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The Journey Towards a ‘World Class’ Workplace Relations System – Where Are We?’ (IRN Article)

The following article written by Brian Sheehan appeared in Industrial Relations News on 28.11.19 on EMPLOYMENT RELATIONS REFORM (See IRN 43) and is repeated here.


Stratis Consulting, the employment relations specialists, have put together a ‘White Paper’ on our employment relations system, entitled ‘The Journey Towards a ‘World Class’ Workplace Relations System – Where Are We?’. It contains suggestions, which are meant to spark debate, on collective bargaining, new industrial relations processes, new rules on industrial disputes and the creation of new national ‘oversight body’.


The core message of the Stratis Consulting paper on our employment relations system is that we need to improve it in order to ensure Ireland remains a country that is the “preferred choice” for both employers and employees. The paper contains much that will interest IR and HR specialists, including some suggestions that may provoke the ire of trade unionists.


While welcoming the reform of our rights and industrial relations bodies since 2015, Stratis asserts that many employers believe that the balance on employment legislation has begun to “tip in the wrong direction”. They say we should be doing everything we can to retain labour market flexibility to help business retain and create employment.


Employers believe the balance on legislation has begun to “tip in the wrong direction”


Ireland has enjoyed a strong economic performance over recent years, with record employment levels and a ranking as the world’s seventh most competitive economy - second in the euro area. But revised forecasts “have one thing in common”. High and rising business costs, environmental sustainability, and increasing skills mismatches are impacting on our competitiveness, as is the uncertainty around Brexit.


THE PUBLIC SERVICE

Stratis says that despite the Government’s reliance on volatile revenue, public service unions have continued to successfully pursue pay claims regardless of public debt levels. The Public Service Stability Agreement 2018 – 2020 “has been pushed to breaking point and there are calls for a mid-term review of the Agreement.”


“All too often our dispute resolution bodies”, Stratis says, “notably the WRC and the Labour Court have been placed in an invidious position” with disputing parties expecting those bodies to “magic up solutions”. Such actions “seriously devalue those agreements and oversight arrangements” and put at risk the credibility of both the WRC and the Labour Court.


Chiming with the broad conclusion of the Public Service Pay Commission, the consultants say that a new Independent Body is needed to oversee public sector pay determination and “to verify the delivery of commitments to productivity improvements, change and transformation”.


Though not mentioning any particular dispute by name, it is likely that Stratis has in mind the proposed productivity and cost reduction measures that the Labour Court included in its recommendation that resolved the nurses and midwives strike earlier this year. Evidence of movement on those proposed measures has yet to be seen.


More broadly, Stratis explains that what it suggests would involve considering the job content of particular grades, the context (including both fiscal and economic) for setting the appropriate level of pay and all other elements of remuneration for any identified groups or categories. “This would underpin an analysis of the totality of remuneration; comparing public service and private sector remuneration; and assessing international comparisons of public sector remuneration”, it says. (See CSO analysis of public v private pay in IRN 42-2019)


Before talks on a successor to the Public Services Stability Agreement, there needs to be an “evidence-based assessment of the delivery of the full terms of that agreement”, it says.


SUSTAINABILITY TEST

The paper says that while employees today have a better understanding of challenges their organisations are facing and, in many instances, trade unions are playing a constructive role, “some still hold to the outdated ‘them and us’ mentality”.

The paper would like to see a ‘sustainable employment test’ applied to the making of all employment regulations, carried out by an independent agency and contribute to a ‘Regulatory Impact Assessment’ (RIA). This should also inform the determination of issues by all third-party dispute resolution bodies.


DIRECT ENGAGEMENT ‘LEGITIMATE’

Stratis says that most employees expect high levels of engagement, which can be achieved through a variety of different models, “one of which involves unionised collective bargaining”. However, too often our regulatory system “ignores the legitimacy of the direct engagement model which is practised by most private sector employers”.


The important role and function of trade unions in society and at enterprise level is “fully acknowledged through voluntary collective bargaining”, Stratis says. But where employers are implementing “progressive HR practices” they should not face the “default outcome” of being advised to adopt a collective model of employee representation, which the Labour Court traditionally recommends. This is most evident in recommendations arising under S.20(1) of the Industrial Relations Act, 1969, concerning union recognition claims.


The paper comments that our legal framework enshrines important constitutional guarantees: “both the freedom of association and dissociation and the right of employers not to engage in collective bargaining”.


