We will now consider the 2006 annual report and statement of strategy for 2005-2007 of the Labour Relations Commission. In this context, I welcome Mr. Kieran Mulvey, chief executive officer of the Labour Relations Commission; Mr. Peter McLoone, general secretary of IMPACT; Mr. Brendan McGinty, director of IBEC; and Ms Breege O'Donoghue, executive director of Penneys-Primark to today's meeting and sincerely thank them for their attendance.
Annual Report 2006 and Statement of Strategy 2005-2007: Discussion with LRC.
Mr. Maurice Cashell
I agree with the Chairman that it is scarcely necessary to introduce the members on this side. My name is Maurice Cashell and I have been the chairman of the Labour Relations Commission since 2003.
Before Mr. Cashell begins, I must give the usual warning and draw the delegation's attention to the fact that while members of this committee have absolute privilege, this same privilege does not apply to witnesses appearing before it. It is generally accepted that a witness would have qualified privilege but the committee cannot guarantee any level of privilege to witnesses appearing before it. Members are reminded of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.
The usual forewarning does not have any great import but, nonetheless, must be given. Mr. Cashell is opening proceedings on behalf of the delegation. I again thank him for his attendance.
Mr. Maurice Cashell
By way of introduction, I thought I might set out very briefly the origins and key functions of the Labour Relations Commission and go through the work of the three main divisions which relate to conciliation, advisory services and rights commissioners. I will make some closing comments on the way things will evolve in the future. On that basis, we will engage in a question and answer session across a range of issues that are not confined to the 2006 annual report of the commission.
The commission was set up under the Industrial Relations Act 1990 to promote the improvement of industrial relations. People who can cast their minds back to the 1970s and 1980s will have a fairly clear idea of the intensity of industrial disputes that existed at that time, which called for some profound change in the structure and institutional aspects of the conduct of industrial relations.
The Labour Relations Commission has a chief executive, Kieran Mulvey and approximately 45 staff. With the exception of Mr. Mulvey, all of the staff are civil servants and are drawn from the Department of Enterprise, Trade and Employment and, more generally, from the Civil Service. The commission also has 13 rights commissioners. These are people who have had experience at the forefront of industrial relations and have been working on either the employer or trade union side. Rights commissioners are appointed by the Minister for Enterprise, Trade and Employment on the nomination of the commission itself.
The Labour Relations Commission has a tripartite board composed of two trade union, two employer and two independent representatives. The mission of the organisation is to promote the development and improvement of Irish industrial relations policies and practices through the provision of appropriate, timely and effective services. While resolving collective disputes is at the core of the Labour Relations Commission's activity, equal attention is given to promotional activities for the improvement of industrial relations.
The conciliation service is an impartial, fast, effective and high quality service to employers and workers in both the public and private sectors. In many respects, it is the cornerstone of the LRC and has been from the beginning. For many, it constitutes the identity of the organisation. Most people's perception of the LRC is an image of someone like Ingrid Miley standing in front of Tom Johnson House as night draws in with intense discussions between employers and workers taking place through the lit windows behind her. Conciliation is a free, non-legalistic and informal process. It is voluntary and non-binding and there are only two possible outcomes, namely, settlement or disagreement. In disagreements, which are relatively rare and to which I will revert shortly, it is normal for the parties to refer the dispute to the Labour Court.
The kinds of dispute that reach the LRC are the traditional staples of collectivist industrial relations, those being claims for improvements in pay and conditions, disciplinary cases, grading cases and disputes arising from company restructuring and how work is done. The number of referrals to the LRC in 2006 was 1,500, the norm during the past four years or five years when the figure varied between 1,600 and 1,800. While the number is declining, many of the cases are becoming more complex and time consuming and require more meetings. In 2006, we settled approximately 81% of referrals, which has been the norm during the past four or five years when the figure varied between 81% and 83%. In 2006, 7,350 working days were lost to ten industrial disputes with approximately 1,200 workers involved. Two thirds of those lost days were down to two disputes in the construction sector.
We can be reasonably pleased with the performance of the conciliation service, but it is not just a matter of our being satisfied with the performance. We carried out client surveys in 2006 and a somewhat sharper one in September 2007. In both instances, there was a positive response to the quality of the service provided by the conciliation service, although there were important lessons for us to learn on how to improve matters further.
