The Workplace Relations Bill 2014 (the “Bill”), once enacted and commenced, will transform the manner in which employment and equality disputes are dealt with in Ireland. It marks the most substantial revision of the Irish employment law framework since the introduction of the various dispute resolution bodies and is aimed at reducing costs and increasing efficiency for the resolution of such disputes. The new workplace relations system will have important consequences for employers in the context of compliance with legislative obligations. It is also intended to
simplify the process for the referral and resolution of employment and equality disputes.
It is expected that the Bill will be enacted by the end of 2014, with the new workplace relations system coming into effect in 2015.
Why is a new structure required?
Under the current system for resolving workplace disputes in Ireland, different employment law rights must be enforced in separate fora. This can give rise to a multiplicity of claims involving the same parties appearing before a number of fora, resulting in “forum shopping”. The aim of the Bill is to create a new single framework for the resolution of employment and equality disputes, characterised by:
an increased focus on early and informal resolution of disputes;
a single body to which all employment and equality disputes will be referred at first instance;
a single body to which appeals are to be brought; and
standardised procedures and time-frames for processing employment and equality disputes.
Overview of Changes
Once enacted, the functions of the Labour Relations Commission (including the Rights Commissioner Service), the Equality Tribunal, the Employment Appeals Tribunal (“EAT”) and the National Employment Rights Authority (“NERA”) will be amalgamated into a single body known as the Workplace Relations Commission (“WRC”), which
will be responsible for the resolution or adjudication of all employment and
equality disputes at first instance. Both the Labour Relations Commission and the EAT will be dissolved following
the disposal of all legacy first instance complaints and appeals referred to them prior to the establishment of the WRC. The appellate functions of the EAT will be transferred into an expanded and reconfigured Labour Court, which will act as a court of appeal for decisions of Adjudication Officers of the WRC.
The introduction of this two-step process should simplify and expedite the procedure for the resolution of employment and equality disputes. For instance, under the current system, an unfair dismissal claim may involve four full hearings of the complaint before four separate adjudicators (Rights
Commissioner, the EAT, the Circuit Court and the High Court). The proposed new system limits the number of full hearings of a complaint to two.
The Bill also provides for alternative methods of resolving disputes without the need for formal adjudication, namely early resolution/mediation. In addition, workplace inspectors are to be given increased powers to promote compliance amongst employers and new procedures for the enforcement of employment rights awards will be introduced.
Figure 1. Amalgamation of Employment Bodies
(First instance functions)
Workplace Relations Commission
(First instance Functions)
Labour Relations Commission
Resolution of Disputes
the introduction of a statutory
greater certainty to the parties in
respect of the
enforceability of their agreement.
As part of the new system, all claims and disputes under employment legislation will be referred to the Director General of the WRC who may then refer the dispute to one of the following two services:
Early resolution / mediation; or
The principal features of each of these services are summarised as follows:
Early Resolution / Mediation
The Bill initially provided for the appointment of Case Resolution Officers to the WRC and the provision by them of an Early Resolution Service to resolve
disputes at an early stage where possible. This service had been piloted since May 2012. It was envisaged that this service would assist in less complex cases, for example, disputes relating to the failure of an employer to provide payslips to employees and disputes regarding annual leave entitlements.
However, the Bill as amended in the Select Committee stage removed the provision providing for the appointment of Case Resolution Officers. The Bill as amended now provides for the appointment of a single class of mediation officer who will deliver the full range of early resolution services, including mediation. The Minister stated in the Dáil debates that this is a more streamlined and efficient arrangement from an internal operations perspective.
Participation in this service is not obligatory and, therefore, parties may choose to opt out and proceed directly to adjudication.
If settlement is reached between the parties through the early resolution/mediation process, the outcome will be binding and enforceable. This is a positive development as currently, issues can often arise regarding the enforceability of settlement
agreements negotiated between the parties to a dispute. The introduction of a statutory mediation service, which facilitates parties to reach a legally binding mediation agreement, gives greater certainty to the parties in respect of the enforceability of their agreement. Any agreement reached under the early resolution or mediation process will remain confidential between the parties. Furthermore, should the
early resolution or mediation process prove unsuccessful, both parties will be prohibited from using any information disclosed as part of the process in any subsequent proceedings, including adjudication or inspection.
Under the Bill, all first instance complaints that are not capable of resolution through the early resolution or mediation process, or where the parties opt out of early resolution or mediation, will be referred for adjudication. Adjudication hearings will be held in private before a single Adjudication Officer. Parties may either represent themselves or choose their own representation.
Adjudication Officers will hear complaints across the full spectrum of employment rights legislation. This represents a significant amendment to the current system where, for example, a case involving both an unfair dismissal claim and allegations of equality discrimination would be separately referred to the Employment Appeals Tribunal and the Equality Tribunal respectively. Under
the new system, claims involving these separate areas will now be adjudicated together in one consolidated hearing. Although the adjudication of disputes will be conducted in private, the WRC may publish decisions at its discretion, other than information that would identify the parties in relation to whom the decision was made.
