The Workplace Relations Act 2015 (the “Act”) was enacted on 20 May 2015. The Minister for Jobs, Enterprise and Innovation recently confirmed that the Act will be commenced on 1 October. The Act significantly reforms the workplace relations structures in Ireland.
The activities of the National Employment Rights Authority (NERA), the Labour Relations Commission (the LRC), the Equality Tribunal and the first instance functions of the Labour Court and Employment Appeals Tribunal (the EAT) will be merged into a new body called the Workplace Relations Commission (the WRC). The Labour Court will remain in being but will hear appeals only.
As well as being responsible for compliance and workplace dispute functions, the WRC will also provide the industrial relations conciliation service currently provided by the LRC.
Resolution of Workplace Disputes
The procedures which currently apply to the resolution of workplace disputes are unwieldy. The Act attempts to simplify these procedures by introducing a two level procedure for all employment rights claims and disputes.
The Act sets a time limit for the presentation of complaints of 6 months from the date of contravention. This time limit may be extended to 12 months for reasonable cause.
Once a complaint is presented, a mediation officer may be appointed to facilitate the resolution of the dispute at an early stage. This service will only be offered where there is consent from both parties. Mediation will likely involve face to face meetings between the parties, but may be facilitated in any way considered appropriate by the mediator. Any agreement reached at this stage will remain confidential as will anything disclosed by either party.
If (1) the dispute is unsuitable for mediation, (2) either party has objected to mediation, or (3) mediation has failed to resolve the dispute, an adjudicator will be appointed to hear the complaint and give a decision.
Regulations setting out the procedures for adjudication are expected to be published soon. These Regulations will likely require complainants and employers to file their respective submissions to a claim within tight timeframes. It is anticipated that submissions will be required to contain the following information:
- Factual background;
- Summary of evidence;
- Summary of legal issues;
- Number of witnesses; and
- Summary of the witnesses’ evidence.
Currently, submissions are generally delivered in advance only in equality cases and the time limits for the filing of submissions are administrative only. The parties are usually given latitude at the hearing of a claim to expand upon the arguments raised in submissions. Under the new system, it is anticipated that submission time limits and content rules are likely to be more strictly observed. If this is the case, it is possible that hearings could be scheduled within 12 weeks of the presentation of a complaint, with the majority of legal and factual issues identified prior to the hearing. This would be in stark contrast to current procedures which can see EAT and equality claims taking between one and three years to be heard.
Appeals from a decision of an adjudicator will be heard by the Labour Court. The only further appeal will be to the High Court on a point of law.
As with the current system, the costs associated with bringing or defending a claim or appeal cannot be awarded by the WRC or the Labour Court.
The Act also sets out new inspection and enforcement measures.
It provides inspectors with broader powers of inspection than those currently held by NERA inspectors. Under the Act, inspectors will have the power to:
- Enter a premises used in connection with employment;
- Inspect, take copies of and remove all employment records;
- Require any person to provide information and assistance as required; and
- Require sworn declarations from employers or employees.
A Compliance Notice may be issued by an inspector in cases of contravention by employers of certain employment law obligations. The Compliance Notice will set out the steps that must be taken by the employer to effect compliance. Employers may appeal any aspect of a Compliance Notice to the Labour Court. If an employer fails to comply with a Compliance Notice the Circuit Court may compel the employer to do so.
Even where an employer observes a Compliance Notice, an employee may independently pursue a claim against an employer in respect of a breach covered by a Compliance Notice.
A Fixed Payment Notice requiring payment of up to €2,000 may issue against an employee in respect of the following:
- Failure to notify the Minister of proposed collective redundancies;
- Failure to produce wage statements to employees; or
- Failure to provide employees with a written statement of their hourly rate of pay for a pay reference period.
If an employer fails to pay a Fixed Payment Notice, the employer may be subject to prosecution.
The implementation of the new workplace relations regime will significantly alter how workplace complaints and disputes are resolved. Currently, there are long waiting lists before a hearing date is given (particularly in unfair dismissal and equality cases), and parties are not obliged in advance of the hearing to disclose in any great detail the case to be made. This means that employers tend to devote little resources or attention to an employment claim until shortly before the hearing. The new procedure is likely to be more onerous on employers requiring more detail to be given at an early stage.
Contributed by Alicia Compton & Nichola Harkin