Author: Pat Brady

Minister reports ‘good story’ on employment rights reform

Posted on by

On a day when there was some silliness in the air about Ministerial ‘report cards’ Richard Bruton returned to UCD, the location of his announcement last July at the UCD Law School/Employment Law Association of Ireland event on his plans to shake up the employment rights bodies to give an update on what he had been doing in the meantime.

The Minister for Jobs, Enterprise and Innovation would be getting ‘A’s for effort and achievement on his ‘report card’!

Speaking at the IRN annual conference in UCD (www.irn.ie, no serious practitioner should be without a subscription!) the Minister told the attendance that he had ‘a good story to tell’ about the journey since that announcement.

He first outlined the principles underlying the project.

‘High standards in the workplace and good employment rights give us competitive advantage’ he said. ‘While the voluntary system is good up to a point the absence of a means to vindicate rights would undermine confidence in the system’.

He repeated the widely shared criticism of the current system as having too many routes of entry, of engaging parties in the adversarial process too early and of being too legalistic and costly.

His key priorities were early intervention, speedy adjudication when it reaches the adversarial stage and credible enforcement.

The Minister’s ‘good story’ included confirmation that the 30 complaints forms had now been reduced to one and the five portals of entry to the system also down to one.

There is a single website www.workplacerelations.ie

Employers are now notified in 48 hours that a claim has been lodged (this could have been 8 months according to the Minister and also in this writer’s experience. Long after the ‘safety’ of the six month deadline had passed one could learn that a claim had been lodged).

And this Minister ain’t finished yet!

The next phase will include the option of inputing a claim on line, and a pilot project of the new system ‘within weeks’.

The shape of the new system in three stages will be early resolution (mediation); inspection by the newly titled ‘Compliance Officers’ of NERA (better than ‘Inspectors’, the Minister feels) who will seek voluntary compliance and may impose ‘on the spot’ fines rather than drag an employer through the formal processes.

Stage three will be adjudication initially by a single person adjudicator with the option of a de novo appeal hearing at a three person tribunal in a newly vamped Labour court, it would seem.

And it doesn’t stop with the structures.

The Minister promised a decision from the first instance hearing within 28 days, and a database of ‘case law’ which parties can consult for reference.

Interestingly, as I understood him these adjudicators will be sought from suitably qualified people selected by open competition.

The Minister has promised that legislation to underpin all this will be on the statute books in the autumn with a consultative document to be published by the end of this month (March).

The Minister ended with a strong endorsement of the public service team which had taken this project so far.

He said he had often referred to the public service as containing ‘committed and talented people trapped in a system which had failed them’. He paid a tribute to those led by Ger Deering who had driven the reform process.

An interesting discussion followed with contributions from Kevin Duffy, Chairman of the Labour Court, Kieran Mulvey Chief Executive of the LRC, Ger Deering, Director of the Reform process, Brendan McGinty of IBEC and Tom O’Driscoll BL who heads up the Legal unit at SIPTU. All agreed that these were ‘landmark’ developments and in Kevin Duffy’s words ‘looked like they will happen’ a reference, one assumes to previous discussions about reform failing to get beyond the starting gate

I have one question (and it has been discussed in a recent blog). Within the commercial sphere the courts have powers (and in the UK have used them) to ‘punish’ parties who unreasonably refuse to attend at mediation or mess about when they are there.

What incentives will there be to use the early resolution service, or, based on the Halsey case principles (and others) and the likely application of Order 56A of the Rules of the Superior Courts  what adverse consequences might flow for not doing so?

Kieran Mulvey went a step further (backwards, in a way) to say that there was a need to bring solutions back to the workplace, and said that the continued juridification of the process is not helpful, a point echoed by Brendan McGinty who noted that behind the issue of employment rights is the issue of workplace relations.

Here at Workplace Solutions we are really in favour of, well workplace solutions!

Press Statement from CIArb Irish Branch on Mediation Bill

Posted on by

Press Statement

 The Irish Branch of the world’s largest dispute resolution body, the Chartered Institute of Arbitrators has given a warm welcome to the publication this week of the outline of the Mediation Bill. The Irish branch of CIArb has about 750 members qualified in all areas of dispute resolution, (including mediation, arbitration, conciliation and adjudication).

This follows the Law Reform Commission Report in 2010 and commitments in the Programme for Government to improving dispute resolution and reducing legal costs.

