Labour Relations Commission to launch new mediation and arbitration services

In response to major changes in the industrial relations landscape over recent decades and more diverse expectations from its clients, Ireland’s public dispute-resolution body, the Labour Relations Commission, announced in July 2004 that it plans to launch two new dispute governance services from 2005. These are a mediation service and a voluntary arbitration service.

Given a changed industrial relations context in Ireland (IE0406203F) - including the proliferation of non-union employment and new employment relations practices - a growing number of observers believe that the existing dispute-resolution system needs updating, and 'alternative dispute-governance options' are required. In recognition of this evolving landscape, one of the major public bodies for resolving industrial relations disputes, the Labour Relations Commission, announced in July 2004 plans to launch a new mediation service and a voluntary arbitration service, with the purpose of extending its existing range of services to meet the demands of a more diverse client base.

The LRC is currently engaging in a consultation exercise on its proposals with the social partners and other interest groups. Depending on the responses it receives, the Commission hopes to introduce its new services at the end of 2004. The Commission had indicated in itsStrategy framework 2002-4 that it planned to develop new services for clients. In this document, the LRC signalled its intention to strengthen and extend the range of services it provides in the dispute-avoidance and -resolution arena, with an emphasis on possible new voluntary mediation and arbitration services to be introduced as an adjunct to existing machinery.

Distinction between mediation and arbitration

The main current dispute-resolution service offered by the LRC is conciliation. It now plans to offer mediation and arbitration. The definitions used are as follows:

• mediation is essentially a process whereby a neutral third party assists those in conflict to reach their own resolutions for solving their disputes, and it is characterised by principles such as informality, 'win-win' outcomes, and voluntarism;

• by contrast, conciliation is a process operating within the context of traditional collective bargaining - ie trade unions and employers engage in conciliation as a means of resolving their collective bargaining disputes; and

• arbitration is a quasi-judicial process, since an arbitrator makes a decision which is often binding, and which the parties are expected to abide by.

Mediation is seen as being closer to conciliation than arbitration.

'Win-win' bargaining

The LRC believes that it should introduce a new mediation service in order to 'provide to our existing and potential clients an opportunity to avail of the expertise of its staff in both the advisory and conciliation services to bringing about a form of mediation which will lead to 'win-win' bargaining in regard to the issues of workplace change and the speedier resolution of non-justiciable disputes'.

The proposed mediation service would provide a process whereby group grievances can be resolved in cases where employees/employments do not have right of access to the state dispute-resolution machinery. Further, the service would be offered where until now, for whatever reason, the parties have relied solely or exclusively upon their own exclusively internal agreed or enterprise-established negotiation and grievance procedures, and where issues have not usually been referred to outside parties, but where such internal procedures have not led to the resolution of the disputes in question - examples include prison officers, the police (gardai) and defence forces, and non-unionised employment.

The new 'facilitation'/mediation service would also be aimed at particularly complex disputes, which require ongoing and dedicated assistance from LRC officers over some time. Such disputes are increasing in frequency in both the public and private sectors and relate largely to major restructuring (IE0403202F). The mediation service would be provided by officers from both the advisory and conciliation services of the LRC, on the basis of a joint request from interested parties.

In terms of the perceived benefits of the new mediation service, the LRC suggests that it: responds to an increasing demand for 'not the usual conciliation involvement'; provides a consistent medium-term commitment on a 'total settlement process'; and provides a forum and process by which employers and employees that are outside the statutory remit of the LRC have access on an ad-hoc basis to its professional advisory and conciliation services.

Opening up to non-union firms

The LRC wants to provide a voluntary mechanism through which employers and employee groups in the 'non-union' sector (IE0102164F) can have access to services that they have not used to any great degree to date. Workplace mediation in the non-union private sector has the potential, the LRC feels, to be expanded beyond direct mediation to the role of offering advice on 'best' industrial relations, with the added potential of reducing the level of referrals to the Rights Commissioner service and Employment Appeals Tribunal, where there is a persistent level of referral from specific sectors or enterprises (IE0402203F).

Significantly, the LRC feels that mediation can play a useful role in smoothing the implementation of EU employment law Directives, for instance in the areas of information and consultation (IE0309204F) or working time. Similarly, it is seen as having a useful part in transposing the requirements of various offical codes of practice in workplaces, and thus ensuring: less frequent actual or threatened work stoppages; more voluntary union recognition agreements; and less litigation or appellate investigation of alleged breaches of employment rights, disciplinary issues and discriminatory work practices.

