Resolution Machinery

Industrial Relations Bodies

The State has established a number of bodies designed to assist in the resolution of actual or threatened industrial action or strikes. The principal bodies were the Labour Court, the Labour Relations Commission and Rights Commissioners. The Labour Court and the Rights Commissions also had certain legally binding powers under employment legislation.

Almost all of the powers and functions of the Labour Relations Commission and the Rights Commissioners have been transferred to the Workplace Relations Commission. The Labour Court continues and retains both functions in relation to appeals on adjudication in individual rights disputes and in industrial relations matters. This section deals with the structure of the Labour Court and with its industrial relations functions.

The Labour Court continues under the new legislation with modified powers. Although described as a court, the Labour Court does not usually make legally binding decisions in the industrial relations sector. It is a conciliation and mediation body in the exercise of these functions. Parties can voluntary submit to binding arbitration, by agreeing in advance to be bound by Labour Court’s recommendation in the particular matter.


Industrial Relations

The existing employment bodies were dissolved by the WRC legislation. It provided for the replacement of the Labour Relations Commission, the National Employment Rights Authority (NERA), the Equality Authority, Employment Appeals Tribunal and the first instance functions of the Labour Court by the Workplace Relations Commission.

All functions of the Labour Relations Commission were transferred to the Workplace Relations Commission.   This included the industrial relations conciliation service, the industrial relations advisory training and research service and workplace mediation service.

Functions in relation to the review and monitoring of industrial relations, the preparation of codes of practice in consultation with the social partners, industrial relations research and publications, the organisation of seminars, conferences on industrial relations and HR issues were transferred to the WRC. The WRC legislation provides a statutory basis for the publication of codes of practice in employment and industrial relations matters, in consultation with the Minister.

All existing conciliation and workplace mediation and advisory services of the Labour Court were transferred to the Workplace Relations Commission. The WRC took over the functions of the Labour Relations Commission. This included its industrial relations, conciliation, advisory services, information and research functions.


Adjudication / Enforcement

The Employment Appeals Tribunal was dissolved and its functions transferred to the Workplace Relations Commission. The first instance functions of the EAT were effectively abolished. A function analogous to the Rights Commissioners’ functions was conferred on WRC adjudication officers. The appellate function of the Employment Appeals Tribunal was transferred to a newly expanded Labour Court.

The Employment Appeals Tribunal continued for a limited period after the establishment of the WRC in order to dispose of all legacy first instance complaints and appeals.  This was to maintain the legitimate expectation of the parties who had initiated proceedings that would be heard before a tripartite chairman, employer and employee’s representatives style tribunal rather than the less formal WRC procedure.

The Minister appointed the day for dissolution of the Employment Appeals Tribunal.  The functions of the EAT were transferred to the Labour Court.  The first instance functions of the EAT under the Unfair Dismissals Act and Minimum Notice Act are transferred to the WRC. Most employment rights matters, such as unfair dismissal claims are now generally heard by a single Adjudication Officer.

Complaints under the Equal Status Act are made to the Director-General of the Work Relations Commissions rather than the Director of the Equality Tribunal.  An appeal against the decision of the Adjudication Officer in an equal status case is to the Circuit Court reflecting the pre-existing position.

The WRC took over the inspection and enforcement functions of the Department /National Employment Rights Authority.  The powers of prosecution which were vested in the Minister in relation to a range of employment legislation is transferred to the Commission.  References in the relevant legislation are to be interpreted as references to the Commission.


Simplification of Access

The Workplace Relations Commission is designed to provide a single point of reference for employment, equality and industrial relations disputes.   The Workplace Relations Commission deals with all cases in the first instance.  The Labour Court deals with cases on appeal.

A key objective of the legislation was to facilitate the resolution of workplace disputes, quickly and inexpensively.  There is an increased emphasis on the early and informal resolution of disputes. The Commission is to provide the means whereby complaints under employment rights legislation can be investigated and resolved by early intervention or adjudication by competent personnel.

The legislation standardises procedures and timeframes across a range of employment rights legislation.  The WRC seeks to assist employees with multiple complaints, and employers who might have to take and defend claims in several forums.  The WRC is a single “one stop”, body, dealing with employment, equality and industrial relations matters.

All complaints are to be dealt with in a single place and at the same time.   There is a common procedure for presentation of complaints and referral of disputes to the Director General of the Commission.  There is a standardised time limit of six months which may be extended to 12 months for reasonable cause.