Pat Brady, Chairman of the Irish Branch of CIArb commented;

This is an important day for Irish business. It would be easy to underestimate the significance of the statutory underpinning of mediation as a means of resolving disputes throughout the economy, in family and employment matters also.

Professional mediators, such as our mediator members, deploy a range of skills and techniques which, in the vast majority of cases, aid parties in dispute to resolve their differences in a positive way, that not only keeps them out of the courts and away from crippling legal costs, but which can sometimes avoid the negative destruction of relationships. Many judges have spoken strongly in favour of mediation, not simply as an alternative to the legal system but increasingly as a vital part of it in achieving justice for those involved.

We welcome the provision for lawyers and the courts to encourage parties into mediation, (with a possibility of financial consequences if they do not).

The following are highlights in the proposed Bill:

  • Solicitors and barristers must tell clients about the possibility of using mediation as an alternative to commencing court proceedings;
  • Confidentiality is required in all communications between parties to mediation;
  • Participation in and conclusion of mediation will be voluntary;
  • A statutory basis for the courts to invite parties to consider mediation and to adjourn court proceedings for the duration of the process.
  • A requirement that mediators advise parties of their qualifications.

Mr Brady especially welcomed the requirement that mediators have high level and specialised training and operate under a code of conduct.

‘CIArb accredited mediators are trained to an international standard and operate under the Institute’s Code of Conduct and its Charter, and we provide additional training in workplace mediation for example. We will be making a submission to the Oireachtas committee on Justice & Equality in due course on operational aspects of the Bill’

he concluded.

Ends

Further Info: Pat Brady 086 258 7940 pat.brady@workplacesolutions.ie

CIArb 01 707 9739, ciarb@arbitration.ie

Anne-Marie Blaney 087 60 2262.  annemarieblaney@gmail.com

Alan Shatter announces ‘general scheme’ of a Mediation Bill

Posted on by

The Minister for Justice, Equality and Defence Mr. Alan Shatter, T.D. has said “The Mediation Bill will give effect to the undertaking in the Programme of the Government for National Recovery (2011 – 2016) to encourage and facilitate the use of mediation to resolve civil, commercial and family disputes.”

The Minister added “The general objective of the Bill is to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings. I am anxious to ensure that individuals and companies engaged in a dispute regard resolution of their dispute through mediation as preferable to court litigation.”

The General Scheme builds on the recommendations of the Law Reform Commission in their ‘Report on Alternative Dispute Resolution – Mediation and Conciliation’ which you can read here

The following are highlights in the proposed Bill:

· the imposition of a statutory requirement on solicitors and barristers to tell clients about the possibility of using mediation as an alternative means of resolving disputes prior to commencing court proceedings;

· a requirement that all communications between parties as they try to resolve a dispute using mediation shall be confidential;

· it will remain for the parties themselves to decide whether to engage in mediation and, indeed, to decide on the terms of any agreement arising from the mediation;

· the provision of a statutory basis for the courts to invite parties to consider the mediation option and to adjourn court proceedings for the duration of the process.

-a requirement that mediators advise parties of their qualifications.

The draft Bill is to go to the Joint Oireachtas Committee for Justice, Defence and Equality which has to forward its views prior to finalisation of the Bill and the Minister is asking the Committee to revert to him no later than the 1 June next.

The Bill extends to employment disputes but not if they have already been referred to the Labour Relations Commission

Should fees be introduced for EAT hearings etc. The UK is planning to do so

Posted on by

Given that our own employment rights structures are undergoing serious review and surgery it is interesting to see that the UK government is planning to introduce fees for lodging and pursuing cases at the employment tribunals. (Note that the EAT in the UK is presided over by a High Court judge, it is not the same as the Irish EAT; the UK equivalent of which is the Employment Tribunal.

Many Irish employers (especially small companies) complain about the system here being stacked in favour of the employee, specifically the facility with which employees can make claims.

They would doubtless welcome a deterrent to mischievous or flippant claims, and according to recent research carried out by HR Magazine (UK) they believe that will happen as a result of introducing fees. (Read the report here).

That said employers would not be the only beneficiaries of rooting out such claims.  Genuine claimants waiting a long time for an EAT outcome would also benefit. There are of course arguments against such fees.  Claimants, for example recently dismissed or redundant employees should not be impeded in making their claim (although the delay in getting it heard is a more serious issue than any fee that might be charged).

It ought to be relatively easy to devise a system for exemptions.

