In July 2011, Richard Bruton, the Minister for Jobs, Enterprise and Innovation, first announced plans to overhaul the current employment law fora following his criticisms that the existing system was “too complex and onerous”, “takes too long to navigate” and “costs too much”. Over the course of 2012, steps are being taken and €20 million will be spent in order to implement a major reform of the existing employment rights dispute resolution system, aiming ultimately to have one overall body for employment rights issues - replacing the five existing employment rights bodies (the Labour Relations Commission, the Equality Tribunal, the National Employment Rights Authority, the Employment Appeals Tribunal and the Labour Court).
This new system aims to provide support to encourage the resolution of issues at the workplace level in a more conciliatory and less costly manner, without escalating the matter to the courts. Following nonresolution in the workplace, however, it is proposed that this new system of dispute resolution would be easy for complainants to understand and use as the process would have only one entry point (and a single route for appeals) and all related cases would be taken at the same hearing, thereby reducing the need for legal representation.
The Workplace Relations (Law Reform) Bill 2012 is currently being drafted and is due to be enacted later this year. This will provide for the orderly wind down of the five existing bodies to be replaced by the new body which will comprise a two tier structure:
- a new Workplace Relations Commission (the “WRC”), a single body of first instance to decide on all complaints, which will incorporate the functions of the Labour Relations Commission, the National Employment Rights Authority, the Equality Tribunal and the first instance functions of the Employment Appeals Tribunal. The WRC will be responsible for information provision in relation to employment, equality and industrial relations rights and obligations in addition to the receipt and registration of all complaints; and
- an expanded Labour Court, which, while continuing to provide its existing services, will become the single body for all appeals.
Under this new system, all complaints will initially be subject to a Registration Service. At this stage, a full-time WRC officer (a Registrar), who is a qualified and experienced lawyer, will receive, validate and process all complaints.
This service will strictly enforce the proposed time limits for progressing complaints and all complaints found to be incomplete, out of time or wrongly grounded would be rejected or redirected by a Registrar. Ultimately, a Registrar will have the authority to dismiss certain complaints without a hearing, although such a decision may be appealed to the Labour Court.
In terms of notable changes, all complaints would be made to the WRC where three options for resolving the dispute would be available: Early Resolution, Adjudication or Inspection.
- Early Resolution Service
This voluntary service has already been set up on a pilot scheme basis and aims to avoid formal Adjudication or Inspection by assisting the resolution of complaints on an informal basis, with the assistance of Case Resolution Officers, thereby minimising the costs involved for all parties. If agreement is ultimately reached, this solution is then binding on both parties. However, if unsuccessful, opting to avail of this service will not disadvantage the parties as they retain their “place in the queue” for an Adjudication hearing instead.
Where Early Resolution is not opted for or is unsuccessful, the complaint will be dealt with by Adjudication or Inspection, depending on the type of legislation that the complaint falls under.
Current Rights Commissioners and Equality Officers will become “Adjudicators” and address complaints within 3 months of the complaint being lodged. As all claims under separate pieces of legislation will be dealt with in a single hearing, Adjudicators will have to undergo training to deal with complex cases.
Adjudication hearings will be held in private although the parties may request that the case be heard in public. However, it is envisaged that all decisions would be in writing, would be more detailed/reasoned and would be published online through the WRC website. In circumstances where Rights Commissioner’s decisions are not currently published, it is arguable that decisions by Adjudicators going forward will be more consistent, given new access to the database of past decisions.
The issue of whether a fee for making a complaint will be introduced, in order to encourage early resolution, is currently under consideration.
Inspections will be carried out by Compliance Officers, replacing the current labour inspectors operating under the NERA Inspection Service. The Inspection process may involve ‘on the spot’ fines for certain contraventions and Compliance Officers will carry out inspections, not only in response to complaints, but also on a proactive basis.
The appellate functions of the Employment Appeals Tribunal will be integrated with the Labour Court to form a new single appeals body. All appeals will be de novo hearings heard by a three person tribunal in public and all decisions will be published on the WRC website. The option of appealing a point of law to the High Court remains.
Progress So Far
In addition to the introduction of the Early Resolution Service on a pilot basis, a new website (www.workplacerelations.ie) has already been set up. A single first-instance complaint form, replacing 30 existing complaint forms, has also been launched on this website and it is intended that this site will eventually replace all the websites of the existing employment law fora. In addition, it is intended that claims will soon be able to be submitted online. All employee complaints are now acknowledged and the employer notified within 5 days of the complaint being lodged, a significant improvement of the average 8 month notification period reported at the end of 2011. In addition, the significant backlog of cases to be heard before the Rights Commissioners has been substantially reduced. Now hearings are scheduled within a matter of weeks as opposed to months.
Mr. Bruton’s recently published “Blueprint to Deliver a World-Class Workplace Relations Service” (April 2012) provides further detail on the shape of the new structures, including many administrative and operational changes. While the majority of amendments proposed will be welcome, there are other aspects of the reform that have been questioned by the legal community:
- There is no requirement for Adjudicators to be legally qualified thus raising the question of the suitability of such Adjudicators to determine questions of law between the employer and employee.
- There is a marked absence of face-to-face mediation which may make the Early Resolution Service unworkable.
- There is no reference to the need to utilise and exhaust internal procedures before a complaint can be considered by a third party, despite the initial emphasis on resolving employer/employee disputes at the workplace level.
- Whilst the decisions will be published and available to the public, ideally the hearings should all be public to ensure full transparency.
- It is unclear how the Labour Court, which will be required to expand from three divisions to four, will handle the expected 56% increase in case-load.
- Altering the structure of the Labour Court may have a negative effect on the success of the Labour Court in its industrial relations role.
- The constitutionality of a Registrar rejecting claims without any hearing remains in doubt.
It is anticipated that the reform of the existing employment law fora will be completed by the end of 2013 .