Employment law has never been static, but the pace and nuance of change are currently feeling markedly different, and Greg Cain has had a front-row seat to those shifts.

A long-standing employment lawyer and this year’s chair of the Employment Law Conference, Cain has practised through several cycles of reform and rollback. Yet he says what stands out most about the current time is not any single legislative development, but the convergence of multiple forces reshaping how work is organised, regulated and experienced.

“There’s a lot of talk about the gig economy, platform work, contractors and asymmetric working arrangements,” he says. “But many of those developments have actually been with us for quite a while. It’s over ten years since Uber first arrived.”

What does feel genuinely new, Cain suggests, is the growing presence of Artificial Intelligence (AI) across workplaces and legal practice itself.

“AI is having a real impact on how employees do their jobs, how employers manage work, and how parties conduct litigation,” he says. “Lawyers are using it for research, for organising and presenting information, summarising meetings, and dealing with large volumes of material. It’s not all-pervasive yet, but it’s becoming much more prevalent.”

Cain is careful, however not to overstate AI’s capabilities, and cautions that efficiency should not be mistaken for insight. AI may assist with process, he says, but it cannot replicate human judgment, and over-reliance brings its own risks, particularly around accuracy, accountability and fairness in litigation.

Alongside technology, Cain points to a quieter but equally significant shift in Aotearoa New Zealand: the increasing integration of Te Ao Māori concepts and more holistic thinking into employment law.

“We’re seeing greater recognition of ideas around tikanga, restorative approaches, and trauma-informed processes,” he says. “That’s coming through in court decisions, in legislation, and very clearly in the public sector, where those concepts are now baked into employment agreements and expectations.”

Cain acknowledges that translating these concepts into everyday employment practice is not without difficulty. While the principles are increasingly well understood at a high level, he says capability and consistency vary widely across organisations. “There’s a real difference between recognising these ideas and applying them well,” he observes, noting that poorly designed or inadequately resourced processes can create uncertainty, particularly in high-stakes disciplinary or grievance contexts.

The risks we may be underestimating

Asked whether any single issue is being underestimated, Cain turns not to technology but to human rights and discrimination.

“In the UK, discrimination litigation is far more common than it is here,” he says. “Massive equal pay and discrimination claims are part of the landscape there. In New Zealand, we’re not quite at that point yet, but I think we will be.”

Cain suggests structural changes to employment protections may accelerate that trend. “If you remove someone’s right to bring an unjustified dismissal claim, for example through salary thresholds, that doesn’t remove conflict. It often just redirects it. You may see more discrimination claims instead.”

He notes that in jurisdictions with long qualifying periods for unfair dismissal, discrimination law often becomes the primary avenue for challenge. “Those dynamics are well established overseas, and I wouldn’t be surprised to see similar patterns emerge here.”

Flexibility, power and the limits of law

Changing patterns of work have prompted renewed scrutiny of how well employment law accommodates new forms of engagement and control. As courts continue to confront non-traditional working arrangements, questions have emerged about whether long-standing legal frameworks remain capable of responding to an evolving labour market.

Cain believes, “the law evolves as working patterns change. Courts have shown they can apply long-standing principles to new situations.”

He points to the Uber litigation as a clear example. “Those were not conventional working arrangements, but the courts were able to apply settled legal principles to reach a clear outcome. Those principles are designed to be flexible.”

That adaptability, however, has limits, particularly at the margins of the labour market.

“There are real gaps when it comes to low-paid migrant workers, vulnerable contractors and modern slavery,” Cain says. “We’ve seen significant exploitation in recent years. Enforcement helps, but it can’t fix everything on its own.”

He welcomes recent moves toward modern slavery legislation but cautions against expecting employment law to solve deeply embedded social problems. “You need the right incentives and disincentives across the system. Employment law can only do so much.”

Emerging risk areas for employers

Looking ahead, Cain sees enforcement activity as a growing source of risk, particularly as regulatory agencies become more proactive. But he also identifies two areas that have gained prominence in recent years.

The first is protected disclosures. Amendments in 2022 broadened the definition of serious wrongdoing to include bullying and allowed anonymous disclosures.