In my submission to the Employment Rights review I made a strong case for the extension of mediation at all levels of the system.  Looking at the question of fees from a different and more positive point of view in order for mediation to develop as an alternative to adjudication in employment disputes a big problem is that there is no real financial incentive to settle.

The opposite is the case in commercial disputes where disputants face the costs of litigation and the additional threat of an adverse finding on costs even where they succeed in the courts if they have unreasonably refused mediation. (Sup Cts Order 56A in Ireland, Halsey v Milton Keynes Trust in UK,)

So costs are seen in the wider justice system as a means of incentivising parties to mediate.  What about a fee system which could be waived in the event that parties entered into mediation in good faith?

This might also tend to discourage the presence of lawyers at early stages of employment rights disputes where, frankly, they are often no addition. One could go further. Both the Rights Commissioners and the EAT (or whatever we end up with) could be empowered with ‘Order 56A’ type powers to adjust downward awards to claimants who refuse to mediate at an early stage. I have been involved in a recent EAT case where the award to a successful claimant was reduced by 20% because he did not use the internal appeals procedure. Extending the logic of this to failure to engage with mediation is hardly a giant step.

Radical perhaps, but radical is needed!

Since posting this initially a number of colleagues have commented on Linkedin on the financial benefits to employers of using mediation in terms of time saved etc. This is a good point but underscores the point that the benefits of mediation are still not fully appreciated and embraced by many employers.

However most claims are triggered by employees and more carrot and a little stick is what is being floated here!

So now we take a look at the UK proposals.

The UK Consultation document is here

Fee Levels – Employment Tribunal The first step will always be to categorise the claim as between minor or ‘straightforward’ cases (Payment of Wages etc), Unfair Dismissal as the second category and then more serious disputes (TUPE) etc are thurd.  In relation to Option 2 (below), there will be a fourth fee level for any claim exceeding £30,000 in value.

Option 1 Under this option, the Claimant would have to pay both a fee for issuing the claim and a fee for a hearing. If the incorrect fee is paid when issuing a claim, the Employment Tribunal will reject the claim.

The claim could then be struck out if the Claimant fails to pay the correct, or any, fee for the matter to proceed to a hearing. The fees payable by the Claimant will depend on how the claim is categorised and they range from UK£150 to £250 to lodge a claim and £250 to £1250 for a hearing (£1000 for an Unfair Dismissals case)

Under Option 2, the Claimant would only have to pay a fee for issuing the claim.  However, the size of the fee would depend on the Claimant’s assessment of the value of the claim, with the intention that this will provide employers with greater certainty about the potential liability they could face.

Option 2 The consultation paper suggests that a subsequent award given by the Tribunal in the event that the Claimant is successful could not exceed the assessment value, even where the Tribunal decides that it should do so.  A Claimant will therefore have to take great care to pitch the value of his claim correctly: too high and he will have to pay a higher fee; too low and his award will be limited.  The consultation paper gives an indication of the fees likely to be payable in respect of claims of different value, as follows:

Refunds In general fees outlined above would be non-refundable.  However, the Tribunal might be given a discretion to order the unsuccessful party to reimburse the fees paid by the successful party.

Fees for Applications In addition to proposals to introduce fees for lodging claims, the Government has also indicated that it is considering the introduction of fees for making specific applications: This fee would be submitted at the time the application is made.  If the requisite fee is not paid, and the party is not eligible for the Remission Scheme, (see below), the application will not be processed.

EAT Fees The proposal is that Appellants to the EAT will have to pay an Issue Fee of £400 and a Hearing Fee of £1200. (Again bear in mind this is not the equivalent to an Irish EAT but is at the level of the High Court)

Courts & Tribunals Remission Scheme The Remission Scheme currently operates in the civil courts to provide individuals with a full or partial exemption from paying Court fees subject to certain eligibility criteria.  It is proposed that this scheme will be extended to proceedings in the Employment Tribunal and EAT.  Remission will be granted without proof in emergency situations.  Of most interest to employers is the fact that those in receipt of income support / job seeker’s allowance – highly likely where an individual has lost his job – will receive full exemption from the new fees.

Multiple Claims The proposals also envisage that different fees will apply where there are multiple Claimants.

So what do you think? Clearly the main thrust of these proposals is to reduce the cost burden on employers. Nothing wrong with that in principle (as employees gain from more profitable businesses too) if the application of employment rights is not affected and disputes arising are resolved expeditiously. Employees should not be bullied out of pursuing their rights on financial grounds and yet there is a level of abuse of the system which fees might help reduce.

