The Labor Relations Court in Ireland - Case Study Example

 The Irish Labour Relations Court Table of Contents 1 Introduction 2 The History of Irish Industrial Relations 2.1 Pre-EEC 2.2 Irish Industrial Relations during Early Years of Globalisation 2.3 Industrial Relations and the European Economic Community 3 The Labour Court and the Labour Relations Commission 3.1 The Labour Court: Powers and Functions 3.2 The Labour Relations Commission: Powers and Functions 3.3 Illustrative Case No. 1: LCR15450 Department of Health (Health Service Employers Agency IBEC) – and – INO SIPTU Impact PN, CD 97/48 3.4 Illustrative Case No. 2: LCR19188 Bell Security -and- TEEU 4 Conclusion The Irish Industrial Relations 1 Introduction The Irish Industrial Relations had a long and turbulent history. Labour unions emerged out of the Irish people’s desire for political and social independence, employing unionism to achieve these goals. Independence, however, did not make for a smooth sailing of unionism and industrial relations within Ireland as many events, like wars, the unification movement of European countries, several global financial crises and globalisation, interfered along the way and hindered their full growth. Nevertheless, the Irish economic boom in the 1980s gave way to the emergence of the foundation of strong and workable industrial relations, like new industry agreements and programmes and with them, the establishment and strengthening of dispute resolution agencies like the Labour Court and recently, the Labour Relations Commission. These two governmental agencies perform significant functions that help the country attain industrial peace and thus, progress. Although independent and separate from each other, these agencies provide services and functions that are closely allied and serve the same goals and ends. 2 The History of Irish Industrial Relations 2.1 Pre-European Economic Community The development of the Irish industrial relations was largely influenced by Great Britain, which is not surprising considering the historical and colonial ties shared by them. The first Irish labour union emerged in the early 20th century out of Irish political ideals and nationalism. Unionism became the means employed to achieve socialist and political ideals, sometimes the socialistic underpinning giving way to the political (Candland & Sil 2001 138). During the Free State, after Ireland gained independence in the 1920s, anti-unionism prevailed. The lack of industrial jobs forced many Irish to immigrate to other countries whilst the government leaned towards agriculture development, under a policy “helping the farmer who helped himself and letting the rest go to the devil” (cited Candland & Sil 2001 138). The onset of World War I up to World War II did not help things either, as the country’s economy turned for the worse and unemployment even grew higher. These years were characterised with industrial unrest and labour leaders tried to amend the situation by creating a unifying labour organisation, but nationalism concerns caused the disintegration of the unifying umbrella into the Irish union groups and the British groups (Candland & Sil 2001 139-140). 2.2 Irish Industrial Relations during Early Years of Globalisation By the end of the WWII, the Irish economy was in serious condition. The government had to make a shift in its economic policy and bring in multinational companies and foreign investments, especially from the US. Electronics and high technology became its targets and for that purpose restructured its taxation, and other incentive measures to specifically attract these investments. It established the first ever export processing zone, attracting, as a result, a lot of American firms. The Irish economy flourished but it also engendered a parallel rush in labour union activities like strikes, most often, militant and unruly. The government, with the support of ICTU, turned to centralised bargaining to avert chaos in the labour front (Candland & Sil 2001 140-145). 2.3 Industrial Relations and the European Economic Community The decision to join the EEC in 1973 was positively seen as a chance to expand its FDI-led economy since it would mean more countries investing domestically. This did not, however, materialize initially as Ireland’s entry into the EEC coincided with the 1973 oil shock. Manufacturers moved to downsize their production and pared down the number of their workers creating a job loss equivalent to 29% of the jobs of the entire foreign sector. This created restlessness within the labour sector (Candland & Sil 2001 146). The high unemployment problems that had continuously plagued Ireland in the 1960s favoured a centralised collective bargaining system to regulate wage increases but decentralisation was reverted to in1969 when the National Wage Recommendation of 1964-66 engendered policy suspicions. The government, however, wanted to retain some form of centralised collective bargaining and thus, enacted a series of measures collectively called National Understandings (NU hereafter), which promoted a mixture of centralised collective bargaining and local bargaining at some levels. On the national level, industrial relations permeated the relationships between the labour sector and the employers