Submission (II) on Employment Rights reform

Posted on September 26, 2011 by Pat Brady

Introduction

Please see previous blog

Maintaining good employment relations and resolving workplace conflict

(These are our answers to a set of questions posed by the DEJI as part of the consultation process)

1.1 How do you think employers and employees can best be supported in resolving disputes at workplace level?

Training; too many HR professionals engage in dispute management by procedures manual. There needs to be a greater awareness of dispute resolution techniques

1.2 Can the provision of timely, up-to-date factual information help to facilitate early resolution of grievances/ claims and stem the flow of formal cases being submitted?

No, not on its own. In fact it may have the opposite effect. Addressing the litigious mindset and the grievance industry requires a significant change in the approach to workplace dispute management.

1.3 When and how should interventions be available from the State?

As at 1.1 the ideal place to resolve disputes is where they arise. However the provision of information especially on mediation of other ADR options will contribute to the reduction of delays

1.4 How do you think access by employers and employees to a just, fair and efficient adjudication process can be ensured?

By first making the system itself intelligible and then making it accessible (simpler forms.)

Integrated structure

2.1 Do you agree that the integrated two-tier model should be adopted as guiding principle?

Yes.

2.2 Do you agree that “differentiation” of processing channels should be minimised to optimise the benefits of the proposed reform and to avoid re-introduction of institutional and procedural rigidities?

Yes, and this does not require separate channels as at present. Cases could be assigned to divisions of a ‘new’ Labour Court (my preferred term) on the basis of known expertise. (One could have a redundancy/unfair dismissal division, general appeals, industrial relations etc. rather as we have a Commercial court, a dedicated Arbitration judge etc. See introductory comments. One division should specialise in small business disputes)

2.3 Should all claims in respect of employment related complaints/claims (including employment related equality matters) be submitted and dealt with by one body of first instance?

Yes

2.4 Should employment rights cases only go to the body of second instance on appeal (i.e. should the right of either side to object to the body of first instance hearing a case be removed)?

Yes. Also appeal to the circuit court should be on a point of law only.

2.5 If minimal differentiation within a two-tier structure is to be pursued, what would the optimum streams / chambers be within both the first instance and the appeals entity? For example, is there a need to retain some organisational distance / separation between the distinctive roles of

o The inspectorate function (i.e. NERA’s role in inspection, enforcement and where appropriate prosecution);

o the conciliation and mediation processes dealing with collective disputes;

o the advisory / mediation / investigative procedures dealing with individual industrial relations and employment rights claims;

o any subsequent formal adjudication on such individual cases.

How might a satisfactory segregation of these distinctive functions be best achieved?

By effective case management at first instance, then overall management within an integrated structure.

2.6 What would be the advantages and disadvantages of having statutory redundancy appeals handled on an administrative basis, perhaps through the established social welfare appeals structure, given that statutory redundancy payments are now administered by the Department of Social Protection?

No comment

Appointment, tenure, etc, arrangements in new streamlined employment rights bodies

2.7 Should the arrangements for the appointment and tenure of those working in/ appointed to the new streamlined employment rights bodies be changed, and if so, what should be the guiding principles?

Adjudicators; All positions at the level of current Rights Commissioners/EAT members and Labour Court members should be subject to open competition in line with public service norms and a panel of private arbitrators should be established.

Mediators. The existing mediation and conciliation services should be supplemented with a panel of private accredited mediators

Information and Advice

2.8 Should there be one website covering all employment rights and industrial relations matters?

Yes

2.9 Do you agree that a more coherent and co-ordinated approach to the provision of advice and information on industrial relations and employment rights issues should form part of the services of the new first instance body?

Most definitely

2.10 What is the best method of providing information and advice?

Website, social media (IBEC has an Employment Law ‘app’!) and by telephone. The Citizens Information networks have very accessible employment law advice

2.11 Should non-directive advice be provided to employees and employers on what options may be available to them on the basis of the facts provided and where to go for help if required?

As currently with NERA

Single Point of Entry /Submitting Individual Industrial Relations and Employment

Rights Claims

2.12 How can a single point of entry for all individual industrial relations and employment rights complaints/claims best be achieved?

Merge the LRC, the Rights Commissioner service and the EAT. Retain NERA as a separate body with close links to the new body with a clear role as a clearing house in minor or non contentious matters. Once there is an integrated structure this will send a message that the system has been streamlined which should be accompanied with simpler forms.

