The WordPress.com stats helper monkeys prepared a 2012 annual report for the Workplace Solutions blog.
Here’s an excerpt:
600 people reached the top of Mt. Everest in 2012. This blog got about 8,100 views in 2012. If every person who reached the top of Mt. Everest viewed this blog, it would have taken 14 years to get that many views.
Delighted to have been a guest again on the Sunday Business Show on December 16th with Presenter Conaill O’Morain reviewing the papers with Frank Mulrennan of Celtic Media. Frank talks about his Management Buy Out of the company and a great goodnews story. Good Luck to Frank and his team for 2013!
You can hear the show here My contribution begins about 12 minutes in. (After the initial promo you can slide the cursor up to that point) but the entire show is, as always well worth a listen.
Especially good to hear Roberta Stapleton of Educe Software, and a colleague in South Dublin Chamber tell her story and plans for expansion in 2013.
Great positive vibe on this show; highlighting the best that is going on in Irish business
Thanks to Conaill, Producer Myra Hayes and all the team at the Sunday Business Show.
I know, I know, the party poopers are at it again. But just dusting down some seasonal advice might save you a lot of trouble, and cost!
(This is an updated version of a post from last year, and I thought it may be helpful to run it again.)
The fact is the Christmas party (or other social events, or work events away from the normal workplace) gives rise to obligations and may be covered by employment rights law. In any event they are covered by general legal provisions, on sexual assault for example.
Bullying legislation refers to behaviour ‘at the place of work or in the course of employment’ and while a single act will not constitute bullying the same does not apply to harassment, and that normally means sexual harassment.
This is defined (in broad terms) as inappropriate or unwanted verbal or physical behaviour and could result in a complaint by a victim of such behaviour under the company ‘Dignity at Work ‘ policy (if you don’t have one…you should!)
And after the ‘rake of pints,’ shots and general bravado the insight necessary to distinguish between acceptable and unaceptable behaviour may diminish, with consequences for colleagues who have a clear legal entitlement to be free of certain types of unacceptable behaviour. And this could cover a wide range of behaviours!
And this could include the line between sexual harassment and sexual assault (which is a crime). It’s not as wide as may be thought in the macho mind.
And while these comments have focussd on sexual harassment there are other aspects to dignity at work which may also be offended. We now have minorities in Ireland whose right to equal treatment is enshrined in law.
I referred last year to an article in the Sunday Business Post by solicitor Linda Hynes of Leman Solicitors to a fight at an office party in Malahide which resulted in an unfair dismissal and cost the employer €150,000!
And the employer may be liable for such behaviour if s/he has not taken reasonable steps to prevent or address it. Linda Hynes’ excellent checklist on Work Place social events can be accessed here
The Small Firms Association has noted that:
‘Employers must be aware that the party venue is basically an extension of the office and that they remain responsible for the well-being, protection and behaviour of employees during such events. Employers should make note in a work function invitation that appropriate behaviour is required at the party.’
If you need more information contact pat.brady@workplacesolutions.ie and see Equality page on this site
Delighted to have been a guest on the Sunday Business Show on October 14th with Presenter Conaill O’Morain reviewing the papers with Eilis Quinlan.
You can hear the show here. My contribution begins about 1o minutes in. (After the initial promo you can slide the cursor up to that point)
Thanks to Conaill, Producer Myra Hayes and all the team at the Sunday Business Show
As a strong advocate of ADR and a practitioner of the art I thought this quote from former U.S. Supreme Court Chief Justice Warren E. Burger’s about litigation in the U.S. deserved a whole blog to itself:
‘The entire legal profession – lawyers, judges, law professors – has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflicts…
For many claims, trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.
Doctors, in spite of astronomical medical costs, still retain a high degree of public confidence, because they are perceived as healers. Should lawyers not be healers? Healers, not warriors? Healers, not procurers? Healers, not hired guns?’
This came to me from a piece published by Lexology on dispute resolution in the construction industry in the US by law firm Duane Morris which you can read here. Burger J retired in 1986…how long will it take to get the message!!
Delighted, and honoured to have been invited to the 5th Annual Legal Seminar of the European Labour Law Network (ELLN) The theme of this year’s seminar is: “Labour Law in a Greying Labour Market – Challenges of Active Ageing”. The seminar will take place on Thursday 11 October and Friday 12 October at the Bel Air Hotel in The Hague / The Netherlands. I’m hoping to have lots of interesting material from this event for future blogs!
