EMA's complaints about employment advocates are not a serious case for regulation

The Employers and Manufacturers Association has been publicly pushing the argument that employment advocates need urgent regulation because the employment dispute system is too slow, too expensive, and supposedly distorted by unregulated advocates.

That argument needs to be answered directly. It is mostly employer-side frustration dressed up as regulatory evidence. It does not prove that employment advocates are the problem. It proves that employers do not like the cost and risk of employment disputes when employees are represented and do not simply accept peanuts.

EMA is entitled to advocate for its members. That is what it does. But its lobbying should not be mistaken for an independent review of the employment dispute system. It is the voice of employers, not the voice of employees, advocates, unions, mediators, Authority users, Court users, or the public as a whole.

What EMA is saying

EMA's March 2026 article said it was calling for a review of the employment disputes system, especially the conduct and regulation of employment advocates, following a survey of more than 300 members. It referred to rising costs, longer case durations, increasingly adversarial behaviour, no-win-no-fee advocates, alleged process delays, inflated settlement demands, high fees for low-quality work, and language such as "cowboys" and "ambulance chasers". Read EMA's March 2026 article.

EMA later described the Government's employment dispute consultation as a "win for EMA members" and said the system was too slow, too costly, and increasingly distorted by unregulated employment advocates. Read EMA's May 2026 article.

EMA's Head of Legal, Mauro Barsi, also appeared in media saying the system was becoming harder to navigate, costs were getting higher, and it was getting "harder and harder to employ people". Read the Newstalk ZB summary.

That is the complaint. The problem is that it is one-sided. It starts with employer annoyance and works backwards to a regulatory answer. It treats employer discomfort as proof of advocate misconduct. That is not evidence-led reform.

EMA's survey is not neutral evidence

A survey of EMA members is not an independent evidence base. It is a survey of employers, many of whom will have been respondents to personal grievances, mediations, Authority claims, or settlement demands. Of course they are annoyed. Of course they think claims are too expensive. Of course they dislike being pressured to settle.

But employer frustration is not the same thing as consumer harm. It is not proof that advocates as a class are dangerous. It is not proof that no-win-no-fee work is abusive. It is not proof that the answer is heavy regulation, lawyer control, ELINZ control, or rules that make it harder for dismissed employees to get representation.

The first question should be: what caused the grievance? In almost all cases, the answer is not the advocate. The answer is the employer's dismissal, restructuring, suspension, disciplinary process, bullying response, wage practice, consultation failure, or breach of good faith.

EMA has not published the actual survey material

EMA has publicly summarised its survey. It has not, so far as I can find, publicly produced the actual survey questions, the methodology, the raw responses, the examples relied on, or the way responses were coded and analysed. That matters.

Without the questions and responses, no one can properly test whether the survey was balanced, whether the questions were loaded, whether the answers were anecdotal, whether the same type of complaint was repeated by a small group of annoyed employers, or whether the examples actually show advocate misconduct rather than ordinary litigation friction.

If EMA wants regulation based on its survey, it should publish the questions, publish the methodology, publish the response data in an anonymised form, and identify the actual categories of harm. Otherwise, this is not a serious evidential platform for regulation. It is employer lobbying with a survey attached.

EMA is not a neutral referee

EMA is entitled to advocate for its members. But it should be honest about what it is. EMA is an employer organisation. It sells employment relations, HR, legal, mediation, training, and representation services to employers.

That does not make EMA wrong. It does mean its claims should be read as employer-side advocacy from a participant in the employment disputes market, not as neutral public-interest research. If EMA wants to regulate competitors who act for employees, that conflict of perspective should be front and centre.

Personal grievances are not invented by advocates

A personal grievance is an action an employee can take against a current or former employer when there is an employment issue that cannot be resolved. Employment New Zealand identifies personal grievances as including unjustified dismissal and unjustified disadvantage. See Employment New Zealand on personal grievances.

That matters. The advocate usually appears after the employer's conduct has already created the dispute. The employee did not dismiss themselves. The employee did not run the employer's defective disciplinary process. The employee did not fail to consult themselves. The employee did not refuse to provide relevant information to themselves.

It is convenient for employer lobbyists to blame advocates. It is much less convenient to confront the obvious point that many disputes exist because employers have done things that create legal risk.

Employment is not becoming harder because advocates exist

EMA's line that it is getting "harder and harder to employ people" should not be accepted as a fact. It is a slogan. It sounds dramatic, but it needs to be unpacked.

What does it actually mean? If it means employers now need to have proper employment agreements, pay correctly, keep records, consult properly, run fair disciplinary processes, disclose relevant information, and avoid defective dismissals, then that is not employment becoming too hard. That is just the law being inconvenient for employers who want shortcuts.

