Workplace Relations Bill set to radically overhaul employment disputes

Last month, details of the conditions endured by three Filipina maids at the residence of the ambassador from the United Arab Emirates made national headlines. The women were paid €170 a month for seven-day weeks. They were like “slaves” they said, working 15 hours a day.

Their story emerged in the Employment Appeals Tribunal (EAT). Other recent cases there include a man who felt aggrieved at being fired for eating a jam tart, while in October a row over the price paid by a staff member for a hotdog and wine gums ended up costing his cinema chain employer €20,000 in compensation.

Irish employment disputes, and the law that governs them, are serious business. Rights on pay and conditions are fortified through the rigours of the EAT and Equality Tribunal (ET) and often spill over into the Circuit and High Courts. But big changes are afoot.

The Workplace Relations Bill 2014, which should be enacted early next year, is considered to represent the most substantial revision of the employment law framework. As an overhaul of the engine driving dispute resolution, the legislation seeks to reduce costs, increase efficiencies and simplify a process of referral.

Among its main aims, it seeks to cut out “forum shopping” as, under the current system, different types of claims can be played out in different arenas. This is a new single framework. Once existing cases are settled in the current environment, the system should be streamlined and forever replace the current structures.

Complex web

“What was designed to be a simple system outside of the courts, which was a very good idea, turned into, ironically, a more complex web of different fora for different things,” explains Terence McCrann, a partner at McCann FitzGerald solicitors, which recently hosted a seminar on the forthcoming legislation.

“There were potentially five different places that you could go and it wasn’t good for employers and it wasn’t good for employees.”

In what might be considered a melding of quangos, the existing theatres – the EAT, the ET, the Labour Relations Commission and the National Employment Rights Authority (NERA) – will all be folded into the new Workplace Relations Commission (WRC).

The appellate functions of the EAT will move to a reconfigured Labour Court which will act as an appeals body for the new WRC. High Court appeals can be lodged on a point of law only. This new system reduces the potential lifespan of a dispute to two full hearings – an initial case and an appeal.

To date the project has been steered by Niall McCutcheon, director of the ET; a full-time director general has yet to be appointed.

Importantly, the bill also provides for a legally binding early resolution or mediation facility. While participation is not obligatory and parties may opt to proceed straight to adjudication, where it is undertaken it can lead to a pre-arbitration agreement that could prove less costly.

“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,” according to a McCann FitzGerald briefing document.

Key to this aspect, as pointed out by another of the firm's partners, Mary Brassil, is confidentiality. For example, she says, if an employer offers a settlement but the employee rejects it, the offer cannot be used as an indication of culpability during a later hearing.

Actual adjudication sessions will be held in private before a single officer who will hear the claims against a broad spectrum of employment law considerations.

According to the Department of Jobs, Enterprise and Innovation, adjudicators will be sourced from a "diverse group", with industrial relations and HR practitioners, employment lawyers and appropriate civil servants all in the mix.

“A core objective in the design of the reformed employment rights dispute resolution system is to provide for a first-instance forum which would adopt procedures which would be considerably less adversarial and confrontational than those adopted by the courts, but which would nevertheless maintain a degree of formality,” according to the department.

Some concerns regarding adjudicators have surfaced although officials say they are on top of it. The departments says that, despite some recent speculation, cross-examination of witnesses will be permitted while Minister for Jobs Richard Bruton is considering an amendment to the Bill that would arm adjudicators with the authority to compel witnesses to attend and provide pertinent documentation.

There may be further tinkering. The department is currently in talks with the Office of the Parliamentary Counsel on a number of issues and changes are expected at the Seanad (it has already moved through second and committee stages in the Dáil). “As a result, it is intended that the minister will be bringing forward a number of Government amendments,” according to the Department.

Discrimination

Not everyone’s minds are at ease however.

Rachel Mullen

is co-ordinator at the Equality and Rights Alliance (ERA), an organisation whose principal concern is that the Bill gives “little consideration to the unique nature of discrimination claims under equality legislation”.

Ms Mullen is also concerned the laws may be in breach of EU Equal Treatment Directives and the EU Charter of Fundamental Rights.

In particular, she says the specialist knowledge of those dealing with discrimination cases will be lost to a general pool of adjudicators from various backgrounds.

“It’s very much centred on employment issues. There is no acknowledgement of the unique nature of equality claims,” she says.

The department hasn’t much to say on this specific aspect. Addressing the concerns, it says there will be no alteration to the substantive law laid down in the Employment Equality Act and other legislation, “fully compliant” with EU related directives .

“The reforms that will be given legislative effect by the Workplace Relations Bill will modernise and enhance the redress mechanisms available to those who believe they have been discriminated against on the grounds set out in the Equality Acts,” it says.

Appeal

While the thinking behind the legislation is to expedite claims where possible, there must remain room for appeal. In that respect, unwelcome decisions by an adjudicator can be brought to the Labour Court (within 42 days) with full public hearings, and where decisions will be published. The High Court too is available, but only on points of law and so the potential for a string of appeals is severely curtailed.

A reduction in expense is also on the wish list. Costs cannot be awarded to either side in a dispute, meaning legal fees must be met by clients regardless of the outcome. Legal representation is not mandatory. The Department has indicated there will be no fee for referrals to either the adjudication or appeal stage.

Whether or not the new system delivers on the improvements it seeks will not be known until the first cases begin easing their way through the system early next year.