THE WRC

Observing that under its Statement of Strategy 2019-2022, the WRC has a vision to be “a world leader”, Stratis says it supports the Commission’s core mission. It sets out five recommendations that it believes could improve the system:

  • Complainants who remain in employment should be required to exhaust any in house grievance/dispute resolution procedures before lodging a claim. No such obligation currently exists and if the internal procedures have not been exhausted, then the WRC should allocate a period for the matter to be addressed locally.

  • At present either party can object to mediation without providing a reason. Mediation services should always be proposed to the parties and a responsibility placed on either party to justify a refusal to mediate, with that reason being shared for the confidential information of the assigned Adjudication Officer.

  • Cases where a complainant has opted for early-resolution or mediation, but where no resolution is ultimately found, should be given priority listing for adjudication over cases where the complainant has objected to early resolution or mediation.

  • The considerable expertise and experience of Conciliation Officers should increasingly be deployed to lead the WRC Mediation service and targeted at SMEs.

  • Mediators must be sourced from across both the Private and Public Sectors. To avoid any conflict of interest issues, mediators should be full time or exclusive and precluded from undertaking any other work outside the WRC.

CONCILIATION SERVICE

Stratis praises the “highest profile work” of the Commission, namely the Conciliation Service. It says that resourcing levels should ensure the availability of highly experienced Conciliation Officers to handle complex IR disputes, particularly those relating to transformation.

“Conciliation Officers should be encouraged, where appropriate, to be more assertive with the parties in identifying the ambit of agreement on issues”, it says.

And the Commission should be free to recruit experienced Officers from both within and outside the public sector and to “build a career path for such Officers within the WRC, to reduce the risk of talent loss on promotion to other civil service posts”.


ADJUDICATION SERVICE

The consultants argue that adjudicators should be appointed on a full-time or exclusive basis only “and not be permitted to engage in other work, in parallel, including acting as advisors or representatives for employers or employees”.

In order to ensure the confidence of employers, workers and trade unions, the balance of ‘Adjudication Officer’ appointments should continue to be drawn from an external panel, but with a designated role for the Board of the WRC in formulating that panel and in determining the criteria for the assessment of candidates.


Adjudicators should exercise more control over witnesses and confine submissions and case presentations to the relevant facts. AO decisions should be reasoned with findings of fact which would (i) inform the parties as to the reasoning for the decision and (ii) enable the Labour Court on appeal to identify the issues which were at the kernel of any dispute.


“It is correct that there is a separation of Mediation and Adjudication functions in Employment Rights cases, but this should not automatically apply in respect of Mediation and Adjudication Functions for IR Cases. The facility for Adjudicators to operate in a quasi-Med-Arb role should be re-introduced for IR cases,” Stratis suggests.


The paper advises that to avoid hearings of multiple claims arising from the same set of facts, a provision should be inserted in the Workplace Relations Act 2015 allowing the respondent to make an application to the WRC or the Labour Court, “which could be empowered to issue a determination requiring the claimant to select one form of redress or in the alternative, to strike out certain claims”.


ADVISORY SERVICE

Stratis would like the Advisory Service to encourage and support workplace innovation, along with the adoption and sharing of best practice at the level of the enterprise.

“Amidst a diversity of models of employee engagement, the pace of change demands greater recourse to arbitrated or final outcomes arising from the impact of major change and its implementation,” they say.

They suggest an extensive programme of development and capability-building in workplace dispute resolution and workplace innovation. “There is a requirement for dialogue between the state dispute resolution bodies and ADR practitioners on the appropriate intersection between ADR arrangements and the State system such that local ADR arrangements can be fully supported.”


THE COURT & ‘FINALITY’

The role that the Labour Court can play in bringing finality to disputes and to disputes of interest between parties through arbitration “should be an increasingly important part of its remit”.

Stratis wants S.20 of the Industrial Relations Act 1969 to be amended “to allow for referrals to be made by an employer or an employer body which may be of value concerning the interpretation of an agreement or on the implementation of change”.


It points out that referrals more regularly take place under section 20 (1) by the workers concerned or their trade unions, where they agree to be bound in advance by the outcome. The absence of a corresponding provision for employers is an anomaly that “can provide a veto to workers and their trade union”.


Stratis wants a facility for either the employer or union, who are party to an established collective bargaining relationship in the employment concerned, to request the Labour Court to hear a dispute of interest and for the Court to issue a recommendation, where the other party has refused to participate in WRC conciliation.


Third parties should, they argue, have the authority to issue a determination, by consent of the parties, “confirming the fact that a settlement is reached, while respecting the confidentiality of the terms … (and) which would have legal force to the terms of settlement”.


