On Thursday 8th March 2012 the IRN hosted a conference in UCD AND Minister Richard Bruton gave an opening address, and told all delegates that he had “a good story to tell in relation to the year that has been since he announced a shake-up of the Employment Rights bodies.
The current system was criticised for having too many routes of entry, being too adversarial and being too legalistic and costly. Minister Bruton trumpeted that under the reform a number of efficiencies have been achieved.
- A reduction in the amount of forms for complaints from 30 down to one (there has been a 70% take up of the new form);
- A reduction from the five different points of entry to the system down to one;
- There is also a single website for Employment Relations in Ireland, www.workplacerelations.ie, instead of five separate sites;
- The timeframes have also been improved with employers being notified of a claim within 48 hours of the papers being lodged and a decision made within 28 days. The increase in efficiency is in an effort to seek early resolution for an issue; and
- The next phase of the programme is to look at moving to an online claim form and the Minister has said there will be a pilot programme in place within the next few weeks.
The main theme of the address was that in the past employers and employees alike were too quick to go to an adversarial hearing, rather than seek early resolution of an issue. This was highlighted by the Minister’s new two tier Employment Rights legislation which should be in place by the Autumn.
There will be three stages to this new system
- Early Resolution(Mediation etc. the idea being that a claimant will not be disadvantaged by seeking early resolution, or they would not lose their place in the “queue” should they decide to seek early resolution)
- Inspection(Compliance Officers of NERA who will seek voluntary compliance and may impose on the spot fines for non-compliant employers, the idea is to foster a “Culture of Compliance”)
- Adjudication(Single adjudicator with the option of a de novo appeal hearing at a three person tribunal, run by the Labour Court)
The Minister followed this by stating that there will be a Blueprint for the new system in place by the end of the month for stakeholders to comment on, and welcomed all to make their suggestions on this new system.
The Minister also gave a brief overview of what lies in store for the next phase of reform, and highlighted that in 2013 there will be significant reform of the Employment Permit legislation very shortly.
There will also be a consolidation of the current Employment Legislation, the Minister pointed to the Consolidation of Tax Act of 1998 as a precedent for this. There are however difficulties associated with any consolidation of law, in so far as different acts provide different definitions of what constitutes an employee (the Employment Equality Act v. the Part Time Workers Act), and also in regards to timescales for action, and so these would need to be considered before any consolidation could occur.
Panel Discussion
Following the address by Minister Bruton, there was a panel discussion chaired by Ingrid Miley, RTE’s Industry Correspondent, and the Panel consisted of Kieran Mulvey of the LRC, Kevin Duffy of the Labour Court, Brendan McGinty of IBEC, Tom O’Driscoll of SIPTU and Ger Deering formerly Head of NERA and now the Director of ERIR Reform.
In their opening statements, all agreed that this reform programme was a landmark development and where previously they were sceptical of any substantial change, Kevin Duffy of the Labour Court said it does look like it is now going to happen. He reasoned that the idea or rationale behind all this is to work with the legislation we have and provide a speedy, informal, inexpensive and fair model for parties to engage in. Kieran Mulvey echoed this and elaborated further to again highlight the early resolution element of this and to bring the employment relationship back to the area of first instance, as the current system has led to confusion. He highlighted that case officers would be the key to this to try to resolve issues before they get to a tribunal stage.
Brendan McGinty of IBEC did again offer the party line that this is one of the most defining moments in Dispute Resolution, however in doing so he also voiced some concern for the new model as in the spirit of early resolution there is still concern about “complaint shopping” and employees sending in multiple complaints. There is concern that the older system has levied unfair criticism on Companies, and now the real process of engagement must begin. Some suggestions were to look at a fee per claim (which would be refundable were they to be successful), and also that currently the first notice an employer has of a claim is when the papers are received, IBEC have requested that a 14 day repressed letter be sent before papers were lodged in an effort to ensure early resolution is possible.
Following this Tom O’Driscoll of SIPTU spoke of his thoughts on the reform, and offered the suggestion that if one were to draw out a diagram of previous legislation it would be a complex system and not dissimilar to the London underground map. The new system is now a straight line with three clearly defined stages. One item to be mindful of is that SIPTU have suggested that the employment contract is not an agreement between two equals and in instances where there is dispute of interest (such as a breach of contract claim) an employee must take this to the circuit court. SIPTU are seeking to compel an employer engage with the Rights Commissioner in instances of breach of contract etc., and one would imagine this will cause concern in some corners.
In a closing statement Ger Deering stated that the overall objective in this is to focus on the stake holders (employers, employees and tax payers) and people that will use the system. He again reiterated that the idea is to foster a “culture of compliance” and offered a new perspective that a non-compliant employer is actually a threat to a compliant employer. If a non-compliant employer pays less than minimum wage he can afford to undercut the compliant employer as their cost base for wages is less, and so their non-compliance threatens those which abide by the law. He also urged the delegates to engage with the blueprint of the system and make comments and suggestions.
Questions and Answers
Following the panel debate there was a Q&A session chaired by Ingrid Miley. In this session, of the issues that arose (Consolidation of Law and the Issue of Representation) two of the most pressing were;
- Does the new system have the resources to carry out the proposed work, or will they have to recruit new employees for this? (e.g. case officers, compliance officers etc)
- Should the level of awards under the new system be capped?
In addressing the first point Kieran Mulvey highlighted that the LRC is covered by the Croke Park agreement and as such no additional resources would be employed to cover the new work. There has been a redistribution of staff and early resolution officers have been selected by internal competition, so no new persons have been hired to staff the new system.
On the matter of the level of awards this sparked some debate, with Kevin Duffy first making clear that most employment rights legislation has a cap in place of two years’ salary, and rarely there are cases of awards in excess of €100,000. He did state that the level of redress should be proportionate to the wrong a person has suffered and that a lot of Irish legislation is derived from EU Directives, where the capping of awards does not provide for effective transposition which is why the Irish system provides for a bypass to the Circuit Court where there is no cap on awards. Tom O’Driscoll of SIPTU was opposed to any cap on awards as he put forward the notion that an Unfair Dismissal was a life changing event and, in previous times it may have been easier to walk into another role, whereas now employees may be unemployed for months if they are dismissed so the level of award should not be capped.
From an employer’s perspective Brendan McGinty was not outspoken on the level of awards but did speak out that where previously it was suggested that there is an imbalance of power in the employment relationship, this is incorrect and highlighted that early resolution in an confrontational manner is the key to making the system work. It will not resolve the overwhelming number of cases but it will take out the cases that will not/should not be heard.
The discussion highlighted that the new system seems to have all in agreement that it is a worthwhile and efficient way of reforming our existing system, however different stakeholders have different opinions as to the intricacies that make up such a system and it will be these finer points that can define if the reform will be seen as a success or two steps forward one step back.
If you are unsure of your obligations under the current system or have received notification of a hearing please contact the Peninsula Business Services Advice Service on 01 855 5050 and speak to one of our advisors.