There is a greater use of electronic forms in the filing of complaints.  There is a single comprehensive website with comprehensive information on employment.  There are a single route and time limit for all appeals. There are more efficient methods of enforcing awards.


Compliance

There are modernised and enhanced investigatory and compliance mechanisms.  Officers are appointed under warrant as Inspectors of the Workplace Relations Commission.  They incorporate the NERA Inspectorate. The powers of authorised officers are restated along the usual regulatory power lines, largely in accordance with the pre-existing legislation.  It is an offence not to cooperate with an authorised officer.

Statutory compliance notices and fixed charge notices may issue for compliance and enforcement purposes. Where the Commission finds continued noncompliance with legislation on the part of employers or employees, it may prosecute.

A compliance notice may issue when an Inspector forms the view that there has been a contravention of scheduled employment law, which the employer fails or refuses to rectify.  The schedule of employment legislation is set out in the Act.

An employer may appeal a compliance notice to the Labour Court.  After hearing, the Labour Court may affirm, withdraw or require the employer to whom the notice applies to comply with the directions given. There is provision for appeal of the Labour Court decision on a compliance notice to the Circuit Court. The Circuit Court may uphold, vary or withdraw the notice. It may make a legally binding order and require the employer to comply with directions.


Enforcement

Failure to comply with a compliance notice, where there is no appeal, may be the subject of a short form Circuit Court procedure, on foot of which a binding order may issue.  Failure to comply with a binding order is an offence which may be prosecuted.

There is a provision in the legislation for fixed payment notices in relation to a range of noncompliance with employment legislation by the employer.  The matters to which the notice can be used are specified. Where an Inspector suspects noncompliance in respect of one or more offences, he may serve a fixed payment notice. If  the person on whom it is served pays the penalty, the matter will not proceed to court.  If he refuses to do so, the matter may be prosecuted.

The written report of an inspector is admissible in proceedings.  An adjudicator dealing with a dispute may request a copy of a report or request an inspection to be made.  The Labour Court may request the Director-General of the Commission to arrange that an Inspector conducts an investigation into specified employment records of an employer, who is party to proceedings.  The report may be considered by the Labour Court.


Agreed Resolution

There is provision for appointment of Case Resolution Officers to the Commission, in order to provide a service to facilitate resolution of disputes at an early stage, without recourse to adjudication.  An early resolution service is offered in certain cases with less complex issues.  Participation is voluntary.  It does not preclude having the matter dealt with by means of inspection or hearing.  If early resolution yields a compromise or settlement, the outcome is confidential.  If it is not successful, anything disclosed during the process may not be used in the subsequent adjudication and inspection procedures.

There is provision for mediation officers to be appointed to provide mediation services to resolve disputes.  This is similar to the mediation service formerly offered by the Equality Tribunal under the equal status legislation.  This is appropriate to more complex disputes.  Participation is voluntary for both parties.  Parties retain the right to proceed to a hearing if the matter is not resolved.  The process remains confidential and information disclosed may not be used subsequently in any later process.


Adjudication

There is provision for the appointment of adjudicators to the Commission.  They may include experienced industrial relations, HR practitioners, employment lawyers and civil servants with appropriate skills.  A panel is to be established in an open and transparent way.  The process is administered by the Public Appointments Service.

First instance complaints requiring a hearing are heard by Adjudication Officers.  When a matter is referred to a hearing, it is assigned by the Director-General to an Adjudication Officer.  The Adjudication Officer is to hold the hearing, giving parties the opportunity to present evidence and challenge each other’s evidence. Parties may represent themselves or retain their own representatives.  There is an appeal to the Labour Court.  In the case of equal status legislation claims, the appeal is to the Circuit Court.

An Adjudication Officer may dismiss a complaint where he forms the view that it is frivolous or vexatious.  This dismissal can be appealed to the Labour Court. Where a complaint has been upheld by an Adjudication Officer and if the decision is not appealed by either party but remains unimplemented after 56 days, the complainant, a trade union or excepted body, acting on their behalf (or the Commission in certain cases) may apply to the District Court for an order directing the employer to carry out the decision in accordance with its terms.


Appeal

A party to a first instance hearing has a right to appeal the decision of the Adjudication Officer to the Labour Court.  The Labour Court is a final court of appeal for all adjudication issues.  Either party may bring a further appeal from a determination of the Labour Court to the High Court, on a point of law only.

