Landmark European decision on right to collective bargaining discussed

UCD School of Law

2010 Distinguished Guest Lecture; Professor Keith Ewing, Professor of Public Law, Kings College London, President Institute of Employment Rights

I had the pleasure of being invited to this lecture which was a follow on to the excellent seminar organised by the UCD Law School on twenty years of the Industrial Relations Act, 1990 in July. (The papers from that were launched as a book following the lecture. Available from Round Hall Press. Much more than a commentary on the Act; an overview of our IR dispute resolution machinery)

 The subject of Professor Ewing’s lecture was the decision of the European Court of Human Rights in Demir and Baykara v Turkey . (Application no. 34503/97;) Read full case report  

Professor Ewing described this as a landmark case and one of the most important in his entire career as a labour lawyer. ‘You wait a lifetime for a case like this but it is worth the wait.

Mrs Demir was a member of the union and Mr Baykara its president. Their union entered into a collective agreement with the local council in Gazientap  in Turkeyin 1993 covering the usual range of workplace issues. Not long after, the council thought better of it and decided to break the agreement.

The union sought enforcement of the agreement; succeeded but after some further legal to-ing and fro-ing a superior court, the Court of Cassation ruled that while unions had the right to exist; that was it. They had no right to collective bargaining. (Incidentally, the court ruled that any benefits union members got were void AND council officials who had signed off on them would be liable for the losses if they could not be recovered from the workers!!!)

Eventually, Demir and Baykara, on behalf of the union, claimed at the European Court of Human Rights (ECtHR) that the right to collective bargaining was established by article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 11 states:

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

The Court noted the declaration of the right in article 11(1) and the restrictions under article 11 (2). It held that these had to be strictly construed and that they could not limit the right to organise. Any restrictions imposed by the state had to be shown to be legitimate and civil servants could not be treated as “members of the administration of the state”. The court went on to rule that the right to collective bargaining with an employer had become one of the essential elements of the right to form and join trade unions, guaranteed under article 11.

This means that the right to freedom of association includes the right to collective bargaining.

Professor Ewing noted that in arriving at this conclusion the Court had to find a way of essentially departing from one of the central pillars of judicial decision making; precedent, and had to confront an established body of jurisprudence.

A number of cases in the 1980’s (details available) had ruled that while the right to trade union membership existed, acting on that right was another matter, and was not protected by law. This is the settled position in this jurisdiction also.

It did so by ranging widely and reviewing material such as the ILO convention 98 on the Right to Organise and Bargain  and the NICE Treaty, for example in an attempt to update what is meant by the right to collective bargaining and the court followed the ILO jurisprudence in determining the necessary standard of compliance.

The implications of this case are clear according to Professor Ewing and the reasoning of the court can not be limited to the right to bargain but extends to the right to strike, on the basis that industrial action is a human right. What is more, this probably covers all types of action including ‘political’ strikes (days of action etc).

Bear in mind also that the Charter of Fundamental Rights which, to many people was the strongest reason for voting Yes to Lisbon contains an identical provision to that in the ECHR which grounded the Demir and Baykara case. (Demir etc was decided before the Lisbon Treaty was passed)

Ewing is clear about the implications of this.

Irish constitutional law and employment law students learn that the corollary of the freedom of association is a freedom to disassociate, and in the particular case of the Ryanair and earlier Supreme Court judgements the right to run a ‘union free company’. In his view the Supreme Court decision is incompatible with the Demir decision and irreconcilable with ILO conventions.

Tony Kerr in concluding would go no further than to say that the decision was ‘significant for Ireland’. Precisely how this will work its way through the system we will have to wait and see. Trade union membership is about 30% of the working population and Ryanair can’t be to blame for all of that, so those who see this decision as a panacea may be engaging in wishful thinking.

Finally Keith Ewing noted that it was a remarkable coincidence that the European countries which had the most highly developed union rights were the ones doing best in the current economic challenges!

Please see link to UCD Diploma in Employment Law course on Links page. We at Workplace Solutions strongly recommend this course

He was good as good cooks go…and as good cooks go he went!

Everyone must protect their own interests I guess. But there’s something of a problem if this is to be achieved at the expense someone else.

And especially when those doing it claim to be in the solidarity business.

