The National Employment Rights Authority has today (March 20th) published its annual report for 2011.
We will publish a commentary shortly but in the meantime you can read the report here
Some headlines:
NERA report says only 1% of inspections result in prosecutions
2011 saw 5,591 NERA inspections involving 100,000+ employees. (2010; 7,164 cases). Unpaid wages recovered was €1,905k (2010 €1,250k).
On a day when there was some silliness in the air about Ministerial ‘report cards’ Richard Bruton returned to UCD, the location of his announcement last July at the UCD Law School/Employment Law Association of Ireland event on his plans to shake up the employment rights bodies to give an update on what he had been doing in the meantime.
The Minister for Jobs, Enterprise and Innovation would be getting ‘A’s for effort and achievement on his ‘report card’!
Speaking at the IRN annual conference in UCD (www.irn.ie, no serious practitioner should be without a subscription!) the Minister told the attendance that he had ‘a good story to tell’ about the journey since that announcement.
He first outlined the principles underlying the project.
‘High standards in the workplace and good employment rights give us competitive advantage’ he said. ‘While the voluntary system is good up to a point the absence of a means to vindicate rights would undermine confidence in the system’.
He repeated the widely shared criticism of the current system as having too many routes of entry, of engaging parties in the adversarial process too early and of being too legalistic and costly.
His key priorities were early intervention, speedy adjudication when it reaches the adversarial stage and credible enforcement.
The Minister’s ‘good story’ included confirmation that the 30 complaints forms had now been reduced to one and the five portals of entry to the system also down to one.
There is a single website www.workplacerelations.ie
Employers are now notified in 48 hours that a claim has been lodged (this could have been 8 months according to the Minister and also in this writer’s experience. Long after the ‘safety’ of the six month deadline had passed one could learn that a claim had been lodged).
And this Minister ain’t finished yet!
The next phase will include the option of inputing a claim on line, and a pilot project of the new system ‘within weeks’.
The shape of the new system in three stages will be early resolution (mediation); inspection by the newly titled ‘Compliance Officers’ of NERA (better than ‘Inspectors’, the Minister feels) who will seek voluntary compliance and may impose ‘on the spot’ fines rather than drag an employer through the formal processes.
Stage three will be adjudication initially by a single person adjudicator with the option of a de novo appeal hearing at a three person tribunal in a newly vamped Labour court, it would seem.
And it doesn’t stop with the structures.
The Minister promised a decision from the first instance hearing within 28 days, and a database of ‘case law’ which parties can consult for reference.
Interestingly, as I understood him these adjudicators will be sought from suitably qualified people selected by open competition.
The Minister has promised that legislation to underpin all this will be on the statute books in the autumn with a consultative document to be published by the end of this month (March).
The Minister ended with a strong endorsement of the public service team which had taken this project so far.
He said he had often referred to the public service as containing ‘committed and talented people trapped in a system which had failed them’. He paid a tribute to those led by Ger Deering who had driven the reform process.
An interesting discussion followed with contributions from Kevin Duffy, Chairman of the Labour Court, Kieran Mulvey Chief Executive of the LRC, Ger Deering, Director of the Reform process, Brendan McGinty of IBEC and Tom O’Driscoll BL who heads up the Legal unit at SIPTU. All agreed that these were ‘landmark’ developments and in Kevin Duffy’s words ‘looked like they will happen’ a reference, one assumes to previous discussions about reform failing to get beyond the starting gate
I have one question (and it has been discussed in a recent blog). Within the commercial sphere the courts have powers (and in the UK have used them) to ‘punish’ parties who unreasonably refuse to attend at mediation or mess about when they are there.
What incentives will there be to use the early resolution service, or, based on the Halsey case principles (and others) and the likely application of Order 56A of the Rules of the Superior Courts what adverse consequences might flow for not doing so?
Kieran Mulvey went a step further (backwards, in a way) to say that there was a need to bring solutions back to the workplace, and said that the continued juridification of the process is not helpful, a point echoed by Brendan McGinty who noted that behind the issue of employment rights is the issue of workplace relations.