2.13 Should there be a single application form for all individual first instance industrial relations and employment rights complaints/claims?

Yes. However, many claimants and respondents (including solicitors) do not take the forms seriously. I have experience of turning up to a Rights Commissioner hearing with only the scantiest information about the claim. No claim should be processed until a form is correctly completed

2.14 What measures could be taken to improve information gathering from complainants / applicants at application stage?

Simple. If the form is not completed to a reasonable standard that communicates the necessary information to the other side then it should not be processed. It is a basic requirement of fair procedure that a respondent, say is in a position to defend a claim by knowing what gives rise to it. The stock invitation to parties from the Rights Commissioner service to attempt to resolve matters should be strengthened and enforced, perhaps as a condition of being granted a hearing, (although the mediation requirement would take care of this )

2.15 Should there be a consistent time limit for initiating all complaints/claims/appeals and if so what should it be?

Yes. Six months as at present. Reference to mediation should however ‘stop the clock’ for a duration of reasonable length, say one month.

2.16 Do you agree that more consistent arrangements are required for the representation of claimants so as to enable individuals to nominate a person to represent them at a hearing e.g. trades union official, solicitor, other representatives, etc?

No.

2.17 Where the power to present/refer a complaint is currently limited to the claimant, should it be extended to include the claimant’s trade union and, where appropriate, the claimant’s parent/guardian?

Yes, including in relation to appeals.

Enforcement

2.18 Should there be a consistent method of enforcing awards of employment rights bodies and if so what should that be?

Circuit Court.

Facilitating early interventions and alternative dispute resolution methods

3.1 What interventions should be available prior to a formal hearing or inspection to resolve grievances or non-compliance e.g. telephone contact, informal hearings, more formal mediation, conciliation or arbitration?

Mediation should be made a requirement as a default position and only in extreme circumstances should a party be excused from doing so. (see the principles laid down in Halsey v Milton Keynes NHS trust)

3.2 What is the best method of identifying suitable cases for early intervention?

Vigilance!

3.3 At what stage should the intervention take place, for example should it be available when the person first seeks information, prior to them lodging a complaint/claim or after a complaint/claim is lodged?

Both. There needs to be a stronger culture of this at workplace level and NERA should audit Discipline & Grievance procedures to ensure they contain a mediation option and that parties understand its use.

3.4 Is there scope for harnessing the expertise and capacity of personnel within the existing bodies to decide on straightforward issues where purely factual matters are in dispute?

Yes

3.5 Is there scope for forging positive connections between the public dispute resolution system and external experts in preventive alternative dispute resolution methods at workplace level?

Yes. Here are some proposals.

The Arbitration Act 2010 should be amended to remove the exclusion of employment related disputes.

A panel of suitably qualified private mediators should be established to provide early intervention or following referral to the new body.

3.6 Should parties be required to set their case out in writing?

No, but encouraged to do so as they may be at a disadvantage if they do not.

3.7 Should all complaints/claims be examined for potential interventions and should time limits apply to the offers of conciliation or mediation support?

Yes. But conciliation or mediation should not be an offer, but a requirement with adverse consequences for those who unreasonably refuse to cooperate

3.8 Are there particular kinds of issues, for instance, where mediation is likely to be especially helpful or, alternatively, where it is not likely to be helpful?

Mediation is helpful in almost all cases. An exception may be matters related to bullying or sexual harassment, for example.

3.9 Would there be merit in having a “preliminary hearing” process and if so how should it operate?

No, or very rarely. If mediation becomes a norm this is an unnecessary extra layer.

3.10 Should certain cases be dealt with on the basis of written submissions only?

In arbitration this is referred to as ‘Documents only’ arbitration and is common practise. Another option is Online Dispute Resolution (ODR) practised for example with great success by Ebay. This might work for simple non compliance disputes.

3.11 Should attempts at resolution have any bearing on any subsequent hearing or should the process be confidential and not admissible in any hearing?

Yes, in the case of wilful refusal to participate in mediation or obstruction at it. Otherwise absolutely not. The idea of mediation is grounded in confidentiality and being without prejudice.

Conduct of Proceedings

3.12 Should there be a uniform set of procedures regulating the conduct of hearings in all cases heard at first instance?