but on the local level, labour militancy seemed to have heightened (Candland & Sil 2009 146-147; Crafts & Tiniolo 1996 415; Ireland: National Understandings 2009). In 1987, the Irish economy significantly improved with the government pitching to attract foreign investments. New rounds of national agreements, particularly the Programme for National Recovery in 1988-1990, the Programme for Economic and Social Progress in 1991-1993, the Programme for Competitive and Work in 1994-996, and the Partnership Act 2000 were entered into by the government, the business sector and labour. Subsequent NUs entered into in the 1990s gave emphasis to local-level industrial relations rather than merely focusing on national-level cooperative as was characteristics of the previous NUs. The recent NUs brought stability to industrial relations in Ireland during the years 1987 to 1995 when the country sustained economic growth in a rate thought to be the most successful in EU (Candland & Sil 2001 148-152). 3 The Irish Labour Relations Court and the Irish Labour Court 3.1 The Functions of the Labour Court The Industrial Relations Acts, 1946-1990, established the Irish Labour Court and subsequent amendment of the Act in 1969 and 1976 expanded its size and functions. The Minister of Enterprise and Employment appoints all of the nine members constituting the Court, although six members, called the ordinary members are nominated by employers’ association and trade unions. Aside from the six ordinary members, the Court is also made up of a Chairman and two deputy chairmen. Most of the time, the Court sits in divisions of three and sometimes en banc. The Court exercises five primary functions: it investigates trade disputes and provides recommendations for their resolution; it hears appeals of discrimination cases from Equality Officers or even direct cases in dismissal challenges; it hears appeals of Rights Commissioners’ recommendations; it establishes Joint Labour Committees and makes appropriate employment regulations orders as recommended by such bodies, and; it registers and may vary employment agreements (Ireland: Labour Court 2009). In the exercise of its powers and functions, it enjoys the complementary powers of summoning witnesses, demanding evidence under oath and determining rules and regulations that will govern its procedural system. It is also required to submit a report once a year to the government. Generally, the Court does not follow a formal procedural system during hearings but abide by the natural and constitutional concept of fairness and justice. The hearings are initiated by written documents submitted by each of the party to the Court, with copies provided to the other party during or immediately before the trial. During the trial proper, a representative from each party is assigned the role of a spokesperson, answering questions and clarifying points proffered or pointed out by the members of the Court or by the other party (Moffatt 2007 351). The recommendations made by the Court in industrial relations cases are not, however, legally binding implying that the parties may or may not adopt them. Its recommendations, on the other hand, in appeals from rulings of equality officers relative to the Anti-Discrimination Pay Act 1974 and the Employment Equality Act 1977 are legally binding. However, parties may enter into an agreement, under the condition of ordinary contracts, to be bound to the recommendations of the Court prior to the hearings. Any of the parties may then enforce such recommendations, not as Court recommendations per se, but as a potential breach of contract. If the Court’s recommendation fails to resolve the conflict between parties, then it can make a determination which may be enforced in the Circuit Court (Moffatt 2007 351-352). The most important function of the Labour Court is the power and duty to investigate, which must take precedence over all its other functions. The Court may exercise this function in the following instances: the Minister of Enterprise, Trade, and Employment refers to it a matter concerning employment conditions of any group of workers and their employers; a party, which may be workers or their union, requests the Court and binds itself to its recommendation; all parties to a dispute request the Court to investigate and bind themselves to its eventual recommendations, and; at its own initiative, when a dispute has resulted in work stoppage or under exceptional circumstances when the Court feels that there is a need to intervene in a dispute and issue a recommendation (Moffatt 2007 352). The power to investigate is, however, subject to certain conditions as laid forth in IRA 2001 as amended. Two other functions of the Court relative to industrial relations disputes are conciliation and arbitration. The exercise of the former normally antedates investigations to be conducted by the Court, although this does not preclude the Court from directly intervening in disputes. In exercising this function, the Court appoints industrial relations officers to serve as mediators between the parties. On the other hand, albeit arbitration is written into the law, this power has been rarely used or never at all by the Court. According to Northwestern Health Board v. Martyn [1987] IR 565, [1988] ILRM 517 and related cases, the findings of facts of the Labour Court are not subject to review by the High Court. The High Court must confine its review to questions of law and leave the former’s findings of facts alone (Moffatt 2007 352-353). 