Author: Pat Brady

The Resolution of Individual Employment Rights Disputes

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(This was a very successful event held on July 1/2 at which Minister Richard Bruton made proposals for radical changes in the employment law institutions. See my Blog on the Bruton proposals. I’ll post some more on other papers at the conference in due course. )

UCD School of Law 

(with the support of the UCD Commercial Law Centre and the Employment Law Association of Ireland) 

presents a conference on

 THE RESOLUTION OF INDIVIDUAL EMPLOYMENT RIGHTS DISPUTES 

University College Dublin

Friday 1st July & Saturday 2nd July, 2011

 The Resolution of Individual Employment Rights Disputes 


The incremental evolution of employment rights legislation has created a complicated system involving a range of bodies whose jurisdiction depends on the nature of the employment right in question. There now appears to be general acceptance of the need to simplify and streamline the complaint, appeal and enforcement procedures across the various bodies but there is less agreement on how this might be achieved.

This High Level Conference will involve contributions from distinguished experts who will provide critical evaluations on the way in which individual  employment rights disputes are resolved in England, Northern Ireland, France, Italy, the Netherlands and Canada as well as contributions from a range of speakers who will provide unique insights into the operation of the existing procedures in this jurisdiction.

Conference Schedule 

Friday, 1st July 2011

 Venue:          John Hume Institute for Global Irish Studies, University College,  Belfield, Dublin 4

5.30pm          Registration

6.00pm          Welcome

            Professor John Jackson, Dean of the School of Law, University                                    College Dublin

6.10pm          Formal Opening of Conference

Richard Bruton T.D                       

6.45pm          Dinner

7.45pm          Conference Opening Address

HH Judge Jeremy McMullen QC

8.15pm          Coffee

Saturday, 2nd July 2011 

Venue:          Quinn School of Business, University College, Belfield, Dublin 4

8.45am          Registration

9.15am          Welcome

            Carol Fawsitt, Hayes Solicitors, Chair of the Employment Law                          Association of Ireland

                 9.20am          Session 1: The Reform Agenda

                        Chair:             Pat Brady

Speakers:     Brian Barry,  Tom Evans, Anthony Kerr

11.00am       Coffee

11.20am       Session 2: A Comparative Perspective

                        Chair:             Bill Roche

Speakers:     Bernard Adell, Maurizio Del Conte, Yvonne Erkens, Francis Kessler

1.00pm          Lunch

2.00pm          Session 3: Round Table Discussion 

                        Chair:             Colin Scott

Speakers:     Kevin Duffy, John Horgan, Janet Hughes, Eugene McGlone, Kieran Mulvey, Alan Price, Peter Ward

4.00pm          Close of Conference & Distribution of CPD Certificates

Speaker Profiles 

Bernard Adell is Professor Emeritus at Queen’s University, Ontario and editor-in-chief of the Canadian Labour and Employment Law Journal.

Brian Barry is a graduate of Trinity College Dublin, where he is currently pursuing a PhD in the area of Irish employment dispute resolution reform, and an executive committee member of the Employment Law Association of Ireland.

Pat Brady is an Employment Law and HR Consultant, Arbitrator and accredited Mediator and Chair of the Chartered Institute of Arbitrators.

Richard Bruton, T.D.,  is the Minister for Enterprise, Trade and Innovation.

Maurizio Del Conte is Professor of Labour Law at Bocconi University, Milan and an editorial board member of Diritto delle Relazioni Industriali.

Kevin Duffy  is Chairman of the Labour Court.

Yvonne Erkens is an Associate Professor of Labour Law at Leiden University and a part-time Labour Court judge in Maastricht.

Tom Evans is Assistant Director at the Northern Ireland Department for Employment and Learning where he is responsible for employment rights, policy and legislation.

John Horgan is a former Chairman of the Labour Court who is now an independent Human Resources consultant.

Janet Hughes is a former Rights Commissioner.

Anthony Kerr is a Statutory Lecturer in the School of Law, University College Dublin and Vice Chair of the Employment Law Association of Ireland.

Francis Kessler is an Assistant Professor in the Sorbonne Law School at the University of Paris I and Senior Counsel at Gide Loyrette Noviel AARPI.