To make some general comments about performance and industrial disputes in 2006, I confess to having a bee in my bonnet about ensuring that we do not compare ourselves with the particularly bad industrial relations data of the 1970s and 1980s, but with Ireland's current trading partners and competitors. The table on page 15 of the annual report shows that by reference to OECD and EU countries, we are more than holding our position. We are, as it were, in a premiership and must remain in that league. The improvement in industrial relations is not down to the quality of the interventions of the LRC. Partnership in Ireland is synonymous with good mechanisms for solving problems, whether at the level of Government, employers or workers. It is about strengthening in-house arrangements for the resolution of disputes. As there has been a significant improvement in the management of relations in individual enterprises across the board, the LRC cannot lay exclusive claim to the improvement.
There is an increased demand on the LRC from across the public sector, notably in respect of enterprises that hitherto had their own in-house conciliation and arbitration schemes. The issues that arise in the public sector are extensive work practice change, restructuring, re-organisation and outsourcing. During the 2003-05 era of Sustaining Progress, the public sector was the source of most structural change cases before the LRC. Given the extensive commitments to public service change in Towards 2016, we anticipate a continuing high level of demand from the public service.
I wish to describe our advisory services division. Not only are we in the business of dispute resolution, we have a series of programmes designed to prevent disputes. The advisory services division comprises a relatively small range of the LRC's activities and is confidential and free. Its aim is to develop effective industrial relations practices, procedures and structures. The types of services we have developed and apply include industrial relations audits whereby we send a team into an enterprise at the latter's request and conduct a survey of the procedures and attitudes therein, report back to the workers and management and provide either training services or chairmanships for in-house committees designed to improve the quality of decision making. We provide preventative mediation or facilitation in situations where we call on the advisory services division to help companies that approach us and state that they are contemplating making major changes with implications for the workforce that they cannot work out. We provide a range of codes of practice, which are indicated at the end of the 2006 report.
We have a growing volume of research that we have either conducted ourselves, stimulated others to do or carried out jointly. We have conducted research with the National Centre for Partnership and Performance and are doing more with the Labour Relations Agency in Belfast. The aim of this research activity is to collect and disseminate information on best practice in dispute resolution and prevention at home and abroad. We are not collecting data exclusively for our own use. Rather, we want to inform a public debate on the subject. Therefore, we use a series of national symposia and targeted workshops, such as those we carried out for small and medium-sized enterprises, to disseminate the information gathered through the research. We have a limited training and development service. In 2006, we carried out approximately 21 programmes aimed primarily at conflict prevention and employee relations.
The rights commissioner service is probably the most exciting and fast-moving service of the LRC. In 2006, there was an increase of approximately 30% in the volume of referrals to the rights commissioners. In practice, this meant that 7,000 people at work had grievances about issues related to the payment of wages, hours of work, unfair dismissals or more general industrial relations issues that they were unable to reconcile in-house with their employers and in respect of which they needed recourse to an outside or third party. On page 30 of the 2006 report is a chart that shows the volume of activity of the rights commissioner service in recent years. It has practically doubled in three years. There are several reasons for the increase, namely, the volume of employment legislation is increasing and the workforce has doubled in size in the past ten years. There is a growing awareness on the part of workers of the nature of their employment rights and how these rights can be vindicated. To an extent, the growth in the number of workers has been reflected in the growth in the demand for services of the rights commissioners. I see the increase as a positive development in employment relations inasmuch as it shows that people with a grievance can come to the Labour Relations Commission in large numbers to vindicate their rights under the law. In other words, they have the knowledge, the confidence in themselves and the confidence in the system.
We launched the report last year and emphasised that employers must take all possible steps to be fully aware of the implications of current employment legislation. From the outset, we have worked with Mr. Ger Deering of NERA. The number of cases referred to the rights commissioners reached 9,000 in 2007. We have increased the number of rights commissioners from eight to 13 and we are carrying out research on the process and settlement rates to aid better management but this is an area that is growing and, while we are pleased with the volume of work done, we have a number of preoccupations. One is how to minimise and maintain the lowest possible delay between the application to get a rights commissioner service and the delivery of that service. A second is the quality and consistency of decisions when there are 13 relatively independent people working on 29 or 30 items of legislation.
I will conclude with comments on how I see the future and the issues that will shape workplace disputes. We will see continuing drives for efficiency and reform in the health service, where adversarial relations are alive and kicking, and more generally in the public sector, where existing links very often compound dispute resolution. Mr. Kieran Mulvey can tell the committee of a number of cases where an extraordinary amount of the time of the conciliation service is devoted to resolving the problems.