3.2 The Functions of the Labour Relations Commission The Labour Relations Commission was created under the Industrial Relations Act 1990 in s 24 thereof. The creation of the Commission was catalysed by the inability of the Labour Court and the Conciliation Service to handle all the labour and industrial relations cases brought to them. The rise of dispute cases referred to the Court was also partly blamed on the tendency to abuse the government machinery and for the neglect and refusal of disputing parties to first resolve their differences on their own. The abolition of the National Wage Act and the reemergence of decentralized collective bargaining also shifted the industrial relations landscape from its confrontational nature to one of consensus, paving for industrial relations agreements like the Programme for National Recovery (PNR), the Programme for Economic and Social Progress (PESP), the Programme for Competitiveness and Work (PCW), and Partnership 2000. All of these agreements called for a more consensual approach to industrial relations (History of the Labour Relations Commission; Ireland: Labour Relations Commission). The creation of the Commission relieved the Labour Court of its conciliation function and Equality Service. In addition, the Act conferred upon the Commission the following powers and functions: industrial relations advisory service; Rights Commission service; preparing the codes of practice; commissioning research relevant to the area of industrial relations, and; monitoring of developments in said area (Ireland: Labour Relations Commission). The Commission was patterned after the Northern Ireland Labour Relations Agency and the British Advisor and Conciliation Service but it definitely exercises more powers than either of the two. The Commission is composed of a Chairman appointed by the Minister of Labour, six ordinary members, two of which are nominated by the trade unions, two by employer organisations and the last two by the Minister (Ferner & Hyman 63). The Commission itself appoints the Industrial Relations Officer whilst the Minister of Labour appoints the Rights Commissioners from a list prepared by the Commission. However, any appeal from a Rights Commissioner’s recommendation is still lodged with the Labour Court (Ireland: Labour Relations Commission). The normal procedure is for trade disputes to be referred to the Commission, precluding an investigation by the Labour Court unless the Commission certifies a case for the Court’s investigation, which happens when the Commission fails to resolve a dispute. This rule is, however, subject to certain exceptions: when the Commission relinquishes its first jurisdiction for conciliation over a dispute and the parties request for a Court intervention, and; the Labour Court, with prior consultation to the Commission, has determined that the case falls within the ambit of ‘exceptional cases’ which the Court must directly intervene for public good and welfare. As with the Labour Court, the Minister may directly refer a dispute case to the Commission (Ireland: Labour Relations Commission). Aside from the powers and functions mentioned in the preceding paragraphs, the Commission also renders assistance to Joint Labour Committees and Joint Industrial Councils, determines whether Joint Labour Committees be created, abolished or changed. The Commission and Court are separate bodies but their work are closely allied and related, which perhaps explain the reason why they are sharing office premises at Haddington Road in Dublin (Ireland: Labour Relations Commission). 3.3 Illustrative Case No. 1: LCR15450 Department of Health (Health Service Employers Agency IBEC) – and – INO SIPTU Impact PN, CD 97/48 The case under consideration is Recommendation No. LCR15450 which involves the parties Department of Health represented by the Health Service Employer’s Agency and the Irish Business and Employers’ Confederation and at the other end are several union groups: the Irish Nurses’ Organisation (INO), Services Industrial Professional Technical Union (SIPTU), Irish Municipal, Public and Civil Trade Union (IMPACT), and the Psychiatric Nurses’ Association (PNA). The subject of the dispute is the pay and condition of nurses. This case was selected for illustrative purposes because it shows the importance of the Labour Court in arresting an impending massive work disruption in a very important work sector that delivers basic services to the public in which any interference, however temporary, is unthinkable. This case exemplifies the power of the Court to exercise a function conferred to it under §5 of s26 of the Industrial Relations Act 1990. There are five issues that were at the center of this dispute: the elimination of the entry level salary of nurses that was proposed by management; the adjustment of the staff nurse salary to parallel that of the grade 5 administrative officer; the granting of full incremental credit to temporary nursing staff; the extension of the dual