But its a negative way of approaching dispute resolution. The increasing claims culture is not exclusively an outcome of litigious employees, but a failure of dispute resolution processes and skills.

Interested in qualifying as an accredited mediator?

Posted on by

The Chartered Institute of Arbitrators offers training to those wishing to become accredited commercial mediators and offers the option of membership of the CIArb.

CIArb is the largest dispute resolution body in the world and the Irish branch has some 700 members.

The course is run by the Institute’s approved trainers Facilit8 led by acclaimed mediator Amanda Bucklow and starts on March 5th running for 6 days (one rest day) with the assessment taking place over the weekend of March 24th.

The course is independently assessed, i.e. not by those delivering the training; a distinctly important consideration,

On our last course one of the participants was Mr Justice Paul Gilligan, judge of the High Court, (I should say successful participants as the pic confirms. Judge Gilligan receiving his certificate form International President Doug Jones, watched by Irish branch Chairman…yours truly!)

if you are interested contact the Dublin office of CIArb at ciarb@arbitration.ie or pat.brady@workplacesolutions.ie.

Successful completion of the course opens the pathway to membership of CIArb.

“it’s a great course! It’ll change how you look at the world”

CIArb submission to Minister Hayes on Construction Contracts Bill

Posted on by

This is the text of a letter sent to Brian Hayes TD, Minister of State for Public Service Reform & the OPW about the Construction Contracts Bill 2010.

Dear Minister Hayes,

We refer to the Construction Contracts Bill 2010 (CCB), the associated Regulatory Impact Analysis (RIA) and the earlier consultation meeting with your offices on 28th June 2011. We have reviewed both documents and wish to contribute further to the discussion regarding this importance piece of legislation.

The Chartered Institute of Arbitrators is a global professional body, with a membership drawn from the broadest range of primary professions, including law, engineering, architecture, surveying, and other branches of the construction industry. We operate according to a governing charter, which, for the purposes of this discussion, includes two principle objectives paraphrased as follows:

q  The promotion of Private Dispute Resolution, in all its varying forms, including mediation, adjudication and arbitration; and

q  The training and encouragement of suitable individuals to become qualified and proficient dispute resolution practitioners.

We also currently provide training in adjudication, in other jurisdictions with similar legislation, and would intend to provide similar tailored courses in this jurisdiction, in the event that the legislation comes into force.

As a consequence of the above we are naturally supportive of adjudication as a Private Dispute Resolution process, and believe that it can be successful in achieving the purpose of the bill, which is described as “…. to help address the issue of non-payment to construction sector contractors, subcontractors and sub-subcontractors  who have completed work on construction projects…”.

We have reviewed both the CCB and the RIA with great interest and we make the following comments, which we hope will assist the final detailing of the legislation.

 Status of Adjudication within the Irish Legal System.

The adjudication process is not intended to produce a final decision, in the manner of an arbitration, for example. Consequently its intended status within the overall dispute resolution framework should be clearly stated in the explanatory memorandum. As an example we consider it unlikely that it is intended that Consumers in small cases would be obliged to engage in an adjudication process, and be denied access to the Small Claims Court. Similarly it may be worthwhile to consider whether very large disputes should be obliged to use the adjudication process, in preference to other options, such as the case management skills of the Commercial Court or the alternative process of arbitration, which while slower than adjudication has the benefit of finality.

A clear statement as to where adjudication is intended to sit within the available legal processes would, in our opinion, greatly facilitate the drafting of the legislation and place the threshold values identified in Section 2 of the Bill in a clearer context.

We are also strongly of the view that any threshold values should be expressed within the terms of the value of the dispute, rather than the value of the contract, in a manner similar to the courts hierarchy.

  1. Adjudicator’s Decision to be Non-Binding

The CCB proposes that the adjudicator’s decision be non-binding, in the event that the decision is referred to arbitration or other legal proceedings. The RIA considers this point further and notes that “as the legislation is currently drafted it favours the payer”.

We are of the view that if the adjudicator’s decision is not binding and payment of an award is not compulsory, then this will significantly undermine the primary purpose of the bill. A mechanism for the swift resolution of payment disputes, must result in payment following the adjudicator’s decision, if it is to be effective.

