Radical thinking needed post election to improve dispute resolution

As the General Election approaches, and with it the welter of reviews, proposals and policies it is interesting to see where changes, or even opportunities are coming in relation to the world of employment law, HR and dispute resolution. 

That change is needed can hardly be in doubt. In the last two years we have seen waiting time at the EAT rise from 30 weeks (2009 EAT report) to between 78 weeks (Dublin) and 81 weeks (Wicklow). 

Twice in the last year the CEO of the Labour Relations Commission has complained that the agency is under severe pressure. Referrals to Rights Commissioners have increased from just under 5600 in 2005 to 14369 in 2009. 

Interestingly, while the workload of the Conciliation Service has experienced growth it has been much lower; presumably reflecting the disparity between ‘collective’ and individual employment rights disputes in the system. Kevin Duffy, Chair of the Labour Court  has noted that ‘the number of industrial relations cases coming before the [Labour] Court involving private sector employments has been steadily declining as a proportion of its overall case load’. 

So, from having once had a pioneering and innovative form of alternative dispute resolution it is now creaking at the seams. Certainly, if a claimant in an unfair dismissal case has to wait the best part of two years from the disputed dismissal to getting a resolution or a remedy the system might be said to be no longer fit for purpose. This is especially so as it was originally designed to offer an alternative to the more cumbersome ‘wrongful dismissal’ route in the courts which, one suspects could now be traversed in a much shorter time; resources permitting, of course. (And over 60% of parties appearing before the EAT have legal representation; rising to 74% in Unfair Dismissals cases. One meets barristers at Rights Commissioner hearings!). 

And extraordinarily there is no mediation ‘step’ in the EAT system even though this was always a feature of the Labour court system (the conciliation service, and now some mediation also) and works well in the Equality legislation. 

Between 2003 and 2007 much effort went into the generation of proposals for reform of the system, culminating in the EAT Procedures Revision Group which regrettably resulted in little change of substance. It contains many important and useful recommendations which could seriously address current problems. Its weakness was that its remit was confined to the EAT and it did not give us a bird’s eye view of the entire system.

 It is time to do so, and to develop an integrated response across the current dispute resolution services.

What are the political parties saying about the issue? In the context of the other problems facing the country it’s not a central concern. But interestingly those very problems may offer impetus to reform from the point of view of the need to reduce business costs and competitiveness and arising from the Croke Park agreement. In addition the efficacy of our dispute resolution systems is seen as a factor in attracting and retaining FDI.

 On the first of these, and admittedly in the context of reducing costs for ‘Professional Services’  Fianna Fail repeats the commitment first made in the ‘Four Year Plan’ to address competitiveness by providing a more structured approach to mediation in the legal system and promote further the use of Alternative Dispute Resolution, taking into account recommendations of the Law Reform Commission in its Final Report 2010 on the subject’ and also to ‘Provide for increased use of arbitration and mediation’.

Are there grounds for hope in this that the same principles will extend to workplace disputes?

 As recently as 2010 the Department of Justice declined to remove the exclusion on employment related disputes from the 2010 Arbitration Act. This anachronistic provision is a legacy of the 1954 Arbitration act when we lived in very different times and the then relatively recent 1946 Industrial Relations Act, (which did contain a provision for Arbitration at section 70. In sixty-five years it has been used about three times but was presumably seen as providing the necessary arbitration option.

Information garnered by this writer on a FOI application reveals advice from the Department of Enterprise and Employment that change was unnecessary as the existing institutions were doing a good job, or words to that effect. (‘[it would be] inappropriate and would lead to unnecessary confusion for complainants and respondents alike…’)

 The statistics above, and the views of Mr Mulvey who wondered at a seminar in UCD in July 2010 whether a ‘better way could be found to vindicate employment rights’ suggest otherwise. Most practitioners would also agree.

 Happily, the draft Mediation Bill, produced as an appendix to the report of the Law Reform Commission in November 2010, while excluding its provisions from cases being dealt with by the (other) LRC system proposes to apply them to cases that are not; thereby offering parties in dispute a choice.

 The Labour Party says it will support robust competition policy and enforcement and ‘structural reform in the professions to drive down the cost base for the traded sector’ which could be read as including the ADR options in the employment law sphere.

 Interestingly both Labour and Fine Gael propose a review of the JLC/ERO system. Following the reduction in the National Minimum Wage JLC basic rates are now almost €2 per hour higher than the NMW!

 FG says it will  support the renegotiation of the Employment Regulation Orders (ERO) imposed on the hotel, restaurant, security, agricultural, retail and other sectors under the JLC system within six months under an independent nonvoting chairperson. We will also allow employers and workers in ERO sectors to negotiate enterprise-level collective agreements with their own staff which will make them exempt from the ERO’

 This system also with us since 1946 looks as if its days are numbered.

 FG also proposes the introduction of a Single Employment Act; a slightly odd proposal. On the assumption that none of the existing protections will be removed the proposal to consolidate all 31 statutes and regulations into a single measure sounds like a waste of effort. For practitioners the issue is not the multiplicity of statutes, but the processing of claims arising under them.

 In that context, some reform of the process for submission of claims (beyond the design of forms) is required. A single ‘portal of entry’ for all claims would help, with the addition of some filtering of claims as happens in the UK under the 2008 Employment Act. The standard suggestion by the Rights Commissioner service that parties contact each other is rarely (in my experience) taken up with the result that claims relating to inadequate documentation, for example even when unfounded are only tested when the case runs before the Rights Commissioner. (The UK is consulting on the introduction of a fee for lodging a claim).

Some preliminary meeting to assess claims, or optional ‘documents only’ adjudication in simple cases might be an idea.

 In its submission under the Croke Park agreement the Department of Enterprise etc proposes merging some functions of NERA and the LRC. This is tinkering and while obviously aimed at achieving cost reductions required under that process (which agreement incidentally also incorporates an imaginative, ‘fast track’ ADR process) it may not address the needs of parties in the process and their representatives.

 More radically Fine Gael says it will merge the many agencies that deal with employment law complaints; the Labour Relations Commission, the Rights Commissioner Service, the Employment Appeal Tribunal (EAT) etc. This network or different bodies and agencies cause confusion for employers and employers and increases cost’.

 While this approach is understandable the growth of ADR and now the possibility of a Mediation Act should surely be seen as an opportunity in an era of straitened circumstances to do much more than bang agencies together. Catching up with these major developments could cut a swathe through the logjam of existing claims and greatly improve dispute resolution at local level also, AND do so cost effectively. This is what the Courts system is seeking to do with strong support from the judiciary. (New Grievance and disciplinary procedures should always incorporate a mediation step).

 While putting the EAT on a full time basis would be a step forward it would not be a radical one; and it would be to shun the much greater prize offered by ADR options.

 The EAT review group proposed greater use of consent orders to enable enforceability of agreements. While this is good the problem is that parties are not facilitated in reaching such agreement either in sufficient numbers or at an early enough stage in the process, although it is now well settled law that, subject to evidence of ‘informed consent’ the EAT will refuse to exercise jurisdiction in such cases.

 The attractions of early settlement and enforceability should surely appeal to all parties to a dispute.

 Other changes which do require rationalisation in the legislative area relate to appeals; the choice of route from Rights Commissioners to either the Labour Court or the LRC is nonsensical.

 We will see if the combination of factors; economic imperatives, the rise of ADR, the pressure on the system, the mood for reform will lead to an improvement in the situation.

 And remember, no matter who you vote for the Government still gets in!