By using mediation, the LRC believes, the parties can engage in order to reach mutually agreed solutions, internally, without recourse to formal dispute-investigation procedures or awaiting the outcome of formal investigation by a dispute-resolution body.

Binding arbitration

With regard to the LRC's proposed new voluntary binding arbitration service, 'it is planned to more efficiently and effectively expedite individual or small-group issues which are proceeding currently through the Rights Commissioners Service, the Conciliation Service and the Labour Court.'

According to the LRC, rather than going to its conciliation service or the Labour Court, individual and small-group claims could potentially be resolved through an alternative agreed system of dispute resolution leading to binding arbitration. As matters stand, these types of claim take up a large proportion of the time of the LRC and the Labour Court. Over the last decade, the LRC estimates that between 20% and 25% of annual referrals from the LRC to the Labour Court have come under the individual and small-group claims category - ie involving five people or less.

The LRC is of the view that any claims under the new arbitration service should not either involve issues relating to a whole grade of employment or have a potential or actual 'knock-on' effect on other individuals, unless the parties agree in advance that such an outcome is included in the claim and both recognise this implication and accept it. Further, both parties to a dispute would agree to use the service on the understanding that the case would be heard by an independent and neutral third party and result in a final decision/adjudication which is binding on both parties. The LRC would appoint an arbitrator from an approved list. Neither party using the procedure would be allowed to resubmit the same case or issues to the conciliation or Rights Commissioner service at any time in the future.

With regard to the perceived benefits of a new arbitration service, the LRC believes that it would provide a fast, efficient and effective service to the parties with the purpose of securing a final resolution to local employment disputes involving minor issues. It is intended to provide reciprocal benefits to employers, trade unions and employees by freeing the resources of the state dispute-resolution machinery to focus on other, larger-scale disputes. The scheme is aimed at preventing the overburdening of the conciliation and Rights Commissioner services and increasing the efficiency and speed of handling cases.

Considerations

However, the LRC recognises that a number of issues have to be taken into consideration in relation to the new services. With regard to mediation, there is the issue of resources, in the sense that the extent to which the mediation service will complement or replace the existing advisory and conciliation services is difficult to assess, particularly given the strength and acceptability of both these existing services in the traditional areas of Irish industrial relations. The Commission says that it has sufficient resources at present to meet the requirements that might arise.

The scope of mediation is also an issue. The anticipated client base is likely to be as follows: state agencies undergoing restructuring as a result of either fiscal or political decisions; private sector unionised enterprises undergoing major rationalisation, expansion or restructuring; and non-unionised employment, in which employers and employees, by availing of such a service are not tied into the formal dispute-resolution machinery provided under sections 25/26 of the Industrial Relations Act 1990.

In terms of organisational capacity and development, the LRC believes that the new mediation service 'expands the outlook of the Commission in the context of the services it provides', including a combination of formal and 'alternative' dispute-resolution in the workplace: 'It develops and strengthens the voluntary dispute-resolution model by providing to the parties an additional and agreed system/process for the resolution of potential/actual disputes.'

Resource considerations also arise with the new arbitration service. However, the LRC suggests that it would be impossible fully to quantify the total cost per annum because, for instance, it is not yet clear how many cases currently going to conciliation would instead be referred to binding arbitration. The LRC notes that the recent appointment of an independent assessors panel as part of the pay compliance procedures (IE0312204F) under the current national partnership agreement, Sustaining Progress (IE0304201N) 'has been a positive experience'. According to the LRC: 'Staff of the Commission are willing and able to perform this function as well and would provide and enhance cross-division competencies and experience. The Rights Commissioners would be requested also to participate in the service.'

The arbitration service will be tried out for 12 months, after which its effects and take-up rate will be assessed.

Commentary

There have undoubtedly been major shifts in the Irish industrial relations landscape in recent decades - encompassing, for instance, the growth in labour laws promoting individual employment rights, the substantial increase in women's employment and the rise of the non-union sector - that have not been fully reflected in the institutions for settling disputes at work. It is evident, then, that the existing system of dispute governance in Ireland needs updating to reflect the new realities of workplace industrial relations. Recognising that it has to respond to a more diverse client base with more diverse expectations, the Labour Relations Commission, which is responsible for resolving industrial relations disputes, plans to launch early in 2005 the new services outlined above - ie an informal mediation service and a binding arbitration mechanism for individual and small-group claims. It remains to be seen what impact these new services will have and what the level of demand will be. (Tony Dobbins, IRN)