The private sector will continue in its search for efficiency, changes and cost reduction. We see difficulties in enterprises that have gone through two, three or four drives for competitiveness. The changing composition of the labour market will shape issues and how we deal with them. The decline in collective representation is a factor, as is the phenomenal growth over the past 12 years in employment legislation, which is set to continue although perhaps not at the same pace. There remain a number of items in the pipeline, through Brussels or in the Oireachtas. The rise of small firms, the growth of non-union multinationals, the push for public service modernisation and the professionalisation of human resource management are factors that will have an impact on the disputes that arise, the extent to which they will arise and how they will be managed. We have concluded work on our strategy for 2008-10 and it will be published within the coming days. Within a few weeks we will publish our report for 2007.
To summarise the three services, the conciliation service will become busier and more complex but it is a service with which we are satisfied and, more importantly, the clients indicate satisfaction with it. The advisory services will continue to develop, particularly on the research side. The rights commissioner service will probably be the growth sector of the business and one we must manage carefully if it is to continue to enjoy the high reputation it has and does not lose the reputation by virtue of our inability to meet the demand in a timely fashion.
I have not cleared my lines with my colleagues, who may wish to add to or modify what I have said.
They will get an opportunity to respond to questions.
I am glad to see Mr. Kieran Mulvey is here and I pay tribute to him for his efforts in resolving the Cork GAA dispute and bringing peace to the sporting area. The well-known hurling and football teams are back on the field thanks to his efforts. It was more difficult than any labour relations dispute he dealt with. There is a great closeness to the GAA in Cork, the county from which I come.
On that note, is there any chance Mr. Kieran Mulvey would tog out for Louth, which needs all the help it can get?
Mr. Kieran Mulvey
There was a sequel to the dispute. Cork played Roscommon on Sunday and beat them. I am from Roscommon so I have been asked not to visit the county for some time in the future.
I think Mr. Mulvey will get short shrift when he goes to Knockcroghery.
Mr. Cashell referred to the rights commissioner service and suggested the growth in cases was positive. In so far as some of the increase is down to the involvement of migrant workers, could it be negative in that employers are not treating migrant workers fairly?
Mr. Cashell stated that the conciliation service is initially voluntary but is it not the case that before getting to the Labour Court one must use the conciliation service? Many employers and unions see it as a stepping stone, making the same case in the knowledge that inevitably they will get to the Labour Court, which will finally decide. Should this be examined, so that some cases could go directly to the Labour Court?
Mr. Kieran Mulvey
On the issue of the rights commissioners and migrant workers, there has been an increasing number of workers over the past few years whose nationality cannot be identified in the request but whose names suggest they are non-Irish. There are increasing numbers, going to 10-15% of referrals. That reflects the major influx of migrant workers in the last number of years, the expansion of the economy, the major information campaigns run by the Department of Enterprise, Trade and Employment and now by NERA and the information given by the Labour Relations Commission and other agencies in various languages. We issue documentation in five languages to reflect the nature of the workforce. I would not put it at the level of exploitation but migrant workers have become more aware of their rights.
An interesting feature of applications from individuals we identify as migrant workers is that, unlike Irish workers, they do not make claims under one or two Acts but under multiple Acts relating to information, payment of wages, organisation of working time and fixed term contracts. We receive applications on three or four Acts, as if they were ticking the boxes that we are required to investigate. It is a feature of the economy that individuals are becoming more aware of their rights. They are probably also in the more exposed sectors of the economy such as agrifood, horticultural industries, hospitality and service industries, coffee shops and Spar-type service stations. One would have to state the number is increasing. As yet, it is difficult to define whether it is exploitation per se but in some cases they have won substantial awards from the rights commissioners which have been upheld on appeal.
With regard to the question on voluntary dispute resolution and whether most people who go through the commission go on to court, the answer is "No". Between 80% and 85% of cases are settled. Many parties spend a considerable time with the commission. To some degree, one of our problems is that the cases coming to the commission are getting more complex. They cover a wide range of employment issues, from pay to exit severance and redundancies.