qualified nurse status to midwives and registered sick children’s nurses, and; the application of retirement rules of psychiatric nurses to all other nurses. The parties initially conducted talks in January 1996, where Unions, with membership of about 26,000 nurses, put on the table a special claim under the Programme for Competitiveness and Work (PCW) and management offered a £20 million worth of compensation package. The talk floundered when the Unions rejected by ballot management’s offer. The dispute was brought to the Labour Relations Commission the following March with management offering an upgraded compensation package worth £33.5 million but it met the same fate when the Unions rejected it through ballot. After another round of talks in June and the parties were still not able to come to an agreement, the unresolved issues was referred back to the Adjudication Tribunal, which was earlier set up in 1994. The latter issued a finding in favor of the nurses on the following issues, among others, advancing the payment time of pay increases for certain nurses; adopting an early retirement scheme for nurses by allowing them to retire at age 57 subject to the condition that they had already rendered 35 years of service; rejecting the proposed discontinuation of certain existing allowances. The recommendation is estimated to cost management £45 million. Two of the Unions accepted the proposal and the others two did not, including INO. INO filed for notice of strike, a move subsequently followed by the other three. The Labour Court then intervened and invited the parties to attend a hearing before it. In doing so, the labour Court exercised the power conferred to it by § 5 of s 26 of the Industrial Relations Act 1990, which is “Where the Court following consultations with the Commission, is of opinion, in relation to a trade dispute which but for this subsection it would be precluded by virtue of subsection (1) from investigating, that there are exceptional circumstances which warrant it so doing, it may investigate the issue.” Subsection 5 applies to this case because the Court did not acquire jurisdiction over the case through the usual process, where the Commission either certifies that it cannot do anything more to resolve the issue or that there was request by a party or of the parties to elevate the case to the Labour Court under § 1 of the said law. The Court initiated the investigation, at its own volition, under the extraordinary circumstance set forth in § 5 because of the impending massive work stoppage in the health services after the Unions filed a notice of strike. In deciding the case, the Labour Court took into consideration that the nurses unions’ discontent and restlessness were triggered by unrealised promises that were made to them since the early 1990s as well as the fact that so much had taken place since the last time there was any assessment of the pay levels and grades of nurses. Hospital admissions, and therefore, load work had considerably increased through the years and the pay upgrade promised to them had not materialised. The Court, therefore, recommended the upgrading of nurses’ pay scale on a yearly increment for ten years to upgrade it from its present range which is below £14,382 until it reaches a maximum of £20,350. Other recommendations include: nixing the proposed lower entry point in 2000; lowering of early retirement age from 57 to 55 and increasing the limited annual quota of nurse retirees from 100 to 200, and; increasing the number of temporary nurses posts to be made permanent but reverting increment of pay scale of temporary nurses from maximum to just the 7th scale. In granting a recommendation to the nurses’ unions that answered the latter’s long-time clamour, the Court had averted an impending massive work disruption in the important area of health service. This is significant considering the importance of this field to the public and the fact that this was one of those times that the Court exercised its own option to interfere and make an investigation of the case. 3.4 Illustrative Case No. 2: LCR19188 Bell Security -and- TEEU This case is about the jurisdictional requirements attached to the power of the Labour Court to investigate trade disputes as laid down specifically s 2(1) of the Trade Relations Act 2001 as amended in 2004 and was decided in April 10, 2008. This case was selected for illustrative purposes because it further explains the nuances of the Labour Court’s power to investigate disputes, specifically the statutory requirements attached by law to that function. The parties to the case are Bell Security, the employer, and Technical Engineering and Electrical Union (TEEU). It was a referral from the Labour Relations Commission, which had earlier provided services to the parties through its Advisory Service division in 2007 but had failed to reconcile them. The Company objected to the referral on the ground that the Court had not acquired jurisdiction over the case because of the lack of material statutory pre-requisites. The Company cited s 2(1) of the IRA 2001 as amended in 2004, which required two conditions before the Court can take over a case on the basis of the Commission’s recommendation: the employer does not, as a practice, engage