PROGRAMME
Labour Law in a Greying Labour Market – Challenges of Active Ageing –
Thursday 11 October 2012 – Moderator: Prof. G.J.J. Heerma van Voss
14.30 – 15.00 Opening & Welcome
Prof. Guus HEERMA VAN VOSS – Co‐organiser ELLN, Leiden University, the Netherlands
Mr. Armindo SILVA – European Commission, Director of DG‐EMPL.B Employment and Social Legislation, Social Dialogue, Brussels, Belgium
15.15 – 15.30 General introduction
Mr. Steven TOBIN – Head Education Programme and Country Review, International Institute of Labour Studies of the ILO, Geneva, Switzerland
Mr. Ralf JACOB ‐ European Commission, Head of Unit EMPL.D.3. Active Ageing, Pensions, Healthcare and Social Services, Brussels, Belgium
15.30 – 16.00 16.00 – 16.30
The position of older workers in labour law
Keynote speech by Prof. Ann NUMHAUSER‐HENNING – member Scientific Committee ELLN, Lund University, Sweden
Reflection by Dr. Erika KOVÁCS, Researcher, Director Institute of European and Comparative Labour Law, University of Pécs, Hungary
16.45 – 18.00
Working group discussions on “The position of older workers in labour law”
Friday 12 October 2012 – Moderator: Prof. B. Waas
09.30 – 10.00 Age discrimination, retirement conditions and specific labour arrangements
Keynote speech by Prof. Maria DO ROSÁRIO PALMA RAMALHO, Faculty of Law, University of Lisbon, Portugal
Reflection by Prof. Mark FREEDLAND FBA, Professor Emeritus of Employment Law in the University of Oxford, United Kingdom and member of the Executive Committee of the European Anti‐discrimination Legal Network
10.00 – 11.15 Working group discussions on ”Age discrimination, retirement conditions and specific labour arrangements”
12.15 – 12.30
Young versus old or Intergenerational solidarity
Keynote speech by Prof. Jean‐Pierre LABORDE – Professor at the University of Montesquieu‐Bordeaux IV, Member of the Centre for Comparative Labour and Social Security Law, France
Reflection by representative of the European Trade Union Confederation (ETUC) –
(tbc)
Mrs. Renate HORNUNG‐DRAUS, Managing Director, Confederation of German Employers’ Associations (BDA), Berlin, Germany
12.30 – 13.30
Working group discussions on “Young versus old or Intergenerational solidarity”
14.45 – 15.00
Main findings concerning older workers of the evaluative study on part‐time and fixed work directives, carried out for the European Commission
Mrs. Tina WEBER, Principal Researcher ICF GHK
15.00 – 15.45 Questions & Answers
Moderator: Prof. Catherine BARNARD – member Scientific Committee ELLN, University of Cambridge, Trinity College, United Kingdom
15.45 – 16.00 Closing
Ms. Muriel GUIN – European Commission, Head of Unit DG‐EMPL.B.2 Labour Law, Brussels, Belgium
Prof. Bernd WAAS – Coordinator ELLN, Goethe University Frankfurt, Germany
UCD School of Law (with the support of the Employment Law Association of Ireland) conference on
CURRENT FUNDAMENTAL ISSUES IN EMPLOYMENT LAW
University College Dublin, Friday, September 28th & 29th September 2012
Conference Schedule
Two main sessions on the key issues in employment law in Ireland today
Full details can be accessed here
I hope to post a report on some of the contributions shortly
Students preparing for the world of workplace dispute resolution in years gone by might have learned the really useful skills they needed in military manuals such as the ‘Art of War’ by Sun Tzu!
The process was one in which one side prepared and launched a series of ambushes, initially repelled by the other side, but sometimes leading from skirmish to pitched battle, to outright war, (metaphorically speaking) if things got really bad.
Only at the point when it became clear that the battle would succeed in exhausting and damaging both sides would they seek the intervention of a third party, sometimes through ‘conciliation’, or eventually a form of adjudication (both part of the State dispute resolution machinery).
Through a combination of the conciliator’s skill, helped by a large dose of nervous and physical exhaustion a settlement would be reached (4 am seemed to be a good time) and all retreated to bed, tired and mostly unhappy, worried about how the ‘best available offer’ would look in the cold light of the following day!
This is a caricature, of course, and somewhat of an exaggeration, but only somewhat.
Its essential characteristics retained the ingredients of war making; brinkmanship, the pursuit of triumph, unswerving belief in the rightness of the cause and a determination to beat the other side into submission with glorious indifference to any ‘collateral damage’ that might result.