“That creates real complexity,” Cain says. “How do you investigate an anonymous complaint? What do you tell the person accused? How do you ensure fairness when you don’t know the source?”

The second area is conflicts of interest, sharpened by recent public scandals.

“Many organisations are now waking up to how exposed they are around conflicts,” he says. “Managing those issues, and keeping them out of the media, is becoming a significant part of employment law work.”

A values-based framework

There is a perception in some areas that employment law is becoming more values-driven, potentially at the expense of certainty. Cain is unconvinced that this represents a fundamental shift.

“Employment law has always been values-based,” he says. “Fairness and reasonableness have been central concepts for decades. Since 2000, we’ve had a statutory duty of good faith, which is inherently values-laden.”

Unlike areas such as property or corporate law, employment law is rooted in human relationships. “You’re dealing with people, power, vulnerability and emotion. Values have always been part of that equation.”

That reality shapes the role of the employment lawyer. Cain resists the idea that lawyers are becoming the ‘conscience’ of organisations.

“Our role has always involved helping clients navigate risk rather than offering black-and-white answers,” he says. “Whether you see yourself as a conscience depends on the lawyer and the client. But there’s a danger in becoming too emotionally invested.”

He believes independence and balance are essential. “If you lose that, you can’t give good advice.”

The next generation

For younger lawyers entering the field, Cain sees technology as the defining challenge and opportunity.

“When I started, hardly anyone had email,” he says. “Now we’re dealing with AI platforms that can summarise evidence, draft submissions and organise data.”

He’s aware that raises difficult questions about training, pricing and professional development. “Do you let AI do the work and risk junior lawyers missing out on learning? Or do you deliberately involve them, so they develop judgment and context?”

Cain is clear on that: AI cannot replace human judgment. “It doesn’t have a sense of nuance or fairness. That’s where lawyers, including junior ones, still add value.”

He also notes the growing use of AI by self-represented litigants. “Some submissions aren’t bad, but they often contain errors or hallucinated authorities. AI is getting smarter, but it’s not there yet.”

Institutions under pressure

Cain believes the Employment Court remains well placed to deal with complex disputes, supported by a strong judiciary and body of precedent. The Employment Relations Authority produces balanced outcomes, but the overall framework is in need of review.

“For example, the Authority was designed to be accessible, informal and efficient,” he says. “But cases are becoming more complex, and the process has, frankly, become more legalistic.” Lawyers themselves have played a significant role in that.

He also questions the logic of having two fact-finding bodies. “In most jurisdictions, you don’t get two full hearings of the same evidence. Yet in the employment field, where disputes are often of low value financially, you can relitigate everything de novo. That’s costly, and emotionally draining for parties, and particularly for witnesses.”

Reform may be needed, he suggests, but any change must preserve access to justice.

Stewardship and the profession’s future

"What keeps him awake at night is the speed of technological change, and the risk that ideology, rather than evidence, drives reform."

As chair of the upcoming Employment Law Conference, Cain hopes the profession will engage with uncomfortable questions about its broader role.

“We’re a profession, not just an occupation,” he says. “That carries responsibilities, to society, to the system, and to those coming through behind us. Lawyers have a stewardship role in working to ensure the system is operating effectively and benefits clients across the board.”

Those responsibilities include investing in junior lawyers, contributing to law reform, and serving the community beyond client work. “Many lawyers already do this, across firms of all sizes, in-house roles, standards committees and volunteer work. That’s encouraging.”

Looking five years ahead, Cain hopes employment lawyers will be able to say they helped manage the transition into a more technology-driven world without losing the profession’s core values.

What gives him optimism is the strength of the employment law community itself. “It attracts people who care about fairness and balance. That’s always been true.”

What keeps him awake at night is the speed of technological change, and the risk that ideology, rather than evidence, drives reform.

Still, Cain remains confident that employment law will continue to adapt, just as it always has. “Employment law is never dull,” he says, “and just when you think you’ve seen everything, someone proves you wrong!”

Employment Law Conference 2026

When: 4 - 5 June 2026

Where: Te Whanganui-a-Tara Wellington and online

Find out more at lawyerseducation.co.nz/shop/Conferences2026/26ELC.html