Advocates do not make lawful employment harder. Advocates usually arrive after the employer has already created legal risk. The problem is not that the employee got help. The problem is that the employer's process, decision, payment practice, restructuring, suspension, dismissal, or grievance response created a claim worth answering.

The sharper point is this: it is not getting harder to employ people. It is getting harder for employers to make employment mistakes and get away with it for little to no cost. That is a very different complaint.

If an employer acts fairly, keeps proper records, provides relevant information, makes sensible decisions, and prices settlement risk honestly, an advocate does not create the problem. If an employer acts badly and then offers peanuts, the advocate is not the cause of the dispute. The advocate is the person pointing out the risk the employer would rather ignore.

The delay argument is too convenient

EMA says disputes take too long and that advocates contribute to delay. Some representatives can cause delay. That includes advocates, lawyers, employer representatives, HR consultants, unions, and self-represented parties. Bad conduct should be dealt with wherever it appears.

But it is nonsense to treat delay as mainly an advocate problem. The delay problem is also a system-capacity problem. Employment mediation is a free MBIE service. Employment New Zealand explains that mediation is voluntary, impartial, confidential, and free to use. See Employment New Zealand on mediation.

There is also public reporting that MBIE cuts affected mediation capacity. Simpson Grierson reported in 2024 that MBIE had cut 286 jobs and that mediators were among those who took voluntary redundancy, with only 28 MBIE mediators compared with 40 to 50 when the ERA was introduced. Read Simpson Grierson on mediation capacity.

So if mediation and the Authority are slow, do not pretend the entire problem is advocates. Look at demand. Look at resourcing. Look at mediator numbers. Look at the structure of the system. Look at employers denying obvious risk for months. Look at lawyers writing threatening letters rather than pricing cases properly. Look at lowball offers that were never going to settle anything.

Lowball offers cause delay

One of the biggest causes of delay is not an advocate refusing to settle. It is an employer making a silly offer and then acting surprised when the employee does not take it.

There is a difference between early resolution and cheap resolution. A good advocate should support early settlement where the offer is reasonable. A good advocate should not pressure a dismissed employee into taking peanuts simply because the employer wants the problem to disappear.

Employers and their lawyers often call a claim "inflated" when what they really mean is that the employee has not accepted a nuisance-value offer. A serious personal grievance may involve lost remuneration, injury to feelings, contribution to costs, unpaid entitlements, penalties, interest, public determination risk, and the stress of litigation. A few thousand dollars may not be commercial. It may simply be insulting.

The real question is not whether the first demand was high. The real question is whether both sides are assessing litigation risk honestly.

If employers are right, they should use Calderbank offers properly

EMA says employers feel pressured to settle because defending a claim can cost more than the claim. That is not an advocate-regulation problem. That is litigation economics.

The tool already exists. Employers should make proper Calderbank offers early. If the employee rejects a realistic offer and then does worse in the Employment Relations Authority, the employer can seek an uplift in costs.

The Employment Relations Authority's Practice Direction on costs says the Authority may order an unsuccessful party to contribute to costs incurred for representation by a lawyer or other representative. It also says the daily tariff may be adjusted upwards where an unsuccessful party turned down an effective settlement offer, and that parties in personal grievances and breach claims should understand that, if unsuccessful, they will usually contribute to the successful party's costs. Read the ERA Practice Direction on costs.

That point cuts straight through the EMA complaint. If employers are genuinely making fair offers and employees are irrationally continuing, the costs jurisdiction is there. Use it. Make the offer properly. Mark it without prejudice save as to costs. Leave it open for a reasonable time. Make sure it is better than what the employee is likely to get. Then seek costs if the employee unreasonably continues and loses.

We hardly ever see strong costs uplift determinations from employers relying on excellent Calderbank offers. That suggests many employers are not making realistic offers that actually shield costs. They are making lowball offers and then complaining that the employee did not fold.

No-win-no-fee does not mean dragging cases out

The claim that no-win-no-fee advocates drag matters out is backwards.

A no-win-no-fee advocate usually has a commercial incentive to resolve the case early for a sensible amount. They are not billing every email, every phone call, every draft, and every hour. If the case fails, the client may get nothing, the advocate may get nothing, and there may be adverse costs consequences.

That is why good advocates assess cases carefully. Is the evidence there? Is the client credible? Has the employer made a reasonable offer? Is the likely recovery worth the delay and risk? Would the Authority think the employee acted reasonably in rejecting the offer? Those questions are asked constantly.