An Adjudication Officer may, at any time, dismiss a complaint if he or she is of the opinion that it is “frivolous or vexatious.” It is likely that this power will be used sparingly and will be confined to cases where there is clear evidence to support such a finding. Should a complaint be dismissed on this ground, the employee may appeal this decision to the Labour Court within 42 days.
Appeal to the Labour Court
A decision of an Adjudication Officer may be appealed to the Labour Court within 42 days, which can be extended by the Labour Court in “exceptional circumstances”. Appeals to the Labour Court will constitute full de novo hearings which will be held
in public. Labour Court decisions will be published on the WRC website. During the hearing of an appeal, the Labour Court may direct the Director General to arrange an inspection of the employer’s premises.
Appeal to the High Court
There is a further right of appeal from the Labour Court to the High Court on a point of law only, which must also be brought within 42 days. The decision of the High Court shall be final and conclusive in this regard. Therefore, there is no option to pursue a further full re-hearing of the matter following determination by the Labour Court.
The Bill proposes to streamline the limitation periods for the referral of employment and equality related
complaints or disputes to a period of 6 months, extendable to 12 months where a complainant can demonstrate “reasonable cause” to justify an extension of time. This harmonises the existing regime where there are different rules for an
Figure 2. New Process for Resolution of Complaints/Disputes
The proposed outline of the new process for the resolution/adjudication of employment and equality disputes as outlined in the Bill.
Where early resolution/mediation is unsuccessful, or the parties opt out of this process, the claim may be referred for adjudication.
Early Resolution / Mediation
WRC Director General
Time Limit: 6 months
(12 months for reasonable cause)
Resolution of Disputes
extension of the time period within which a complainant can refer a complaint to a dispute resolution body.
Fees and Costs
There is no provision in the Bill for an Adjudication Officer or the Labour Court to award costs to any party involved in a dispute. Although the Bill enables fees to be charged for the services of the WRC and the Labour Court, the Department
of Jobs, Enterprise and Innovation (the “Department”) has indicated that no fees will be charged for the referral of a claim at either the adjudication stage or the appeals stage. However, the Department is considering introducing a fee of €300 for a party who lodges an appeal before the Labour Court after failing to attend the initial hearing before an Adjudication Officer. It is proposed that the fee may
be refunded where the appellant can demonstrate good cause for failing to attend the adjudication hearing.
Disposal of Complaints by Written Submission
A notable change proposed in the Bill is the ability to deal with certain complaints by written submissions only. Where the Director General forms the opinion that a dispute or complaint can be dealt with in this manner, he may inform the parties of his intention not to hold a hearing. Either party may object to this within 42 days. Similar provisions apply in respect of the Labour Court.
Other Procedural Changes
A number of procedural changes have already been introduced in anticipation of the implementation of a new workplace relations system. For example, a single Workplace Relations Complaint Form together with an online complaint
facility has already been put in place, and a new comprehensive website (www. workplacerelations.ie) has replaced
the individual websites of the various employment bodies.
Currently, where an employer fails to comply with a decision of a statutory body under employment legislation,
employees are generally required to pursue enforcement of the decision through the Circuit Court. The Bill proposes a change to these enforcement procedures and
once enacted, employees may apply to the District Court for an order directing the employer to comply with the decision of an Adjudication Officer or the Labour Court. This will be a more cost efficient mechanism for seeking enforcement of awards.
introduces two new compliance
measures, namely the fixed payment notice and the
Inspectors will be appointed by the Director General of the WRC, which will incorporate the inspectorate functions currently within the remit of NERA. Inspectors will have the power to enter any place of work to inspect and remove documents and to question any person at the place of work. It will be a criminal offence to interfere with or obstruct an inspector in the course of their duties. The consolidation of the inspectorate functions will lead to an increased focus
on the criminal implications and possible sanctions for breaches of employment law obligations. This will be of particular interest to employers given the personal obligations imposed on directors and managers under certain employment legislation.
The Bill introduces two new compliance measures designed to address some of the perceived deficiencies in the current system of enforcing employment rights, namely the Fixed Payment Notice and the Compliance Notice. Inspectors will have the power to issue both notices on employers.
Fixed Payment Notice
The Fixed Payment Notice operates as an “on the spot fine” of not more than €2,000 which may be imposed by inspectors for breaches of the following employment law provisions:
a failure to consult in the case of collective redundancies under the Protection of Employment Act 1977;
a failure to provide statements in writing of wages under the Payment of Wages Act 1991; and /or
a failure to provide a written statement of an employee’s average hourly rate of pay etc under the National Minimum Wage Act 2000.