Eugene McGlone is an official with UNITE – The Union.

Jeremy McMullen QC is a senior circuit judge, one of two permanent judges of the Employment Appeal Tribunal sitting in London and Edinburgh, who, before being called to the Bar, worked for the GMB trade union as an elected regional officer.

Kieran Mulvey is Chief Executive of the Labour Relations Commission.

Alan Price is a Director of Peninsula Business Services (Ireland) Ltd and a lay member of the Employment Tribunals in Britain.

Bill Roche is Professor of Industrial Relations & Human Resources in the School of Business, University College Dublin.

Colin Scott is Professor of EU Regulation and Governance in the School of Law, University College Dublin, where he is Associate Dean.

Peter Ward is a Senior Counsel and an executive committee member of the Employment Law Association of Ireland.

Booking Details 

Programme Fee: €350/ €250 for ELAI Members.

Saturday sessions only: €285/€200 for ELAI Members.

Programme Fee includes attendance at conference, a comprehensive conference folder (containing papers relating to the conference sessions), coffee/tea on arrival at and during conference, lunch and dinner.

Certification for CPD purposes will be available on Saturday if required.

To book your place please complete the booking form attached and email to sinead.hennessy@ucd.ie.

For more information call Sinead Hennessy at 716 8763.

 

CIArb conference on Debt mediation

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My opening remarks to the CIArb conference held at the IPA Dublin on June 16th

Welcome!

It is Bloomsday!  The celebration of an odyssey that has captured the imagination of the world. Even the mediation community.

I thought I was bad enough trying to find a link between mediation and Ulysses, but I was not the only one.

Among the seminal texts used by mediators is ‘Getting to Yes; negotiating without giving in’ by Roger Fisher and William L. Ury.

While improvisation and thinking outside the box are useful tools for mediators my hat goes off to the mediation site Blawg which manages to see a connection between Messrs Fisher & Ury’s core objective for all good mediations and the multiple repetition of the word YES in Molly Bloom’s soliloquy.

It’s too early in the day to go any further on that!

This event is a contribution by the Chartered Institute of Arbitrators to an extremely important issue for many businesses and families throughout our country.

We hope that this will be an important first step in promoting the option of mediation as an alternative to more confrontational debt recovery approaches.

Mediation is very much in the spotlight at the moment.

In use for many years in family disputes for example it has, with other forms of alternative dispute resolution  now found favour with the EU, the previous and the current government and the judiciary as a serious alternative to traditional dispute resolution processes.

It was notable when the report of the Law Reform Commission published last October on  Mediation and Conciliation  that it was launched by our highest legal officer the Chief Justice Mr John Murray thereby conferring on it very powerful judicial approbation indeed.

There were commitments to enact the bill which accompanied the LRC report in the Four Year programme of the last government, in the manifestoes of the current government parties and it has now been announced that a bill will be published in 2012.

All of this has been done in the context of reducing professional costs to business but with the additional advantage that alternative dispute resolution, and mediation in particular hold many advantages over traditional methods of dispute resolution such as litigation.

Mediation is a word in fairly common usage and this may lead to an element of complacency about what it is and what should determine our future strategies in relation to it..

Likewise it is very important that this is not seen as some ‘flash in the pan’ new fad and that it is genuinely embraced in our commercial transactions, in the workplace and at the level of interpersonal disputes.

It has been with us a long time. One way or another.

Solomon’s ultimatum in the famous bible story to the families in dispute is an early example of skills mediators are taught to practise known as ‘reality checking’! .

The editor, until recently of our Journal ‘The International Journal of Arbitration, Mediation and Dispute Resolution;  Professor Derek Roebuck is an expert on the history of ADR and the author of such books as Early English Arbitration, Ancient Greek Arbitration and The Charitable Arbitrator How to mediate & Arbitrate in Louis XIV’s France.

This gives a flavor of the pedigree of alternative dispute resolution.

In his book Roman Arbitration Professor Roebuck describes the Compromessum; an early form of arbitration agreement but whose connection to the modern word compromise brings us along the route to the modern core of mediation without any great need for Latin scholarship.