Not necessarily. Some standardisation might help. Rights Commissioners have different styles in relation to presentation of submissions etc but this is not necessarily harmful to the process (although apparently particularly disliked by lawyers).

3.13 Should first instance jurisdictions be empowered to dismiss what are adjudged to be frivolous, vexatious or misconceived claims without holding a formal hearing?

Probably not! But a costs penalty might assist in such cases.

3.14 Should hearings of employment rights disputes /appeals be heard in public or in private?

In public with a power to hold sensitive hearings ‘in camera’.

3.15 Should there be a uniform period for submitting appeals?

Six weeks

How ‘Fair’ does ‘Fair procedure’ have to be?

Posted on August 29, 2011 by Pat Brady

Minister for Jobs, Enterprise & Innovation, Richard Bruton is embarking on some much-needed reform of the employment rights bodies. A consultation period concluding on September 16^th has been announced. (Details and more information can be accessed via the News Section of the Homepage on this site).

Outside the issue of structures (about which I intend to write more in due course) there is an aspect of this that may otherwise escape attention in a debate focused on reform of the institutions.

But it is as badly in need of attention as part of the package of reforms.

That is SI 146/2000; the statutory instrument which is the benchmark document for the operation of fair procedure at workplace level, or more accurately the interpretation of the procedures it promotes requires a fresh look.

Interestingly, I had this piece more or less concluded when I came across an article on the site of the American Bar Association entitled ‘How fair does justice have to be’? It concerns the duty on the prosecution to share information with the defence in criminal trials (known as ‘Brady material’, as a matter of interest, but no relation!). It is only relevant to this article insofar as I am asking the same question and relieved that it does not turn me into some sort of a fascist for daring to ask it!

At the outset I am concerned on the basis of my own experience and what I hear from colleagues about the apparent loss of dispute resolution skills in many workplace situations. The Pavlovian reach for the Procedures manual can be bad for workplace relations and more important for the speedy and fair resolution of disputes.

Even where the employment relationship has ended amicable and early resolution of disputes is desirable for all parties.

The CIPD reckons that HR managers with mediation skills are 80% more likely to resolve disputes than those without. I suspect that for ‘mediation’ one might substitute ‘negotiating’ skills.

While the broad principles of the SI and the Code of Practice are fine, and indeed very important my concern is its applicability in small business settings. The principles in the document appear to have been drafted by people who weren’t thinking about small or medium sized, owner managed businesses.

This is despite the fact that about 60% of all businesses employ 50 people or less. No data are collected for micro-businesses. But clearly many thousands of these employees are employed in retail, and other businesses with under 20 employees or smaller.

For example s 13 reads; ‘Procedures should set out clearly the different levels in the enterprise or organisation at which the various stages of the procedures will be applied’

This is a good idea for ‘enterprises or organisations’ that have ‘different levels’. And the overall tone and expectations of this document are those of large enterprises and government departments; business organisations with a hierarchy. Most small businesses only have one level!

It envisages a level of administration impractical in a small business. I once had a case where the employer collected the claimant in his car every morning at 6.30. Following an incident he gave him a good telling off one morning as they were on their way to work.

Should he; the operator of a small butcher shop have sat down when he got in to work at 6.45 am and made a record of that? Under the current dispensation it might be the difference between an expensive award against him or not.

The claimant may not even dispute that it happened but a good, especially legal representative will make an issue out of the lack of documentation as a matter of principle, rather than from the point of view of a real, substantive breach of the employees rights, or as a matter of evidence as to whether the warning was issued.

To expect the owner of a small business to match a well resourced HR department in a large company or state organisation in the administration of workplace discipline is simply unrealistic; even unfair, as we’re on the subject.

I do not argue for one second that there should be any diminution in the substantive rights to the full rigour of fair procedure of a person accused of something which may cost them their job

However, it may be that the calcification of the system with its investigations, delays, hearings, costs can result in unfairness to all parties through the prolongation of disputes unnecessarily.

The impact on human relations in the workplace in replacing the inter-personal dynamic with an obsession with disciplinary and other procedures is surely a bad thing if it turns the workplace into a quasi legal battleground.

Another issue is the requirement for an appeal layer which is impossible to implement in most small businesses in any meaningful way.

In thousands, perhaps in most small businesses there is insufficient daylight between the necessary decision maker and any other person who might hear an appeal.