Appeals to the Labour Court are fresh hearings, held in public.  There are exceptions where confidential or sensitive issues arise. Decisions of the Labour Court are published on the WRC website.  The Labour Court establishes its own procedures.  There is a standardised time limit of 42 days from the date of issue of the first instance decision, in which to appeal.

There is provision for enforcement of the decision of the Labour Court which has been upheld.  If the decision is made in favour of the complainant and is not appealed, then after 42 days, the complainant, the trade union, excepted body, or in some cases, the Commission may apply to the District Court for an order directing the employer to carry out the decision.

A party to proceedings under employment rights legislation before the Labour Court may appeal to the High Court on a point of law.  The decision of the High Court is final and conclusive.  The provision for appeal from the Employment Appeals Tribunal to the Circuit Court is repealed.    This does not affect the possibility of an application for judicial review.  Most such reviews would be covered by an appeal on a point of law.


LC Industrial Relations

The following are the Labour Court’s principal functions in the industrial relations sphere;

  • investigate trade disputes under the Industrial Relations Acts,
  • investigate, at the request of the Minister for Jobs, Enterprise and Innovation, trade disputes affecting the public interest, or conduct an enquiry into a trade dispute of special importance and report on its findings
  • hear appeals of Adjudication Officer’s recommendations/decisions made under the Industrial Relations Acts
  • establish Joint Labour Committees and decide on questions concerning their operation
  • register Joint Industrial Councils
  • investigate complaints of breaches of codes of practice (following consideration of the complaint by the Workplace Relations Commission)
  • give its opinion as to the interpretation of a code of practice made under the Industrial Relations Act,
  • investigate disputes (where negotiating arrangements are not in place) under the Industrial Relations (Amendment) Act, 2001
  • register employment agreements
  • examine the terms and conditions of employment in a sector pursuant to Section 14 of the Industrial Relations (Amendment) Act 2015
  • grant exemptions from the obligation to pay the remuneration that would otherwise be payable under a Sectoral Employment Order (SEO)

LC Investigation I

A “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased.

The following are the principal circumstances in which a trade dispute can be investigated by the Labour Court.

The parties to the dispute have availed of the conciliation services of the Workplace Relations Commission (WRC) but have failed to reach agreement – in this case, the WRC, at the request of the parties, refers the case to the Labour Court;

WRC Waiver (industrial relations dispute) – the WRC has waived its conciliation function in the dispute;

Labour Court Intervention (industrial relations dispute) – the Court determines that exceptional circumstances prevail in the dispute and, following consultation with the WRC, invites the parties to the dispute to avail of its services;

Ministerial (industrial relations dispute) – the Minister for Jobs, Enterprise and Innovation refers a dispute to the Court


LC Investigation II

The following are further circumstances in which a trade dispute can be investigated by the Labour Court.

Direct Referral – Advance acceptance of Recommendation (industrial relations dispute) – this is where a worker, or workers, in a trade dispute, or a trade union on his/her/their behalf, or all the parties, agree in advance to accept the Labour Court’s recommendation. They can bring their case direct to the Labour Court (under section 20(1) of the Industrial Relations Act, 1969).

The appeal of the decision of an Adjudication Officer. Where a case has been heard by an Adjudication Officer and a recommendation has been issued, either party to the dispute may appeal the recommendation to the Labour Court; such appeals must be made to the Labour Court within 42 days of the date of the Adjudication Officer’s recommendation. The appeal can be on the basis that one or both of the parties does not agree with the Adjudication Officer’s recommendation


WRC First

Except where there is specific provision for the direct reference of trade disputes to the Labour Court, trade disputes shall first be referred to the Workplace Relations Commission or to its appropriate services.

The Labour Court shall not investigate a trade dispute unless it receives a report from the Commission stating that the Commission is satisfied that no further efforts on its part will advance the resolution of the dispute, and the parties to the dispute have requested the Court to investigate the dispute. The report shall include information on the issues in dispute, the attempts made to resolve the dispute and any other information which the Commission considers of assistance to the Court.

Notwithstanding the above the Court may investigate a dispute if the Chairman of the Commission (or any member or officer of the Commission authorised by him) notifies the Court that in the circumstances specified in the notice the Commission waives its function of conciliation in the dispute, and the parties to the dispute have requested the Court to investigate the dispute.