Nonetheless, while ADR has well established roots in certain of our sectors, or in family law for example, we could go a lot further.

In recent months CIArb has been talking to business organisations and others about adopting mediation and other neutral third party solutions to commercial and workplace problems .

Frankly, there may be some way to go in getting the message across that there is a better way to avoid and resolve disputes, and a cheaper one to boot.

The Courts, of course can play an important part in this and there is no doubt that they will.

However the ADR community will have an important role in promoting the message that there is a better way to avoid and resolve disputes, and this conference is very much part of that process.

In CIArb in Ireland we have over 700 trained and accredited third party neutrals; arbitrators, mediators, adjudicators and others whose services can be made available through the independent nomination process we operate.

As the civil service gets to work on refining the Mediation Bill we will be talking to them about a number of important issues; one of the most important of which will be future accreditation of mediators.

The LRC report noted the view that users of mediation had a ‘right to expect a competent service’ and not one tainted with the ‘second class’ justice criticism and went on to warn of the dangers of the ‘enthusiastic amateur’ as mediator.

And in its review of other jurisdictions it found plenty of models which should inform our discussions here, with the overriding objective of assuring potential clients of mediation that while its methodologies may be flexible and even informal it is a serious and effective form of dispute resolution for those who avail of it.

However we support its conclusion that a system (it proposes a non statutory one under the auspices of the Dept of Justice) should be developed under which the accreditation of service providers, and of individual practitioners could be structured (while making special comments about family practitioners).

We are very proud of the standard of training offered by the Chartered Institute, and while other providers offer a similar standard not all do.

As far as today’s conference is concerned, as the largest organisation dedicated to dispute resolution in Ireland the Institute is committed to making a contribution to easing the burden which has followed our recent economic problems.

Its probably important to stress that we are only at the start of a dialogue and a process about how best to do this.

But it is much better to make that start than do nothing and our hope is that we can ease the strain that is already on those with debt problems with a less adversarial approach to resolving their problems.

I hope you enjoy the day, and that together we can turn the aims we set for the event gradually into reality.

Mediation; an opportunity for a new approach

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(This article appears in the Spring/Summer 2011 issue of the RGDATA magazine UPDATE)

Human frailty, it seems destines us to a level of involvement in disputes and nowhere more so than in business and in the workplace. But I see a future where the support business owners might need from their association, or others will be services to achieve amicable dispute resolution, as well as the information needed to defend and contest disputes.

Alternative Dispute Resolution (ADR) is the key to keeping down business costs across a whole range of commercial, contract and workplace disputes.

My work as an employment law and HR consultant is about helping clients avoid disputes and then resolve them as quickly, cheaply and effectively as possible when they do arise. By definition such disputes are adversarial in nature, especially if they involve reference to a third party.

Increasingly we are turning to better, cheaper and more efficient ways of resolving disputes; known by the generic term ‘Alternative Dispute Resolution’ (ADR). The best known forms of ADR are mediation and arbitration.

Under Arbitration legislation (The Arbitration Act 2010) the existence of a valid arbitration clause in any contract will result in a stay on legal proceedings in respect of ANY dispute arising out of that contract (the wording is important).

This not only avoids costly court appearances but all that messy pre court stage also. Arbitration is not without cost; but it is faster, normally a good deal cheaper where the dispute is not complicated, and it is private.

Last year the Law Reform Commission published proposals on Mediation and Conciliation which will provide court encouragement and protection to mediation of commercial disputes. The full Report, including the draft bill and a commentary can be read via a link on a sub tab of the Dispute Management page on this site.

So this is not a passing fad. This is the next ‘big thing’ and the new Government has promised that the Mediation & Conciliation Bill will be published next year. Courts are likely to punish even successful litigants who refuse to avail of mediation in relation to their costs.

What does this mean for your business? In the first place all commercial contracts should contain a mediation and arbitration clause. Many already do. It’s common across a wide range of sectors; financial services, construction, package holiday and most new car purchases, for example and I have provided RGDATA with a model text and can advise further.

In the world of employment law and HR there is also a role for ADR. Strictly speaking the Arbitration Act does not cover employment disputes (for reasons lost on me, but the Mediation Bill will) but in a situation where it now take 80 weeks to get to the EAT, and three years to the Equality tribunal there is something not quite ‘fit for purpose’ about this system.