In my opinion the idea that an independent third party (paid for by the business owner) might be appointed to hear the appeal is somewhere between ludicrous and dangerous.

This essentially takes what is still at that point an internal business decision out of the hands of the owner of the business.

In any case, strictly speaking such an adjudicator, paid for by the employer may not be viewed as independent taking into account the requirement for independence in arbitrators and recent decisions of the courts on such appointments. (Healy v Whitepark Developments, 2009 Unreported). (Private arbitration by a competent arbitrator is another matter, and I repeat my criticism of the mystifying exclusion of employment disputes from the Arbitration Act 2010, a really stupid decision).

Again I have had a recent painful experience where a person appointed to hear such an appeal did so without terms of reference, without holding a hearing, and without giving reasons for his findings. Neither the adjudicator, the company which suggested him, the employer or the employee (represented by a large Trade union) thought it necessary to challenge any of these deficits. A mess? Carnage!

Indeed the whole idea that ‘nemo iudex’; the principle underpinning fair procedure that no-one is a judge in his own cause can apply in any meaningful way in a small to medium sized business is somewhat fanciful (and has been recognised as being so by the High Court).

It is ludicrous to imagine that the owner of a small to medium sized business can rise to judicial levels of detachment in relation to issues in which s/he has a direct involvement and with employees s/he knows well. No amount of po-faced posturing about fair procedure will change this reality.

The Rights Commissioner service is hearing cases with a relatively short delay and offers the option of an appeal under the Industrial Relations Act which would remove the necessity for such pantomime at the level of the workplace. This might resolve the matter subject to it having the resources to cope (or by also amending the Arbitration Act to allow private arbitration in employment disputes).

Parties for example need clarity that the lack of an appeal layer in a small business may not be a breach of fair procedure.

The basic principles in the Code of Practice should not be changed (except that the option of mediation really needs to be put centre stage in view of the expected Mediation and Conciliation Bill in 2012). But at the very least the implementation of those principles in a small business setting needs to be clarified (what are ‘adequate records’ for example?) and we are unlikely to get a better opportunity than the forthcoming consultation process.

It can happen that an employer has done their very best to be fair within a general understanding of the term, and indeed has complied with a very high standard of procedural fairness but still ends up being tripped up because there is no documentation of a verbal warning!

In other words where a process has been in substantial compliance (whatever that may mean) with the requirements of fair procedure technical flaws should not render it unfair.

The problem is no-one knows with certainty (normally until it is too late) what the standard should be. At the point you find out for sure you could be reaching for your cheque book and paying out a five-figure sum.

Is it this ‘juridification’ of workplace discipline issues that is destroying traditional dispute resolution skills practised for generations by old style personnel managers (as they were then) and workplace representatives.

It is likely that the current SI was based on discussions between the then ‘social partners’ who were scarcely very representative of small enterprises or cognisant of these issues. The high level of involvement of some solicitors and barristers in the system with limited knowledge of HR and workplace dispute resolution processes has compounded the problem.

Those who are representative of small business might now be invited to consider the preparation of a more relevant document that brings greater clarity for all parties involved as part of the Minister’s reform initiative.

There is no argument being made here that basic principles of fairness should be in any way compromised, or that peremptory action by bad employers should be rewarded.

But there should be explicit recognition that due regard should be had to the small business context, proximity of relationships etc. in assessing compliance with the SI where there has been an attempt in good faith to operate in a fair way.

Epilogue

I dedicate this article to the memory of an old acquaintance. A lonely, single, middle-aged, gentle person with a drink problem who happened, stupidly to call into his workplace while intoxicated, but did no more than that. He did nothing wrong.

He was, in accordance with the procedures suspended pending a disciplinary investigation by his award winning employer. At that point he consulted me. I advised him on June 28th to seek medical help immediately and we would deal with the disciplinary matters later.

He agreed to do so.

He was found dead, alone exactly four weeks later. He was buried on July 22nd

May he rest in peace.

The Bruton proposals for reform of the employment rights bodies

Posted on July 8, 2011 by Pat Brady

‘A system not fulfilling its purpose, compliant businesses sucked into costly hearings, workers having to wait too long for a remedy, a system you wouldn’t choose if you were starting out with a blank page’

A selection of the things Minister Richard Bruton had to say about the current employment rights dispute resolution bodies at the recent conference organised by UCD Law School and the Employment Law Association of Ireland. (July 1-2)

And there was more!

