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Given a radical shift in the industrial relations context in Ireland over the course of recent decades, a growing number of observers believe that the existing system of resolving labour disputes needs updating and that alternative 'dispute-governance' options are required, with more focus on dispute-avoidance methods than hitherto. This article examines the changing dispute-governance landscape as of June 2004 and the debate over whether a new direction is required.
There is growing interest among industrial relations practitioners in Ireland in new ways of preventing and resolving labour disputes, the perception being that the existing system is not equipped to deal with the challenge of a new industrial relations environment (IE0402203F).
Alternative modes of 'dispute governance' could encompass the wider use of dispute-prevention channels, including new forms of mediation, and greater use of 'in-house' enterprise partnership mechanisms involving joint problem-solving. There undoubtedly appears to be a growing demand for developing more informal modes of dispute governance, particularly where parties do not want to be caught up in the formal dispute-resolution machinery. There is a growing perception among industrial relations actors in Ireland that the existing dispute-resolution system is, to some extent, still saddled by the baggage of a historical adversarial legacy, and is becoming too legalistic, and that more could be done to promote alternative, more informal modes of dispute resolution and dispute avoidance.
Under the existing Irish system, in collective industrial relations disputes involving groups of workers, the parties will normally refer their dispute to the conciliation service of the Labour Relations Commission (LRC) and, if this proves unsuccessful, the Labour Court, which is intended to be a court of last resort. Employment disputes involving a single worker, or small group, are usually referred, in the first instance, to the Rights Commissioner service, which is an arm of the LRC. Either party to such individual disputes may appeal against any Rights Commissioner decision, to either the Labour Court or the Employment Appeals Tribunal (EAT), depending on the issue. Individuals may seek remedies at the EAT for alleged infringements of their statutory employment rights in relation to disputes over redundancy, unfair dismissal, working time, maternity and parental leave etc. In other cases, involving discrimination or victimisation but not dismissal, the Equality Tribunal may investigate complaints. The Equality Tribunal is an independent quasi-judicial body established in 1999, whose core function is to investigate and/or mediate complaints of unlawful discrimination at work under the Employment Equality Act 1998, and to provide legal enforcement and remedies.
Some observers have suggested that greater coordination is required between the dispute-resolution bodies, to avoid duplication of functions and decrease the potential for parties to 'shop around' during the dispute-resolution process. However, the main thrust of the argument is that, by themselves, these existing dispute-resolution institutions are incapable of dealing with a radically different industrial relations and labour market environment. Economic and social changes in Ireland are exerting significant pressures on established forms of employment governance/dispute resolution and, as a result, the latter require renewal, it is argued.
In other words, some commentators believe that a 'governance gap' has emerged, because the dispute-resolution institutions have not kept pace with changes such as the substantial growth in employment legislation (particularly labour law focusing on individual rather than collective employment rights) - including the Employment Equality Act 1998 (IE9909144F), the Protection of Employees (Part-Time Work) Act 2001 (IE0202202F) and the National Minimum Wage Act 1997 (IE9804246F). This expansion of employment law has been accompanied by a significant increase in the complexity of industrial relations and employment-related issues that go far beyond traditional-pay related issues.
There has also been an expansion of the non-unionised sector, particularly across the 'indigenous' service sector and foreign multinational sector (IE0403201N), which has coincided with declining trade union density in the private sector. Non-union firms have implemented industrial relations/human resources policies that deviate from the traditional collective bargaining model, the result being that the Irish industrial relations system is now characterised by increased policy diversity. The upsurge of female participation in the labour market, as well as a major increase in foreign workers, has also been a significant aspect of recent years, bringing with it a much more diverse range of interests and concerns.
The Labour Relations Commission has itself recognised that - to reflect the new industrial relations landscape and the demands of a more diverse client base - changes need to be made to the existing system of dispute settlement, and its thinking in this regard is outlined in its Strategy framework 2002-4.
It is important to make the distinction between dispute prevention and dispute resolution - the former is concerned with preventing a dispute surfacing in the first place, while the latter is concerned with attempting to resolve the dispute once it has broken out. For instance, the conciliation role of the Labour Relations Commission and the remit of the Employment Appeals Tribunal come under the heading of dispute resolution.
