Legislating For A Worldclass Workplace Relations Service Submission

Peninsula Team

July 06 2012

Minister Richard Bruton (pictured left) has today unveiled his submission to the Oireachtas Committee on Jobs Enterprise and Innovation, for the reform of the Workplace Relations Service in Ireland. The Minister will seek to engage with the Oireachtas Committee on Jobs, Enterprise and Innovation to provide them with an opportunity to input into the future design of the State’s workplace relations structures. In order to facilitate his dialogue with the Committee the Minister has presented a Policy Document, Legislating for a World-Class Workplace Relations Service  to the committee. This sets out in detail the provisions that the Minister believes should be incorporated into the proposed new legislation.

The document itself is detailed in its content and seeks to address each particular aspect of the previously published Blueprint for reform. this Blueprint was made available to stakeholders to provide comment on, and the Minister has also published a compendium of all the proposals received. the document is available here, and Peninsula's own Submission is included in this document. Having reviewed the Legislating for a World-class Workplace Relations Service document, it is striking to note that the Minister in his introductory paragraph did not hold back on his criticisms of the current system. These criticisms have been echoed by employers for a long time now and it is refreshing that they have not gone unnoticed.  The criticisms of the current system are outlined as;

  •  Five organisations with overlapping, but completely separate, objectives and operations
  • So complex that even experienced practitioners find it difficult to comprehend
  • Claims are often referred to the wrong forum or under the wrong statute: they sometimes become statute barred before the error is discovered
  • Lack of consistency between, and in some cases, within the bodies regarding the degree of formality of hearings, rules of evidence and the use of adversarial or inquisitorial procedures
  • Overly legalistic with many users feeling the need to incur legal expenses
  • A set of circumstances arising in respect of a single employee and single employer can give rise to a number of claims, which must be processed through different fora to obtain redress
  • Different routes of appeal can apply for issues arising out of the same set of circumstances in the same employment
  • Irrational and inequitable variations in how compensation is calculated and in remedies available - no reasons are given for decisions in some cases
  • Duplication of functions between the bodies results in “forum shopping”
  • Delays are excessive
  • Poor value for money

the Minister has not set a clear timeframe in terms of when he sees the legislation being enacted, however at a previous IRN Conference in UCD, he declared that the legislation should be in place by Autumn 2012, and on the back of previous actions by him you would imagine he will be sticking to this timeframe. The document itself is well laid out Chapter 1 sets out in broad outline the streamlined two-tier system that the Minster is proposing should replace the current complex system which comprises five separate bodies. The subsequent chapters each deal with discrete key components of the proposed new system. The chapters are structured as follows:

  • They begin with a brief description of the status quo and the need for reform followed by the key rationale for reform of that particular area.
  • The relevant proposal for reform detailed in the Blueprint document of April 2012 is then summarised as is the feedback received from the interested parties who made submissions in response to the Blueprint.
  • Finally, each chapter concludes with a detailed outline of the reforms the Minister is now proposing.

Some of the chapters provide little insight or change however below we have detailed what we see to be some of the main points arising from this, and some of the notable changes in the document. Chapter 4 – Registrar The issue of the Registrar has been of particular concern to some parties, and the Minster stated that the submissions received in response to the Blueprint included considerable commentary on the proposed Registration Service and the role envisaged for it, and that the commentary was 'largely negative'. Some of the key criticisms received were;

  • While the proposed Registrar system may work for complaints grounded on a particular employment rights, it may not be suitable for dealing with more general industrial relations issues. Time-limits and other statutory restrictions are not applicable to disputes of interest
  • The Registrar’s jurisdiction to refer a complaint either for hearing or inspection may result in inspection being used to undermine compliant employers

The Minister has proposed that the Registrar will act as legal advisor to the Director of the Workplace Relations Commission and will simultaneously, with the assistance of the staff assigned by the Minister to the Registration Section, perform a range of functions that are analogous, for example, with those of the Legal Advisor to the Equality Tribunal. It is also envisaged that the Director may recommend to the parties concerned that particular complaints be combined into a multi-party hearing. This option could possibly be exercised, for example, where it is apparent that multiple complaints of a similar nature (e.g. under the Payment of Wages Act or the Organisation of Working Time Act) are being lodged against a single employer, or associated employers. The Minister has provided detail as to what the function of the Registrar will be; 

  • Provision of timely legal advice to the Director in relation to the statutory functions of the WRC.
  • Provision (and external procurement, where necessary) of advice to the various directorates of the WRC on the application of substantive employment law and procedural matters.
  • Development of procedural guidelines for the various functions of the WRC, at the direction of the Director.
  • Liaison with the offices of the Attorney General, including the Chief State Solicitor and the DPP.
  • Production of reports and statistical analysis on throughput of complaints and referrals for the Director/Minister.
  • The management of outsourced legal services suppliers - overseeing: all procurement for such services; the quality of services; value for money of services provided; cost control.
  • (In conjunction with the Chief State Solicitor’s Office), instruction of external counsel in matters of judicial review or in any other proceedings in which the WRC is named as a notice party.
  • Fulfilment of a range of miscellaneous administrative/procedural tasks to be assigned specifically in legislation or delegated by the Director or the Minister.
  • The publication of ‘compendia’ and analysis of decided cases which will be of assistance to parties and their representatives in bringing and defending complaints etc.