Here at Workplace Solutions we are really in favour of, well workplace solutions!
Press Statement
The Irish Branch of the world’s largest dispute resolution body, the Chartered Institute of Arbitrators has given a warm welcome to the publication this week of the outline of the Mediation Bill. The Irish branch of CIArb has about 750 members qualified in all areas of dispute resolution, (including mediation, arbitration, conciliation and adjudication).
This follows the Law Reform Commission Report in 2010 and commitments in the Programme for Government to improving dispute resolution and reducing legal costs.
Pat Brady, Chairman of the Irish Branch of CIArb commented;
This is an important day for Irish business. It would be easy to underestimate the significance of the statutory underpinning of mediation as a means of resolving disputes throughout the economy, in family and employment matters also.
Professional mediators, such as our mediator members, deploy a range of skills and techniques which, in the vast majority of cases, aid parties in dispute to resolve their differences in a positive way, that not only keeps them out of the courts and away from crippling legal costs, but which can sometimes avoid the negative destruction of relationships. Many judges have spoken strongly in favour of mediation, not simply as an alternative to the legal system but increasingly as a vital part of it in achieving justice for those involved.
We welcome the provision for lawyers and the courts to encourage parties into mediation, (with a possibility of financial consequences if they do not).
The following are highlights in the proposed Bill:
Mr Brady especially welcomed the requirement that mediators have high level and specialised training and operate under a code of conduct.
‘CIArb accredited mediators are trained to an international standard and operate under the Institute’s Code of Conduct and its Charter, and we provide additional training in workplace mediation for example. We will be making a submission to the Oireachtas committee on Justice & Equality in due course on operational aspects of the Bill’
he concluded.
Ends
Further Info: Pat Brady 086 258 7940 pat.brady@workplacesolutions.ie
CIArb 01 707 9739, ciarb@arbitration.ie
Anne-Marie Blaney 087 60 2262. annemarieblaney@gmail.com
The Minister for Justice, Equality and Defence Mr. Alan Shatter, T.D. has said “The Mediation Bill will give effect to the undertaking in the Programme of the Government for National Recovery (2011 – 2016) to encourage and facilitate the use of mediation to resolve civil, commercial and family disputes.”
The Minister added “The general objective of the Bill is to promote mediation as a viable, effective and efficient alternative to court proceedings thereby reducing legal costs, speeding up the resolution of disputes and relieving the stress involved in court proceedings. I am anxious to ensure that individuals and companies engaged in a dispute regard resolution of their dispute through mediation as preferable to court litigation.”
The General Scheme builds on the recommendations of the Law Reform Commission in their ‘Report on Alternative Dispute Resolution – Mediation and Conciliation’ which you can read here
The following are highlights in the proposed Bill:
· the imposition of a statutory requirement on solicitors and barristers to tell clients about the possibility of using mediation as an alternative means of resolving disputes prior to commencing court proceedings;
· a requirement that all communications between parties as they try to resolve a dispute using mediation shall be confidential;
· it will remain for the parties themselves to decide whether to engage in mediation and, indeed, to decide on the terms of any agreement arising from the mediation;
· the provision of a statutory basis for the courts to invite parties to consider the mediation option and to adjourn court proceedings for the duration of the process.
-a requirement that mediators advise parties of their qualifications.
The draft Bill is to go to the Joint Oireachtas Committee for Justice, Defence and Equality which has to forward its views prior to finalisation of the Bill and the Minister is asking the Committee to revert to him no later than the 1 June next.
The Bill extends to employment disputes but not if they have already been referred to the Labour Relations Commission
The Chartered Institute of Arbitrators offers training to those wishing to become accredited commercial mediators and offers the option of membership of the CIArb.
CIArb is the largest dispute resolution body in the world and the Irish branch has some 700 members.
The course is run by the Institute’s approved trainers Facilit8 led by acclaimed mediator Amanda Bucklow and starts on March 5th running for 6 days (one rest day) with the assessment taking place over the weekend of March 24th.
