EMA, Menzies v Corrigan, and the pull finger out intervention issue

LawNews reported an email in which I referred to the Employers and Manufacturers Association and the New Zealand Business Association, and asked whether they wanted to "pull their finger out" and intervene. Read the LawNews article.

The language was blunt. That is obvious. But the reported language should not become a substitute for the real issue. The point was not a random insult. The point was that there was a live Employment Court case raising wider employer-side and public-interest issues, and organisations that publicly present themselves as serious voices in this field did not appear willing to step in.

That matters now because EMA is publicly lobbying about the employment dispute system and employment advocates. If EMA wants to be treated as a serious employer-side voice on employment dispute reform, it is fair to ask what it did when there was an actual live case involving broader employer-side principle.

EMA publicly sells itself as an employer-side specialist

EMA is entitled to advocate for employers. That is what it does. Its own website says it works for employers only, offers member-only rates, is New Zealand's largest employment relations specialist, and provides employment relations support through lawyers, advisers and consultants. Read EMA's employment relations services page.

EMA also says it can provide mediation, representation, advice and resources, and that its legal team can represent businesses during investigations and mediations, or in front of the Employment Relations Authority and Employment Court. Read EMA's legal team page.

That public positioning is important. EMA is not some neutral academic body standing outside the dispute system. It is a participant in the employment relations market. It sells employer-side services. It publicly advocates for employers. It now wants MBIE and the Government to listen to it on regulation of employment advocates.

What Menzies v Corrigan was really about

Menzies v Corrigan was not just a personal dispute about costs or tone. It raised difficult issues about the employment jurisdiction, compliance powers, separate legal personality, personal exposure of a company director, and the practical effect of onerous stay conditions.

The background is explained in my earlier article on Employment Court procedure and representative competence. Read the Menzies v Corrigan procedure article.

In simple terms, the case involved a small business company, a liquidation context, Authority orders, compliance steps, and then Employment Court issues about whether the individual behind the company could be required to take steps connected to company liability. There were also serious questions about procedure, natural justice, stay conditions, and how compliance or sanctions issues should properly be brought before the Court.

Those were not just private issues. They had broader significance for employers, small businesses, company directors, and anyone concerned about the boundaries of the employment jurisdiction. If an employer organisation is going to speak loudly about the employment dispute system, those are exactly the types of issues it should be interested in.

The issue was intervention, not manners

The reported comment was about intervention. It referred to whether EMA and the New Zealand Business Association would intervene, or at least seriously consider doing so, in a case raising wider issues.

I am not saying EMA was legally required to intervene. It was not. No private organisation has a general duty to step into someone else's Employment Court case.

But EMA's choice is still relevant. EMA wants to lobby loudly when the target is employee advocates. Yet when a live Employment Court case raised real employer-side issues about separate legal personality, compliance powers, personal exposure of directors, and onerous stay conditions, EMA did not appear willing to help.

That is the difference between public lobbying and practical public-interest advocacy.

Why this matters to the current debate

EMA's current public campaign complains about employment advocates, no-win-no-fee representation, settlement pressure, costs, delay, and the supposed distortion of the dispute system. It says the system needs reform and that unregulated advocates are a logical place to start.

That position should be tested against EMA's own conduct and incentives. EMA is not just commenting from the sidelines. It is an employer-side organisation in the same market. It provides advice, legal services, mediation, representation, templates, training and lobbying for employers.

If EMA wants to use public debate to attack employee advocates, it is fair to ask whether EMA is also prepared to assist when a hard, technical, live case raises issues that genuinely matter to employers. In Menzies v Corrigan, from my perspective, the practical answer appeared to be no.

That does not mean EMA can never comment. It can. It also does not mean EMA is wrong about every complaint it makes. But it does mean EMA's role should be understood properly. EMA appears more willing to lobby against employment advocates as a class than to assist in a difficult Employment Court case where employer-side principle was actually engaged.

The blunt point

EMA wants to be loud when the target is employee advocates. But when a live Employment Court case raised real employer-side issues about separate legal personality, compliance powers, personal exposure of directors, and onerous stay conditions, EMA did not appear willing to help.

It was not legally required to intervene. But its silence is relevant. It shows the difference between public lobbying and practical public-interest advocacy.

If EMA says the employment dispute system is unfair to employers, then it is fair to ask where the practical support was when a small business director faced serious procedural and jurisdictional issues in the Employment Court.

Related commentary

• Employment Court procedure: the problem is employment lawyer representative incompetence, not just advocates
• EMA's complaints about employment advocates are not a serious case for regulation
• Regulation of employment advocates: what the NZLS report found and why it matters
• Rebuttal to RNZ interview with Graeme Colgan