Good and bad in long-awaited employment law reforms

The rules of engagement between employee and employer are undergoing major overhaul. A system that is no longer useful is being transformed. As a result, disputes between workers and their bosses should be resolved much more rapidly.

The reforms are not before time as the trade unions gear up to launch pay claims in an effort to claw back ground lost since the onset of the recession.

Details of the changes were set out at a conference in Dublin 10 days ago by the two most senior figures, on the official side, in the industrial relations world, Labour Court chairman Kevin Duffy, and the CEO of the Labour Relations Commission Kieran Mulvey.

The pair were speaking at a conference at the Irish Management Institute organised by a new consulting firm, Resolve, a body established, by a former director general of IBEC Turlough O’Sullivan.

Messrs Duffy and Mulvey cut their teeth in the trade unionism coalface at a time when the industrial relations world was something of a cauldron, with strike action often used as a first, rather than last, resort. Since the late 1980s they have played key roles in developing the approach based on workplace consensus which has taken hold across Irish industry.

The pragmatists have held the line despite the final collapse of the social partnership model, in 2009. But, given the increased radicalisation of political life, there are no guarantees that this can continue.

The craftworkers union, the TEEU, has signalled that it will be seeking pay increases of up to 5% for its members, prompting the Enterprise Minister Richard Bruton, to deliver a warning about the threat posed to our competitiveness, in international markets, from a raft of catch-up pay claims.

The Government’s authority has been damaged following its mishandling of the water charges issue, and its subsequent climbdown. Increasingly, the Coalition is being buffeted from all sides. Today, the Irish Fiscal Council will press the Government to tighten the budgetary screws, adding its voice to calls for fiscal restraint from the troika.

But as impatience grows among the grassroots, for an improvement in living standards, the skills of the country’s top industrial relations mediators are set to be challenged to the full. All this may soon be happening just as the long-awaited structural reforms in the country’s industrial relations machine are bedded down.

Chairman Kevin Duffy, previously one of the country’s most senior trade unionists, outlined the changes that are on the way in the operation of the Labour Court as a result of the enactment of the Workplace Relations Bill, driven by Mr Bruton. The court’s workload is set to expand by around 60%, while its resources will increase by half that amount, he predicts.

The principal change is the court will now hear appeals from decisions under the Unfair Dismissals Act by the Employment Appeals Tribunal. Mr Duffy warns the court faces the prospect of being overwhelmed unless it changes the way it conducts its business.

With the growth in the number of employment rights cases, involving individual workers, the court has moved away, in large part, from its original remit dating back to 1946 — as a tribunal resolving industrial relations matters, that is, collective as opposed to individual disputes.

The court chairman believes that it is vital that parties to individual rights disputes work harder to settle their disagreements, and to do so early on, before the resources of the court have been wasted.

“Expect the court to make far better use of case- management techniques,” he said. The commercial court serves as a model. The emphasis is on pre-hearings, on disposing of non-contentious matters and getting to the heart of the dispute, reducing the amount of time spent on extraneous matters. The Labout Court is putting in place rules with time limits on the submission of documents designed to speed up the whole process.

The legislation pushed through by Mr Bruton, is designed to tackle the huge problem of waiting times that bedevils those involved in bringing, or defending employment claims.

Mr Duffy described the delays in securing hearings from the Equality and Employment Appeals Tribunals as “quite frankly appalling”. It is hard to disagree. Justice delayed can mean justice denied. Memories fade. Witnesses disappear.

The court chairman believes a reduction in delays will see less expense for the taxpayer with speedier justice and a reduction in administrative burdens and uncertainty from the employer’s perspective.

In the UK, people are expected to pay to access employment rights bodies. Here, the Government has held out against charging. Across the Irish Sea, it cost the public anywhere from €500 to €1,500 to bring a case for unfair dismissal.

According to Kieran Mulvey, this has seen a 70% to 80% reduction in referrals. These charges are currently the subject of a court challenge, being taken by the UK trade union, Unison. The union emerged unsuccessful in the initial judicial review. If the Bruton reforms cannot be made to work, charges could indeed be coming down the track, here.

As Kieran Mulvey points out, the changes are “the first major regulatory reforms in industrial relations since the 1990 Industrial Relations Act, which resulted in the establishment of the Labour Relations Commission.”

Now, a new Workplace Relations Service is in the process of being set up. “Its mission is to provide a faster, simpler, hopefully speedier system.”

The new body should be in place by the end of January.

Between 2010 and 2013, employment rights bodies dealt with up to 44,000 referrals. Another 8,000 have been referred in the first nine months of this year. As elsewhere, the trend is towards electronic administration. Almost 80% of case submissions are now made online. A “myriad of confusing forms” has been replaced. The activities of a number of bodies are all being brought under one roof.

A single website has been created. The process has not been free of glitches, but then the Employment Appeals Tribunal in recent years, has had its share of problems with its website.

The Bruton reforms have received a broad welcome from IBEC, the Construction Industry Federation, and ICTU, but the legal profession has been less enthusiastic, Mr Mulvey noted.

The current legislative procedural confusion, after all, has been good for business, with clever lawyers thriving amid the chaos.


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