  1. Public Private Partnership Contracts

Section 2.3 of the CCB proposes to exclude PPP contracts from the legislation. We are not clear why such contracts would be excluded as a group and believe that this should be reconsidered.

  1. Status of Contracts with Public Bodies

The RIA, when analysing the non-binding nature of the adjudicator’s decision under the CCB, suggests that one alternative might be “to have a two pillared approach with differing arrangements for public and private contracts”. The RIA also notes that in this event the conciliation process in the Public Works Contracts, which is described as being similar to adjudication, would apply instead.

The RIA provides some background to this philosophy, noting that there is a need to strike a balance between the resolution of payment disputes and the safeguarding of public monies.

We have a number of significant concerns regarding this potential strategy.

Firstly this suggests a fundamental lack of belief in the adjudication process, and that there is a significant probability that the payer will be wrongly obliged to pay funds, which a later process will overturn.

We believe that this concern is misplaced. An adjudicator will only award money, where the payer has obtained the benefit of the payees productivity, and has not honoured a contractual obligation. It is probable that a later arbitration or legal process will overturn some adjudication decisions. However it should not be expected that this would be the norm, or even a regular occurrence.

We believe that if the adjudication process is to be introduced into Irish law, then it should be trusted to deliver the correct decision.

Secondly the public works conciliation process, referred to in the RIA, where payment of a conciliator’s award is dependent upon the production of a bond, does not apply to all Public Bodies construction contracts. As an example consultancy contracts, smaller works contracts and PPP contracts do not currently have this conciliation procedure. Such contracts could thus be inadvertently excluded from any adjudication or conciliation process. If an alternative process is to be proposed, then it should be incorporated into the legislation, otherwise there will inevitably be contracts formed with public bodies, which having differing or no provision for an adjudication process.

Thirdly we are strongly of the view that there should be consistency throughout a chain of contracts. Consequently if a different procedure is to apply to “Public Works Contracts”, then that procedure should also apply to all associated sub-contracts. Failure to legislate for such a consistent approach could quite easily have unintended and unforeseen consequences, which would undermine the effectiveness of the legislation. As an example one possibility, as the legislation is currently drafted, might be to shift the current cash flow burden from sub-contractors to main contractors. Such a scenario could potentially favour larger  and better resourced contractors, when competing for public works contracts, at the expense of small and medium enterprises (SME’s), which would be contrary to current Irish and EU policy.

In addition the need for consistency throughout the chain of contracts further reinforces our view that any alternative process should be included within the legislation.

Finally, having considered the issue in its totality, particularly:

q     the need to have a single process covering a complete chain of contracts, from the contract with the primary client, down to the smallest oral sub-contracts;

q     the desirability for a single adjudication process within the law, in the absence of any compelling reason for treating different types of contracting parties differently; and

q     the certain impracticalities that would arise in the resolution of sub-contract disputes, in the event that adjudication awards were to be backed up by a bond.

We are of the view that the only practicable and sustainable solution is to have a common procedure, which would apply to all contracts, whether with Public Bodies or not.

  1. Definition of Irish Construction Contracts

Section 2(5)(a) states that the legislation will apply to construction contracts, even if Irish law does not otherwise apply to the contract. However it is not clear in the legislation as to how an Irish Construction Contract is to be defined, whether by the identity of the parties, the locations of the businesses, or the location of the construction works.

The legislation, as currently drafted, would oblige the courts to establish this definition, for example whether an Irish Sub-Contractor working for an Irish Main Contractor on a French construction site, would be subject to this act, or not.

We believe that this issue should be clarified within the legislation.

  1. Payment Conditional on an Act by a Third Party

Section 3(5) does not appear to be compatible with many model contract forms used in the construction industry, whereby payment is conditional on the amount being certified by an engineer, architect, project manager or similar.

  1. Entitlement to Suspend

Section 5(3)(b) of the legislation limits the entitlement of a party, who has not been paid, to suspend work for a maximum period of fourteen days, We are not clear as to why the entitlement to suspend should be limited in this way. However there may be merit in including a requirement that a party suspending the work, is obliged to refer the dispute to adjudication at the same time.

  1. Data Collection & Review

We would support the proposal, in Section 6 of the RIA, that provision should be made for the collection, analysis and publication of data. Although we would recommend that any data should be collected in an anonymised and summarised form.

  1. Inclusion of Supplies

The RIA notes that some of the consultees requested that adjudication also be extended to include contracts for the supply of materials, particularly where those materials are either bespoke supplies, or alternatively have been incorporated into the works.