A considerable effort is made at conciliation. Of the 1,500 or 1,600 cases we hear each year, the number referred by the commission to the court for final agreement is only 180 or 200. Some State employers feel they cannot pay awards unless the Labour Court has issued a recommendation in this direction, given the strictures on public service finances or on the terms of national pay agreements. It is seen as a final issue to be determined by the court whereas the court of conciliation may have eliminated five or six issues.
We consider that the parties use the commission and the court appropriately and do the business when they are with us. I assure the Deputy that we ensure they do the business. On occasion, we need Labour Court recommendations to bring finality to issues. The clients, unions and employers have high respect for the institutions of dispute resolution within the context of their usage.
I thank the delegation for the detailed presentation. It is good to come face to face with the delegation as we can contact them afterwards. I have never received complaints about the work carried out by the commission. This is rare because normally at some level a Deputy will come across complaints or problems people have.
What countries can we best learn from with regard to employees' rights and how people are treated? As a committee, where should we look to excel in this area? The increased amount of legislation during the past 12 or 13 years was mentioned. Much of it is European driven as well as being created domestically. Should we bring forward any particular legislation more urgently? Does the delegation recommend or advise any changes we, as legislators, should consider immediately?
With regard to budgets and costs, some years show surpluses and I accept we do not have the 2007 figures. Mr. Mulvey stated many cases are complicated. I take it this means more research and advice is necessary which means higher costs. From a budget point of view is the commission restricted in any way? When increases are required are they obtained or does the commission experience difficulties about which the committee should know?
Mr. Kieran Mulvey
To answer the last question first, the commission has always run a tight and efficient ship. We have never sought the aggrandisement of either premises or staffing. As a board and executive our view is that we have sufficient bodies to do the job. If we do not need them we do not call for them. We have left a number of posts vacant. We have taken a positive view of the business in which we are involved.
We deal with taxpayers' money. We feel they should get value for that money and we feel they do. We do not feel the need to expend the largesse we get and we give it back. Some people might say it is not the best approach but we adopted it and repeated it in 2007. We also appreciate that we will probably enter more straitened circumstances.
All through the 17 years of the history of the commission, any time we asked for resources we received them, irrespective of what Government was in power. We have never been disappointed when we made a request through the Department or directly to Government. We have also been strongly supported by the social partners in the context of social partnership talks in ensuring that we and the Labour Court are sufficiently resourced to do our jobs. We do not have concerns in this regard.
With regard to what countries we should look towards, Ireland is internationally acknowledged as the leading benchmarker on both dispute resolution and employment law by the International Labour Organisation and the European Union. We are inundated with delegations to Ireland and I mean this in the best possible way. This month alone, I had two delegations from the European Union as well as the ACAS service from the UK, which visited on Monday and Tuesday of this week. We are considered to be the international benchmarkers and the State should take a certain amount of pride in this.
Internationally, people are astonished that we have a social partnership arrangement which has worked and lasted for as long as it has. Academic literature on dispute resolution considers us the pre-eminent practitioners. Many reasons for this exist. We would be in the first two or three, if not the first, in terms of competitiveness or productivity. In this sense, there is not much any other country can show us. This is not to state we cannot learn from how others do things.
I will defer to members of the board with regard to legislation. To a large degree, the role of the commission from an executive point of view is that we implement the legislation, employment laws and whatever decisions are made through social partnership by way of legislation. We are not initiators. We do not see ourselves fundamentally as having a policy input into legislation. This is a matter for the Oireachtas. From time to time, we input to legislation and where legislation requires critique we might make it known that certain provisions do not work, have an opposite effect to what was intended or are contradictory or cumbersome in their operation leading to difficulties of interpretation.
If legislative gaps exist, they are few and far between. There are 30 pieces of employment legislation and we are responsible for 23 of them. Some of them are European directives which have been transposed. We have taken a fair degree of initiative and done a fair degree of imaginative thinking, such as the work on the National Employment Rights Authority, which has only been in operation on an ad hoc basis for two or three months but is already making an impact. Once the employment law compliance Bill comes before the House it will have a more fundamental impact.
Apart from ourselves, with regard to the reforms we carried out in health and safety and in the Equality Tribunal, it is difficult to find international comparisons with the same effectiveness at the same low cost. It costs £9,000 to hear a tribunal case in the United Kingdom under employment law. It only costs us €2 million per annum to run the entire rights commissioner service under all European and Irish employment law. It is extraordinary value for money and user friendly and we do not have a high preponderance of legal attendance.