The course is independently assessed, i.e. not by those delivering the training; a distinctly important consideration,
On our last course one of the participants was Mr Justice Paul Gilligan, judge of the High Court, (I should say successful participants as the pic confirms. Judge Gilligan receiving his certificate form International President Doug Jones, watched by Irish branch Chairman…yours truly!)
if you are interested contact the Dublin office of CIArb at ciarb@arbitration.ie or pat.brady@workplacesolutions.ie.
Successful completion of the course opens the pathway to membership of CIArb.
“it’s a great course! It’ll change how you look at the world”
Initially Issued Dec 29th; See update below received on Jan 6th regarding Equal Status cases The important changes promised by Richard Bruton will be implemented shortly in the delivery of the State’s Employment Rights and Industrial Relations Services (Workplace Relations Services).
Background
Mr. Richard Bruton, T.D. Minister for Jobs, Enterprise and Innovation, commenced a programme of reform of the State’s employment rights and industrial relations procedures during 2011. His aim is to establish a world-class workplace relations service and employment rights framework by streamlining the existing structures, procedures and mechanisms and establishing a simpler structure while building upon the recognised strengths of the existing systems.
The overall objective of the reform is to encourage early resolution of disputes, the vindication of complainants/employees rights and minimisation of the costs involved for all parties – respondents/employers, complainants/employees and Government – in terms of money, time and workplace productivity. The workplace relations bodies included in the reform programme are the National Employment Rights Authority (NERA), the Employment Appeals Tribunal (EAT), the Labour Relations Commission (including the Rights Commissioner Service), the Equality Tribunal and the Labour Court.
This is a very ambitious reform programme and the Minister set some very challenging targets, the first of which will be achieved by the introduction next week of a new Website, a Single Complaint Form and a Single Point of Contact.
Interim Website
An interim Website (www.workplacerelations.ie) will, from 4th January, 2012, provide information on employment, equality and industrial relations legislation and associated public services. The websites of the five existing workplace relations bodies will remain in place pending the establishment of the fully fledged Workplace Relations website towards the end of 2012.
Single Complaint Form
A Single Complaint Form for all first instance individual complaints and referrals to the Rights Commissioner Service, the EAT, NERA, the Equality Tribunal and the Labour Court will be available from January 4th, 2012. This new form will replace 30 existing complaint forms that currently accommodate over 80 specific complaint types. The Form will be available through both the interim website and the five existing websites. Complainants can complete the Form on their system, print and sign it for postal submission and save a copy for their own records.
Single Point of Contact
A Single Point of Contact will commence operations from January 4th. This new service, to be called the Workplace Relations Customer Services of the Department of Jobs, Enterprise & Innovation, will have the responsibility for a) information provision in relation to employment, equality and industrial relations rights and obligations, b) the receipt and registration of all first instance complaints currently referred to the five workplace relations bodies, and c) dealing with enquiries concerning the status of complaints and associated procedures and processes. Workplace Relations Customer Services can be contacted at Lo Call 1890 80 80 90 or through the eForm on www.workplacerelations.ie
Further Reforms
A range of further structural and procedural reforms are planned for 2012. These will include the establishment of a Workplace Relations Early Resolution Service, the objective of which will be to seek resolution of complaints as an alternative to a formal adjudication hearing or an inspection. Work is currently underway on the design and implementation of a Pilot Early Resolution Service to commence in the first quarter of 2012.
Equal Status cases
As a result of a query from Workplace Solutions the following reply was received from the Department on Jan 6th.
It is intended that all the existing services of the Equality Tribunal, including equal status complaints (non-employment rights) will be accessible through the Workplace Relations Website, Customer Services contact point and the Single Application Form.
The reform programme will see a new two-tier structure with one body of first instance and one appellate body established to deal with all employment related matters. While this new structure will deal with all employment equality matters no decision has been reached in relation whether the new structure will deal with equal status complaints or whether they could be more appropriately dealt with by another body.