The decline in trade union density in Ireland (IE0102164F and TN0403105U), particularly in the private sector, and a parallel expansion in individual employment rights, has meant that collective bargaining is no longer the dominant method of regulating the employment relationship in many workplaces. The upshot of this transition from a bargaining-based employment relations system towards a more individualised and legalistic rights-based system is that very few areas of the employment relationship are now untouched by legal regulation. There may have been a significant decline in collective strike action in recent years (TN0303104U), but at the same time there has also been a substantial increase in individuals and small groups pursuing employment grievances through the courts and the various dispute-resolution channels - for instance, on the various equality and harassment grounds. The result of this is that the various dispute-resolution bodies are experiencing something of a case overload.
There is a fine balancing act between demands for employee rights and employer assertions that management should have the prerogative to manage. According to observers, some employers, particularly smaller firms, are finding it difficult to adapt to this new, more individualised, system of employment regulation, with extra burdens being placed on business. Smaller firms often do not have the resources and the expertise to create appropriate dispute-governance channels, contributing to a surge in claims from employees of alleged breaches of employment rights by their employers.
Whereas union members have access to union representation/collective bargaining channels when addressing grievances (collective bargaining can play a valuable institutional role in 'soaking up' worker grievances, it is argued) in many non-union workplaces this independent 'voice' mechanism is not available, so on balance they are more likely to have to seek redress through the legal process.
The increased workload of the dispute-resolution bodies is emphasised by figures from the Labour Relations Commission, indicating that a total of 1,693 new disputes were referred to its Conciliation Service in 2002. These disputes necessitated 1,979 full conciliation conferences and 171 various other meetings, bringing the total number of meetings with management and trade unions to 2,150. This represents a major increase in the caseload since the Commission’s establishment in 1991. There was also a 36% increase in individual/small group referrals to the LRC Rights Commissioner Service in 2002 (to over 3,500 referrals), with the majority of claims involving unfair dismissal, payment of wages, working time, holiday pay and disciplinary issues. In 2002, the Equality Tribunal heard 361 complaints from individuals - mainly relating to gender discrimination (107 cases), followed by race (85) - up from 260 complaints in 2001.
Concerns have been expressed in some quarters about the effectiveness of the LRC conciliation system as it is currently configured, though the majority of those involved, on balance, seem generally satisfied with the conciliation service. The remit of conciliation at the LRC is to solve the immediate issue at dispute. Thus, any engagement with the issues is short term, and, for this reason, it is seen as difficult for conciliation officers to address the quality of the underlying relationships between the dispute parties and help improve trust-based relations. As such, the underlying conflict and distrust between the parties may never be adequately addressed with the result, it is argued, that disputes are often recycled back into the system when conflict breaks out again.
This is partly a resources issue in the sense that, given the sheer increase in the scale of demand for the conciliation service and its hard-pressed staff in recent years, the LRC often simply does not have the time and the resources to dwell on the underlying relationships in particular disputes. It plays a largely reactive 'firefighting' role, trying to take the heat out of industrial relations bushfires. The LRC itself takes the view that the conciliation service has developed in a direction that the parties have wanted it to go, and thus is a reflection of the overall industrial relations system at present.
Further, critics suggest that a substantial minority of disputes would appear to arrive at the LRC prematurely, in the sense that the parties perhaps have not tried as hard as they might to engage, and negotiate a resolution, at enterprise level, often choosing to refer a dispute to the LRC as quickly as possible. The Labour Court too, has at times criticised parties for undermining its role as a court of last resort by not engaging properly at earlier stages of the dispute governance process, or rejecting its recommendations - thereby creating a potential threat to industrial relations stability. Often the parties to a dispute are of the view that they must be seen to win a case outright, rather than accept an industrial relations compromise somewhere in between their respective positions.
Some observers have also been critical of the Employment Appeals Tribunal, the view being that it reinforces the adversarial model and imposes an overly legalistic modus operandi on workplace relations. The argument has also been raised in some quarters that there is an industrial relations 'blind spot' in the Department of Enterprise, Trade and Employment, partly to do with the fact that there is no longer a specialist Labour Department along the lines of the old Department of Labour Affairs, which has been submerged into the larger entity of the Department of Enterprise, Trade and Employment.
What are the alternatives to Ireland's existing dispute-resolution system? The message coming across more strongly from a number of quarters at present is that alternative, more 'proactive', informal and intimate mediation and problem-solving mechanisms are required to complement the existing dispute-resolution machinery. The challenge is to establish creative - and crucially non-legalistic - alternatives aimed at preventing and resolving disputes. This would involve blurring the boundaries between dispute prevention and dispute resolution, both at enterprise level and externally.