Mr. Maurice Cashell
On the first question posed by Deputy English, we recently carried out a study which will be published in the coming months on dispute resolution procedures and institutions. We examined Canada, Sweden, Northern Ireland and ACAS in the United Kingdom. We learned lessons on what changes to make and not make.
We are conscious of the fact that we should keep a close eye on what happens in other European Union countries. There are such profound differences in institution, history and culture that direct comparisons with countries other than the ones I have mentioned are not immediately possible.
On the issue of legislation, I would not want the members to think we have too much protective legislation but at present our main focus is on delivering quality rights commissioner services and quality public information on the legislation that exists. In the last 30 years the European Union has displaced all other sources or prompts, including domestic, for employment protection legislation and I presume that will continue for the time being.
We have fairly sophisticated case management systems so any deficiencies, shortcomings or lack of clarity in the law identified during the course of our examination of the implementation of the law is filtered back very quickly to the Department of Enterprise, Trade and Employment.
I thank Mr. Cashell for his presentation on behalf of the entire delegation. How many LRC recommendations are upheld by the Labour Court? Does Mr. Cashell have the most recent percentage figure in that regard? The issue of unfair dismissals is one with which I deal quite frequently. Are there many cases of unfair dismissals involving people who have been employed for less than a year? Is there a void or lack of legislation to give protection to people in that regard? For example, I have heard of people who have been employed for less than a year being sacked because of a request for maternity leave. Has Mr. Cashell identified that as an issue and an area where there is a gap in legislation?
Some provisions of Towards 2016 clearly have not been implemented. While I accept that the Labour Relations Commission is neither a policeman nor policewoman for the provisions of that agreement, I am interested in whether many cases are arising as a consequence of a number of elements of Towards 2016 not having been implemented. Is that something that the LRC has recognised?
The issue of agency workers is highly topical. Is there a difficulty around identifying who is the beneficial employer? An agency will claim that it is just that, and is referring workers on. In cases where agency workers have contacted the commission, has the issue of the identity of the beneficial employer been problematic?
We all recognise the truth in the comment regarding the professionalisation of human resource management. Does the delegation agree that this trend, when taken together with the reduction in collective representation, has a negative impact on workers?
Mr. Kieran Mulvey
I thankDeputy Morgan for his questions. On the issue of the LRC recommendations, the commission occupies the same building as the Labour Court, Tom Johnson House, named after the noted and esteemed Labour Party leader. We have a very strong synergy between us. Even though we are separate dispute resolution institutions, we ensure there is co-operative agreement. In fact, we have a protocol between us as to how to deal with cases. There is a very good relationship between myself and the Chairman of the Labour Court, Mr. Kevin Duffy and between my staff and members of the court. We work well together. We work positively together in the interests of the economy and dispute resolution within it.
Very little of what the Labour Court does would change what the commission has decided. We make confidential reports in conciliation. In that sense, we give a steer to the court as to how matters might be resolved, based on what the parties would have conveyed to us confidentially. This would form part of the recommendations, so there would be a certain degree of understanding that would be accepted. That apart, in some of the cases that go from us on appeal - by an employer, individual worker or trade union - on a rights commissioner recommendation, variations in the recommendation can be made. However, such cases would amount to less than 5%, and of the appeals from rights commissioners, less than 10%. The same would be true for the Employment Appeals Tribunal, when appeals would go there from a rights commissioner recommendation. We put a lot of effort into ensuring that all the first-instance referrals to us under employment law - and we are the largest body for first-instance referrals - are well proofed so that they reflect both the law and the terms of settlements. We try as best we can, in all circumstances, to get parties to agree rather than having to arrive at a recommendation. It is better to have both parties walking away from the building feeling that they have won rather than continuing the war. In short, variations in our recommendations are not significant issues for us.
On the issue of the commission's experience of Towards 2016, we work very closely with the national implementation body, which is under the remit of the Department of the Taoiseach. We also work very closely with the Irish Congress of Trade Unions and IBEC. We have known one another for a very long time. There is a very strong, informal affinity between us, collectively, on how best to manage it. That is a by-product, and one of the extraordinary benefits, of social partnership.