We do not see any reason why such contracts could not be included within the scope of the legislation.

Finally we would like to thank you for the opportunity to contribute to the development of this welcome piece of legislation and trust that you will find our submission of interest. We would also seek to be involved in the preparation of the Code of Practice for Adjudicators proposed under Section 9, in due course.

We are available to discuss these matters in greater detail if desired,

Yours sincerely,

Pat Brady,  

Chairman.

CIArb Irish Branch

Dept of Jobs etc (DJEI) announces changes on employment rights reform.

Posted on by

Initially Issued Dec 29th; See update below received on Jan 6th regarding Equal Status cases The important changes promised by Richard Bruton will be implemented shortly in the delivery of the State’s Employment Rights and Industrial Relations Services (Workplace Relations Services).

Background

Mr. Richard Bruton, T.D. Minister for Jobs, Enterprise and Innovation, commenced a programme of reform of the State’s employment rights and industrial relations procedures during 2011.  His aim is to establish a world-class workplace relations service and employment rights framework by streamlining the existing structures, procedures and mechanisms and establishing a simpler structure while building upon the recognised strengths of the existing systems.

The overall objective of the reform is to encourage early resolution of disputes, the vindication of complainants/employees rights and minimisation of the costs involved for all parties – respondents/employers, complainants/employees and Government – in terms of money, time and workplace productivity. The workplace relations bodies included in the reform programme are the National Employment Rights Authority (NERA), the Employment Appeals Tribunal (EAT), the Labour Relations Commission (including the Rights Commissioner Service), the Equality Tribunal and the Labour Court.

This is a very ambitious reform programme and the Minister set some very challenging targets, the first of which will be achieved by the introduction next week of a new Website, a Single Complaint Form and a Single Point of Contact.

Interim Website

An interim Website (www.workplacerelations.ie) will, from 4th January, 2012, provide information on employment, equality and industrial relations legislation and associated public services. The websites of the five existing workplace relations bodies will remain in place pending the establishment of the fully fledged Workplace Relations website towards the end of 2012.

Single Complaint Form

A Single Complaint Form for all first instance individual complaints and referrals to the Rights Commissioner Service, the EAT, NERA, the Equality Tribunal and the Labour Court will be available from January 4th, 2012. This new form  will  replace 30 existing complaint forms that currently accommodate over 80 specific complaint types. The Form will be available through both the interim website and the five existing websites.  Complainants can complete the Form on their system, print and sign it for postal submission and save a copy for their own records.

Single Point of Contact

A Single Point of Contact will commence operations from January 4th. This new service, to be called the  Workplace Relations Customer Services of the  Department of Jobs, Enterprise & Innovation, will have the responsibility for a) information provision in relation to employment, equality and industrial relations rights and obligations, b) the receipt and registration of all first instance complaints currently referred to the five workplace relations bodies, and c) dealing with enquiries concerning the status of complaints and associated procedures and processes. Workplace Relations Customer Services can be contacted at Lo Call 1890 80 80 90 or through the eForm on www.workplacerelations.ie

Further Reforms

A range of further structural and procedural reforms are planned for 2012.  These will include the establishment of a Workplace Relations Early Resolution Service, the objective of which will be to seek resolution of complaints as an alternative to a formal adjudication hearing or an inspection. Work is currently underway on the design and implementation of a Pilot Early Resolution Service to commence in the first quarter of 2012.

Equal Status cases

As a result of a query from Workplace Solutions the following reply was received from the Department on Jan 6th.

It is intended that all the existing services  of the Equality Tribunal, including equal status complaints (non-employment rights) will be accessible through the Workplace Relations Website, Customer Services contact point and the Single Application Form.

The reform programme will see a new two-tier structure with one body of first instance and one appellate body established to deal with all employment related matters. While this new structure will deal with all employment equality matters  no decision has been reached in relation whether the new structure will deal with equal status complaints or whether they could be more appropriately dealt with by another body.  

This matter is under active consideration and a policy decision is expected in the near future.

Contacts

Further information on the reforms and on the new services to be introduced from January, 2012 is available at www.workplacerelations.ie by calling 1890 80 80 90 or by replying to this email.

Or if we can help or advise contact; pat.brady@workplacesolutions.ie


The staff Christmas party; too much cheer could cost you dear!

