Debate on IR highlights pros and cons of the dispute resolution system

The following article written by Brian Sheehan appeared in Industrial Relations News on 05.12.19 (See IRN 44) and is repeated here.

Last week’s Stratis Consulting conference was treated to a four-way debate on employment relations reform, focussing mainly on the positives and negatives of our workplace relations system – five years after it was revamped in 2015.

The debate at the Stratis employment relations conference last week centred on issues raised by its director, Brendan McGinty in a reform document entitled, ‘The Journey Towards a ‘World Class’ Workplace Relations System – Where Are We?’ (IRN 43-2019)

It contains suggestions on collective bargaining, new industrial relations processes, new rules on industrial disputes, the creation of new national ‘oversight body’ and a plea for greater emphasis on workplace mediation.

“Some of the biggest employers ‘fetch up’ to the Court not having engaged at all”

While welcoming the reforms introduced through the Workplace Relations Act 2015, Stratis says many employers believe that the balance on employment legislation has begun to “tip in the wrong direction”.

The conference debate focussed on three questions, with the panel – chaired by Vincent Wall of Newstalk – made up of Kevin Foley, Labour Court chairman, Patricia King ICTU general secretary and Kevin Langford, Arthur Cox - with contributions from Brendan McGinty.

QUESTION 1: In terms of current practice, of the reforms to our workplace relations system that were adopted in 2015: (a) what changes have had the most beneficial impact and: (b) what if anything has disappointed you?

Labour Court chairman Kevin Foley said that the 85% success rate at conciliation was continued on from the LRC period; the big development being in the area of determination of disputes based on employment law. What (the changes) were about was the provision of a simple pathway to dispute resolution, which was a demand over many years.

“I don’t know about a dividend for the taxpayer but what I do know is that employment law-based disputes now have a simple pattern that we follow: a two-stage process and mediation options, available from the WRC. One way or another, people know they are going to reach the end of the road within nine months to a year, compared to three or four years (as previously). The concentration on simplifying and setting clear timeframes for the disposal of cases … has been beneficial for workers and employers”.

What had been disappointing? “The disappointment for me has been the amount of times the Court winds up in conflict with the parties, (where) they don’t make use of their time; make constant requests for adjournments and postponements … So, we wind up in a situation that parties have to be chased by the Court … we are saying we provide a fair hearing, but we need the cooperation of the parties. It is a disappointment that it is a continuing challenge for the Court to secure the full commitment of the parties to meet their obligations when they are pursuing an appeal.”

Vincent Wall asked if some parties are ‘playing’ the Court, as it were?

Kevin Foley: “Well you can argue about ‘multiple’ claims but … we mark out a pitch and say what the rules are … if people don’t meet the rules ... is that fair?”

Since 2015, Mr Foley said the rules have been absolutely clear, as have the procedures. “Anyone involved in an appeal has no excuse for not knowing what’s happening … (but) since 2015 the level of disputation hasn’t declined. People haven’t learned enough!”

“It would be a disappointment to us if that level of transparency and information doesn’t, in time, produce resolution of disputes closer to the workplace where people make pragmatic and realistic assessments of what the law actually means, rather than having to appear before the Labour Court on appeal to ask the Court what the law means.”

TRADE UNION FOCUS

Patricia King: “If you look at the labour market today there are 2.2 million workers. In 2018 there were 1,169 referrals, 945 cases, and out of that 399 were industrial disputes, 253 of which were completed. That is in the context of 2.2m people, so what’s happened the rest? I have a fair idea and it doesn’t all make a pretty picture. So, I was pleased to get Sectoral Employment Orders … (providing) at least an adequate floor”.

She doesn’t get “het up” about the reconfiguration of the workplace relations bodies, although she said getting rid of “that monster”, the EAT, was a good thing.

On Brendan McGinty’s call for greater use of mediation, she cautioned that there are good and bad pieces of mediation. Overall, she said the relationship between employers and workers is an unbalanced one.

“Trade unions, where they exist, try through collective bargaining to relieve some of that and there are some very good collective agreements, both private and public”

On mediation, Ms King said she comes from the school that “if the employer pays for it, the employer gets what the employer wants”.

Although they had worked hard to get some better structures around collective bargaining, she said the legislation “isn’t where we want it to be and we still operate in this country (in a situation) where workers do not have an entitlement to collectively bargain”.

“So,” she concluded, “we have boxed way above our weight.”

‘CLEAR RULES’

Kevin Langford of Arthur Cox – who has been appearing before the state’s dispute resolution agencies for 25 years – said that the new two-stage system has been very beneficial for users.

His own experience is in the Commission, not the Court. Unlike the Court, which has a clear set of rules which have a statutory footing, the WRC has a set of rules with no statutory footing.

Under the new system, hearings are much faster, he agreed. By the end of the old system people were waiting 18 months for a hearing before the EAT. That had become “utterly unsustainable”.

“The WRC engages with us to see how things can be improved,” he said. “There is a new system that will be piloted soon where an application can be made for a postponement … within 5 days, with the consent of the WRC … and that would be granted automatically.”

He said there will also be a focus on shorter submissions.

The main disappointments for Mr Langford are that while cases are moving through faster, there is an inconsistency on how quickly we are getting decisions from the WRC procedures “as between adjudicators”. And there is also an inconsistency regarding how decisions are arrived at, with “little analysis” in some cases.