Good advocates are not anti-settlement. They are anti-bad-settlement.

More detail on no-win-no-fee employment claims is available here: No win no fee employment law: risks, common tactics, and protections and How no win no fee works in employment disputes.

The anti-advocate argument wants to have it both ways (Graeme Colgan says one thing about advocates wanting to settle early, EMA says another that advocates don't want to settle)

There is also a serious contradiction in the wider anti-advocate narrative. It is not enough for employer lobby groups, lawyers, former judges, or industry bodies to throw every possible criticism at employment advocates and call that a case for regulation. The criticisms still have to make sense together.

In November 2024, RNZ ran a Nine To Noon story titled "Lay advocate's abusive conduct prompts calls for regulation". That story included comments from former Chief Employment Court Judge Graeme Colgan. In my response to that story, I dealt with the argument that no-win-no-fee advocates supposedly have an incentive to push early, low settlements rather than taking cases further and getting more for their clients. Read my rebuttal to the RNZ / Graeme Colgan story.

That criticism was that advocates settle too early and too cheaply. The suggestion was that a no-win-no-fee advocate may take an early fee, push the client into a quick settlement, and fail to fight hard enough for proper compensation.

EMA's current complaint points in the opposite direction. EMA says advocates are causing longer disputes, process delays, unnecessary escalation, inflated settlement demands, adversarial conduct, and claims not resolving early enough.

So which is it?

Are advocates supposedly settling cases too early for too little, or are they supposedly refusing to settle and dragging everything out? Those are different criticisms. They pull in opposite directions. One says advocates are too quick to compromise. The other says advocates are not willing enough to compromise.

Both things can happen in isolated cases. A bad representative might settle a good case too cheaply. A bad representative might also run a weak case too long. But that does not prove that advocates as a class are the cause of system delay. It proves the obvious point that representative quality matters in individual cases.

The problem is that the anti-advocate argument changes shape depending on what is convenient. If a case settles, the criticism is that the advocate settled too early, clipped the ticket, and should have got more. If a case does not settle, the criticism is that the advocate is dragging the matter out, inflating the demand, and making employers spend money.

That is not a coherent case for regulation. That is criticism from every direction. It is a complaint looking for a target.

The reality is more basic. Some cases should settle early. Some should not. A weak claim should not be dragged through the Employment Relations Authority or Employment Court. A strong claim should not be sold for peanuts because an employer wants cheap finality. Settlement advice is a merits and risk exercise, not a slogan.

A responsible representative has to consider the evidence, likely lost remuneration, compensation bands, contribution risk, credibility, costs risk, delay, enforcement risk, and the client's instructions. That is true whether the representative is an advocate, lawyer, union representative, employer association representative, or HR consultant.

This is why the no-win-no-fee attack is so shallow. If we settle early, we are accused of selling the client short. If we refuse a lowball offer, we are accused of prolonging the dispute. The real complaint often seems to be that advocates settle when employers dislike the fee, and fight when employers dislike the claim.

Good advocacy is neither "settle everything quickly" nor "fight everything forever". Good advocacy is knowing when a case should settle, when it should not, and when the other side's offer is just not good enough.

Inflated settlement demands are not a regulatory case

A settlement demand is a negotiation position. Employers know this. Lawyers know this. Employer associations know this. Employers open low. Employees open high. The case settles when both sides properly assess risk.

If an advocate makes a ridiculous demand, the employer does not have to accept it. The employer can reject it, make a realistic counteroffer, and protect itself on costs. A high opening number is not a reason to regulate an entire occupation.

The bigger problem is often the opposite: employers make offers that ignore the real exposure. They treat a serious dismissal as if it is worth a nuisance payment. They ignore lost wages. They minimise hurt and humiliation. They pretend their process was fair. Then they accuse the advocate of being unreasonable when the employee refuses to take the first weak offer.

Fees are not improper just because an advocate charges them

EMA's complaint also appears to treat advocate fees as suspicious. That is hypocritical. Lawyers charge. Employer associations charge. HR consultants charge. Barristers charge. The issue is not whether a representative is paid. The issue is whether the fee is disclosed, lawful, proportionate, and in the client's interests.

The ERA Practice Direction expressly recognises costs for representation by a lawyer or other representative. That is important. It means the system already recognises that non-lawyer representatives can incur recoverable representation costs.

There should be transparency. Written Terms of Engagement. Written authority to act. Fee disclosure. Clear settlement authority. Clear handling of employer-paid contributions to costs. Clear rules around settlement money. Those are practical safeguards.

I have written more about why proper authority documents matter here: Authority to Act forms for personal grievance cases.