This matter is under active consideration and a policy decision is expected in the near future.
Contacts
Further information on the reforms and on the new services to be introduced from January, 2012 is available at www.workplacerelations.ie by calling 1890 80 80 90 or by replying to this email.
Or if we can help or advise contact; pat.brady@workplacesolutions.ie
I know, I know, the party poopers are at it again. But just dusting down some seasonal advice that might save you a lot of trouble, and cost!
(See also excellent article by Linda Hynes, Solicitor, Leman Solicitors in Sunday Business Post, December 18th)
The fact is the Christmas party (or other social events, or work events away from the normal workplace) gives rise to obligations and may be covered by employment rights law.
Bullying legislation refers to behaviour ‘at the place of work or in the course of employment’ and while a single act will not constitute bullying the same does not apply to harassment, and that normally means sexual harassment.
This is defined (in broad terms) as inappropriate or unwanted verbal or physical behaviour and could result in a complaint by a victim of such behaviour under the company ‘Dignity at Work ‘ policy (if you don’t…you should have one).
And after the ‘rake of pints,’ shots and general bravado the insight necessary to distinguish between acceptable and unaceptable behaviour may diminish, with consequences for colleagues who have a clear legal entitlement to be free of certain types of unacceptable behaviour. And this could cover a wide range of behaviours!
And while these comments have focussd on sexual harassment there are other aspects to dignity at work which may also be offended. We now have minorities in Ireland whose right to equal treatment is enshrined in law (and a pity in many ways we have to rely on the law for that measure of decency and equality of treatment!)
And the employer may be liable for such behaviour if he has not taken reasonable steps to prevent or address it.
Linda Hynes refers in her article to a fight at an office party in Malahide which resulted in an unfair dismissal and cost the employer €150,000!
The Small Firms Association has noted that:
‘Employers must be aware that the party venue is basically an extension of the office and that they remain responsible for the well-being, protection and behaviour of employees during such events. Employers should make note in a work function invitation that appropriate behaviour is required at the party.’
If you need more contact pat.brady@workplacesolutions.ie and see Equality page on this site
Text of Statement from Dept of Jobs, Enterprise & Innovation
You can access a copy of the Bill here
The Minister for Jobs, Enterprise and Innovation, Mr Richard Bruton TD has this evening [Thursday 1st December 2011] written to employers’ representative bodies to confirm that legislation to transpose the EU Directive on Temporary Agency Work is being finalised in light of the conclusion – without agreement – of discussions between Social Partners on the possibility of agreeing a derogation under Article 5.4 of the Directive. This derogation could have provided a qualifying period before agency workers on relatively short term assignments would be entitled to the same basic pay and working conditions as if they were directly recruited.
These discussions have not yielded agreement on such a derogation, which is a matter of regret to the Minister. It is not open to the Government to legislate for a qualifying period, as this was a matter which was placed in the hands of the Social Partners under the terms of the Directive.
Accordingly, the Minister informed the representative bodies that the Directive will become effective on a “day 1” basis, with no lead-in or qualifying period. This means that with effect from 5th December, 2011 all temporary agency workers (c.35,000 workers or approximately 2% of the active workforce) assigned to a hirer are entitled to equal treatment in terms of basic working and employment conditions as if they had been directly recruited by the hirer in the same job. The Government’s Bill, when published before Christmas, will confirm this and will define pay for the purposes of the legislation as follows:
This is an exhaustive list in the Bill to be published. Other possible component elements of remuneration will not be included in the definition of pay for the purpose of equal treatment in the Bill, including for example:
The Bill will also provide for equal treatment of Temporary Agency Workers who fall within scope of the Directive in respect of the following:
The Bill will also transpose the Directive’s provisions that temporary agency workers will also be given rights in relation to access to the collective facilities and amenities of a hirer (e.g. canteen or other similar facilities, childcare facilities and transport services) under the same terms as directly recruited employees and are to be informed about vacant posts.
