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177: Referral of question of law
or “When the Authority has a tricky legal question, they can ask the court for help and wait for an answer before moving on.”
You could also call this:

“The Employment Relations Authority can send tricky or urgent job cases to a bigger court to decide”

The Employment Relations Authority can move a case, or part of it, to the court without investigating it first. This can happen if the Authority decides to do it on its own or if someone involved in the case asks for it.

The Authority might move a case to the court if:

  • There’s an important legal question that needs answering
  • The case is urgent and it’s in the public interest to move it quickly
  • The court is already looking at a similar case with the same people involved
  • The Authority thinks the court should handle the case for any reason

If the Authority says no to moving a case when someone asks, that person can try to get special permission from the court to move it anyway. The court will look at the same reasons the Authority would use to decide.

When a case is moved to the court, there might be some rules about how it’s done. If the court thinks the case shouldn’t have been moved, it can tell the Authority to investigate it instead.

These rules don’t apply to issues about how the Authority does its job or decides to do things.

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Next up: 178AA: Removal to court of proceeding involving national security information

or “A case about secret information can be moved from a work dispute board to a court”
Next

Part 10 Institutions
Employment Relations Authority

178Removal to court generally

  1. The Authority may, on its own motion or on the application of a party to a matter, order the removal of the matter, or any part of it, to the court to hear and determine the matter without the Authority investigating it.

  2. The Authority may order the removal of the matter, or any part of it, to the court if—

  3. an important question of law is likely to arise in the matter other than incidentally; or
    1. the case is of such a nature and of such urgency that it is in the public interest that it be removed immediately to the court; or
      1. the court already has before it proceedings which are between the same parties and which involve the same or similar or related issues; or
        1. the Authority is of the opinion that in all the circumstances the court should determine the matter.

          1. Where the Authority declines to remove any matter on application under subsection (1), or a part of it, to the court, the party applying for the removal may seek the special leave of the court for an order of the court that the matter or part be removed to the court, and in any such case the court must apply the criteria set out in paragraphs (a) to (c) of subsection (2).

          2. An order for removal to the court under this section may be made subject to such conditions as the Authority or the court, as the case may be, thinks fit.

          3. Where the Authority, acting under subsection (2), orders the removal of any matter, or a part of it, to the court, the court may, if it considers that the matter or part was not properly so removed, order that the Authority investigate the matter.

          4. This section does not apply—

          5. to a matter, or part of a matter, about the procedure that the Authority has followed, is following, or is intending to follow; and
            1. without limiting paragraph (a), to a matter, or part of a matter, about whether the Authority may follow or adopt a particular procedure.

              Compare
              • 1991 No 22 s 94
              Notes
              • Section 178 heading: amended, on , by section 89 of the Security Information in Proceedings (Repeals and Amendments) Act 2022 (2022 No 72).
              • Section 178(1): substituted, on , by section 34(1) of the Employment Relations Amendment Act 2010 (2010 No 125).
              • Section 178(3): amended, on , by section 34(2) of the Employment Relations Amendment Act 2010 (2010 No 125).
              • Section 178(6): added, on , by section 58 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).