Often employers will want to ‘kick the can down the road’ but I generally advise against this. A problem delayed and unresolved may be a problem doubled.

While statutory guidelines on dispute resolution in the workplace include reference to internal and external mediation, one sees almost no standard Grievance and Discipline procedures which provide for it.

At local level, many HR departments or small business owners baulk at this, and at the mediation option in general.

And even where a claim is statute based this should not discourage settlement by mediation. While the Rights Commissioner service is worth its weight in gold it still involves a degree of delay, a trip to a hotel or Beggars Bush and a degree of unpleasant confrontation on the day with people who may be current employees. Down the road from this, a further wait for an EAT appeal which may hang over you for two years is not a great idea.

The EAT will refuse to exercise jurisdiction where parties have settled a case subject to a number of important pre-conditions (mainly based on ‘informed consent’). A mediated settlement by an independent, accredited mediator will get an issue off your desk, and resolved confidentially and in a setting where you have some control over the outcome and the cost! And with current employees you get to shake hands and get back to work!

So this is how I see the future of dispute resolution. Quicker, better, cheaper and less confrontational.  Start by having a fresh look at your commercial contracts and your Grievance and Discipline procedures! And think about getting ADR provisions into all you can!

Representation at the EAT; grounds for concern?

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I have been taking a look at the statistics in the Annual Reports of the Employment Appeals Tribunal for representation and appearances at the tribunal.  I examined the figures for the years 2005 and 2008 and in October last year the 2009 Annual report was published.

It adds interesting information. It mostly indicates a huge increase in the number of cases being referred to the EAT; from 5457 in 2008 to 9458 in 2009 although only about a half of this number were heard during the year.

I have strong feelings (as an arbitrator and mediator) about the way things have gone with the EAT and there is widespread dissatisfaction with delays now of about a year and a half. (Admittedly the position at the Equality Tribunal is a lot worse. The Minister for Equality Jimmy Deenihan recently announced that it took three years to get a hearing.

These are the figures for categories of representation in all cases coming before the EAT. There were a total of 2180 cases heard altogether. There was representation of employees in 1447 cases and of employers in 882 cases.  See Appendix A below for details.

What follows are general observations and not those of a statistician. I’d welcome comments.

But a number of things strike one from these figures.

The EAT produces statistics for representation at all hearings and separately for claims under the Unfair Dismissals Act (UDA). Claims under that act account for 93% of all hearings (2009 report)

What the figures above show is that comparing 2005 and 2009; in cases where parties are represented;

  •  62% were represented by lawyers; a decline since 2005 from 69%.
  • Those represented by unions has increased marginally from 12 to 14%
  • Those represented by ‘Others’ has seen a significant enough surge from 16 to 20% (mainly accounted for by a leap in the number of employee cases in this category from 111 to 301). I take another look at that below.

In cases involving Unfair Dismissals Act the position regarding representation is as set out in Appendix B below

There is a significant increase in the number of appearances by lawyers; rising from 64% of ‘all cases’ to  about 75% in cases under the UDA and remaining constant over the period. This may not be a surprise. The involvement of lawyers in the process was well advanced by 2005!

I also took a look at representation of employees only and the following is the picture (just looking at 2005 and 2009.

All Cases Union % Lawyer % Others %
2005 989 23 66 11
2009 1447 22 57 21
UDA only
2005 764 16 77 7
2009 794 13 75 13

Some interesting changes here. The numbers of ‘Others’ has climbed sharply while the involvement of lawyers in cases under legislation other than the UDA has fallen somewhat.  This may reflect lower levels of settlement in non UDA cases.

In the case of employees only, the numbers of those represented by ‘others’ has almost trebled from 111 to 301 and in UDA cases doubled from 52 to 104; (the category of employers represented by ‘others’ has fallen from 123 to 103; 19%.)