Then the era of individual employment rights brought new challenges, especially in the context of demanding principles of fair procedure. These seemed to result in the process becoming more important that the outcome, and this calcification of dispute resolution procedures came at the expense of early or amicable resolution.
When one promotes one of the general advantages of mediation as being the maintenance of relationships between the parties the importance of this in workplace settings is much more important.
In the commercial context it may mean that people who have done business together in the past will continue to do so, will not insult each other as they pass on the fourteenth tee or at worst will not seek to actively damage each other.
In a workplace setting where relationships are a good deal more intimate the importance of this is more significant; two teachers in the same staff room, two retail assistants behind the same counter, two doctors in the same ER, two paramedics on the same ambulance.
These relationships are at such proximity that the notion of maintaining relationships has an added importance beyond that needed in a commercial situation.
It is in these settings that the option of mediation offers real benefits.
And so it would seem obvious that this will be embraced by disputants and their representatives with enthusiasm!
Perhaps not!
The welcome provisions in the new Mediation Bill requiring lawyers to advise clients of the advantages of mediation are only one half of the picture.
In November 2012 at a CIArb seminar in Dublin on the topic ‘ADR in Australia; lessons for Ireland’ the then President of CIArb Professor Doug Jones said that one very big lesson to emerge from the Australian experience was that ADR vehicles; mediation, arbitration etc are primarily client-driven.
Clients tell lawyers they want mediation or other ADR vehicles, he said, not the other way around.
When the ‘Automatic Referral to Mediation’ Pilot Scheme was introduced at London Central County Court research (by Prof Hazel Genn, 1998) showed that in approximately 80% of cases one or both parties objected to it.
“Other research shows that people are not as enthusiastic about mediation as the government, the judges and the mediation community think they ought to be’
Paul Randolph, New Law Journal April 2010
A concrete example of this in the workplace is in the following case .
Some workplace policies on mediation are clear enough. Not only must the option of mediation be offered (in Dignity at Work cases, in particular) but the advantages of mediation should be fully understood by the parties so that they might make an informed decision such as in the following extract.
Both parties will be requested to consider the use of mediation and every effort will be made to secure their agreement. An appropriate person who is experienced or well versed in mediation will meet with each of the parties separately to explain the mediation process and its benefits. This person may be from management, the unions or the agreed list of health service mediators.
It is vitally important that steps like this are fully understood and implemented as the merits of mediation are, in fact often poorly understood in general outside the mediation community as the research by Professor Genn indicates. Even allowing for some change since, and more will hopefully follow the enactment into law of the Mediation Bill there is no room for complacency.
Given that the word ‘mediation’ is in relatively general currency this may obscure the strengths of what is a very powerful dispute resolution process or lead to unfounded presumptions about how its value.
Despite the foresight of the authors of policies on Dignity at Work in anticipating these difficulties by inserting a requirement that parties be met by a person experienced or ‘well versed’ in mediation can we be sure it always happens?
Trade unions, accustomed to a traditional way of doing things and the ‘conciliation’ approach of the LRC may also have much to learn about facilitative mediation. It is all too easy to view the mediation option now increasingly being provided for in workplace procedures agreements as a stepping stone on the route to the Rights Commissioner or EAT; just one station on a railway journey where the journey is more important than the destination.
Recent press reports referring to recommendations of a ‘mediator’ in the redundancy talks at one of the leading banks will jar on the ears of a trained mediator.
This may be understandable but it is not helpful in building an appreciation of the powerful tool that mediation is; or in developing a move away from confrontation, hidebound procedures and towards consensual dispute resolution. (The CIPD reckons that HR practitioners with mediation training are 80% more likely to resolve a dispute than those without).
This it can do by ‘digging in’ to the real causes of a party’s grievance, bringing unarticulated material to the surface and attempting to resolve it. Thus it can give meaning of real substance to a phrase such as ‘giving the person their day in court’.
Except that it is not court but a place where a person’s need to be listened to can be met as a first step in resolving their issues.
Research shows (Law Reform Commission report on Mediation) that often parties are forced into litigation (and its equivalent in the workplace) because no-one would listen to them or offer them any apology for their sense of grievance. In the workplace this is often because of a slavish dedication to process over resolution.
Herein lies another of the strengths of the mediation process; it can adapt in a flexible and pragmatic way to the needs of the parties and their problems. The mediator creates a ‘safe’ space, but within an overall framework that has a shape and a structure where the parties can negotiate a mutually acceptable outcome.
From a practitioner’s point of view it might be assumed that when parties indicate initial willingness to attend mediation this is half the battle. Even those who do opt for it may still harbour incomplete or inaccurate notions about it.
