Participants at a conference in Dublin in January 2004 were told that a weakening of collective forms of employment regulation in Ireland, and a parallel 'individualisation' of employment relations, is leading to an overload in the number of individual employees pursuing legal claims over employment rights. The result, it is claimed, is that established dispute resolution agencies are coming under strain, with alternative forms of dispute resolution required.
The decline in collective bargaining coverage and trade union organisation in Ireland (IE0102164F), and the growth of individual employment rights, has led to a significant increase in individual employees pursuing legal claims - which is placing substantial pressure on existing dispute resolution mechanisms. This was one of the central messages in a presentation by industrial relations academic Professor Paul Teague of Queens University, Belfast, at a conference held in Dublin at the end of January 2004 exploring 'alternative dispute resolution' (ADR) mechanisms, entitled Building effective workplace relationships. The conference was sponsored by the National Partnership Training Skillnet.
According to Professor Teague, broad economic and social changes in Ireland are exerting significant pressures on established forms of employment governance/dispute resolution, which as a result, he argued, will require renewal. He suggested that it is now inaccurate to describe the Irish employment relations system as 'voluntarist', due to the decline in trade union density and voluntary collective bargaining, and the parallel expansion in individual employment rights, which have been enshrined in successive pieces of legislation during recent years. The result of this transition from a bargaining-based employment relations system to a 'rights-based' system, Professor Teague said, is that very few areas of the employment relationship are now untouched by regulation.
Professor Teague suggested that many employers, particularly smaller firms, are finding it difficult to adapt to this new system of regulation, with extra burdens being placed on business. The outcome has been a surge in claims from employees of alleged breaches of employment rights by their employers, which, in turn, has meant that the established dispute resolution agencies - such as the Labour Relations Commission (IE0304202N) and the Equality Tribunal- are experiencing a case overload. Whereas union members have access to their union representatives when addressing grievances, in many non-union workplaces this independent 'voice' mechanism is not available, so they are more likely to seek redress through the judicial process in relation to issues such as discrimination and bullying (IE0105167F).
Alternative dispute resolution required
Given the weakening in collectivism and the proliferation of non-union workplaces, Professor Teague argued that alternative forms of dispute resolution (ADR) are required. More and more disputes need to be solved on an individual basis, for instance as reflected by a rise in sexual harassment claims. Such claims may cause headaches for trade unions, as it is sometimes the case that the complainant may be in the same union as the alleged harasser.
Professor Teague stated that social partnership is highly developed at national level in Ireland (IE0304201N), and praised its resilience. However, at organisational level partnership is uneven and in search of a role (IE0208203F). There has been increased experimentation with new forms of personnel management, but few attempts to make the necessary connection between partnership, industrial relations/collective bargaining and human resources practices. It is only by making such a connection that an end product of improved workplace relations can be achieved, he claimed. Partnership and joint problem-solving must be brought much more into the dispute resolution arena.
A more flexible system of 'workplace governance' is now required, Professor Teague believes, which moves way from the traditional methodology of inspection and enforcement, and brings the following key properties to the fore:
- multiple channels of dispute resolution both inside and outside organisations;
- arrangements that promote the resolution of disputes close to the point of origin without diluting employment rights;
- methods of regulation that are not guided by a 'command and control' mentality;
- blurred boundaries between dispute resolution and dispute prevention;
- trouble-shooting arrangements to prevent a potential employment dispute;
- mechanisms designed to promote mutual gains or 'integrative bargaining' and emphasise joint problem solving; and
- acceptance by all employment relations actors that the 'non-union sector' is a permanent feature of employment relations systems and that the unionised sector may learn from the dispute resolution practices followed by 'advanced' non-union companies.
'Learn from the enemy'
In relation to the last point, while acknowledging that this could create unease among union representatives, Professor Teague suggested that unions can 'learn from the enemy'- namely the non-union sector - giving the example of the British Trades Union Congress (TUC), which has developed a call centre so members can telephone in if they are experiencing problems at work.