‘Five redress or enforcement bodies, (resulting in ‘forum shopping’) 35 different forms to launch proceedings, different time limits, different routes of appeal, a system that is too complex and requires professional help to negotiate it (something he said was never intended) and a system overloaded by problems arising from the economic crisis’

In common with many aspects of the Irish public service these words on the need for reform of the employment rights bodies are far from the first to be uttered, or written about the employment rights disputes bodies.

And while the conference featured a number of distinguished contributions from Irish and international speakers (about which more in a future newsletter) all who heard these remarks, or who practise in the employment rights bodies will be focused on the possibility that change may at last be imminent.

Few who know the system would take issue with the Minister’s criticisms or the need for the changes he described. And more important than its impact on practitioners is its failure to provide early and effective solutions both for complainants and respondents.

Indeed the big question after the Minister’s speech was; ‘Will it really happen this time?’

Some reasons for thinking that it will are that this initiative is also about getting better value for money.

Unusually in public service reforms this could be one of the cases where better value is not just a synonym for ‘cheaper’ but may actually result in a better service to those who use it both as ‘clients/customers’ and their representatives.

The Minister’s plan is for the creation of one, common portal of entry, with simplified forms etc, one basic system of adjudication at first instance (with one hopes a mediation level) and one of appeal.

There would be a common format for the submission of cases and, perhaps most important, active case management. (It can take eight months for a party to even be notified that an unfair dismissal claim has been lodged against them.)

Some innovations are being considered. Could there be more ‘documents only’ hearings? This sounds like an oxymoron but it is common in arbitration proceedings.

In relation to straight compliance issues such as whether an employee has a statement of their Terms of Employment could this be addressed by a NERA inspection, rather than requiring a hearing simply to establish the facts either way. (In this respect the standard suggestion made by the Rights Commissioner service that parties make contact with each other to clear up such matters is rarely taken up. Pending wider reform perhaps there should be greater encouragement to do this and sanctions for failing to do so.)

And of particular interest to this writer is the possibility that more extensive use might be made of mediation. (And while we are at it why not take the opportunity to remove the exclusion on arbitrating employment disputes in the 2010 Arbitration Act).

But the employment rights sector has now fallen very much behind the debate about mediation. Some of those at the conference (including some policymakers) seemed unaware of the Law Reform Commission report on Mediation, published last November, which does cover employment disputes.

The potential contribution to early dispute resolution of having a panel of accredited mediators available to parties is the missing piece in the jigsaw in this discussion.

Undoubtedly, many details would have to be worked out (what does accredited mean, who would pay etc) but in drafting the reforms Mr. Bruton’s Department should look at where this might fit in in the overall scheme of things. It needs to catch up on what is happening in relation to ADR in the wider context. The Chartered Institute of Arbitrators will be making a submission to the Minister along these lines.

What’s next? The Minister sees a short period of consultation and the establishment of an ‘Implementation Group’. He noted that the Croke Park agreement will facilitate any changes involving transfer of personnel.

So at last change looks likely, especially given the positive political reaction to the Minister’s remarks, including from Labour backbenchers where he has not been a popular figure of late! His discomfort has been relieved, for now at least by the recent decision of the High Court in the case brought by ‘fast food’ restaurants here. A point of interest now arising is whether existing contracts of employment are in fact protected, as was generally believed would be the case. More to follow on this, no doubt.

(To contact the Employment Law Association of Ireland its Chair is Carol Fawsitt at Hayes Solicitors; email cfawsitt@hayes-solicitors.ie)

(There is a link to the Minister’s speech on my homepage)

The Resolution of Individual Employment Rights Disputes

Posted on June 27, 2011 by Pat Brady

(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 1^st July & Saturday 2^nd 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, 1^st 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, 2^nd 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.

Radical thinking needed post election to improve dispute resolution

Posted on February 20, 2011 by Pat Brady

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!

Posted on February 10, 2011 by Pat Brady

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????

Landmark European decision on right to collective bargaining discussed

Posted on December 17, 2010 by Pat Brady

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!

Posted on December 14, 2010 by Pat Brady

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…..as 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

Posted on December 11, 2010 by Pat Brady

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

(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;

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

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

NERA advice on employees affected by bad weather

Posted on December 7, 2010 by Pat Brady

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