Tag: Employment Law/HR

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.

 

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.

Landmark European decision on right to collective bargaining discussed

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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

Labour Court extends Retail Grocery JLC terms to petrol stations

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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

    • LABOUR COURT DECISION (DEC106) Edited

    ‘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
          

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