The new changes to the intervention rule will allow barristers working in the employment area to take direct instructions in the majority of employment cases, Kathryn Beck says.

This will place barristers working in this area in a more equal position with solicitors and non-lawyer employment advocates working in the industry.

New rule 14.5.2(g) states that a barrister sole may accept instructions from a person who is not an instructing lawyer if the barrister sole is:

“in an employment law matter that does not involve proceedings in the Employment Court in the first instance, or proceedings in or an appeal to the High Court, Court of Appeal, or Supreme Court”.

This means that barristers will be able to take direct instructions in all matters before the Employment Relations Authority (ERA) and matters that progress from the ERA to the Employment Court. However, matters that involve proceedings in the Employment Court in the first instance are precluded, as are appeals to the higher courts. First instance proceedings include:

• proceedings founded in tort including in relation to lock outs and strikes (ss 99 and 187 of the Employment Relations Act 2000);
• Judicial reviews (s 194 of the Employment Relations Act 2000);
• proceedings issued for the grant of an injunction including (s 100 of the Employment Relations Act 2000) —
• to stop a strike or lockout that is occurring or to prevent a threatened strike or lockout; or
• to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout; or
• to stop a specified pay deduction that is being, or is to be, made;
• issuing entry warrants (s 231 of the Employment Relations Act 2000); and
• offences against the Act such as obstructing a Labour Inspector (ss 187 and 235 of the Employment Relations Act 2000).

Where matters are commenced in the Authority but removed to the court under ss 177 or 178, barristers will be able to take direct instructions but should carefully consider whether it is in the interests of the client to do so as such removals are by their nature likely to be complex and/or urgent and any barrister must be confident that he or she has the capacity, expertise and experience to deal with them without the intervention of an instructing solicitor, Ms Beck says.

The Auckland Vice-President of the New Zealand Law Society, Ms Beck is a partner of employment law specialist firm SBM Legal.