In these circumstances a pre-mediation step is essential, ideally not an hour before the main mediation but at sufficient remove to enable the mediator to fully explain the process and the parties to digest it.
In this respect the task of the workplace mediator is a challenging one.
In commercial mediations nothing quite concentrates the mind like the daily costs of running a High Court action! This may be a negative reason for entering mediation but it is a powerful one.
In the workplace, disputants can opt to allow their grievances to simmer, occasionally boil over, but in any event remain unresolved in an atmosphere of sullen stalemate, which impacts on colleagues, organisational outputs, and of course themselves.
HR practitioners and union officials locked in the highly process-driven structures that currently pass for dispute resolution mechanisms in the workplace may struggle to break free of them, even where they want to, which is not always. They must really mean it when they agree to enter mediation, not see it as just another stage on the journey to adjudication.
This may be the era of mediation. But what is required is a paradigm shift in the way dispute resolution is seen and practised currently in Irish workplaces so that the art of dispute resolution can be clearly distinguished form the Art of War.
Pat Brady
Accredited Mediator
June 10th 2012
The threat of an all-out strike in Germany’s metal-working industry appears to have receded following the conclusion of a deal between engineering employers and the trade union IG Metall.
This has delivered a 4.3% pay rise for workers in the state of Baden-Würtemberg in the south west of the country. While only a regional deal at this stage, in the way of these things it is expected to travel throughout the metal-working and electronics sector in Germany.
Baden-Württemberg is home to several large manufacturers including the carmaker Daimler.
According to the IG Metal website despite a degree of initial confusion employers in Saxony have also signed the agreement and it appears they will be followed by their counterparts in North Rhine-Westphalia and Lower Saxony.
The agreement will last for 13 months and was concluded following 17 hours of negotiations near Stuttgart, which dragged into the early hours of Saturday. It ends weeks of partial walkouts and industrial action.
The employers had previously offered 2.6% in response to union claims for a 6.5% increase. Not hard to see how they settled on 4.3%!
It removes the threat of the sector’s first full-blown industrial action in a decade.
Not the first increase in Germany!
The deal follows a pay rise of 6.3% for the two million workers in Germany’s public services earlier this year.
Workers in Ireland and elsewhere in Europe will be casting an envious eye at these developments as they cope with redundancy and wage cuts but clearly they reflect realities in the German economy which are not present elsewhere.
It confirms a simple business truth that workers will share in economic growth if they contribute to it.
Comments by Finance Minister Wolfgang Schäuble to the weekly newsmagazine Focus that German workers ‘deserved’ pay increases provide an interesting perspective on the growth v austerity (Hollande v Merkel) debate going on in the Eurozone at the moment.
“It’s normal that wages rise faster here than in other EU countries,” Schäuble said. “We have years of reforms behind us, and by increasing pay, Germany will help reduce economic imbalances in Europe.”
Further elaboration needed on this perhaps, but a very interesting comment.
Source (dpa, Reuters); edited; Workplace Solutions.
See also www.igmetall.de/ Alas, Google translation is practically unintelligible
May 26th 2012
Remarks by CIArb Chairman, Pat Brady
Mr Chairman, Deputies and Senators,
Thank you for inviting us here today.
As you will have seen the CIArb is a worldwide body and the largest of its kind solely dedicated to alternative dispute resolution, (ADR) including here in Ireland.
While we have outlined our comments on the Bill, which in general we welcome and will be happy to answer any questions I thought it might be helpful to the committee to make some general comments on alternative dispute resolution which might provide context and also indicate the opportunity represented by the Mediation Bill.
ADR including mediation has a long tradition, some would say back to Solomon, the Romans had an arbitration system known as the compromessum, Chaucer refers to a mediator in the Canterbury Tales (appropriately named Prudence) and the first arbitration board in history, some say, was set up in Dublin in 1705, the Ouzel Galley Society.
And surveying the current landscape there is increasing acceptance of the potential of ADR as a means of providing effective, quick and cheap solutions to problems arising in business, in the workplace, and elsewhere.
Just looking briefly at some recent, and some imminent developments.
In 2010 we had a new Arbitration Act. This strengthened the power of the arbitrator, and therefore the arbitration and limited the extent of court intervention and supervision.
The Construction Contracts Bill which had its second reading in the House on May 3rd aims to provide rapid, binding, if interim solutions to disputes arising in the construction sector.
We have transposed on both parts of the island, here in the Republic in 2011 the EU Directive on transnational mediation.
