Independence
The Labour Court is an institution whose membership is comprised of the Chairman, persons who perform the role of Deputy Chairman, and persons who perform the role of Ordinary Member of the Court.
The Chairman and those performing the role of Deputy Chairman are appointed by the relevant Government Minister, following a competition conducted by the Public Appointments Service.
The ordinary membership is divided equally between those nominated by the Irish Congress of Trade Unions, known as workers’ members, and those nominated by the employer body, Ibec, known as employers’ members. The Minister appoints the ordinary members from amongst those persons put forward by the nominating organisations.
It is sometimes perceived that the composition of the Court, being comprised of members who have a background and experience on either the employer or worker side, means that those members perform the role of a representative or advocate for the case of the party corresponding to that member’s background.
That perception is, of course, incorrect.
When the Court was first created as an industrial relations dispute resolution body, it was established as an independent, impartial, expert institution to be voluntarily resorted to by disputing workers and employers when all other efforts to resolve a dispute had failed. It was to be for the parties, and it was, crucially, of the parties.
Although a statutory independent third party, the composition of an adjudicating industrial relations tribunal, which mirrored that of the ILO tripartite approach, clearly had to be representative of the interests of those who would voluntarily come before it.
The intention was an independent and impartial court of industrial relations experts, comprised of a fully impartial chairman together with those who, while not acting as advocates, would bring a point of view and perspective from their experience as practitioners in both sides of industry.
An institution expected to play the role of Solomon in matters of workplace dispute or difference would require the wisdom and tact of those that had been there and had the experience to identify and prophesise resolutions that would find acceptance with the warring parties.
Though comprised of experts from differing backgrounds and experiences, the Court would act a unit, as a trinity, producing a single recommendation or decision in a matter, which would be the opinion of the Court in that matter.
Success or failure, it was recognised, would largely depend upon the ability of those comprising the membership of the Court to gain acceptance and trust through the independence and impartiality of their interventions as a Court.
The greatest test and endorsement of the Court’s independence in a voluntary industrial relations system would be the confidence of the parties’ in choosing to use it and continuing to do so, when they could simply opt not to.
Although, established by the Government, with a duty to provide it with staffing and other material needs, the Court is fully independent in its decision-making. The members of the Court cannot hold any other office or employment such that they can devote their time and effort to the Court on a whole-time basis. Additionally, the members of the Court are not subject to the regulation, direction and control that applies to other civil servants of the State.
Indeed, subsequent to its establishment, the independence of the Court has been strengthened by the Oireachtas, notably under the Industrial Relations Act, 1969. Back then, the criteria to be followed by the Court was revised and simplified (to that which exists today) such that the Court was only to consider the facts of the dispute, the position of the parties as set out by them, and how it should be settled. Broader criteria which included consideration of ‘the public interest’ was replaced with the simplified version which excluded any extraneous interests and focused the resolution on the interests of the parties to the dispute, and no more than that.
When acting in its quasi-judicial role in determining appeals in matters of employment rights (which function has been clarified by the Supreme Court inZalewski v Adjudication Officer & Ors [2021] IESC 24as being the administration of justice under the Constitution), the requirement for independence, aside from being an important reputational matter, becomes a significantly more formal matter of law and fair procedures. Decisions of the Court and the conduct of hearings and related processes in employment rights matters are subject to possible appeal and review by the superior courts.
In light of theZalewskicase, the relevant enabling industrial relations statutes today reflect an amendment expressly confirming the independence of all the members of the Court in the performance of their functions.
Members of the Court, in employment rights matters, are required to act judicially i.e. in an entirely neutral and impartial manner, giving due consideration to and weighing both sides of the argument to deliver a fair outcome.
While the ordinary members carry a designation as a workers’ member and an employers’ member, they are not representatives or advocates for workers or employers and must act, and be seen to act, fairly and impartially, with no bias or disposition towards a particular outcome.