The Minister said to the representative groups that Hirers and Agencies should make the appropriate arrangements to ensure that the principles of equal treatment as indicated above are put in place from 5thDecember, 2011 for all temporary agency workers, including those who are assigned on or after 5thDecember, 2011.
CIArb President Doug Jones with Mr Justice Paul Gilligan at the event
Dispute resolution processes used for commercial disputes reflect the requirement of quick, inexpensive processes which allow parties to maintain commercial goodwill.[1] Mediation and other ADR techniques are generally accepted as a cheaper alternative, and on that basis there has been an increase in these methods to resolve disputes. Conversely, long and arduous litigations can be expensive for both parties.
Recently in Australia, there has been much talk about the unreasonable amount of money spent on some commercial disputes. Most notably, the Seven Network Limited v News Limited[2] which was described by Sackville J (the presiding judge) as a ‘mega-litigation’. Sackville J went on to state:
An invariable characteristic of mega-litigation is that it imposes a very large burden, not only on the parties, but on the court system and, through that system, the community.[3]
His honour elucidated that he himself was surprised at the excessive amounts of money spent on this case. He estimated that ‘the parties have spent in the order of $200 million on legal costs in connection with these proceedings’[4] and he questioned whether the amount of money spent was justified given the amount of damages claimed in the case. For example, Seven claimed between $194.8 and $212.3 million when its final submissions were made.[5] Sackville J concluded that ‘[t]he maximum amount at stake in this litigation has not been very much more than the total legal costs incurred to date’.[6]
His honour quite forthrightly labelled the C7 Case litigation ‘extraordinarily wasteful’ [7] and bordering on the ‘scandalous’.[8]
The C7 Case is but one example, albeit an extreme one, of how litigation can be costly in commercial disputes. Logically, the legal costs for long, drawn out disputes will accumulate. Bearing this in mind, many companies now opt for ADR clauses within their commercial contracts. ADR techniques, such as mediation, are likely to be far less ‘wasteful’ whilst achieving similar results.
Since 2001,[9] there has been much discussion about the need for a national accreditation scheme for mediation in Australia. NADRAC has been instrumental in lobbying for a national system for accrediting mediators.
The National Mediator Accreditation System (NMAS) commenced operation on 1 January 2008. It is an industry based scheme which relies on voluntary compliance by mediator organisations that agree to accredit mediators in accordance with the requisite standards. These organisations will be referred to as Recognised Mediator Accreditation Bodies (RMABs).[10]
In its discussion paper released in 2004, Who Says You’re A Mediator?, NADRAC defined accreditation as:
[T]he process of formal and public recognition and verification that an individual, (or organisation or program) meets, and continues to meet, defined criteria. An accrediting body or person is responsible for the validation of an assessment process or processes, for verifying the ongoing compliance with the criteria set through monitoring and review, and for providing processes for the removal of accreditation where criteria are no longer met.[11]
NADRAC suggests that there is a need to move towards a national scheme because it would promote the following objectives:[12]
Bearing the importance of these factors in mind, a consensus was reached in 2006 as to the basic characteristics of the National Mediator Accreditation Scheme. This scheme is intended to develop a framework and documentation to guide the implementation of the National Mediation Accreditation System. Proposals were discussed and accepted at the National Mediation Conference in May 2006.
Nation-wide accreditation standards have been developed in order to enhance the quality of national mediation services in Australia. They also aim to facilitate consumer education and build consumer confidence in ADR services, improve the credibility of ADR and help build the capacity and coherence of the ADR field.
With consistent standards across Australia, mediation and other ADR tools are being used increasingly and on a larger scale. Therefore, it can be reasonably inferred that the successful implementation of this project over the coming years will cause a continued increase in the use of mediation.
Whilst businesses, the courts, the legislature and peak professional bodies continue to extol the virtues of mediation in Australia, it appears that it will continue to grow and develop as an alternative method of dispute resolution. The benefits of mediation over litigation and other ADR tools are becoming increasingly apparent and accordingly many firms are opting to draft mediation clauses within their commercial contracts. Furthermore, the court system is utilising the benefits of mediation to alleviate the pressure from their lack of resources.