ESSENTIAL SERVICES

Turning to that old chestnut, disputes in essential services, the consultants argue that the legislature needs to significantly strengthen the statutory requirement to exhaust IR procedures “prior to the taking of a ballot for industrial action and before a dispute can occur”.


They want a clearer definition of what constitutes an ‘essential service’ and say there should also be a requirement to ensure the maintenance of a minimum level of essential services during a dispute. A “minimum service agreement” on this should be agreed and registered with the Labour Court under the provisions of S.8 of the Industrial Relations (Amendment) Act 2015. This would also be a condition for the immunities contained in the Industrial Relations Act 1990 to apply to any industrial action that may follow.


The consultants don’t stop there, arguing that even where such procedures are fully exhausted, there should be a required minimum but substantial ‘cooling off’ period, to elapse between receipt of a Court recommendation and a secret ballot on the recommendation. In the event of a rejection, they want a separate secret ballot on the “question and form of industrial action”.


Furthermore, they suggest measures to include recourse to binding arbitration and a no-strike policy to ensure essential services and those “which are of strategic importance to the public”.


They also want the introduction of what is referred as a “proportionality” test, “to require that action taken … is in furtherance of a legitimate aim, appropriate and not excessive to achieve that aim, and proportionate to the issue in dispute”.


‘EFFECTIVE OVERSIGHT’

An ‘oversight type body” at national level is proposed to oversee industrial peace and good industrial relations. Unlike the measures suggested regarding essential services, this may be more appealing to trade unions. If this type of body existed, Stratis says, it could make an important contribution to finding a pathway to resolving disputes and in a manner supportive of the role of the WRC and the Labour Court.


But while unions might back what appears to be something akin to a National Implementation Body (lost with the collapse of social partnership), the consensus would likely end there.


Stratis says the risk should be eliminated which currently exists under the IR Act, 1990 “where industrial action may be triggered by a dispute in relation to someone who no longer works, or even who has never worked, for the employer”. The right to take industrial action should be confined to employees of the organisation in question.


Moreover, they say the legal protection for industrial action should be contingent on a statutory requirement to exhaust IR procedures.


“Currently industrial action is unfettered with no restrictions on proportionality. The law should require the workers or a union to demonstrate that the industrial action being taken is in furtherance of a legitimate aim, or where there were reasons of overriding public interest … The Labour Court through a specialist Division, should be empowered to determine the issue by way of a legally binding decision.”


BALLOTING THRESHOLDS

Observing that picketing currently can take place at any location where the employer carries out business and not necessarily where the employees in question carry out their duties, they want picketing confined to the place where the employees work.


Where there is a question over the legitimacy of a secret ballot, “a remedy should be available in the Labour Court … which would result in a specific corrective action … on a union which has been shown to be in breach of section 14 of the Industrial Relations Act, 1990”.


Any challenge to whether the ballot was ‘secret’ and the count independently verified would also be referred to the special Division of the Court. Breaches would allow for a specific corrective action or potentially claims for damages. Stratis also suggests that the notice period for industrial action should increase from 7 to a minimum of 14 days after the completion of a ballot and notice to the employer should contain explicit details of any proposed action(s) and the period(s) of such action.


The consultants also suggest that the requirement for protected action should be raised from a simple majority of those voting to a higher threshold of there being both at least a 50% turnout of those eligible to vote and the ballot being supported by over 50% of the balloted workforce.


Currently, a union must take reasonable steps to make known to its members who are entitled to vote in a ballot, the number of ballot papers issued, the numbers of votes cast, the number of votes in favour of the proposal, the number against and the number of spoilt votes. As part of the proposed reforms, notice should be given at least 7 days in advance of the taking of a ballot and the union ought to demonstrate that every effort was made to provide such notice to every member entitled to vote. This should include details of the issue involved and specifics on the timing, duration and type of action being contemplated.

Greater transparency is needed, Stratis says. An employer of any union members who will be given entitlement to vote should receive a sample voting paper (and a sample of any variant of that voting paper) not later than three days before the opening day of the ballot. The ballot paper should include specifics on the type and timing of the industrial action.


All ballots for industrial action should be independently supervised by a specialist Division of the Labour Court.


Concluding, Stratis says that building on the successful work to date of the Workplace Relations Commission and the Labour Court, “there is an opportunity to build an employment rights and industrial relations framework which is more effective in its functions and robust in the face of challenge”.


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