He said the consequence of the WRC procedures not being on a statutory footing means that there can be ad hoc approach at times. Even though one has 21 days to submit a statement to the WRC, he said this is a rule “more honoured in the breach than in the observance. That’s not good for anyone”.

QUESTION 2: Looking to the future what further reforms would you like to see within our third-party workplace relations system if it is to become ‘world class’?

Turning to her experience of industrial disputes, Patricia King said that ‘respect’ is the one word that holds the key to resolving disputes, transforming workplaces and retaining staff. We would not have half the turmoil that we have if we all operated on that basis, she said. “I never met a worker yet … who wanted to go on strike or who felt good about it. It has an awful effect in a workplace afterwards”.

Kevin Foley agreed that “everyone suffers” when there is industrial action, “no more so than the third parties … do I hear violins?”, he joked.

“It is a difficult question for the Court as a statutory body. Whatever the law says, that’s what we are going to be doing”.

But he struggles to think of a ‘world class’ system across the world, even in very developed economies. “We don’t have a workplace relations olympics, so we don’t actually know empirically what a ‘world class’ system is. We can ask what we want from our system?”

Observing that our IR environment goes back to 1946, he said that “it’s not a bad proposition”. Responsibility rests with those in the workplace, he said, adding that he agreed with Patricia King that respect is key.

“Overall the system hasn’t done badly, with 87% of disputes referred to the Commission settled at conciliation, and ‘99%’ of the rest accepted a Labour Court recommendation – that’s not bad.”

“In any workplace relations olympics, you would be thinking of a medal. We should value what we have and keep on developing it”.

‘AN AMBUSH’

Kevin Langford said that, firstly, the WRC is still very much “trial by ambush” - for both sides. “You turn up and you don’t know what witnesses will be on the other side of the table.”

“In many cases you won’t have seen a submission. So (sometimes) you are trying to prepare for a case that you don’t know what the case actually is that you are prepared to defend, and vice versa”.

He said he appreciated that perhaps this requires a statutory instrument. Before the case gets to a hearing, he suggested that the parties should have to submit cases so that each side knows what’s involved.

On mediation, Mr Langford said that most parties want disputes settled. There has been 200% increase in terms of people waiting to avail of mediation, he added.

As to Patricia King’s point that mediation can be unbalanced, he said that this can be addressed by a strong mediator.

“CAN’T HAVE BOTH”

Patricia King said that regarding Brendan McGinty’s reform proposals, when it comes to voluntary and mandatory systems. “we can’t have both and we need to get our heads around that”.

Regarding restrictions on pickets mentioned in the Stratis document, she said workers regard the ballot paper as an “enabler”. Both sides have failed when you get to a strike situation.

“Unions take the rules and regulations around a strike seriously. The judiciary rightly take it seriously, you have an obligation under 1990 Act to abide by the rules and if you don’t, you don’t get the immunity. Unions are knowledgeable about that; there is no need to change that”.

“To be fair there is a code of practice for emergency services and changes in that regard are not necessary either”, she believes.

MANDATORY OUTCOMES?

Kevin Foley said that entering mandatory steps “must be considered with caution”. Since 1969, he said, it has been possible for trade unions and employers to directly refer a case to the Labour Court and say, ‘we will be abiding by the decision’.

This has happened in the case of public sector agreements, he said.

But the fact that it has been so rarely used in industry “would suggest to me that employers and workers don’t like to be told what to do. It just doesn’t happen. We should welcome what we have and treat with caution propositions bolting down mandatory outcomes”.

“THE REVOLVING DOOR”

Brendan McGinty, coming back on the issue of ‘finality’, explained why he had raised the issue:

“In the multinationals who are doing business all over the world, there is a growing source of frustration that in our system there is less of an inclination to bring finality to matters. It’s the issue of the revolving door.”

“I think we need to be honest enough to acknowledge that - and think about things we can do smartly, without unpicking the system. Yes, there are behavioural issues … there may be institutional responses as well, but we need to recognise that it (the issue) is out there and raising questions in the minds of people who say, ‘actually how do you go about getting finality in our system?"

Mr McGinty added they had noticed the start of a conversation re social dialogue. Referring to problems regarding infrastructure, transport, childcare and so on, he said there is an opportunity to address these issues, “a step toward …. an understanding or social contract”.

He was not saying that this would be easy. “I suspect that’s a bigger hill to climb from an employer perspective. We need to grasp that issue and the current structures are not facilitating that … I wish Patricia well and others who might be around the table”, he added.

QUESTION 3: The dispute resolution bodies are a sub-set of our wider WR system. What supportive changes need to take place, either at enterprise level, in our industrial relations legislation or in Government policy to help shape a world class WR system?

Kevin Foley said that while he wasn’t sure what the question was getting at, observed that in IR disputes the ‘court of last resort’ idea only works if the parties genuinely seek a solution. He then raised an issue of obvious concern to himself and others in the state’s dispute resolution system:

“We have noticed a trend, including among some of the biggest employers in the country, of parties failing to understand what it is that is going on in the Workplace Relations Commission. And not engaging at all. And (then) fetching up to the Court, expecting (us) to do some form of conciliation and mediation activity and wind it all up by making a recommendation. One or two of the bigger disputes that you have observed … so it has happened occasionally in environment where large scale issues arrive in very small timeframe that the parties have not engaged at all.”