in collective negotiations pertaining to the grade, group or category of workers to which the complainant/s belong, and; the dispute resolution mechanism of the company has failed to settle the dispute. The Company, in this case, contended that there was no dispute and that it normally engages in collective negotiations referred to by s 2(1) of the IRA 2001. This was, of course, contradicted to by the Union. The issues, needless to say, is whether or not there was a trade dispute, whether or not the Company has a collective bargaining mechanism in place and whether or not the internal dispute mechanism normally relied by the Company failed to settle the dispute between the parties. To resolve this issue, the Court heard the testimony of witnesses to determine the facts. Five witnesses were called to give their testimony before the Court: Paddy Andrews, the General Manager of the banking division of the company, who had been with it since 1999; Liam Gallagher, a service engineer who had worked for the company for two years; James Long, an engineer for the Company since 2002; Stephen Mc Morrow, a company employee since 2003, and; Stephen Foy, an employee of the company for nine years. The testimonies of the witnesses basically essayed the idea that company representatives and representatives of the employees conducted meetings although these meetings were not periodic but were dependent on the need of the parties to meet and discuss certain problems. From the testimony that the witnesses gave, the Court concluded: a trade dispute exists because there was an area of contention made known by the employees through their representative to which management had knowledge of; the talks held between the parties, however informal they were on the subject of pay constituted collective negotiations; that there was a machinery in place and practiced by the Company as can be gleaned by the testimonies of the witnesses giving accounts of talks being held by employer and employees’ representatives every time issues need to be addressed since 2001. In resolving the issues, the Court heavily relied on the precedence of the Ryanair v The Labour Court and others [2007] 18 ELR 57, which defined a trade dispute as “any dispute or difference between employees and employers” inter alia and to interpret the IRA 2001 in a purposive manner, implying that administrative exhaustion of remedies should not be given a literal meaning as a jurisdictional requirement for the Court but must be taken in the context of the case. The same case also served as the Court’s guide in determining whether the company engaged in the practice of collective bargaining negotiations. The Court, therefore, ruled that because of these findings it had not acquired jurisdiction over the case. Conclusion The Labour Court was created and established by the IRA 1946 and was strengthened and expanded by subsequent IRAs. The rise, however, of trade disputes as the economy grew with the country’s adoption of a more open economic policy and membership in the EU necessitated the creation of another agency that would relieve the Court of some of its functions. Thus, in 1990, the Labour Relations Commission was established – a body separate and independent from the Labour Court but which, nevertheless perform functions and exercises powers related to that of the latter. The Commission has taken over some of the functions of the Court, relieving them from the latter and allowing the Court to function more effectively and efficiently. The Commission serves as the initial body that helps parties to settle their disputes and when only failing to do so recommends the case to the Court, forming a two tiered-conflict resolution structure that creates both physical and psychological channel to fully thresh out conflicting positions and provide accurate solutions to them. The two illustrative cases cited here, for example, showed the roles that both agencies play in conflict resolution. References: Candland, C. & Sil, R. The Politics of Labor in a Global Age: Continuity and Change in Late-Industralizing and Post-Socialist Economies. Oxford University Press, 2001. Department of Health (Health Service Employers Agency IBEC) – and – INO SIPTU Impact PN, CD 97/48. Crafts, N.F.R. & Toniolo, G. Economic Growth in Europe Since 1945. Cambridge University Press, 1996. Ferner, A. & Hyman, R. Changing Industrial Relations in Europe, Part 13, Pages 357-394. Wiley-Blackwell, 1998 Gregory, A & Pašeta. Ireland and the Great War: A War to Unite us All? Manchester University Press, 2002. History of the Labour Relations Commission. The Labour Relations Commission, Ireland. http://www.lrc.ie/viewdoc.asp?m=&fn=/documents/aboutus/history1.htm Ireland: Labour Court. Eurofound. 14 August 2009. http://www.eurofound.europa.eu/emire/IRELAND/LABOURCOURT-IR.htm. Ireland: Labour Relations Commission. Eurofound. 14 August 2009. http://www.eurofound.europa.eu/emire/IRELAND/LABOURRELATIONSCOMMISSION-IR.htm. Ireland: National Understandings. Eurofound. 14 August 2009. http://www.eurofound.europa.eu/emire/IRELAND/NATIONALUNDERSTANDINGS-IR.htm Moffatt, J. Employment Law. Oxford University Press, 2007. The Labour Court. http://www.labourcourt.ie/labour/labour.nsf/lookuppagelink/HomeSearch. Read More