A Guide for Employers on Collective IR Disputes Being Referred to the WRC and The Labour Court

A Guide for Employers on Collective Industrial Relations Disputes Being Referred to the Workplace Relations Commission (WRC) and the Labour Court

An industrial relations dispute or trade dispute is any dispute between employers and workers connected with the workers’ employment or non-employment, or their terms or conditions of employment. This article deals with collective industrial relations disputes which are referred to the Workplace Relations Commission (WRC) and the Labour Court, it does not encompass individual complaints in relation to contravention of, and disputes as to, entitlements under statutory employment rights.

Where a claim has been served on an employer, and local negotiations have failed to resolve the matter is normally referred to the WRC for assistance in resolving the dispute. Once referred, the WRC will notify the employer of the claim and will invite both parties to a conciliation conference. The purpose of the conciliation conference is to provide an impartial conciliation service with the aim of bringing a resolution to the matter in dispute. The Conciliation Officer will act as a facilitator in discussions between the parties. In circumstances where a resolution cannot be found, and the Conciliation Officer is satisfied that no further efforts on its part will advance the resolution of the dispute, then the matter may be referred to the Labour Court (the Court). This will occur only where both parties jointly request the Court to investigate the dispute. The Conciliation Officer will provide a confidential report on the facilitated process to the division of the Court hearing the case.

When a hearing is set up by the Court, the parties will be required to provide written submissions in advance of the hearing setting out the background to the claim and the main arguments in support of their position. These submissions are then presented at a formal sitting of the Court and each party is entitled to comment on the other party’s submission and expand on their own case. They are then questioned by members of the Court. The process is voluntary and hearings are held in private. The Court acts by division which must consist of a Chair and one worker member and one employer member.

In industrial relations disputes, the Court is not a court of law and is not concerned with imposing sanctions on any party. It is solely concerned with seeking to find an accommodation between the disputing parties and a basis upon which their trade dispute can be resolved. The Court takes a pragmatic approach and having heard from both parties it will make a decision on the basis of standards of fairness, good practice & reasonableness. In keeping with the voluntary nature of the industrial relations system, the Court’s adjudication in industrial relations matters is in the form of a recommendation to the parties setting out its opinion on the dispute and the terms on which it should be settled. While not binding on the parties concerned, the parties are expected to give serious consideration to the Court’s recommendation.

The role of the Court in dispute resolution is to act as the Court of last resort., i.e. all other dispute machinery of the State should have been fully utilised before a case comes to the Court.

Use the Conciliation Service Wisely

Unlike statutory employment rights cases there are no time limits in industrial relations cases, so a complaint cannot be considered to be out of time.

It is important to use the facilities of the Conciliation Service effectively, it is the opportunity to make every effort to settle as much a possible. The Conciliation Officer may at the request of one or more parties, or on its own initiative, offer its services with a view to bringing about a settlement, thereby either bringing about a resolution to the dispute or reducing the number of issues in dispute. In any event, the conciliation process is the opportunity for each side to understand each other’s position which can be helpful when presenting the case to the Labour Court. The confidential report received by the Court from the Conciliation Officer will assist the Court to understand the matters in dispute as refined by that stage, it can also indicate any matter to be brought to the attention of the Court.

Preparing for a Labour Court Hearing

The importance of presenting a well prepared and comprehensive submission cannot be overemphasised. The primary purpose of the written submission to the Court is to convey your understanding of the claim and why your position should be supported. The Court will read the submissions in advance of the hearing and will form a view as to the salient points in the case. An effective submission will equip the Court to clarify issues so that it has full knowledge of all aspects of the case in order to make an appropriate decision on the matters in dispute. Material presented in the course of the hearing may not have the same impact. The Court cannot consider what is not before it, so it is important to ensure that a comprehensive submission is made on your behalf.

To begin with a submission should clearly outline details of the claim before the Court so that there is no ambiguity on the issue between the parties. In addition, the Court should be given details of the company/organisation, the sector it is in, the number and category of employees affected by the dispute and the overall numbers of employees employed.

The background to the dispute should be clearly outlined, the circumstances in which the dispute arose, details of the negotiation process and any offers made to settle the dispute, details of your position at the conciliation process and most importantly you will need to be clear about what you want to achieve from the Court. In that regard it is important to set out the key point in support of your position. In doing so make reference to any collective agreements in place, knock on consequences of concession of the claim, implications for the overall sustainability of employment and viability of the company/organisation. Address budgetary considerations, any anomalies which may arise, and potential implications for the wider industry sector or indeed the wider national picture, if appropriate.

Many employers fail to take account of the cost of the claim and fail to provide such information to the Court, be sure to have all costings available for the Court for inspection. In that regard it may be necessary to be accompanied by your financial expert to provide specific details of the financial implications of concession of the claim. Make your conclusion strong, pull together your main points and say what you want to get from the Court.

The submission should be clear, avoid repetition, and should not be not too lengthy (4/5 pages). Confine appendices to what is relevant, include copies of relevant agreements and/or correspondence.

Finally, it can be difficult for the Court when parties do not engage properly/understand their own dispute, the Court will seek to understand the parties’ world and what affects it, however, most industrial relations cases are scheduled for 90 mins, so make the best use of it to get your points across.

Approximately three weeks following the hearing, the parties will receive a Recommendation in writing where the Court will give its opinion on the merits of the dispute and the terms on which it should be settled.

Caroline Jenkinson

Strategic Adviser to Stratis Consulting and former Deputy Chairman, The Labour Court.

If you would like to talk to us about any of the above issues, please get in touch with our Managing Partner, Brendan McGinty at brendan.mcginty@stratis.ie or any one of our Partners.

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Stratis Consulting

Strategic Employment Relations

W: www.stratis.ie Twitter: @Stratisconsult LinkedIn: Follow us here

Disclaimer: The information in this article is for practical guidance only and does not constitute legal or specific case advice. The answers to specific situations will vary depending on the circumstances of each case. This is not a substitute for specific professional advice relevant to individual circumstances facing your business.