This means that there are as many claimants (I am assuming all claimants are employees) represented by ‘others’ as by trade unions. Outside of UD Act cases it is not onerous to present a case under certain of the other statutes. The only concern is that they get so far (see final paragraph)

Who are these ‘Others’? Clearly they include those such as your humble correspondent! But presumably also Citizens Advice Bureaux (especially in cases involving nationals from EU or other states), the occasional family member etc. Although I am at a loss to know who others are in the case of employers, apart again from independent HR consultants, or perhaps accountants.

Are these figures worrying for trade unions? Looking at the benign scenario first it is probably the case that where trade unions represent workers there is a very high probability of cases being settled long before they get to this stage.

Interestingly this appears to show that in respect of the 2180 claims heard by the Tribunal in 2009, and on the assumption that an employee was in attendance in most, if not all of these they were only represented in (roughly) 1500 cases.

That said I have heard from some union sources of a reluctance on the part of union officials to take cases as far as the EAT because of the rigidity of the procedures, the requirements for examination of witnesses etc.

Union officials probably prefer theLabour Courtstyle of presentation of their submission without having to comply with the burden of even somewhat relaxed application of the rules of evidence, cross examination etc which may be reflected in the figures, but I can’t say for sure. But these facts suggest that only about one in six employees whose case runs before the EAT is represented by a trade union official.

The bottom line is that the era of employment rights has drastically altered the balance of forces and entitlements that exist as a matter of legal right do not require trade union membership for their vindication.

On the employer side IBEC offers legal representation through in-house solicitors and employers and trade associations would in general be better resourced to fund legal representation.

Finally, the report says that the average waiting time for a hearing in 2009 was 31 weeks inDublinand 32 elsewhere. A query I made recently established that this situation has deteriorated significantly and it is now 78 weeks inDublinand 81 weeks in Wicklow, for example.

The EAT is unusual both in terms of dispute resolution in employment matters and in the wider world in that it does not have a mediation or conciliation ‘step’. It badly and urgently needs one. It is far too cumbersome, time consuming and in many cases expensive to resolve what are for the most part relatively simple disputes. And it is now settled law that even statute based claims may be settled subject to a number of simple conditions without the necessity for an EAT hearing.

The other LRC; the Law Reform Commission in its report launched in November 2010 on mediation ducked this issue. While it provided a comprehensive and informative overview of the  current situation for reasons best known to itself it made no hard proposals.

The area of employment disputes was once our most developed system of what we today call Alternative Dispute Resolution….Not any more! The EAT is thirty four years old this year and showing its age. It needs a Berocca boost!

Appendix A Representation; All cases

T.U/ Trade rep Legal Other
2009 2008 2005 2009 2008 2005 2009 2008 2005
Employees 318 282 223 828 831 655 301 219 111
Employer 92 77 53 616 626 585 174 220 180
410 359 276 1444 1457 1240 475 439 291

 Appendix B Representation UD cases

T.U/Trade assoc

Legal

Other
2009 2008 2005 2009 2008 2005 2009 2008 2005
Employees 100 106 126 593 636 586 101 71 52
Employer 70 63 44 455 479 489 104 140 123

The Programme for Government and dispute resolution

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Given the large scale problems facing Ireland, and the time pressures on writing the Programme for Government it would not be sensible to expect a great deal of specific interest to readers of this site in the new programme for Government.

But here is what there is.

 Public Sector Reform

 The Programme proposes to reduce public service numbers by between 18,000 and 21,000 by 2014 and by a further 4,000 by 2015.

 Obviously the big issue here is selection; it’s a voluntary scheme but do you let everyone who wants to go leave?  Also there’s a lot of ill informed comment about protecting ‘frontline’ staff. Just because you don’t see someone does not mean they aren’t in the ‘frontline’. At least the programme talks about frontline ‘services’, which is better.

 National Minimum Wage

 The reduction to €7.65 will be reversed. 

Joint Labour Committees 

The strangest thing here is the lack of any reference to the review being undertaken by Kevin Duffy and Dr Frank Murphy which is due to conclude in the not too distant future. And this can’t be dismissed as previous Government business as it was a commitment under the EU/IMF programme for Ireland and is not likely to go away. (And maybe that’s what makes it not strange at all! Why put it in the programme if the EU/IMF are going to require it anyway?)

