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The Court of Last Resort

“In the field of industrial relations, the State's concern is to provide machinery so that disputes can be resolved before developing into great tests of strength. This implies that the employer and worker would do their level best to find a solution before turning for outside help and that, if they invoke outside help in the form of the procedures and machinery provided by the State, they would use it for the genuine purpose of reaching a peaceful solution.”

These are the words of the late Dr. Patrick Hillery (then Minister for Labour, later President of Ireland) in the Seanad on 14th May 1969 as the Bill that became the Industrial Relations Act, 1969 was making its way through the Oireachtas.

Having had nearly a quarter of a century of dispute resolution experience at that stage it was felt that some adjustments would be beneficial.  Some very significant changes were brought into effect by the 1969 Act, including that the Court would be precluded from investigating a dispute until conciliation efforts had failed to resolve that dispute.

The intention was, as it had been from the beginning, that dispute resolution responsibility would, to the greatest extent possible, reside with the disputing parties themselves using direct negotiations and then conciliation.  Only after all such efforts had been unsuccessful, could the Court become involved.

The words of the Minister in 1969, therefore, capture neatly what is still today the intended proposition of the Labour Court as an industrial relations institution - that of a final arbiter, where all else has failed - what is commonly referred to as the industrial relations Court of Last Resort.

Where the Court has been successful in assisting parties to resolve their dispute, it has been where the parties have done“their level best”to reach a settlement before coming to the Court and have volunteered to jointly seek the Court's opinion“for the genuine purpose”of achieving a resolution.

With some limited exceptions, the Court is not compelled to issue a recommendation in industrial relations cases. The relevant section of the Industrial Relations Act, 1946 provides that the Court“may make a recommendation”.

A key characteristic of every Labour Court recommendation is that it represents the Court’s best estimation of what is likely to settle the dispute between the parties. Intrinsic in this is, firstly, that the dispute, in its particular context and circumstances, is adjudged to be in a place where a resolution is within reach. And, secondly, that there are terms of resolution that are likely to be acceptable to the disputing parties,

It is sometimes the case that parties come before the Court where the circumstances are such that the Court is unable to assist the parties. This will arise where the Court concludes that, in the circumstances, its intervention and any recommendation it might make, will not bring the intended finality to the dispute.

When disputes are capable of being resolved, there will generally be certain factors or conditions present such that the parties are in a state of readiness for a third-party solution.

In the experience of the Court, a solution-ready state is most likely to exist when parties have:

·       Utilised their agreed procedures;

·       Engaged on the issues in a genuine fashion;

·       Agreed on the facts;

·       Understood each other's position and associated rationale;

·       Explored solutions;

·       Jointly requested the Court’s opinion;

Where factors such as outlined are not present, then the likelihood of a voluntary resolution of the matter may be greatly diminished.

The Court will most likely take the view that the dispute has not reached the stage of required readiness and that its intervention will not bring finality.

(There will be exceptional occasions, provided for in statute*, where the Court will of its own volition intervene in a dispute even where the parties have not requested its involvement. This step is most likely to occur where the dispute is one of great potential impact and the positions of the parties are such as to mean that they seem unable to find a path to agreement or even to agree to request the Court’s assistance)

*Section 26(5) Industrial Relations Act, 1990