The Fixed Payment Notice will be issued where an inspector has “reasonable grounds” to believe that there has been a contravention of any of the above
legislative provisions. Where the employer pays the required amount within 42 days, the matter will not proceed to Court and, therefore, no prosecution will occur. However, in the event that an employer refuses or fails to pay the charge, then the matter can be progressed to the District Court for prosecution.
The introduction of Compliance Notices is a further innovative step introduced by the Bill to promote increased levels of
compliance and adherence to employment legislation. An inspector may serve
a Compliance Notice on an employer where the inspector is satisfied that an employer has, in relation to any of his or her employees, contravened a provision of specified legislation. The Compliance Notice will require the employer to do, or refrain from doing, such act or acts as is, or are, listed in the Notice by a specified date. The service of a Compliance Notice will not prevent employees from pursuing individual claims for alleged breaches of employment law provisions.
The employer may appeal the granting of the Compliance Notice to the Labour Court within 42 days and the Bill provides for a further right of appeal from the Labour Court to the Circuit Court. Failure to comply with a Compliance Notice may result in the Circuit Court issuing a binding order and failure to comply with such an order will constitute a criminal offence.
Disclosure of Information
The Bill enables the WRC to disclose breaches of employment law to public contracting authorities, where the public contracting authority has entered into
a contract with the person who has contravened an employment enactment.
In addition, the Bill provides that the WRC may provide information to an ‘official body’ (eg the Garda Síochána, the Revenue Commissioners and the Director of Corporate Enforcement), where the WRC suspects that an offence has been committed, for the purpose of detection, investigation or prosecution of an
offence. An official body may also disclose information to the WRC in relation to suspected breaches of the Bill.
Conciliation and Advisory Services
The Bill provides that the existing functions of the LRC will be transferred to the WRC on a date appointed by
the Minister for Jobs, Enterprise and Innovation. All of the existing services of the LRC will continue in the same manner. Therefore, the WRC will provide industrial relations conciliation services to facilitate agreement in industrial disputes where the parties have failed to resolve the issues themselves. The WRC will also undertake the advisory functions of the LRC in order to assist employers, employees and trade
unions or other employee representatives in maintaining positive working relationships and best practice problem-solving procedures. The continuation of these services is of key importance in developing and sustaining effective industrial
relations practices and restoring workplace relationships in the event of workplace disputes.
Issues to be Addressed
A number of practical and operational issues have yet to be addressed under the proposed new workplace relations system. For example:
It is not clear how the new system for resolving workplace disputes will deal with the possibility of claims under multiple headings being made by a claimant against his or her employer.
Details of the precise powers of Adjudication Officers during adjudication hearings are not specified
in the Bill. It is not clear whether the powers of Adjudication Officers will, in all cases, mirror those currently conferred on Equality Officers of the Equality Tribunal such as the power to summons witnesses or order the production of information which is considered relevant. Also, the Bill
does not specify whether the parties or Adjudication Officers will be afforded the right to cross-examine witnesses during an adjudication hearing. Further directions are likely to be required in this regard.
relations system proposed by the
bill is a welcome development,
streamline the procedures for
the resolution of employment and equality disputes in ireland.
The Bill, as initially drafted, gave Adjudication Officers the discretion “where he or she considers appropriate” to permit a person to accompany and represent a complainant or respondent at a hearing. This provision, as drafted, came in for much criticism as it creates uncertainty as to whether parties will be allowed representation at a hearing
before an Adjudication Officer. Minister Bruton has said that this was not the intention and the provision has now been amended at the committee stage to allow for representation.
A suggested method for dealing with the issue of multiple parallel claims is to:
encourage greater pre-hearing preparation and require the exchange of written submissions prior to an adjudication hearing; and/or
hold a preliminary hearing in order to clarify matters and encourage case management.
Substantial case management powers should be conferred on Adjudication Officers to allow for greater productivity during hearings in order to deal with cases quickly and efficiently. Adjudication Officers should, in all cases, have the power to summons witnesses and order the production of information by any party to a dispute.
Finally, to ensure transparency and fairness to all parties, it would be preferable if
all hearings were held in public with a discretion to determine that they be held in private, rather than providing for all hearings before an Adjudication Officer to be held in private.
The new workplace relations system proposed by the Bill is a welcome development, which will streamline the procedures for the resolution of employment and equality disputes in
Ireland and will provide greater certainty to employers and employees in relation to the conduct of such disputes. This briefing is based on the Bill as published on 28 July 2014, as amended in the Select Committee
on Jobs, Enterprise and Innovation on 5 November 2014. There are a number of operational issues to be addressed and, as a result, there are likely to be some further amendments to the provisions of the Bill prior to its enactment. We will provide a further update on the new workplace relations system once the Bill has been enacted.