Somewhat outside this process the government is radically overhauling the disputes resolution machinery in relation to employment rights and disputes.
One of our members, Bill Holohan, produced a comprehensive document in relation to ADR in Ireland entitled “ADR in Ireland, 2010 and Beyond”, for the benefit of the Diploma Programme of the Law Society, and we will leave a copy of that with you, which will give you a complete overview.
In the context of EU developments it is also worth noting that by January 2015 two further measures are proposed to give consumers access to alternative dispute resolution ‘vehicles’ as the papers refer to it, in relation to complaints one of these specifically related to on-line purchases. Of course, this in addition to existing statutory protections.
And indeed this is the point. There is a recognition in all these initiatives that traditional legal remedies are insufficiently effective, either because they are too cumbersome or too costly. (The EU estimates that unresolved customer complaints cost 0.4% of EU GDP).
While the Oireachtas Committee must understandably address the detail in the Bill and we will turn to that briefly in a moment, we have concerns that the great potential represented by this movement may fail to realise its potential for the want of public awareness of its availability and potential.
Part of the mission of CIArb is to promote ADR and in meetings with a wide cross section of business, trade union and other players the overwhelming reaction to the thought that effective ADR clauses might be an insurance policy against litigation is incredulity, even among legal practitioners, who ought to know better. This is obviously in the context of sectors where it has not been tradition to use ADR, which is most of them.
In November 2012 we held an event with the World President of CIArb Professor Doug Jones on the topic “ADR in Australia; lessons for Ireland.” The biggest lesson to emerge from this was that in Australia ADR, mediation, arbitration is primarily client driven. Clients tell lawyers they want mediation or other ADR vehicles, not the other way around. We believe that that is the way things should be, and we should move towards educating the public who will inform the lawyers.
The welcome provisions in this bill requiring lawyers to inform clients of the ADR option and mediation in particular are only one half of the picture. Business organisations, consumer groups, citizens advice services, the trade union movement need to be brought up to a point where they clearly and fully understand the potential of this Bill to make their lives easier when disputes arise.
When the Automatic Referral to Mediation Pilot Scheme was introduced at London Central County Court research (by Prof Hazel Genn, 1998*) showed that in approximately 80% of cases one or both parties objected to it.
“Other research shows that people are not as enthusiastic about mediation as the government, the judges and the mediation community think they ought to be’ Paul Randolph, New Law Journal April 2010
I now invite my colleague Bill Holohan to comment further
I am a practising solicitor and I have been for almost 30 years and a Fellow of the Chartered Institute of Arbitrators. However, I appear before you today, so to speak, as a repentant solicitor and arbitrator.
Having spent many years engaging in litigation, and having studied Sun Tzu’s “The Art of War” with a view to becoming effective in legal battles, and having also learned one of the lessons of Machiavelli that one should never leave a wounded prince on the battlefield, I came to the conclusion about five years ago that there had to be a better way.
Padraig Pearse said that education was the murder machine. He was wrong. Litigation and the legal system is the murder machine. I’ve seen people bitterly divided as a result, not just of the issues that drive them to litigation in the first instance, but because of the litigation process itself and I have seen this in the areas of family disputes, commercial disputes, partnerships, franchisors, neighbours, the voluntary sector, etc.
Having had a Pauline conversion, I became an Accredited Mediator five years ago, and a strong advocate of mediation in particular, as the preferred ADR method. I was one of the founders of the www.commercialmediators.ie Group and since being elected to the Committee of the Chartered Institute have worked on mediation issues in particular.
If I can headline one aspect of the Bill, in particular, it would be this.
We need to ensure that clients are fully informed, not only about the ADR option and mediation in particular, but more particularly, how effective it can be, and the benefits of it in terms of savings on legal costs, time, energy, and emotion that could be better directed elsewhere.
Consequently, it would not be enough simply to have a provision in the bill requiring that a solicitor certify that they had “discussed with” or “informed” the client about the ADR option, as is the situation in family law, legislation, for example.
The client should be required to swear an affidavit, confirming that not only have they considered the ADR option, but they have discounted/disregarded it for specified reasons, and that should ultimately be taken into account, in the event of the matter proceeding to litigation. You cannot force the horses to drink, but there should be ample opportunity for the horses to linger by the lakeside and appreciate the opportunity.
(Anne-Marie Blayney then addressed some of the specific points on the Bill in our submission as outlined in previous blog)
*“The Central London County Court – Pilot Mediation Scheme Evaluation Report”, Lord Chancellor’s Department Research Series No. 5/98