I wouldn’t like the job of cutting numbers in the health service but I never much cared for the slightly holier than thou demands from pundits seeking savings in the health service for the protection of ‘front line staff’ when it comes to implementing cuts. I get even queasier when I hear certain trade unions doing likewise; with the obvious implication that its ok to get rid of their brothers and sisters in the other unions, as long as they are left alone.,

The idea that the clerical and other support workers who make up the health care team are somehow standing around with their hands in their pockets is probably a very attractive one if you think you can have a strategy for cutting health services while maintaining the pretence that nothing will change for patients.

However the cook’s tale has changed all that. It appears that the somewhat unplanned approach of letting those wishing to take redundancy determine staffing in the HSE has resulted in an acute shortage of chefs. He was good… good cooks go, but as good cooks go, he went.

Not that it matters, they aren’t front line staff after all. Except,  for the story I heard about the hospice (not in the HSE) which lost its chef and has had to resort to the abomination known as cook chill.

Even the condemned man got to choose his final meal.

If we can’t give patients in the late phases of illness the  comfort of the meal of their choice, a reminder of their youth or happier times, we truly have lost the plot.

Healthcare is a team sport. The Frontline v The Rest  discussion is an unsatisfactory basis for reform! There may be better strategies on the way. I hope so. If it it’s not exactly anarchy, it’s a good illustration of the law of unintended consequences!

Continue Reading →

Labour Court extends Retail Grocery JLC terms to petrol stations

Note 1.

The National Minimum Wage is currently €8.65 per hour. The Government is proposing to reduce this to €7.65. Under the Employment Regulation Order (ERO) the rate for a ‘General Sales Assistant’ is €9.59 rising to €9.90 after 3 years. There are other benefits also not available as a matter of right to workers not covered by an ERO.

THis link will bring you to the ERO

Note 2 Added March 1st

  • Independent review of ERO/REA system ordered by EU/IMF due to report relatively quickly. More here

    ‘The Court determines that the Topaz Carlow retail unit situated at Green Lane Carlow is a Department of an undertaking engaged wholly or mainly in the retail grocery and allied trades. The nominated employees comes within the scope of the Joint Labour Committee and is subject to the provisions of the relevant Employment Regulation Order.’

    This was an action by NERA against TOPAZ / ARD SERVICES represented by IBEC concerning the  Applicability of Retail Grocery and Allied Trades ERO to a service station

    Text of Recommendation

    2. The central issue for the Court to determine is whether or not the Retail Grocery and Allied Trades Joint Labour Committee (JLC) and the Employment Regulation Order (ERO) (Retail Grocery and Allied Trades Joint Labour Committee S.I. No.374 of 2009) operates as respects workers in Ard Services trading as Topaz, Green Lane Carlow and specifically to Mr Patrick Burns who is employed there.

    The ERO in setting out the definition of Workers who come within the remit of the ERO states that they are: – All workers employed anywhere throughout the State in any undertaking or any branch or department of an undertaking being an undertaking, branch or department engaged wholly or mainly in the retail grocery and allied trades and who are engaged on any of the following duties, that is to say:
    (a) operations in or about the shop or other place where the sale by retail aforesaid is carried on being operations for the purpose of such sale or otherwise in connection with such sale;
    (b) clerical or other office work carried on in conjunction with the sale by retail aforesaid and relating to such sale or to any of the operations in (a) of this sub-paragraph.
    he ERO goes on to exempt some retail operations which are not relevant in this case.

    The ERO goes on to state

      • For the purposes of this schedule “the retail grocery and allied trades” consist of the sale by retail of:
         a) bacon, ham, pressed beef, sausages, or meat so treated as to be fit for human consumption without further preparation or cooking but does not include the sale, by retail, of other meat;
        (b) all other food (including bread or flour confectionery, articles of sugar confectionery and chocolate confectionery and ice cream) or drink for human consumption other than for immediate consumption on the premises at which the sale is effected;
        (c) tobacco, cigars, cigarettes, snuff and smokers’ requisites.
        3. For the purpose of this schedule:

    (a) in determining the extent to which an undertaking or branch or department of an undertaking is engaged in a trade or group of trades, regard shall be had to the time spent in the undertaking, branch or department on work in those trades; 

      • (b) an undertaking or branch or department of an undertaking which is engaged in any operation in a trade or group of trades shall be treated as engaged in those trades.Accordingly the Court must in the instant case determine
        a) whether a relevant undertaking, branch or department within the meaning of the ERO is in operation at the service station
        b) whether such undertaking, branch or department is engaged wholly or mainly in the retail grocery and allied trades and; 
    • c) whether the employee cited is engaged on any of the duties specified in section (a) or (b) above.