 The new Government says it will ‘reform the Joint Labour Committee structure, beginning with the appointment of independent Chairpersons to JLC’s, who will retain a casting vote. Reform options will examine the rate of pay for atypical hours’.

 But this wording is odd, being a good deal less specific than either of the manifesto commitments of the parties, although a bit more ‘cut & paste’ from Labour than FG. 

The following is the wording from the respective manifestoes.  Fine Gael was quite specific and said it would; 

‘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’

Labour had said it would ‘reform the Joint Labour Committees (JLC) structure that dates from the 1940s, a time when employee rights and general labour law were much less developed. [and by]  appointing independent chairpersons to the Joint Labour Committees as an urgent first step in this reform process’.

As can be seen FG was going to tackle the Orders themselves by ‘renegotiating’ them. Also the final sentence clearly implied that ‘enterprise level’ agreements outside the ERO system would be permitted.

Even Labour’s wording seemed to suggest that the JLC system had outlived its usefulness being a ‘structure that dates from the 1940’s.’

So what precisely reforming the ‘structure’ means in practice we will have to wait and see but those who wished to see reform here will be worried for now. We will see what Messrs Duffy and Walsh have to offer.  Also gone is the six month deadline.

The emphasis on ‘independent’ chairpersons is interesting. Currently, these are appointed by the Minister for Enterprise etc and appear to be normally drawn from the Industrial Relations Officer corps of the LRC. They are hardly partisan so presumably ‘independent’ means from outside the system altogether.

Certainly, one hears anecdotal evidence from the employer side that they generally end up in a minority when push comes to shove and hard decisions are being made about increases.

Mediation & Law Reform

What we get in the Programme for Government is a cut and paste from the FG manifesto;

‘We will encourage and facilitate use of mediation to resolve commercial, civil and family disputes in order to speed up resolution of disputes, reduce legal costs and ameliorate the stress of contested court proceedings’.

And

‘We will prioritise a programme of law reform arising out of the recommendations made by the Law Reform Commission.’

Given that one of the most recent recommendations of the Law Reform Commission was its report on mediation (including a draft Mediation Bill) it might not be going too far to see this as the green light for that legislation. I believe the Directive can be effected by way of Statutory Instrument anyway.

Labour didn’t really have anything to say about this except in relation to driving professional costs down, in which ADR options might be seen as an option (and were so seen in the Four Year programme of the previous government.)

The Labour Party will support robust competition policy and enforcement and ‘structural’ reform in the professions to drive down the cost base for the traded sector’

It might however be taking it a stage too far to see this as a possible opening for reform of the Employment Appeals Tribunal along the lines that I have argued strongly for in detail in another blog on this site.

There is no reason not to introduce private mediation and arbitration into the employment law scene which is unable to cope with the current workload. (More here)

 Trade Union recognition

 Well buried in the ‘Equality’ section on page 54 of the document is a commitment to;

 ‘reform the current law on employees right to engage in collective bargaining (The Industrial Relations (Amendment) Act 2001) so as to ensure the compliance by the state with recent judgements of the European Court of Human Rights. 

This is a reference to the Demir and Baykara judgement in the European Court of Human Rights. (More here This links to my report of a lecture by Professor Keith Ewing on the case and its implications for the Supreme Court judgement in the Ryanair case. Professor Ewing’s opinion is that the Ryanair decision is incompatible with the new direction in European case law and the Charter of Fundamental Rights of the EU.

 This is a ‘biggie’ as constitutional rights form the basis of the Supreme Court’s ruling. Again we shall see. 

More significant is whether such a change will make any difference to declining trade union numbers. If I were a trade union leader I wouldn’t be counting on it. In the US which has a system for compulsory ballots etc on trade union recognition trade union membership in the private sector is down to 7%. Based on studies here I reckon that among young workers (say under 25) in the private sector in Ireland its not a million miles away from that now.

Radical thinking needed post election to improve dispute resolution

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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!

A Golden Opportunity!

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It’s the first day in office of the Minister in the newly created Department of Dispute Resolution!

Determined to establish a reputation as one who can move early and decisively with an imaginative and popular series of announcements a Press Conference is announced for a few days that will make a real impression on dispute resolution! 

You are the Minister’s best friend and an experienced HR professional/union official (take your pick). 