In its Strategy framework 2002-4, the LRC signalled its intention to strengthen and extend the range of services it provides in the dispute avoidance and dispute resolution arena, with an emphasis on possible new voluntary mediation and arbitration services to be introduced as an adjunct to existing machinery: 'Based on recent wide experience in dispute situations some areas are considered to merit specific strategic actions. In response to a clearly perceived need, the Commission will develop a voluntary mediation package for Board approval with an emphasis on small claims/disputes. Consideration will also be given to offering an arbitration service in selected appropriate cases.'
To a large extent, the foundations for an evolving system of dispute governance appear to be already in place. In particular, the informal mediation service provided by the Equality Tribunal since December 2000 has facilitated a more speedy resolution of equality disputes at work, compared with the traditional and more formal investigations conducted by equality officers. There has been a marked increase in the number of claims referred to, and resolved through, Equality Tribunal mediation. There were 179 cases referred to mediation in 2002, up from 102 in 2001, which represented a 75% rise. In total, 56 cases were resolved through mediation in 2002, compared with 11 in 2001 - a fivefold increase. According to the Equality Tribunal, its mediation service is, on average, three times quicker than the alternative equality dispute-resolution option. Equality cases that have resulted in mediated agreements have been completed in just six months, compared with an average of 18 months in formal investigation cases.
Another possibility is that the advisory arm of the LRC could be placed much more to the forefront. At present, some observers feel that the conciliation arm of the LRC has too much priority over the advisory service, there being an imbalance between the two. The LRC Advisory Services Division works with employers, employees and trade unions in non-dispute situations to develop effective industrial relations practices, procedures and structures that best meet their needs. It also provides assistance in the form of preventative mediation in situations where parties anticipate future difficulties. Demand for the LRC Advisory Service continues to grow.
Another possibility sometimes raised is that seasoned independent industrial relations experts and 'facilitators' could play a wider role in dispute governance, because they operate outside the formal machinery and can devote more time to a particular dispute and the relationships underpinning it. It may be significant that most of these industrial relations experts would have a trade union background.
The feeling in some quarters is that binding arbitration could also play an enhanced role in dispute resolution, by bringing more certainty and finality to disputes. Binding arbitration procedures have been in place since 2001 in the dispute-resolution measures covering employee representation/union recognition disputes (IE0309205F), as well as in the new pay compliance procedures (IE0312204F) - which included the appointment of a panel of 12 independent pay assessors - introduced in 2003 under the current national social partnership agreement, deal, Sustaining Progress (IE0301209F and IE0304201N). Access to both procedures is voluntary, but both ultimately provide for binding Labour Court determinations as a last resort. It is possible that these new binding arbitration measures may be the precursor for further movements down this road, which would herald quite a significant shift in the industrial relations system.
The question remains though of how far in this direction the parties want to go, and to what extent they wish to preserve what remains of 'voluntarism'? One dilemma for the unions is that if they look for a statutory mechanism to resolve union recognition disputes, the employer side would more than likely look for binding arbitration on other issues, such as changes to trade union closed-shop arrangements as a quid quo pro.
At the level of individual enterprises, the concept of 'interest-based' bargaining - joint problem-solving and the search for common interests - could be one way forward for promoting better workplace dispute governance, according to some commentators, but the concept is yet to take hold to any degree. The idea here is to 'trouble-shoot' and cut off conflict at its point of origin so it does not spread beyond the enterprise. However, many organisations still appear to be governed on a 'command and control' basis. Both management and unions may often find it difficult to release themselves from their traditional adversarial roles, and have divergent ideas of what partnership should be about (IE0208203F).
There have undoubtedly been major shifts in the Irish industrial relations landscape in recent decades - encompassing, for instance, the growth in labour laws promoting individual employment rights, the substantial increase in women's employment, and the rise of the non union sector - which have not been fully reflected in the institutions for settling disputes.
It seems evident, then, that the existing system of dispute governance in Ireland needs updating to reflect the new realities of workplace industrial relations. This could include a greater emphasis than hitherto on preventing disputes happening in the first place - cutting conflict off at the lowest point - and the introduction of informal mediation techniques, as well as greater emphasis on joint problem-solving. However, this would require employers and employee representatives to break out of adversarial habits and leave behind a workplace culture still largely based on a command and control mentality. There are positive signs that progress is possible though, with the basic foundations of a new system of dispute governance in place in certain areas. (Tony Dobbins, IRN)