relevant iwi and at these he informed them of the Amendment Bill, potential options from this, and timeframes. The Court therefore found processes for Māori to contribute to the decision-making process were “maintained”.
Section 82 similarly did not create a duty to consult, and the Council had a discretion as to the manner in which it considered the principles. Justice Campbell found the Council’s decision was not unreasonable in the circumstances due to the short timeframe for the representation review prescribed by the Act.
Result and Significance
The Court declined Ngati Whatua’s application, finding in favour of the Council.
The case is significant due to its conclusions on the obligations owed to Māori under the LGA. Whilst previous case law had considered other decision-making provisions under the Act finding these didn’t create a duty to consult Māori, this had not been considered in relation to section 81. Ultimately, local authorities have discretion as to what processes they have in place to promote Māori contribution to decision-making, and how they consider principles of consultation.
For further information on this case or similar issues, please contact Director Brigitte Morten.
Franks Ogilvie acts for Kaipara District Council but did not advise on this particular matter.
As part of the coalition agreements with ACT and NZ First, the Local Government (Electoral Legislation and Māori Wards and Māori Constituencies) Amendment Act 2024 (“Amendment Act”) was passed. This reintroduces the requirement that local government hold public polls to establish Māori Wards and Constituencies rather than being able to establish them by resolution. So, what are Māori Wards and Constituencies, what exactly is the change and what is the controversy surrounding the decision?
What are Māori Wards and Constituencies?
Wards refer to a geographical area within a district or city (territorial authorities). For example, Wellington City Council has five general wards; for the northern, eastern, southern, western, and central areas. Regional authorities have constituencies instead of wards which are the same concept. The Greater Wellington Regional Council has six constituencies for instance, including areas such as the Wairarapa and the Kapiti Coast.
The number of councillors for each ward or constituency depends on the resident population of each area in relation to the total population of the district, city or region.
A Māori ward (if established) comprises all persons on the Māori electoral roll within the territorial or regional area and the number of councillors is determined by a formula based on the proportion of the Māori electoral population to the total electoral population.
What has changed?
Under the Local Electoral Act 2001, if an authority decided to establish a Maori Ward, they had to notify the public of their right to demand a referendum. If 5 percent of electors agreed, a referendum was required. However, in 2021, the Labour Government removed these mechanisms so that authorities could not hold referendums and were able to establish Māori wards by resolution. National and ACT opposed this, and it was part of the coalition agreements that the 2021 changes would be repealed.
These agreements have been delivered through the passing of the Amendment Act in July 2024. Specifically, the Act provides that authorities that either established or resolved to establish Māori wards or constituencies without polling residents, would need to decide by 6 September 2024 whether to retain or dissolve them, or affirm or rescind the resolution. If they chose to retain them or affirm the resolution, the local authority is required to hold a referendum alongside the 2025 local elections. The poll is binding and local authorities cannot establish a Māori ward if more than 50% of the valid votes cast are “No” votes.
There are 45 local councils that this change applies to. Only the Kaipara District Council chose to disestablish its Māori ward, with the Upper Hutt City Council rescinding its resolution to establish at least one Māori Ward for the 2025 and2028 local elections. The other 43 local authorities will therefore be required to hold binding referendums at the next election to determine whether to establish Māori Wards.
If an authority, who does not yet have a Maori ward, wishes to establish one, they will need to hold a referendum.
What is the Controversy?
This decision has attracted political debate. A Waitangi Tribunal report released in May 2024 concluded that the Crown had breached its Treaty obligations, and that the pre-2021 process to establish Māori wards and constituencies was discriminatory and inconsistent with treaty principles.
Local government also have certain statutory obligations to include Māori in local decision-making. There is an argument that the use of Māori wards and constituencies is a mechanism to ensure such obligations are met. Further, there has been back lash from Council’s due to the requirement they cover the cost of holding a referendum.
The argument in favour of holding referendums places the unitary nature of New Zealand’s legal system at the forefront. Creating a specific ward or constituency for Māori may be seen as favouring Māori as a minority over that of the rest of the population. In some councils, the number of Māori enrolled to vote in a Māori ward might be significantly smaller than the number of general electors in a regular ward. This could lead to the perception that each Māori vote carries more weight, potentially giving Māori voters disproportionate influence in local council decisions. This goes against the notion of “majority rule” in a democracy. There is also an argument that Wards are not required for the fulfillment of obligations owed to Māori under the Treaty and under local government law.
For further information on this case or similar issues, please contact Director Brigitte Morten.