Where the Court, following consultation with the Commission, is of opinion, in relation to a trade dispute which that there are exceptional circumstances which warrant it so doing, it may investigate the dispute.


Investigation where No Collective Bargaining

The Labour Court may investigate a trade dispute where negotiating arrangements are not in place, subject to conditions. See the section on collective bargaining.

At the request of a trade union or excepted body, the Labour Court may investigate a trade dispute where it is satisfied that it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute,

The Labour Court may make a non-legally binding recommendation, and ultimately a legally binding determination, in relation to a trade dispute concerning terms and conditions of employment and dispute resolution and disciplinary procedures affecting workers, in cases where the employer does not engage in collective bargaining negotiations. See the sections on collective bargaining.


Investigation of Breaches of Code

The Labour Court may investigate complaints of breaches of codes of practice made under the Industrial Relations Act, (following consideration of the complaint by the Workplace Relations Commission).

At the request of a trade union or excepted body, the Labour Court may investigate a trade dispute where it is satisfied that

  • either the employer has failed to observe a provision of the Code of Practice on Voluntary Dispute Resolution specifying the period of time for the doing of anything (or such a provision of any code of practice amending or replacing that code), or any agreement by the parties extending that period of time,
  • the dispute having been referred to the Commission for resolution in accordance with the provisions of such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advance the resolution of the dispute and the Court has received a report from the Commission to that effect,
  • the trade union or the excepted body or the employees, as the case may be, have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing a provision of such code of practice, and
  • the trade union or the excepted body or the employees, as the case may be, have not had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such code of practice.

Agreement to Abide

The Labour Court can agree to hear disputes by way of arbitration. Alternatively, it may refer a matter to arbitration. The court does not commonly exercise these powers.

Where the workers concerned in a trade dispute or their trade union or trade unions request or requests the Court to investigate the dispute and undertake or undertakes before the investigation to accept the recommendation of the Court, the Court shall investigate the dispute and shall make a recommendation in relation thereto.

Where the parties concerned in a trade dispute request the Court to investigate a specified issue or issues involved in the dispute and undertake, before the investigation, to accept the recommendation of the Court, the Court shall investigate such issue or issues and shall make a recommendation.

Where a trade dispute has occurred, or is apprehended, the Court, with the consent of all the parties concerned in the dispute, may refer the dispute to the arbitration of one or more persons (who shall be paid such fees as the Minister, with the consent of the Minister for Finance, determines) or may itself arbitrate upon the dispute.


Ministerial Reference.

The Minister for Jobs, Enterprise and Innovation may refer matters relating to employment conditions to the Labour Court for investigation and report. The dispute is usually one which affects the public interest or is of special importance.

The Court shall consider any matter referred to it by the Minister concerning the employment conditions prevailing as regards the workers of any class and their employers and shall furnish a report thereon to the Minister together with such recommendations (if any) as it thinks proper, and the Minister shall consider any report and recommendation so made.


Investigations of Trade Disputes I

The investigation is conducted in private. The hearings are usually held in public unless one of the parties requests a private hearing. In some cases, it must be given such priority over the other business of the Court as the Court considers reasonable.

The Labour Court investigates disputes by requiring the parties to a dispute to provide it with written submissions of their positions in relation to the dispute, and, subsequently, by holding hearings which both parties attend. All appeals under employment enactments are conducted in public subject to the right of the Court to conduct part of the hearing in private in exceptional circumstances.

Hearings are relatively informal. Parties normally make a written submission in advance. The court can require witnesses to attend and give evidence under oath.


Investigation of Trade Disputes II

Each party may appoint a representative / spokesman to deal with his verbal submissions and to respond to the other party’s submissions. The court members may ask questions and make enquiries of its own initiative. The Court makes a recommendation in relation to the trade dispute and as to how it should be settled. The recommendations are normally made public.

The Court may,

  • summon witnesses to attend before it,
  • take evidence on oath and, for that purpose, cause to be administered oaths to persons attending as witnesses before it,
  • require any such witness to produce to the Court any document in his power or control.

A witness before the Court shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

If any person on being duly summoned as a witness before the Court makes default in attending, or as a witness refuses to take an oath legally required by the Court to be taken, or to produce any document in his power or control legally required by the Court to be produced by him, or to answer any question to which the Court may legally require an answer, is guilty of an offence.