Professor Teague described how the origins of ADR emanated from human resource management in the USA, where collective bargaining has virtually disappeared (US0311101F) while legal regulation of the individual employment relationship has expanded. Many US employers responded to an explosion in legal claims by formulating employment contracts under which, as a condition of employment, employees had to commit themselves to referring alleged breaches of employment law to arbitration, thereby signing away their right to use the law courts to process grievances.
This was reinforced in 1991, when the US Supreme Court produced a ruling in the controversial Gilmer case, which approved the use of binding arbitration by non-union employers to resolve disputes over employment discrimination claims. This ruling basically gave the all clear to US employers to formulate employment contracts containing in-house binding arbitration clauses, which make it virtually impossible for employees to access external litigation. According to Professor Teague, the evidence suggests that US-style employer-led organisational ADR favours employers too much, and the imbalance this creates may alienate workers.
There is a comprehensive established dispute resolution framework in Ireland, Professor Teague said, but various problems exist. For instance, there is a degree of institutional overlap between the various agencies, which sometimes mean they are covering the same terrain. Further, the Labour Court has expressed concern that, all too often, its role as court of last resort is being compromised and undermined as the parties to a dispute request its services without first exhausting other dispute resolution avenues.
Point of origin
Professor Teague suggested that dispute avoidance and problem-solving activities, as opposed to dispute resolution activities, need to be enhanced, and that more needs to be done at organisational level to solve disputes and grievances close to their point of origin. The implication is that organisations need to improve in-house procedures to resolve disputes. For instance, Ireland’s National Centre for Partnership and Performance (NCPP) - which was established in 2002 with a remit to promote partnership at the workplace (IE0204203N) - could link up more with other labour relations agencies to design enterprise partnership schemes incorporating an internal dispute resolution channel.
The incidence of 'adversarialism' in Ireland remains quite high, Professor Teague stated, particularly in parts of the public sector. He referred to the lack of problem-solving/partnership procedures for 'benchmarking' public sector pay with comparators in the private sector, hence the controversy that surrounded the public sector pay benchmarking exercise conducted over the course of 2001-2 (IE0207203N)
At the conference, a discussion panel compiled of Professor Teague, Liam Doherty of the Irish Business and Employers Confederation (IBEC) and Fergus Whelan of Irish Congress of Trade Unions (ICTU) debated some of the issues than had arisen.
Mr Whelan criticised what he called the underlying assumption that joint problem-solving constituted something new - rather it can be dated back to the Whitley recommendations in the UK about 100 years ago. He said that unions and management had negotiated productivity agreements in the 1970s that had produced mutual gains.
Mr Doherty queried the effectiveness of public sector pay benchmarking. He also said there is a danger in attaching labels to approaches such as partnership. There is a view in the private sector, Mr Doherty said, that sections of the public sector are caught up with systems and procedures, and that a lot more work needs to be done in progressing change. He challenged the public sector to come up with a partnership initiative as advanced as that of Tegral Metal Forming in the private sector (see below).
Tegral partnership
The workplace partnership initiative at Tegral Metal Forming (IE0208203F) was outlined at the conference by Michael Fenlon, the company's managing director, and Larry Lynam, a shop steward at the firm, which was established in 1977. A high level of overtime at the company was one of the main drivers for the move towards partnership, and a joint union-management steering group was established to deal with issues of joint concern. Thereafter, new work structures such as teamwork were introduced. There was a significant increase in spending on training and 'up-skilling', and a new emphasis on building trust relations. Mr Fenlon emphasised the importance of 'complimentary reward systems', and to this end, skill-based pay, gainsharing, profit-sharing and annual time contracts, are all in place at Tegral. Mr Fenlon also pointed to the need to try to bridge skill gaps.
Commentary
The conference - in particular Professor Teague’s paper - raised some important issues at a time when there has been an obvious weakening of collective forms of employment regulation in Ireland, as evidenced by the decline in collective bargaining and trade union density. This weakening of collectivism has been accompanied by a parallel individualisation of employment relations and labour law, which, in turn, has contributed to an overload in the number of individual employees pursuing legal claims - the result being that established dispute resolution agencies are coming under severe strain. It is evident that there is a growing culture of individual litigation in the employment relations arena, and that new methods of resolving disputes may have to be explored (Tony Dobbins, IRN).