    a) The existence of the relevant undertaking, branch or department

    Ms Ruth McDonagh, M.G. Ryan Solicitors on behalf of Topaz Carlow submitted that the relevant undertaking for the purposes of the ERO is Topaz Carlow whose main activity is the sale of fuel and fuel related products that are not encompassed by the ERO. She said that fuel and non-ERO products in the current year accounted for 78% of turnover. Accordingly, she said, the undertaking was not wholly or mainly engaged in the retail grocery and allied trades and does not come within the scope of the relevant JLC and ERO.

    Mr Alan Haugh Solicitor on behalf of NERA submitted that the undertaking comprises a convenience store that is engaged in the retail sale of all items listed in the order and a facility for the retail sale of fuel (petrol and diesel). Accordingly he submitted that the undertaking came within the scope of the relevant ERO and JLC.

    Findings of the Court:

    The Court is satisfied that the ERO is so worded as to encompass not only an “undertaking” but also a “branch” or “department” of an undertaking when determining the relevant unit of operation for the purposes of determining whether and to what the ERO applies. The Court, on the basis of the evidence presented to it by the parties to the dispute, is satisfied that in the instant case, while the overall undertaking might be described as a service station within that undertaking there are several branches and departments as follows:
    · the main undertaking which is a retail petroleum fuel sales undertaking,
    · A department which sells services related to the main undertaking including car wash and other vehicle maintenance services such as vacuum and air services and
    · A department which is a retail shop.

    The Court is mindful that the purchase of motor fuel is not a precondition for the purchase of items in the retail unit. The retail unit and the purchase of motor fuels are not inextricably linked, interdependent or necessarily part of a continuous transaction. The selling of fuel and the retail unit are separate and distinct entities with different trading patterns, operating in different market places, against competition of different types. The Court accepts that they are mutually supportive from a business perspective i.e. business in one area may lead to business in the other, but that does not mean that they are so interdependent as to create a single homogenous unit. The retail shop undertaking could close or change the items stocked without affecting the capacity of the fuel sales business to operate and vice versa.
    The Court is therefore satisfied that the retail shop is a department of an undertaking within the meaning of that term in the ERO.

    b) Engaged wholly or mainly in the retail grocery and allied trades:

    The second issue for the Court to decide is whether the undertaking, branch or department is engaged wholly or mainly in the retail grocery and allied trades.

    Section 3 (a) provides that for the purpose of the schedule

      • ”in determining the extent to which an undertaking or branch or department of an undertaking is engaged in a trade or group of trades, regard shall be had to the time spent in the undertaking, branch or department on work in those trades;”
        Section 3(b) goes on to state: –(b) an undertaking or branch or department of an undertaking which is engaged in any operation in a trade or group of trades shall be treated as engaged in those trades.
        Ms McDonagh on behalf of Topaz Carlow submitted that 78% of turnover on the site comes from fuel, fuel related and non ERO items. She submitted that turnover was the most appropriate measure for determining whether the undertaking was wholly or mainly engaged in activities encompassed by the ERO. She referred the court to its decision in the case of Dagges Newsagents Limited v Department of Enterprise and Employment [DEC952 1995]. She submitted that the Court applied the turnover test in this case when deciding whether or not Dagges Newsagents came within the scope of the ERO. Applying this test in the instant case would mean that the undertaking was not wholly or mainly engaged in the retail grocery and allied trades as defined in the ERO. She also submitted a Daily Time Sheet that showed the standard time required of a named sales assistant to perform the different duties expected of him on the site. In submitting the document she advised the Court that no measurement of the actual time spent took place in the preparation of the time sheet. Rather it was the company’s best estimate of the time required to discharge the relevant duties associated with the operation of the site. From this document she concluded that 51% of the Shop Attendant’s time is spent at the Tills and 49% of time is spent attending to other exempted duties. She went to say that 22% of sales by value are of products covered by the ERO whilst 78% are of sales of fuel and non ERO products. She submitted that the Court is required to have regard to the time spent in the undertaking, branch or department on work in those trades and that it was clear that the sales assistant only spent a minority of his working day engaged on work associated with products that came within the scope of the ERO. She submitted that in a case such as this where the assistant spent the majority of his time dealing with matters which did not come within the ambit of that department which fell within the ERO, then even if a department could be identified which fell within the ERO the fact that the person who worked within that department spent the majority of their time on duties which did not fall within the ambit of the ERO meant that the person themselves could not fall within the ambit of the ERO.Mr Haugh on behalf of NERA submitted that turnover was an arbitrary criteria for determining this matter and was no more meritorious than floor space, profit margin, contribution to overhead or any other metric. He submitted that the ERO did not specify turnover as the appropriate metric to be employed in determining this matter and that the Court should ignore the evidence submitted in this regard as irrelevant and inappropriate. He said that Section 3(a) and (b) of the ERO requires the Court to have regard to the time spent in the undertaking on work in those trades. He submitted that the time spent by workers on work in these enterprises is wholly or mainly in the convenience store rather than on the forecourt. He further said that in the majority of cases, the workers in question have little or no forecourt duties, the enterprise in question being self service in relation to petrol / car wash duties. He further said that the workers were engaged in operations in or about the shop which invariably included one or more of those listed at paragraph 1(a) and (b) of Part 1 of the Schedule to the Order which brings them within the scope of the JLC and the provisions of the ERO. Findings of the Court:

    The ERO refers to “time spent in the undertaking, branch or department on work in those trades”.

      •  It would appear from this wording that being available at the till to process purchases within the shop or being available on a deli counter attending to customers constitutes work in those trades. Moreover duties are defined as “operations in or about the shop ….. being operations for the purpose of such sale or otherwise in connection with such sale”. Again this would suggest that being available to deal with customer purchases meets the criteria also. As this availability appears to be an ever-present feature of work in the retail unit along with operations for the purpose of transacting the sale of such products, the time spent in the undertaking appears to be indistinguishable from the opening hours of the unit. Taking all of these factors into account the Court determines that the retail unit is a Department of an undertaking wholly or mainly engaged in the retail grocery and allied trades and comes within the scope of the JLC and the ERO.c) Duties of the WorkerThe final question for the Court to address is whether the Worker cited is engaged on any of the duties specified in Section 1 (a) or (b) of the ERO.The Court notes that the terms “wholly or mainly” governs the business transacted in the undertaking, branch or department but does not explicitly govern the work undertaken by an individual employee. Section 1 of the ERO says that any worker employed in an undertaking, branch or department who performs “any” of the “following duties” is covered by the Act. The ERO then goes on to specify the following duties as : –(a) operations in or about the shop or other place where the sale by retail aforesaid is carried on being operations for the purpose of such sale or otherwise in connection with such sale;

        In its own submission Topaz Carlow acknowledges that the worker cited Mr Patrick Burns carries out some of the operations specified in Section 1 ( c ) of the ERO. As the Court has already found the business of the retail unit brings it within the scope of the ERO the Court finds that Mr Patrick Burns comes within its scope also.

        DECISION :

        The Court determines that the Topaz Carlow retail unit situated at Green Lane Carlow is a Department of an undertaking engaged wholly or mainly in the retail grocery and allied trades. The nominated employees comes within the scope of the Joint Labour Committee and is subject to the provisions of the relevant Employment Regulation Order.

        The Court so decides.

        Signed on behalf of the Labour Court

         Brendan Hayes
        8th October, 2010 ______________________
        JF Deputy Chairman

        Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.









    NERA advice on employees affected by bad weather

    Disruption of normal employment arrangements due to weather

     If an employee cannot come to work  due to adverse weather conditions, is the employer obliged to pay the employee?

    If an employee is unable to present for work due to weather disruption there is no legal entitlement for that employee to be paid.  Any alternative arrangement is a matter for agreement between the employer and the employee.

     Can an employee take annual leave days to cover the unforeseen absence from work?

    Employers may permit employees to take annual leave for those days, in which case they would be paid.  Normally an employer must give one month’s notice to employees where s/he wants an employee to take annual leave, however the employee may agree to a shorter time frame (e.g. to facilitate the taking of annual leave while stranded due to weather).

     Can an employee take unpaid leave to cover the unforeseen absence from work?

    This arrangement is a matter for agreement between the employer and the employee.  However the employee might need to check the impact on their ability to claim social welfare benefits for a period of unpaid leave.

     What happens where a roster has to be changed at short notice?

