From Rights Commissioner to Adjudication Officer — the emasculation of a critical front line IR serv

Formerly of Ibec and now an IR consultant with Stratis, industrial relations expert, Liam Doherty, is concerned about what he fears has happened to the traditional industrial relations role of the Rights Commissioner service.

One area that has received little attention is the manner in which the traditional industrial relations role of the Rights Commissioner has been increasingly emasculated by the employment rights agenda.

There are still a large number of IR cases being referred to the Workplace Relations Commission (WRC) under the IR Act 1969, which was intended to provide an informal and speedy route to resolving individual or small group cases.

Adjudicators have no real process flexibility

According to the WRC Annual Report 2016, there were 992 referrals under the Industrial Relations Acts. This amounts to 15.8% of total referrals and is broadly in line with the total number of Unfair Dismissal Acts cases (1,036) and Organisation of Working Time Act, 1997, cases (1,104).

For many years, Rights Commissioners had a very strong industrial relations background and were nominated by the social partners. They were the principal users of the system, which also helped to maintain its strong legitimacy. Over time, the role was broadened to encompass various pieces of employment legislation but the essential IR background and role flexibility remained important. More recently, the title and role of Rights Commissioner has been fundamentally changed under the Industrial Relations Act, 2015, to that of an Adjudicator in a heavily prescribed process.

We are in danger of losing the valuable role that Rights Commissioners have played within our IR system and this could have a number of unintended consequences

ORIGINS OF RIGHTS COMMISSIONER SERVICE

It is worth reflecting on the historical origins of the Rights Commissioner Service. It arose out of the turbulent experience of the 1960s, when many individual or small group claims were leading to industrial action. The Minister for Labour, Dr Patrick Hillery, speaking in Dail Eireann on February 19, 1969, said:

“.......something else is needed to give a quick and authoritative opinion. A commissioner will investigate privately and quickly a dispute which arises out of a right which a worker claims to have, being, as I say, a right stemming from an agreement, a custom or a practice...."

and what was required was “…a quick and authoritative opinion”.

Clearly, the service was introduced within a voluntarist IR context, and for many years employers and trade unions could refer cases to specific Commissioners. As various pieces of employment rights legislation were passed, the role of the Rights Commissioners expanded, with the overall volume of rights cases now far outweighing the number of IR referrals.

Today, IR referrals go into a central pool that are allocated amongst the thirty-plus Adjudicators.

TRADITIONAL HEARINGS – LEGISLATION REMAINS INTACT

The original legislation governing the work of the Rights Commissioners under the IR Act, 1969, remains fully intact.

Section 13 of the 1990 Act allows the Rights Commissioner to deploy a flexible approach to resolving cases, typically involving a combination of mediation and arbitration. This flexible role has been demarcated in the rights arena under the Industrial Relations Act, 2015, into separate mediation and adjudication roles.

SEPARATION OF POWERS IS CREATING CONFUSION

The Industrial Relations Act, 2015, provides for a removal of the mediation function from the adjudicator role in the employment rights arena. As a consequence, adjudicators have no real process flexibility available to them in dealing with employment rights cases. Adjudicators must essentially ‘leave it to the parties involved’, if they choose to explore a mutually acceptable resolution. (This is in stark contrast to the IR arena, where Adjudicators retain process flexibility.)

According to the WRC Annual Report 2016, employment rights mediation is provided on a voluntary basis “where both parties have agreed to mediation and where the dispute is suitable in terms of the service.” Cases are selected for mediation by the Commission and this service is provided by either face-to-face or via a phone-based service.

The 2016 report confirmed that there were only 69 pre-adjudication face-to-face mediation cases identified and dealt with, of which 63% were settled or withdrawn and the remainder proceeded to adjudication. It is apparent, therefore, that a highly-recommended dispute resolution process (i.e. mediation) has been deployed in a very small number of cases.

However, on a positive note the WRC has stated that it intends to increase the number of mediation and ERS interventions in 2017, and to increase the availability of face-to-face ERS mediation in suitable cases.

ADJUDICATORS & IR HEARINGS – CONTEXT IS KEY

There is no doubt that Adjudicators who come from an industrial relations background have a clear understanding of the different dynamics at play, depending on the IR case before them. (It is also apparent that some Adjudicators will be better equipped to handle complex legal cases, given their background.)

Adjudicators need to reflect on their approach to a hearing when operating in the IR arena compared to the Rights arena, for example

How might the hearing be different?
What if a union official or employer representative wants to speak with the Adjudicator in private?
How might the write up of the recommendation be different?

There may also be different dynamics at play in cases in the industrial relations arena which will need to be factored into the process and/or outcome. For example, the Adjudicator may need to restore confidence in the IR procedures where one party has had multiple ‘wins’ and the other party needs a successful outcome. Furthermore, a union official or employer representative may be pursuing or defending a case because he/she has to be seen to. While the IR rights of an individual are important, they should not be viewed in isolation without regard for the wider context.

NEED FOR CLARIFICATION?

There are a number of questions that the WRC may wish to address in fully clarifying the role of the Adjudication Officer, such as:

Is the Adjudication Officer precluded from meeting the parties in side conference? It would appear that they are when operating in the Rights arena based on the Industrial Relations Act 2015, but not when in the IR arena.
Is the Adjudication Officer precluded from availing of the opportunity to seek to resolve a matter even by agreement between the parties? Again, it would appear that they are in the rights arena, based on the provisions of the Industrial Relations Act, 2015 but not in the IR arena.
If either party has previously objected to mediation, but at the Adjudication Hearing both parties indicate their desire for mediation (or to explore an agreed resolution), is the matter to be referred back to a Mediation Officer, or will the Adjudication Officer have the authority to handle the matter? It would appear that the matter could be referred back to mediation in the rights-based arena but that is not necessary in the IR arena.

CONCLUSIONS

The IR Act 2015 provided for a number of important reforms to streamline our third party dispute resolution system. However, a single point of first instance appeal to ‘The Adjudication Service of the WRC’ should still permit the deployment of subject matter experts to hear particular cases.

It is clear that a number of actions are required, otherwise a critical front line service will over time lose its relevance and appeal to both employers and trade unions.

Given that the original Rights Commissioner service was the outcome of an engagement between Government, FUE (now Ibec) and ICTU, the Social Partners should engage with the WRC on the type of service that is required to resolve individual and small group IR disputes that do not have collective implications.

The need to appoint Adjudicators to hear rights cases via an independent selection process is wholly appropriate. However, with the dramatic expansion of the remit of Adjudicators, the WRC should deploy a Panel of Adjudicators with the relevant background and experience to hear IR cases.

Finally, trade unions and employers need to ensure that officials handling IR cases are also representing their members in the collective arena, rather than allocating case specialists who are solely focussed on ‘winning the case at hand’ with little regard for, or awareness of, the wider relationships, complexities and interests that may be at play.

Liam Doherty PhD.