Recommendation in Dispute

The Court, having investigated a trade dispute, may make a recommendation setting forth its opinion on the merits of the dispute and the terms on which it should be settled. The Court shall communicate a recommendation to all the parties to the dispute and to such other persons as the Court thinks fit, and the Court may also publish the recommendation in such manner as it thinks fit.

Labour Court recommendations for the resolution of trade disputes are not usually legally binding. As it is a court of last resort in the industrial relations sphere, it is expected that the parties come to it  good faith and therefore prepared to accept the outcome /  recommendation.

A Labour Court recommendation may be referred to the High Court on a point of law only. The High Court does not interfere with any findings of fact by the Labour Court and considers only points of law.


LC Recommended Rate

On the application of an interested party or on its own initiative, the Labour Court may fix the basic rate for male adult unskilled workers in a particular area under the Industrial Relations Act, 1946.  However, this is not legally binding an employer.


Administration I

The Court may make rules for the regulation of its proceedings. This may include rules as to

  • the bringing of appeals to the Court
  • the hearing of appeals by the Court
  • the times and places of hearings of such appeals;
  • the representation of the parties at the hearing of such appeals;
  • the notification and publication of decisions of the Labour Court on the hearing of such appeals;
  • the giving of notice of appeal from decisions of adjudication officers;

Rules so made section may provide for the cases in which persons may appear before the Court by counsel or solicitor and, except as so provided, no person shall be entitled to appear by counsel or solicitor before the Court.

The Court may hold any sitting or part of a sitting in private.


Administration II

The Minister shall appoint to be registrar of the Court a practising barrister or practising solicitor of not less than ten years’ standing. The registrar, officers and servants of the Court, shall hold office on such terms and receive such remuneration as the Minister for Finance determines.

The Court may appoint technical assessors to assist it on any matter relating to proceedings

The Court shall not include in any report any information obtained by it in the course of any proceedings before it under this Act as to any trade union or as to the business carried on by any person which is not available otherwise than through evidence given at the proceedings, without the consent of the trade union or persons concerned, nor shall any member of the Court or the registrar or any officer or servant of the Court or any person concerned in the proceedings, without such consent, disclose any such information.


References and Sources

Primary References

Employment Law  Meenan  2014 Ch. 24

Employment Law Supplement Meenan 2016 Ch.24A

Employment Law Regan & Murphy  2009  Ch.22 ( 2nd Ed 2017)

Employment Law in Ireland Cox & Ryan 2009 Ch.2

Dismissal Law in Ireland  Redmond 2007 Ch.10

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law         Daly & Doherty   2010

Acts

Workplace Relations Act 2015 (No.16)

Industrial Relations Act 1946 (No. 26)

Industrial Relations Act 1969 (No. 14)

Industrial Relations Act 1976 (No. 15)

Industrial Relations Act 1990 (No. 19)

Industrial Relations (Amendment) Act 2001 (No. 11)

Industrial Relations (Miscellaneous Provisions) Act 2004 (No. 4)

Industrial Relations (Amendment) Act 2012 (No. 32)

Periodicals and Reports

Employment Law Yearbook (annual) Arthur Cox

Employment Law Reports

Irish Employment Law Journal

Employment Law Review

Legislative Guides

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Irish Employment legislation (Looseleaf) Kerr  1999-

Employment Rights Legislation (IEL offprint)   Kerr  2006

Dismissal & Redundancy Consolidated Legislation   Barrett, G   2007

Principles of Irish Employment Law         Daly & Doherty   2010

Termination & Redundancy, What is the law?  Hayes, Barry & O’Mara 2005

Termination of Employment Statutes (IEL)       Kerr  2016

Termination of Employment: Practical Guide for Employers        Purdy         2011

Shorter Guides

Employment Law Nutshell    Donovan, D         2016

Employees: Know Your Rights       Eardly        2008

Essentials of Irish Labour Law       Faulkner    2013

Websites

Workplace Relations Commission http://www.lrc.ie/en/

Irish Human Rights and Equality Commission https://www.ihrec.ie/

Health and Safety Authority http://www.hsa.ie/eng/

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017

UK Periodicals and Reports

The Employment Law Review 8th  Ed.   Erika C. Collins 2017

Industrial Relations Law Reports

Employment Law in Context: Text and Materials 2nd  Ed. David Cabrelli 2016