    Normally the employee shall be entitled to notice of at least 24 hours of a roster change.  However this does not apply where the change is subject to unforeseen circumstances justifying a change in the notified times. 

     What happens where the employer is unable either to open the premises because of weather conditions or where there is no work?

     If the employer has put employees on a period of ‘layoff’ because there is no work available and where the employer is clear that the layoff is of a temporary nature and that the employee can expect to return to work in the future, the employer is not obliged to pay employees.  However those employees who are eligible may be entitled to Social Welfare benefits.

     Complaints in relation to non Payment of Wages may be taken to the Rights Commissioners in the normal way.

     NERA Information Services

    1 December 2010

    Dispute Resolution; an opportunity to influence the next government?

    Let’s get a discussion started on what measures the dispute resolution community, if I might call it that would like to see in the next Programme for Government.

    Here is the text of what is in the Four Year National Recovery Plan (Page 33). This is in the somewhat limited context of bringing professional costs down. A broader focus on dispute resolution an all walks of Irish life might be a more positive approach

    Action Points

    Provide for 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.

    A package of measures to reduce legal costs will be implemented, including

    •  increased use of tendering by the State;
    • prioritising publication and enactment of the Legal Costs Bill; and
    • additional proposals for legislation to reduce legal costs, drawing on the recommendations of the Legal Costs Working Group and the Competition Authority.
    •  Provide for increased use of arbitration and mediation.

    As always, turning these fine words into reality will be a task in itself, but a first step will be to ensure that the parties which might make up the new government are also committed to them.

    Also, it is a chance to look at dispute resolution in the employment law area. Kieran Mulvey says the LRC is inundated. It takes a year to get to the EAT.

    I have some thoughts on these problems which I will return to shortly. Yours are more than welsome.

    The Christmas Party, great craic but……

     I know, I know, the party poopers are at it again. (That’s the author over there, by the way)

    But the Christmas party (or other social; events, or work events away from the normal workplace) give 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 colloeagues who have clear legal entitlement to be free of certain types of  unacceptable behaviour.

    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.

    The Small Firms Association notes in its November bulletin 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.’

    Good advice from Avine and her team. If you need more contact and see Equality page on this site

    CIArb Annual Dinner. Chairman’s address

    ‘Alternative Dispute Resolution has reached new heights in Ireland in the last year with the enactment of the Arbitration Act 2010 and with the recent publication of the Law Reform Commission proposals on ADR.’ Arbitration Institute Chairman  

    Terence O’Keeffe Chairman of the Irish branch of the worldwide dispute resolution body the Chartered Institute of Arbitrators told the Irish branch annual dinner last night (Friday 19th)  that the 2010 Arbitration Act ‘paved the way for Ireland to promote itself as a venue for International Arbitration.

    The Act provides that the High Court is the only court which can deal with any matters arising under the legislation and there is no appeal from it to any other court. 

    The Act provides for a Judge of the High Court to deal with all arbitral matters that come before and the Appointed judge is His Honour Mr. Justice Peter Kelly. 

    Judge Kelly has already handed down a judgement very recently on a matter relating to arbitration and has ruled that a body cannot nominate an arbitrator in which one of its one members is a party (in that case the CIF). 

    As a result of that ruling it is more important than ever to select a body such as the Chartered Institute of Arbitrators as the body named in arbitration clauses as default appointing body. CIArb has members from all professions amongst our ranks who are well qualified to arbitrate a wide range of disputes and as we are an independent  body the arbitration clause should satisfy the European directive. 

    A further boost to Alternative Dispute Resolution in Ireland was received when the Law Reform Commission published it’s Report on ADR earlier this week. At the launch the Chief Justice stated that the use of ADR as an alternative to litigation must be actively promoted by the State. 

    Amongst the reports recommendations are: 

    Legislation should be enacted which defines clearly what is meant by Conciliation and Mediation.

    There should be a statutory code of practice for Con and Med to include training requirements

    Mediation or conciliation can be initiated either (a) independently of court proceedings or (b) where suggested by the court after Court proceedings have commenced.

     We now have court rules which provide for Mediation in both the High and Circuit Courts so all of the above encourages the use of ADR as a mechanism by which to resolve our disputes in as non contentious, expeditious and inexpensive manner as possible. 