Posted on by

 I know, I know, the party poopers are at it again. But just dusting down some seasonal advice that might save you a lot of trouble, and cost!

(See also excellent article by Linda Hynes, Solicitor,  Leman Solicitors in Sunday Business Post, December 18th)

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.

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…you should have one). 

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 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 (and a pity in many ways we have to rely on the law for that measure of  decency and equality of treatment!)

And the employer may be liable for such behaviour if he has not taken reasonable steps to prevent or address it.

Linda Hynes refers in her article to a fight at an office party in Malahide which resulted in an unfair dismissal and cost the employer €150,000!

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 contact pat.brady@workplacesolutions.ie and see Equality page on this site

The Temporary Agency Work Directive, a bit of a ‘TAWD-ry mess!

Posted on by

1st December 2011

Text of Statement from Dept of Jobs, Enterprise & Innovation

You can access a copy of the Bill here

The Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton TD has this evening [Thursday 1st December 2011] written to employers’ representative bodies to confirm that legislation to transpose the EU Directive on Temporary Agency Work is being finalised in light of the conclusion – without agreement – of discussions between Social Partners on the possibility of agreeing a derogation under Article 5.4 of the Directive. This derogation could have provided a qualifying period before agency workers on relatively short term assignments would be entitled to the same basic pay and working conditions as if they were directly recruited.

These discussions have not yielded agreement on such a derogation, which is a matter of regret to the Minister. It is not open to the Government to legislate for a qualifying period, as this was a matter which was placed in the hands of the Social Partners under the terms of the Directive.

Accordingly, the Minister informed the representative bodies that the Directive will become effective on a “day 1” basis, with no lead-in or qualifying period. This means that with effect from 5th December, 2011 all temporary agency workers (c.35,000 workers or approximately 2% of the active workforce) assigned to a hirer are entitled to equal treatment in terms of basic working and employment conditions as if they had been directly recruited by the hirer in the same job. The Government’s Bill, when published before Christmas, will confirm this and will define pay for the purposes of the legislation as follows:

  • Basic pay
  • Shift premium
  • Piece rates
  • Overtime premium
  • Unsocial hours premium
  • Sunday premium where a Sunday is worked and a premium is normally paid to a directly recruited employee.

This is an exhaustive list in the Bill to be published. Other possible component elements of remuneration will not be included in the definition of pay for the purpose of equal treatment in the Bill, including for example:

  • Occupational Pension schemes
  • Financial participation schemes
  • Sick pay schemes
  • Benefit in kind
  • Bonus payments

The Bill will also provide for equal treatment of Temporary Agency Workers who fall within scope of the Directive in respect of the following:

  • Working time
  • Rest periods
  • Rest breaks
  • Night work
  • Annual leave
  • Public holidays

The Bill will also transpose the Directive’s provisions that temporary agency workers will also be given rights in relation to access to the collective facilities and amenities of a hirer (e.g. canteen or other similar facilities, childcare facilities and transport services) under the same terms as directly recruited employees and are to be informed about vacant posts.

The Minister said to the representative groups that Hirers and Agencies should make the appropriate arrangements to ensure that the principles of equal treatment as indicated above are put in place from 5thDecember, 2011 for all temporary agency workers, including those who are assigned on or after 5thDecember, 2011.

Dispute Resolution in Australia; CIArb President paper

Posted on by

This is an extract from the paper given by Professor Doug Jones, CIArb World President in Dublin on November 12th. If you would like a copy of the paper please contact me at pat.brady@workplacesolutions.ie

CIArb President Doug Jones with Mr Justice Paul Gilligan at the event

Costs of formal dispute resolution

Dispute resolution processes used for commercial disputes reflect the requirement of quick, inexpensive processes which allow parties to maintain commercial goodwill.[1] Mediation and other ADR techniques are generally accepted as a cheaper alternative, and on that basis there has been an increase in these methods to resolve disputes. Conversely, long and arduous litigations can be expensive for both parties.