The next step in Australia is to continue to improve this National Accreditation System in order to promote consistency within mediation across the country. Pending the success of this national system, the outlook of mediation in Australia appears positive. The preference of mediation as the ‘best choice’ to resolve disputes has increased over past decades and it appears that it will continue to do so.
[1] Boulle, above n 12, 214–215.
[2] [2007] FCA 1062 (C7 case).
[3] Ibid para 2 (Sackville J).
[4] Ibid para 8 (Sackville J).
[5] Ibid para 9 (Sackville J).
[6] Ibid.
[7] Ibid para 10 (Sackville J).
[8] Ibid.
[9] See, eg, National Alternative Dispute Resolution Advisory Council, ‘A Framework for ADR Standards’ (2001) available at <http://www.nadrac.gov.au/> at 4 November 2011.
[10] National Alternative Dispute Resolution Advisory Council, National Mediation Accreditation System <http://www.nadrac.gov.au/>at 4 November 2011.
[11] National Alternative Dispute Resolution Advisory Council, ‘Who Says You’re a Mediator? Towards a National System for Accrediting Mediators’ (March 2004), 3.
[12] Ibid.
On September 29th, the Chartered Institute of Arbitrators, which has a presence on both sides of the border, held a conference in a Belfast hotel to look at commercial disputes from a variety of different contexts but with one common theme; resolving the dispute without the need to go to court.
The conference was opened by the Chairman of the Chartered Institute of Arbitrators (Irish Branch ) Pat Brady who introduced the keynote speaker; the Minister for Justice in Northern Ireland, David Ford MLA who re-iterated his support for alternative dispute resolution and highlighted the fact that the issue was given prominence in the recently published ‘Review of access to justice in Northern Ireland’.
As cross-border disputes were the underlying theme of the conference the issue of how the cross border mediation Directive has been transposed on both sides of the border was something that legal expert Nicola White did with great skill and dexterity. (Ms White was the legal expert to the Law Reform Commission report on mediation).
In these straitened financial times the issue of employment law is never far from the headlines especially if it involves a dispute and Ciara Fulton from Tughan Solicitors walked the audience through the intricacies of the differences north and south regarding the machinery of employment dispute resolution.
A subject that is perhaps less prominent in everyday life is that of disputes in a sporting context and Dr Jack Anderson from Queens university spoke passionately and authoritatively as he addressed the use of alternative dispute resolution in a sports context including everything from rugby to boxing.
From sport to something completely different as Ed Quigg from Quigg Golden enthralled the conference with his sharp analysis of the ADR landscape in a construction law context on both sides of the border with a view to recent and future legislative developments.
The conference was then delighted to hear from the Honourable Justice Gillen, judge of the N. Ireland High Court who has been a long time advocate of forms of alternative dispute resolution, but especially mediation. Justice Gillen spoke of how, as a judge, he could see the merits of properly trained and accredited mediators in the context of both family and commercial disputes and he talked of his hopes to see such systems become integral to the way disputes are resolved.
The conference was closed by the President of the Law Society for Northern Ireland, Mr Brian Speers who has been perhaps locally the most well known promoter and long time advocate of the use of alternative dispute resolution.
The President spoke candidly and authoritatively on what needed to be done to ensure ADR in Northern Ireland became something more akin to the rule than the exception. As serendipity would have it the President was unexpectedly joined by his Australian counterpart, Mr Alex Ward who acted as an impromptu closer of the conference with antipodian anecdotes regarding ADR “down under”.
The conference audience was left in little doubt that ADR has reached critical mass as a concept which stands outside the system and now is the time for it to come in from the cold. The Irish Branch and NI Chapter of the Chartered Institute of Arbitrators and the audience considered the conference a great success and perhaps the building block for future or indeed annual cross-border conferences.
(Thanks to Mark McAllister, Convenor, N. Ireland Chapter of CIArb irish Branch who prepared this report)