Chapter 5 – Early resolution The issue of the Early Resolution Service (ERS) was a highlight for many with the original blueprint and provided part of the basis of reform. This view was confirmed by the submissions received in response to the Blueprint. However, the document states that some respondents did query the use of telephone interventions, observing that this form of intervention could not be a substitute for face to face mediation or conciliation, for example. The Minister acknowledged the validity of this concern, and highlighted that the ERS will have a range of tools at its disposal and that they will be deployed as appropriate. He did not discount the option of using telephone interventions, and highlighted statistical evidence from the UK as to the validity of this. According to the Document the ERS will work as follows:

  • Parties named in first instance complaints/referrals to the Workplace Relations Commission may be offered early intervention; participation in the process will be voluntary.
  • Those who opt for ERS will be assigned to a Case Resolution Officer.
  • The Case Resolution Officer will contact the parties or their representatives in order to:
  • Help establish the facts at issue and discuss the options that are open.
  • Help each party to understand how the other side views the case and explore with all parties how it might be resolved without a formal hearing/inspection.
  • Discuss any proposals that either side has for a settlement that both sides would find acceptable.
  • Case Resolution Officers will not impose solutions, but will explore the issues involved and try to help settle differences in a way that is acceptable to the parties concerned.
  • A range of early intervention tools will be deployed by the ERS - from simple telephone contact with both parties up to scheduled face to face meetings – as appropriate to the circumstances of the parties and the issues in dispute in a given case.
  • Deliberations during the process will remain confidential to the parties and the Case Resolution Officer.
  • In cases of right, the outcome of the process will be a confidential, binding, written agreement which can be enforced by either party in the District Court.
  • In cases of interest, the outcome will be a confidential, possibly binding, non-enforceable agreement between the parties.
  • A complainant who agrees a mediated settlement with an employer who is or becomes insolvent within the meaning of the Protection of Employees (Employers Insolvency) Acts, will be entitled to claim from the Insolvency Fund on the same basis as if he or she had been granted an award by an Adjudicator of the WRS or by the Labour Court. That is to say, the same qualifying criteria and financial limits will apply to such mediated settlements as apply to adjudicated awards. It is not anticipated that this proposal will result in an increased burden on the Insolvency Fund.
  • Should early intervention not succeed and the complainant opts instead to refer the matter to adjudication, neither party will be permitted to rely on information exchanged during the early resolution process.

Chapter 6 - Adjudication Perhaps one of the biggest concerns was the reform of the adjudication process in Employment Tribunals. Peninsulas Submission on the topic also raised concerns at this point, most specifically into the breakdown of decisions and how adjudicators will reach decisions. The submission document went into great detail on this breaking the matter down into subsections, however some of the main points of this, and of particular note to some stakeholders, are;

  • All first instance complaints be determined by a single adjudicator. Thus removing the possibility of multi chaired or panel hearings
  • Employment rights and equality complaints should be heard in private at first instance.
  • Adjudicators will be required to provide an explanation for the basis of any award (monetary or otherwise) granted to a successful complainant. It is not proposed to prescribe levels of compensation that may be awarded by an Adjudication Officer in particular classes of cases as adjudicators will apply existing substantive law in this regard. Finally, the Minister does not propose to provide for social welfare payments to be set-off against awards under employment legislation as this would amount to a significant shift in Government policy.