‘Okay’, the Minister says,, ‘no funny business. There’s a limit to what I can do on your wishlist…it’ll have to be something that won’t draw down the wrath of the ‘other’ side. And I need it today! Just three or four items………’

Your phone rings! Into this scenario of fantastic opportunity place yourself and start drafting your reply……

 Here are a few of mine for starters.

  •  Announce the fast tracking of the Mediation Bill proposed by the Law Reform Commission. 
  • Introduce a common ‘portal of entry’ for all cases under employment rights legislation with a ‘filter’ process for all cases. (Looks like this may happen as Entemp seeks to make Croke Pk targets!)
  • Establish a mediation ‘step’ at the EAT and more relaxed procedures when you get there!
  • Take the Review of the Employment Rights Bodies off that dusty shelf and look at its recommendations!!!!! Perhaps even implement some of them!
  • Repeal the provision in the 2010 Arbitration Act excluding employment disputes from its ambit.

And would you….restore the minimum wage but also apply it to the JLC sectors??  Or try other…’a bit for me, and a bit for you’ proposals! (The review of the ERO system has started this week and will conclude in two months)

PS. On the ADR front, but not HR, I’d be taking a look also at Fergal Quinn’s Construction Contracts Bill 2010. Flawed in the form introduced but a good idea and could be improved. It will help a recovering construction sector.

Ring Ring..Ring Ring…..can you put me through to the Minister’s office…..

 What do you plan to tell your old buddy,, now at the helm????

Changes in the National Minimum Wage! Caution needed!

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Stop Press Jan 31st; Since originally posting this Fine Gael has announced it will reverse this decision in Government!

NERA has taken advertisements in the weekend papers outlining the change in the National Minimum Wage which will take effect on February 1st. You can get to the NERA information by clicking here.

Can an employer reduce an existing employee’s pay to the new minimum wage level level?

Contrary to press reports (even in the Irish Times!) this will not lead to a reduction in the wages of ’50,000’ workers as was suggested. For the most part this will apply to new recruits who may be employed on the basis of the new adult rate of €7.65.

An employee’s rate of pay is a term/condition of their contract of employment. Employees have a contract of employment whether expressed in writing or not. Even among people who should know better the terms ‘Contract of Employment’ and ‘Statement of Terms of Employment’ under the relevant statute are used interchangeably, even though they are not necessarily the same thing.

And as we stated on this site and in our other social media last week (Twitter, follow by clicking here) the only circumstances (that we can think of) where wage reductions might be permitted is in the unlikely event of an employee contract stating that the pay rates shall be ‘whatever the national minimum wage is ‘for the time being’ or some such phrase,

Where this is the case then an employer may legally reduce the employee’s pay in line with the NMW rates or if there if there is a specific provision in the contract that provides for a reduction in pay. 

Where this is not the case any change would have to be by agreement between the parties, and even where it is consultation is recommended. It is its own reward.

NERA notes in its statement that ‘any such agreement can be expressed or implied, tacit or by acquiescence (i.e. it can be formally agreed, informally or verbally agreed or accepted by the employee). But the point is; it must be agreed.

Our advice is that subsequent to agreement it should be recorded in writing,  ideally in a revised statement of the Terms of Employment or a revised contract. (Click to go to the ‘The Advice Page’ on this site.)

An interesting question is what impact this will have on the JLC pay rates? There is now a glaring anomaly that the newly recruited worker in a butcher’s shop, for example may be employed on €7.65 an hour and the counterhand in the Spar next door is on €9.59.

I know ‘every little helps’ but when a saving of one euro an hour climbs to almost two euros, you’re getting into more serious money; for every three staff it’s nearly €10,500 a year of a difference over the new NMW! This is giving retail businesses outside the JLC system a serious competitive advantage.

Taking a (very) hypothetical example of a retail unit with 10 staff all on the NMW or the JLC rate, the extra wage burden on the JLC employer is a significant €35,ooo per annum higher (taking a 35 hour week).

I’m not an advocate of low pay, but I’m even less fond of unemployment and these facts give pause for thought.

