Employment rights system to be streamlined

The reform of Ireland’s industrial relations system will mean the consolidation of the current five institutions into a two-tier structure. The outline of this reform was published earlier this year. The old system was seen as inefficient, leading to long delays in the scheduling of dispute hearings. The new structure has faced criticism over whether individual workers would retain the same employment rights, and over the expertise of those in charge of the system.

Background

The impetus for creating a new, streamlined industrial relations dispute resolution and employment rights structure in Ireland came from the need to address the existing ‘outdated, complex and inefficient system’. Problems with the system meant there could be delays of up to two years for a hearing to be scheduled, according to Ireland’s Minister for Jobs, Enterprise and Innovation, Richard Bruton.

The current system operates through five bodies – the Labour Relations Commission, the Equality Tribunal, the National Employment Rights Authority (NERA), the Employment Appeals Tribunal and the Labour Court.

The new system replaces this structure with two bodies – a single, first instance body called the Workplace Relations Commission (WRC) and an expanded Labour Court which will largely deal with appeals. The WRC and the Labour Court will be statutorily independent of each other and will make their decisions separately and independently. Legislation is being drafted, called the Workplace Relations Bill, to establish the new system which is expected to roll out in 2013.

In January 2012, a single complaint form was introduced for all employment-related claims. This single form provides for 100 different first instance complaints and replaces the 30 forms that were previously in use. A new Workplace Relations website was launched in January providing information on the rights and obligations of employers and employees, and explaining how to seek redress through the new system.

Workings of the WRC

All first instance or initial complaints will go to the WRC through one of three channels – the Early Resolution Service (ERS), inspection or adjudication.

The ERS was integrated into the WRC due to the ‘almost unanimous view’, gathered during the reform’s consultation process in 2011, that early intervention brings positive results and is cost-effective. Participation in the ERS is voluntary and parties will not lose their right to have their issues dealt with by inspection or adjudication. Details of cases being processed through the ERS will be confidential to the parties involved and the Case Resolution Officer who assists in resolving the dispute.

Cases resolved through the ERS will be closed when an agreement is signed by both parties involved and supplied to the ERS. Such an agreement is binding on both parties and enforceable by the parties through the civil courts. A pilot ERS was launched on 14 May 2012 with an evaluation of the pilot due at the end of 2012. The current mechanism for conciliation for collective disputes (currently facilitated by the Labour Relations Commission) is not expected to be changed as it is a ‘long established service which enjoys the confidence of employers and employees’ (see the government’s Blueprint to deliver a world-class workplace relations service (864Kb PDF)).

Greater powers for compliance officers

To promote compliance by employers, a more proactive risk-based programme of inspection is to be introduced along with investigation of complaints. A Compliance Officer will be able to bring a complaint to the Labour Court, reducing the need ‘to rely on expensive and time-consuming prosecution procedures for certain offences’. A Compliance Officer can issue a Compliance Notice to an employer who has failed or refuses to rectify a non-compliance, which will outline steps the employer must take. A Compliance Officer may also issue a fixed charge notice of around €150. Inspection reports will be admissible as evidence in a WRC or Labour Court hearing.

The decision about whether an inspection or hearing is most appropriate for a specific dispute will be determined by legislation. In certain cases, a registrar of the WRC will be able to choose the most appropriate channel for a complaint.

All WRC hearings will be conducted by a single adjudicator, who will be appointed through an ‘open and transparent’ system. Hearings will be held in private unless the WRC adjudicator, at the request of a party involved, decides that it should be otherwise. Adjudicators’ decisions will be written, reasoned, signed and dated and are to be delivered to the parties within 28 working days of the hearing. Decisions will be published on the WRC website 10 days after the parties are notified. A party to a dispute may request anonymity in the published decision, but they will have to provide a reason for their request to the WRC adjudicator who will decide whether to grant anonymity.

An expanded Labour Court

The Labour Court will continue almost all its current functions, although some first instance complaints previously heard in the Labour Court will now be processed through the WRC. The court will hear appeals against WRC adjudicator decisions, and appeals and enforcement issues stemming from compliance notices.

The statutory mediation and conciliation remit of the Labour Court under the Industrial Relations Acts 1946 to 2004 will be unchanged by the reform.

The new system is expected to result in a 56% increase in cases presented to the Labour Court. To cope with this, the court’s divisions will be expanded from three to four and two additional deputy chairs will be appointed. This will bring membership of the court to 13, composed of a chair, four deputy chairs and eight ordinary members.

The Labour Court was originally set up to deal with industrial relations issues under a voluntary system, and there was some concern during the reform consultation phase that it would now act as an appellate body for employment rights issues as well. However, the Labour Court has taken responsibility for handling employment rights issues over the years and can adjudicate on statutory legal rights under the 1974 Anti-Discrimination (Pay) Act and the 1977 Employment Equality Act.

Staffing of the WRC and Labour Court

Adjudicators who are already part of the current system will continue in that capacity under the new WRC. This comprises largely civil servants and external appointments with a broad range of experience and expertise. Staff will receive intensive training on the changes brought about by the reform.

New adjudicator appointments will be made from the civil service through the existing appointment process or through an external panel which must be ‘open and transparent’. Adjudicators will appointed for fixed periods of time.

In the Labour Court, the appointment of ordinary members will be made on merit from a panel of candidates submitted by employer representative groups and trade unions, in keeping with the tripartite culture of the Labour Court.

Criticism of the reforms

Several aspects of the reform plan have come in for criticism. In June 2012, an ad hoc committee of the current Employment Appeals Tribunal pointed to what it saw as flaws in the structure of the WRC. It stressed the potential difficulty that an individual employee’s employment rights could be affected in such a way that a dismissed worker would not have an ‘effective remedy and a fair trial’ as prescribed by the Charter of Fundamental Rights of the European Union.

It expressed concern over the suitability of civil servants fulfilling the role of a WRC adjudicator in a lone capacity ‘with no expertise in industry or law’. It also questioned the ability of an expanded Labour Court’s ability to deal with issues grounded in employment law and an increased workload, and asked why hearings should be held in private.

Support for the changes

The current Chair of the Labour Court, Kevin Duffy, defended the reform proposals, saying the Labour Court was already qualified to act on employment law issues and the court was ‘demonstrably capable of differentiating’ between the employment law and industrial relations law. He said figures used to suggest the number of cases heard by the Employment Appeals Tribunal in its current capacity were distorted. He said the figures recorded referrals by the number of individual claimants – for example a case involving 20 workers may lead to one decision that applied to all 20 workers but was recorded 20 times. Mr Duffy added that new arrangements for the WRC would aim to resolve cases at an earlier stage.

The reason for WRC hearings being held in private, he said, was based on the current system that operated under the Rights Commissioner service (part of the Labour Relations Commission) which was established on a legal basis.

Minister Bruton responded to the committee’s criticisms by saying that groups who ‘have done very well out of the existing system’ would resist change and ‘throw up reasons why you should not change it’.

Ireland’s social partner bodies, the Irish Business and Employers Confederation (IBEC) and the Irish Congress of Trade Unions (ICTU), have not challenged the reform proposals.

Brian Sheehan, IRN Publishing

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