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The Voluntary Industrial Relations System

It takes two…….

The voluntary industrial relations system in Ireland is built on the proposition that negotiation directly between disputing parties is the best form of resolution and thatbothparties are desirous of reaching voluntary agreement as a means of settling disputes.

Through its workplace dispute resolution institutions the State assists where, despite best efforts by the parties directly, the search for agreement reaches an impasse and the parties both seek that assistance.

The dispute resolution system is intended to operate in the context of both parties not only volunteering to use the State institutions but wanting to do so to seek a settlement. The intended effectiveness of the system is greatly reduced, even negated, where the level of motivation or ambition for a resolution of the dispute by voluntary agreement between the parties is uneven. So much of the success of our dispute resolution system depends on the willingness, effort and desire of both parties to seek resolution in this way.

In the first twenty years or so after its inception in 1946, it was frequently the case that, following failure to settle at conciliation, only one party to the dispute, more often the employer, was the instigator of the referral to the Labour Court. Indeed, the Court itself was the instigator on many occasions. The system at that time permitted this.

Unsurprisingly, with a reluctant party feeling that they were “brought” or “dragged” to the Court, and not being in a solution-ready state, the resulting recommendation from the Court typically did not find acceptance, with the record of rejections falling more to the trade union side in that period.

When legislative changes were made to the industrial relations dispute resolution system in the late 1960’s, a central feature of the adjustments was that the Labour Court could not become involved unless conciliation had failed to settle the dispute and, crucially, thatbothparties agreed to the referral to the Court i.e. a joint referral.  That thinking was based on the simple premise that when two parties jointly ask a third party to become involved to help, a moral obligation in favour of giving serious consideration to the outcome with a view to acceptance tends to follow.

A further change provided that the Court, having conducted its investigation, was not obliged to issue a recommendation but could choose not to do so.  This permitted the Court to decline to issue a recommendation where, for example, it was of the belief, having heard the parties, that a recommendation in the particular circumstances would be less likely to find acceptance and would therefore not bring the intended finality to the dispute (see previous post:Court of Last Resort).  Re-routing back to further direct talks and/or conciliation would be a potential alternative.

This development, together with the stipulation of the ‘joint’ referral meant the Court could now be more exacting in relation to its services, preserving the intervention of its recommendation for those situations where the parties were committed to achieving a voluntary solution and were adjudged to be in a state of readiness for a third-party recommendation that would bring finality.  The drive towards finality, and away from being a stepping-stone, was a crucial objective.

As part of this effort to both strengthen utilisation of the Court and reinforce the finality (acceptance) of Labour Court recommendations, a number of additional, largely exceptional, features were introduced, having particular regard to the experience up to that point and the prevailing utilisation and acceptance/rejection trends.

In two specific and discrete scenarios (set out in Section 20 of the Industrial Relations Act, 1969) a Labour Court investigation could be requested, which would have the following features:

  • The hearing would be in private (hearings were largely in public up to that point);
  • The hearing would be convened on a priority basis, having regard to the other work of the Court;
  • The Court would be obliged to issue a recommendation following the investigation;
  • By way of a prior undertaking to the Court, the recommendation would be binding (in the moral sense) on the party or parties requesting the investigation.

Scenario (1) the worker(s) or their trade union could request an investigation of a dispute:

The intention was not a unilateral process conducted without the employer, but rather it was intended to cater for a situation where an employer had either not engaged in the dispute resolution process at all (a relatively rare occurrence in an era where collective bargaining was the principal form of employment regulation) or (more likely) was reluctant to continue its participation, perhaps in the belief that a recommendation from the Court would be rejected by the workers or would be of such a nature as to cause the employer itself to consider rejection.  The workers in that circumstance could have the dispute investigated by the Court, if they agreed to be bound by the outcome.

The expectation, therefore, was that in circumstances where the workers would be bound to accept the outcome, the employer would be incentivised to attend and participate in the Labour Court investigation.

Scenario (2) both parties could request the investigation of a limited/specified issue involved in a dispute:

This provision provided for the possibility of a joint request by both parties to dispose of a specific issue involved in a dispute (not necessarily the entirety of the dispute) by means of a binding Labour Court recommendation (essentially, agreed arbitration for a discrete issue).

It is difficult to argue with the contention that the legislative provisions to deal with the scenarios as set out above are, and perhaps are intended to be, exceptional in nature. This is particularly so when considered in the context of the overall industrial relations dispute resolution system, as established in 1946 and reinforced in the late 1960’s, designed around the active participation of both parties.

But whether or not it is as intended, the Court is frequently requested to, and does, investigate industrial relations disputes referred by workers and/or trade unions under these provisions i.e. primarily a unilateral rather than a joint referral.

Some, but not the majority of these cases, arise where a trade union submits such a referral which, while not in keeping with their collective agreement with the employer, is nonetheless considered by the union to be necessary. The Court will, in such situations, take account of all of the circumstances of the referral and will generally undertake its investigation against a background of respect for collective agreements and, in particular, the collectively agreed dispute resolution procedures.

Other such referrals are submitted by trade unions on behalf of a group of workers in circumstances where an employer has declined to engage in collective bargaining with the union on behalf of its members in the employment. In the majority of such referrals the Court will, by reason of a decision by the employer not to attend the hearing and thus deprive the Court of its perspective on the matter, be forced to rely only on the perspective of the trade union. Recommendations of the Court have traditionally acknowledged an unopposed view that workers should be entitled to be represented by a trade union of their choice. In such cases generally, the Court has been most likely to recommend negotiations between the parties as means to resolve workplace disputes and differences.

These statutory provisions, in the experience of the Court, are most regularly utilised in individual worker cases, referred by trade unions or workers without representation, largely though not exclusively, where the worker is no longer employed in the relevant employment. Many such disputes relate to short-service employment and the circumstances under which the employment ended.

Where an employer chooses not to attend a hearing of the Court convened under these statutory provisions, the Court is deprived of the opportunity of hearing from that party and getting its perspective on the dispute and, importantly, its view on any potential resolution.

This has the effect of severely limiting the capacity of the Court to assist in the resolution of the dispute.

It takes two……

The Labour Court (Ireland)

The Labour Court (Ireland)