Bad conduct is not unique to advocates

Some advocates behave badly. Some lawyers behave badly. Some HR consultants behave badly. Some employer representatives behave badly. Some self-represented parties behave badly.

The answer is not to smear advocates as a class. The answer is to deal with conduct properly and fairly across the system. Competence, honesty, proportionality, client authority, fee transparency, and accurate legal work should matter no matter who the representative is.

The lazy lawyer-versus-advocate framing avoids the real question: did the representative act competently and in the client's interests?

Low-quality work should be proved, not assumed

EMA also complains about low-quality advocate work. That may exist. But if the complaint is serious, produce the evidence. Identify the pattern. Show whether the conduct affected outcomes. Show whether complaints were made. Show whether the same problems exist with lawyers, employer consultants, HR advisers, union representatives, or self-represented parties.

A bad letter, bad pleading, or bad advice should be dealt with as bad representative work. It is not proof that a whole occupation should be controlled by lawyers, employer associations, or competitor groups.

Anyone can call themselves an advocate - but that is not the whole answer

It is true that anyone can call themselves an employment advocate. That does not mean every advocate is incompetent. It also does not mean every lawyer is competent. Regulation is not magic. The legal profession has its own problems with cost, overreach, poor advice, delay, bullying, and incompetence.

There may be room for minimum safeguards. But those safeguards should be practical and independent. They should not be designed by competitors who benefit if employee advocates disappear or become unaffordable.

The proper starting point is simple: written terms, written authority, fee disclosure, settlement authority, conflict rules, complaint pathways, and consequences for misleading or abusive conduct. That is very different from handing the system to lawyers, employer lobby groups, or ELINZ.

My broader comments on advocate regulation are here: Regulation of employment advocates: what the NZLS report found and why it matters.

AI-generated correspondence is an everyone problem

EMA also complains about AI-generated correspondence. There is a real issue there. Fake cases, fake quotes, wrong legal tests, bloated letters, and poor AI-generated submissions can waste everyone's time.

But that is not an advocate problem. It is an everyone problem. Employees use AI. Employers use AI. Lawyers use AI. HR advisers use AI. Self-represented parties use AI. The answer is not to regulate advocates because AI exists. The answer is that whoever sends or files legal material must check it.

The Supreme Court has already warned about fake AI-generated authorities, including possible contempt consequences in serious cases. Read the LawNews report on the Supreme Court warning.

That standard should apply to everyone. Do not file fake law. Do not cite fake cases. Do not mislead the Authority or Court. That is not difficult.

What would actually improve the system

If the Government wants to improve employment dispute resolution, the answer is not to accept employer lobbying at face value. The answer is to fix the parts of the system that actually cause unnecessary escalation.

• Resource mediation and the ERA properly.
• Encourage early disclosure of relevant information.
• Encourage realistic early Calderbank offers.
• Use costs consequences where parties unreasonably continue after sensible offers.
• Require written Terms of Engagement and Authority to Act for representatives.
• Require transparent fee arrangements.
• Deal with AI misuse through accuracy and citation obligations.
• Publish the survey questions, methodology, raw themes, and anonymised examples before relying on employer survey material as regulatory evidence.
• Create an independent complaints pathway if needed.
• Do not let lawyers, employer associations, or ELINZ design a system that removes competition and prices employees out of justice.

The blunt answer to EMA

Employers are not entitled to a dispute system where employees accept peanuts because defending a claim is inconvenient.

If employers want early resolution, they should make early realistic offers. If they are right and the employee unreasonably continues, they can use Calderbank offers and seek costs. But blaming advocates as a class is lazy.

Many grievances exist because employers dismissed, disciplined, restructured, suspended, bullied, disadvantaged, underpaid, or mismanaged employees and then did not want to pay proper compensation when challenged.

Regulation should be based on evidence of actual consumer harm, not employer annoyance that employees now have representation.

MBIE's current consultation is asking broad questions about how disputes arise, what delays or barriers exist, what support parties use, and what should be kept, started, or stopped in the system. That is the right frame. The answer should not be predetermined by an employer lobby group's unpublished survey material. Read MBIE's consultation page.

Related Anderson Law commentary

• Regulation of employment advocates: what the NZLS report found and why it matters
• Employment advocates: what we do in mediation, the ERA, and Employment Court
• Employment advocates in the Employment Court
• No win no fee employment law: risks, common tactics, and protections
• Authority to Act forms for personal grievance cases
• Costs in the Employment Relations Authority
• Rebuttal to RNZ interview with Graeme Colgan
• Employer ERA costs: when an employer can claim costs after winning