    The role of the CIArb Irish branch is provide the education and training of those wishing to act as dispute resolvers and to appoint them to act where required across the entire range of disputes as arbitrators, mediators or other specialist third party neutrals. 

    Continue Reading →

    Ten million reasons for alternative dispute resolution

    Who can say where the truth really lies? 

    But the complaint was subjected to the full rigour of due process.  

    There was an investigation, admittedly which found that allegations of wrongdoing were unfounded. Carried out by a solicitor. And yet a combination of circumstances resulted in the respondent (I nearly said victim) ending up on the receiving end of a €10 million payout…………for now. How did they end up where they did. 

    What lessons do we learn from this? 

    Taking the benign view of this you wonder how the hell it ever got so far. I’m an advocate of full investigations when complainants feel aggrieved. It’s what our culture of fair procedure demands and it is often the precursor to happy and successful outcomes. 

    Bit I’m a much greater advocate of the merits of the intervention of a competent mediator to sort these things out some way south of an award of €10 million. The report of the Law reform Commission on ADR gives good examples of amicable settlements reached through a mediation process.

    Continue Reading →

    01 10 Bhí mé ag smaoineamh!

    It means I was thinking, in a reflections sort of way, about dispute resolution…what else.

    Would the logjam of cases at the Rights Commissioner service and the LRC in general be eased if it insisted on greater compliance with the Code of Practice on Discipline & Grievance? or if they used independent mediators and arbitrators as happens in the UK

     And should local procedures be amended to avail of private mediation before upgrading disputes to ‘LRC’ status? 

    The CEO of the LRC has recently (again) drawn attention to the strain on his agency from the increased number of cases referred to the Rights Commissioner service in particular.

     Here is a ‘modest proposal’ to address that and the possibility that the LRC and the Rights Commissioner are being used as a clearing house of first instance, rather than parties sorting out problems at the level of the workplace.

     The Code of Practice governing Discipline and Grievance  (SI 146/2000) has a role to play here. It  emphasises its relevance to situations of individual representation.

    it says that ‘Good practice entails a number of stages in discipline and grievance handling. These include raising the issue with the immediate manager in the first instance. If not resolved, matters are then progressed through a number of steps involving more senior management, HR/IR staff, employee representation, as appropriate, and referral to a third party, either internal or external, in accordance with any locally agreed arrangements.

     This gives rise to two issues. I made a complaint to the Rights Commissioner service recently about the poor quality of information on the complaints forms submitted by a solicitor (in one case there was NO information!) to be told that the RC service could not insist on any particular level of information. This is extraordinary. 

    This suggests that no notice is taken by a public dispute resolution body of the statutory Code of Practice governing grievance and dispute resolution which binds employees as well as employers.  At a minimum the Service should require compliance with the Code e.g. contact with the employer AND some attempt at dispute resolution before admitting a dispute for consideration. In the ‘old days’ this was what trade unions used to be for!

     In the case just referred to three quarters of an hour was taken up with establishing whether the claimant had in fact received her Terms of Employment statement (which she had) before the claim was withdrawn. The claimant’s solicitor simply took her client’s word and didn’t bother to check. Obviously there is not much attraction for solicitors in getting involved in HR! 

    This could be avoided by the RC service insisting, or at least encouraging more strongly compliance with the LRC Code of Practice. Elsewhere in legislation the adjudicator is empowered to take non compliance with the code into account. Why though could the LRC not make compliance with its own code a factor in processing a case for a hearing, even if the only sanction was to delay the listing until it had.

    If such a facility existed as part of a wider development of dispute resolution skills the LRC (and the Rights Commissioner service) would not be under the pressure it is. And for business and its associated costs the burden of long running workplace problems might be more speedily disposed of in private and at local level.

     Second, the code contains encouragement to use of third party interventions such as mediation at the level of the workplace and the incorporation of this in specific terms as an option in the Code of Practice (SI 146/00) and by extension in Terms of Employment documents should be encouraged. This will assist in expediting settlements and avoiding workplace disruption.

     IBEC has made a strong recommendation in the discussion paper on Institutional reform of Employment Rights/Industrial Relations for a greater role for mediation. However the outworking of this is the issue and what practical expression can be given to the Code of Practice. It also has implications for the text of grievance and disciplinary procedures recommended by IBEC to members as best practise for incorporation in Terms of Employment Information statements or Contracts of Employment.

    Pat Brady

    Fear ag smaoineamh