EMA's case for regulating employment advocates is not evidence-led

The Employers and Manufacturers Association has argued that New Zealand's employment dispute system is too slow and too expensive, and that unregulated employment advocates are a significant part of the problem.

That argument is entitled to be heard. It should also be tested. EMA represents employers and provides employment-relations and legal services to employers. Its experience is therefore relevant, but it is not an independent assessment of the whole system and should not be treated as one.

My position remains that a new occupational regulator for employment advocates has not been justified by the evidence presently identified. Before imposing licensing, registration, compulsory membership, a statutory code or a new complaints body, there should be independent evidence of advocate-specific harm that existing legal, procedural and consumer-protection mechanisms cannot adequately address.

What EMA has argued

EMA's March 2026 article called for review of the employment disputes system, particularly the conduct and regulation of employment advocates, following a survey of more than 300 members. It referred to rising costs, longer case durations, adversarial behaviour, no-win-no-fee advocates, process delays, inflated settlement demands and concerns about the quality of some representative work. Read EMA's March 2026 article.

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

EMA's Head of Legal, Mauro Barsi, was one of the public spokespeople for that campaign. In media discussion he referred to increasing difficulty navigating the system and rising costs. Read the Newstalk ZB summary.

EMA is entitled to put that employer-side case. The question is whether the material establishes a systemic problem specific to employment advocates and, if so, whether occupational regulation is the proportionate answer.

EMA's survey is employer-side evidence, not a neutral system review

A survey of EMA members can provide useful information about employers' experiences. It is not the same thing as independent system-wide evidence. Many respondents will have experienced personal grievances, mediations, Authority proceedings or settlement negotiations from the employer side.

Employer dissatisfaction with the cost, duration or settlement pressure of a dispute is not by itself proof of consumer harm, professional incompetence or a regulatory failure. To justify occupational regulation, the evidence should distinguish ordinary litigation friction from identifiable misconduct or incompetence and should examine whether comparable problems also arise with lawyers, employer representatives, unions, HR advisers and self-represented parties.

The underlying survey material should be open to scrutiny

EMA has publicly summarised its survey. So far as I have been able to identify from the published material, the full questions, methodology, coded responses and anonymised examples relied upon have not been published in a form that permits independent scrutiny.

If survey material is to support occupational regulation, those details matter. They allow readers and policymakers to test whether questions were balanced, what conduct was actually complained of, how often it occurred, whether the conduct affected outcomes, and whether it was specific to advocates rather than representative behaviour generally.

The independent review did not recommend lawyer-style regulation of advocates

The independent review report Regulating Lawyers in Aotearoa New Zealand recorded concerns about unregulated legal-service providers, with employment advocates attracting particular comment. But it did not recommend extending the existing lawyer regulatory regime to employment advocates.

The review concluded that there was no present basis for extending the scope of lawyer regulation to currently unregulated legal services. It also recognised the access-to-justice value of alternative providers. If government nevertheless considered further regulation of unregulated providers, the report contemplated lighter-touch approaches rather than simply placing them within the lawyer regulatory model.

I discuss that report separately here: Regulation of employment advocates: what the NZLS report found and why it matters.

EMA is a participant in the employment-services market

EMA openly represents employer interests and provides employment-relations services to employers. Its own material describes services involving personal grievances, dispute resolution, mediation, ERA and Employment Court representation, disciplinary matters, performance, incapacity, restructuring and redundancy. Read EMA's employment relations services page.

That does not make EMA's views wrong. It does mean that its regulatory position should be understood as advocacy from an employer organisation and a participant in the employment-services market, rather than independent public-interest research.

Personal grievance rights are created by law, not by advocates

Employment advocates do not create personal grievance rights. Parliament does. Advocates usually become involved after a dismissal, disciplinary process, restructuring, suspension, wage issue, consultation dispute or other employment problem has already arisen.

The existence of representation can make it harder for either side to ignore legal risk. That is not the same thing as representation causing the underlying dispute.

Delay has more than one cause

Some representatives cause avoidable delay. That can include advocates, lawyers, employer representatives, unions, HR consultants and self-represented parties. Where conduct is unreasonable, existing costs, case-management, strike-out and other procedural powers should be used appropriately.

But delay is also affected by system capacity, availability of mediation and Authority resources, disclosure disputes, the complexity of the issues, and settlement positions taken by both sides. It is too simple to treat delay as principally an advocate problem.

Settlement positions are not, by themselves, a case for regulation

There is a difference between early resolution and undervalued resolution. A competent representative should support settlement when the offer properly reflects the merits, risk and the client's instructions. A competent representative should also be prepared to reject an unrealistic offer where the claim justifies doing so.

Likewise, a high opening demand does not by itself establish misconduct. It can simply be a negotiation position. The relevant questions are whether the representative is assessing the case rationally, advising the client properly, and responding proportionately as the evidence and risk become clearer.

Calderbank offers already provide an important discipline

If an employer considers that an employee or representative is refusing a reasonable settlement and prolonging a case unnecessarily, a properly framed Calderbank offer can have costs consequences. The ERA's costs framework expressly recognises settlement offers as a factor capable of affecting costs. Read the ERA Practice Direction on costs.