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Callely judgement in Haughey footsteps

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Callely judgement in Haughey footsteps

Ivor Callely probably (undoubtedly) had ambitions to follow in the footsteps of his hero Charlie Haughey in other ways.

He may not have done so in the way he most wanted to by achieving high political office but he has got close with another, unintended connection.

Lawyers refer to the rights a citizen has in such matters, especially in relation to tribunals of one sort or another) as ‘Haughey rights’ as a result of a case in which the great man’s brother was involved arising from the political turbulence in Northern Ireland. (Apologies for saying in an earlier version of this that it was Charlie himself).

That case was In re Haughey [1971}IR 217 which is, in many ways the foundation for what we today describe as ‘constitutional’ justice, i.e. natural justice enhanced by the commitments in Article 40 of the constitution to fundamental personal freedoms. Indeed the Taoiseach had reason to be gratefiul for these rules in his appearances before the McCracken tribunal.

While further detail on the case is awaited press reports give us a reminder that whatever one thinks of the actions of a person, let’s say an employee guilty of suspected theft, this will not diminish their right to a fair disciplinary process. In this writer’s opinion the notion of ‘summary dismissal’ is legally questionable and potentially exposes an employer to great risk. Where such ‘smoking gun’ cases arise the better route is suspension and intiation of the full procedure; investigation, notice of charges, displinary hearing with representation etc.

A few years ago an employee in a Dublin city centre convenience store who was captured on CCTV stealing bus tickets got €15,000 in compensation when she was summarily dismissed (admittedly by text message!), but without the benefit of any of the procedure just mentioned.

The higher courts have consistently taken a very firm line on application of the principles and practise of fair procedure. (Even the Labour Court got a rap on the knuckles in the Ryanair case). The Employment Appeals Tribunal has done likewise.

Concern about Quinn Bill on construction arbitration (adjudication)

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The Construction Contracts Bill  (Click for bill)  was initiated in the Seanad by Feargal Quinn.  A recent report in the SBP suggests that this is likely to be adopted by the government and enacted before the election. It is apparently with the A-G at the moment.

It essentially proposes a system of fast track arbitration, styled as ‘adjudication’ into disputes over contract payments between various parties in the construction chain (‘employer’- main contractor-sub-contractor etc).

While the objective of speeding up disputed payments is a laudable one especially in the current climate facing the construction industry there are significant concerns about the bill within sections of the construction related professions (engineers, architects, surveyors etc) and within the arbitration ‘community’.

In principle it sounds fine; but it draws on a UK model which has been the subject of much criticism, and there are alternative models (New South Wales) which are regarded as superior. Something between the two might be an option.

Notably, the precise limits of the ‘chain’ is an issue.  (Does it include a solicitor drafting a contract at the end of the chain as well as a main and a sub contractor?)

Also there are issues about how a dominant party can abuse the process to strong-arm weaker parties within the tight time frame for the adjudication. This danger is anathema to fair procedure concepts associated with arbitration.

There is no urgency about this Bill. Such a measure is, in principle a good idea but the detail needs to be refined. Little of this was done in the Seanad which in this case at least has reinforced critics as to its role.

Much better to let the civil service do what it does well and extend the period of consultatiom on the measure with a view to bringing an improved version to the Dail later in the year.

A group representing engineers, architects, surveyors etc is very critical of the measure and has made its views known in a paper submitted to the Government. I can make it available (with the approval of the authors) on request.

As a general arbitrator some of the issues involved here are, frankly beyond my experience (and I suspect beyond Senator Quinn’s) but we should not ignore the views of those with practical experience of the operational strengths and weaknesses of existing provision.

But the paper describes how a dual process of adjudication would solve many of the perceived problems with adjudication in the building and construction industry. The proposed dual process is a combination of the existing process of adjudication in NSW, Victoria and Queensland, which is described as the certification process, and the process of adjudication in the UK, NZ and elsewhere: the traditional process.

Under the dual process, the procedure for adjudicating progress claims would be slightly different to the procedure for adjudicating ‘ex–contractual claims’for debt or damages.

This is something which should not be rushed. Better to wait and do it well than just add to a list of swan song enactments. There are dangers in creating legal rights in a situation where there is such uncertainty as to their implications.