Recently in Australia, there has been much talk about the unreasonable amount of money spent on some commercial disputes. Most notably, the Seven Network Limited v News Limited[2] which was described by Sackville J (the presiding judge) as a ‘mega-litigation’. Sackville J went on to state:

An invariable characteristic of mega-litigation is that it imposes a very large burden, not only on the parties, but on the court system and, through that system, the community.[3]

His honour elucidated that he himself was surprised at the excessive amounts of money spent on this case. He estimated that ‘the parties have spent in the order of $200 million on legal costs in connection with these proceedings’[4] and he questioned whether the amount of money spent was justified given the amount of damages claimed in the case. For example, Seven claimed between $194.8 and $212.3 million when its final submissions were made.[5] Sackville J concluded that ‘[t]he maximum amount at stake in this litigation has not been very much more than the total legal costs incurred to date’.[6]

His honour quite forthrightly labelled the C7 Case litigation ‘extraordinarily wasteful’ [7] and bordering on the ‘scandalous’.[8]

The C7 Case is but one example, albeit an extreme one, of how litigation can be costly in commercial disputes. Logically, the legal costs for long, drawn out disputes will accumulate. Bearing this in mind, many companies now opt for ADR clauses within their commercial contracts. ADR techniques, such as mediation, are likely to be far less ‘wasteful’ whilst achieving similar results.

1.2                National accreditation scheme

Since 2001,[9] there has been much discussion about the need for a national accreditation scheme for mediation in Australia. NADRAC has been instrumental in lobbying for a national system for accrediting mediators.

The National Mediator Accreditation System (NMAS) commenced operation on 1 January 2008. It is an industry based scheme which relies on voluntary compliance by mediator organisations that agree to accredit mediators in accordance with the requisite standards. These organisations will be referred to as Recognised Mediator Accreditation Bodies (RMABs).[10]

In its discussion paper released in 2004, Who Says You’re A Mediator?, NADRAC defined accreditation as:

[T]he process of formal and public recognition and verification that an individual, (or organisation or program) meets, and continues to meet, defined criteria. An accrediting body or person is responsible for the validation of an assessment process or processes, for verifying the ongoing compliance with the criteria set through monitoring and review, and for providing processes for the removal of accreditation where criteria are no longer met.[11]

NADRAC suggests that there is a need to move towards a national scheme because it would promote the following objectives:[12]

  • enhance the quality and ethics of mediation practice;
  • protect consumers of mediation services;
  • build consumers confidence in mediation services;, and
  • build the capacity and coherence of the mediation field.

Bearing the importance of these factors in mind, a consensus was reached in 2006 as to the basic characteristics of the National Mediator Accreditation Scheme. This scheme is intended to develop a framework and documentation to guide the implementation of the National Mediation Accreditation System. Proposals were discussed and accepted at the National Mediation Conference in May 2006.

Nation-wide accreditation standards have been developed in order to enhance the quality of national mediation services in Australia. They also aim to facilitate consumer education and build consumer confidence in ADR services, improve the credibility of ADR and help build the capacity and coherence of the ADR field.

With consistent standards across Australia, mediation and other ADR tools are being used increasingly and on a larger scale. Therefore, it can be reasonably inferred that the successful implementation of this project over the coming years will cause a continued increase in the use of mediation.

2.                  Conclusion

Whilst businesses, the courts, the legislature and peak professional bodies continue to extol the virtues of mediation in Australia, it appears that it will continue to grow and develop as an alternative method of dispute resolution. The benefits of mediation over litigation and other ADR tools are becoming increasingly apparent and accordingly many firms are opting to draft mediation clauses within their commercial contracts. Furthermore, the court system is utilising the benefits of mediation to alleviate the pressure from their lack of resources.

The next step in Australia is to continue to improve this National Accreditation System in order to promote consistency within mediation across the country. Pending the success of this national system, the outlook of mediation in Australia appears positive. The preference of mediation as the ‘best choice’ to resolve disputes has increased over past decades and it appears that it will continue to do so.

[1] Boulle, above n 12, 214–215.

[2] [2007] FCA 1062 (C7 case).

[3] Ibid para 2 (Sackville J).

[4] Ibid para 8 (Sackville J).

[5] Ibid para 9 (Sackville J).

[6] Ibid.

[7] Ibid para 10 (Sackville J).

[8] Ibid.

[9] See, eg, National Alternative Dispute Resolution Advisory Council, ‘A Framework for ADR Standards’ (2001) available at <http://www.nadrac.gov.au/> at 4 November 2011.

[10] National Alternative Dispute Resolution Advisory Council, National Mediation Accreditation System <http://www.nadrac.gov.au/>at 4 November 2011.

[11] National Alternative Dispute Resolution Advisory Council, ‘Who Says You’re a Mediator? Towards a National System for Accrediting Mediators’ (March 2004), 3.

[12] Ibid.