Chapter 7 - Compliance it was interesting to note that several of the Blueprint’s proposals for improved compliance measures elicited a largely negative reaction from both employers’ and workers’ representative groups. Certain trade union representations (SIPTU) , for example, expressed the view that renaming NERA Inspectors as Compliance Officers pointed to a ‘softer approach to employers who breach the legislation’ and one which is ‘more sympathetic to the perpetrator than to the victim’. According to the submission that same trade union (SIPTU) concluded that in fact the proposal was a retrograde one as it would ‘merely require employers to provide employees with that to which they are legally entitled … [but] the requirement to have compensation paid will be denied.’ This from an employers point of view is interesting as this has prompted the following "The legislative powers of Compliance Officers will be consolidated and restated in the Bill. The redress provisions contained in a number of current employment rights enactments will be amended so as to give Compliance Officers the means to require restitution for employees who, as a result of not having received certain statutory entitlements, have been underpaid". This can be categorised as a climb down by the Minister in the face of pressure from Employee Trade Unions. Chapter 9 – Appeals to the Labour Court The Minster went into great detail on the matter fo the Labour Court, perhaps to justify his decision to make it the defacto appeals body. The submission stated that the situation which pertains to appeals under the Unfair Dismissals Acts is particularly complicated and is deserving of specific discussion. A party to a complaint under this legislation before the Rights Commissioner may have to face an appeal to the Employment Appeals Tribunal, and from there to the Circuit Court, and from there to the High Court. This extraordinary situation was the subject of some judicial comment by Mr Justice Charleton in the High Court recently in his decision in JVC v Panisi [2011] IEHC 279: ‘Under the relevant legislation a claim for unfair dismissal may first be brought before the statutory Rights Commissioner. The determination of the Rights Commissioner may then be appealed by either employer or employee to the Employment Appeals Tribunal. The appeal is therefore from a single individual, as decision-maker, to a panel of three: a barrister or solicitor, as chairman, and one representative nominated from each of the employer’s and employee’s groups. The Rights Commissioner can be bypassed in favour of an initial hearing before the Employment Appeals Tribunal. Both the Rights Commissioner and the Employment Appeals Tribunal apply fair procedures equivalent to those required in a civil trial. Witnesses are heard and there is cross-examination and opening and closing submissions. Since no transcript is kept, the written decision of the Rights Commissioner may be appealed to the Employment Appeals Tribunal and the determination at that level, in turn, may be appealed to the Circuit Court. No transcript is kept in that Court. Thence, it may be appealed, as was this case, to the High Court. All of these steps involve re-hearing all of the evidence. None of the appeals are appeals on a point of law. An employee seeking the vindication of employment rights may be required by a determined employer to proceed through four full oral hearings. The costs in terms of the engagement of legal representation may be very large. Whereas the Rights Commissioner and the Employment Appeals Tribunal may not award costs to a successful applicant, the Circuit Court and High Court are obliged to award costs in accordance with the resolution of the litigation. The entire procedure may take some years. It is also a situation where the resources of an employer may militate against fairness in the disposal of proceedings brought by an impecunious employee. After all, the point of such a case is whether the employee was unfairly dismissed; consequently he or she often has no job. The costs of legal hearings has a human rights implication: see Campbell v. MGN Limited [2004] UKHL 22; and in the European Court of Human Rights as MGN Limited. v. The United Kingdom, application number 39401/04. I am satisfied that the employee in this particular dispute was so worried about the potential costs that the sum which he received in apparent redundancy from his employer has been kept untouched by him in a bank account. The timescale involved in this case is not untypical of others. The employee filled in a T1A form seeking redress for unfair dismissal and a failure to comply with the period of notice of termination of employment required by statute on the 20th August 2008. His case was heard before the Employment Appeals Tribunal on the 8th December 2008. That tribunal issued a decision on the 24th April 2009. On the 14th July 2009, that decision was appealed by the employer. It was heard by the Circuit Court on the 2nd and 3rd June 2010, and a decision was given immediately by Judge Linnane. On the 14th June 2010 the matter was then appealed to the High Court. This Court heard the case over the 5th, 6th, 7th and 8th of July 2011. Judgment is now being given after a gap of about two weeks. The entire process has taken three years and three full oral hearings. This procedure is cumbersome and redolent with the potential for unfairness. Many proposals have been mooted with a view to changing it. There are compelling reasons why change might be considered.’   The submission continues that the current system of appeals, as illustrated above, is unduly complex and cumbersome. It lacks rationale. It confuses occasional users of the system – employers and employees and their professional advisers who frequently and unwittingly deprive themselves or their clients of their statutory right of appeal by filing their appeal in the wrong forum. Chapter 12 - Time Limits Finally in regards to Time limits the Minister having given due regard to the various submissions received to the Blueprint proposes the following procedural standardisation across employment rights legislation:

  •  Time limits for initiating a complaint in relation to an issue of right: six months from the date of the alleged breach of the legislative provision or six months from the date of termination, whichever is the earlier.
  • The grounds on which a Workplace Relations adjudicator may exercise discretion to extend the period for making the complaint will be where ‘reasonable cause’ is shown.
  • The period by which the period for bringing a complaint can be extended where reasonable cause has been shown will be up to six months.
  • The time limit for bringing an appeal will be in all cases ‘within 42 days from the date on which the determination is sent to the parties by the Workplace Relations Adjudication Service’
  • For the avoidance of doubt, there will be no change to the situation which pertains to complaints of interest under the Industrial Relations Acts i.e. for practical reasons, it will continue to be the case that no time limits will apply to such referrals.

these are the key points we have picked from the Submission document and no doubt there will be further points raised upon further reflection. Keep an eye on the blog for further comment on this.

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