That does not resolve every problem, but it is important when assessing claims that advocates can simply make unrealistic demands or prolong litigation without consequence. Existing procedure already contains mechanisms designed to encourage rational settlement behaviour.

Colgan and EMA/Barsi point to materially different incentive problems

One of the more important weaknesses in the wider public case against no-win-no-fee employment advocates is that the alleged incentive problem has been described in materially different ways.

Former Chief Employment Court Judge Graeme Colgan criticised the no-win-no-fee model on the basis that its commercial incentives could encourage an advocate to obtain an early settlement rather than pursue a claim further, potentially resulting in an employee accepting less than the claim might justify.

EMA's later campaign points in substantially the other direction. With Mauro Barsi among EMA's public spokespeople, EMA's published case has emphasised longer disputes, escalating costs, adversarial conduct, process delay and inflated settlement demands.

Both types of poor representation can of course occur in individual cases. A representative could settle a strong case too cheaply. Another representative could pursue a weak case for too long. But isolated examples of opposite forms of poor judgment do not establish a single systemic defect inherent in employment advocacy or no-win-no-fee representation.

The regulatory case cannot sensibly be that advocates require regulation because they are commercially driven to settle too quickly, while at the same time treating delay and unwillingness to settle as evidence of the same systemic defect. If the concern is representative quality, then quality should be assessed directly and consistently across all forms of representation.

Good representation is neither "settle everything quickly" nor "fight everything forever". It requires judgment: the evidence, likely remedies, contribution risk, credibility, costs exposure, delay, enforcement risk, settlement value and, ultimately, the client's informed instructions.

No-win-no-fee does not inherently reward delay

A no-win-no-fee representative is not ordinarily billing the client for every additional hour, email and appearance. There is therefore no simple economic logic by which prolonging every case necessarily increases the representative's return. In many cases the opposite commercial incentive exists: resolve a meritorious case efficiently for a proper amount.

That does not prove every no-win-no-fee arrangement is good. It does show why the incentive question needs evidence rather than assumption.

Fees should be transparent, but payment is not misconduct

Lawyers charge for representation. Employer associations charge. HR consultants and barristers charge. Employment advocates also charge. The relevant questions are whether the arrangement is lawful, transparent, authorised, proportionate and consistent with the client's interests.

Written terms of engagement, clear authority to act, fee disclosure and settlement authority are sensible protections. Those protections do not necessarily require a new occupational regulator.

Separate contributions to advocacy costs are not inherently improper

EMA has also criticised settlement structures in which money is paid to the employee and a separate amount is paid towards the employee's representation costs. Those are distinct payments where properly agreed and recorded.

I have dealt with the interaction between s 150A, settlement payments and separately invoiced representation costs in detail here: s 150A payment on resolution of problem and advocates' GST invoices.

The relevant issue is not whether an advocate receives payment. It is whether the settlement structure is lawful, transparent, authorised by the client and accurately recorded.

Bad conduct and poor work should be proved and dealt with directly

Some advocates will perform badly. So will some lawyers, HR consultants, employer representatives and others. The proper response is to identify the conduct, prove it, assess its consequences and apply appropriate legal or procedural remedies.

A lawyer-versus-advocate framing does not answer the important question: did the particular representative act competently, honestly, proportionately and in the client's interests?

AI-generated legal material is not an advocate-specific problem

AI can produce fake cases, inaccurate quotations, wrong legal tests and bloated correspondence if the person using it does not check the output. That risk applies to everyone using AI in legal or employment work. The person who sends or files the material remains responsible for checking it.

What would improve the system

• Resource mediation and the Employment Relations Authority adequately.
• Encourage early disclosure of genuinely relevant information.
• Encourage realistic early settlement offers and proper use of Calderbank offers.
• Use costs and case-management powers where a party unreasonably prolongs a dispute.
• Publish optional best-practice terms of engagement, authority-to-act and fee-disclosure guidance for representatives.
• Deal with inaccurate AI-generated material through accuracy and citation obligations that apply to everyone.
• Publish sufficient survey methodology and anonymised evidence to allow regulatory claims to be independently assessed.
• Assess representative competence by conduct and work quality, not professional title.
• Preserve access to affordable representation for employees and employers.

The answer to EMA

EMA is entitled to argue that employers are experiencing delay, cost and poor representative conduct. Those experiences should form part of the policy discussion. They do not, without more, establish that employment advocates as an occupational class are the cause of the problem or that a new regulator is required.

Any new regulatory regime should be justified by independent evidence of advocate-specific harm that existing legal, procedural and consumer-protection mechanisms cannot adequately address. Employer dissatisfaction with the cost or effectiveness of employee representation is not, by itself, that evidence.

MBIE's 2026 consultation on the employment dispute system closed on 31 July 2026. The resulting policy work should examine the system as a whole: why disputes arise, what causes delay, how different representatives behave, what existing powers can achieve, and what regulation would do to access to justice. The answer should follow the evidence rather than begin with a predetermined conclusion about employment advocates. 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
• s 150A payment on resolution of problem and advocates' GST invoices