The Deputy asked whether there are variations on Towards 2016 that may need to be addressed. There is a general feeling among both management and unions that it is taking an inordinately long time, in some cases, to effect change. Negotiations are being prolonged and protracted. Ultimately, if one gets results, that is fine. However, the business cycle is moving very fast which means that the public modernisation requirements must also move fast. I was involved in general practitioner talks for almost 12 months and the talks with the consultant hospital doctors are going into their third year. We must be faster about change, modernisation and dispute resolution and it is an issue the commission is addressing in its new strategic plan.
One of a number of areas that has worked very well for us under Towards 2016 is the assessor system, whereby we are allowed to bring in independent auditors to examine the ability of companies to pay, where there is a claim of inability to pay. The system has managed to settle a considerable volume of disputes.
There have recently been a considerable number of statements on the position of agency workers. It might come as a surprise to the committee that it has not featured on the radar screen of the commission in terms of dispute resolution to date. I am not saying the problem does not exist, but it has not come, full force, into our milieu at the moment. Members may recall we were involved in the Irish Ferries dispute, which was different in the context of agency workers, post the dispute. We were also involved in the Gama dispute, which did not involve agency workers but employees of a Turkish company. The same was true of the Laing O'Rourke dispute in Ennis. In that sense, the agency workers issue has not been a major one for the commission but that is not to say it does not exist.
The issue is problematic if it is being raised but before we proceed on some of the areas involved in terms of what legislative approach we may take, it would be important to conduct research on the extent of it within the economy. We need to research if the problem exists, which undoubtedly it does, but also where and why it exists. That would be an important backdrop to the formation of any legislation. It is also coming up as a key issue in the new social partnership talks.
The commission is also involved in the Construction Industry Disputes Tribunal. It chairs the tribunal and dealt with 70 cases last year. Agency workers did not feature in that work either, certainly not in terms of being a significant issue. However, it is bubbling up to some degree in the undergrowth but has not as yet reached us as a dispute resolution body, per se. The issue will probably be discussed in greater detail at the new social partnership talks. I am aware that Deputies have raised the issue in the Dáil.
On the level of professional representation, the enhancement of human resource negotiating capacities on both union and management sides is welcome. We are involved in significant new training programmes with the National College of Ireland, Queens University Belfast, University College Dublin, IBEC and ICTU in order to enhance the scope, capacity and quality of human resource management at worker representation and management levels. Such training is vital because the issue of human resources gives rise to a number of change management issues involving how people will respond.
Last year slightly more than 900 cases of unfair dismissals involving periods of service of less than one year were referred to the rights commissioners. Almost as many cases involving periods of service in excess of one year, at which point people gain employment rights, were referred to the Employment Appeals Tribunal. The picture is varied and includes employees who were let go on expiry of their contracts or who did not fit into the workplace. The tight labour market in recent years meant that prospective employees were hired almost as they turned up. In effect, no interviews were conducted and it was only found out subsequent to being employed that people were incompatible with the job.
Severance pay issues also arise. We constantly monitor the position but I do not see much demand for legislative change. Several years ago we conducted a full review of the Unfair Dismissals Act which gives ready access to dispute resolution mechanisms where people believe they have been unfairly dismissed. They are not left hanging for months before their cases are addressed or, if appropriate, compensation is paid. It is obviously traumatic to be dismissed and the former employees need to be sure they have received their proper holiday pay, severance entitlements and wages, as appropriate.
The Labour Relations Commission processes cases quite quickly but significant delays occur in certain regions in respect of the Employment Appeals Tribunal. I presume the commission has no influence in that regard. In some cases, people are waiting up to 12 months.
The employer arrives at the Employment Appeals Tribunal with the full gamut of legal representation, whereas the employee may not be able to afford representation. Does that not imply inequality of arms? The employer has the right to hire the top legal brains. I understand the principle of having a lawyer-free zone but parties cannot be prevented from making use of legal representatives. The employer's payment to the lawyer can be written off as an expense but the employee must pay X euro from his or her award. Simple issues can be resolved by the tribunal on its own; therefore, there should be no legal representation whatsoever in these cases. Has the issue of inequality of arms ever been raised in that context?
Mr. Brendan McGinty
While, strictly speaking, the Employment Appeals Tribunal is a distinct entity, it is fair to say larger employers tend to seek proper representation. Clearly, everybody should do likewise before entering any court of law. Our experience, however, is that many SMEs and owner-managers believe they are capable of representing themselves.
Regarding delays, the Employment Appeals Tribunal is investigating ways of streamlining the process, in particular through a preliminary engagement with the parties to clarify and narrow the disputed issues rather than leaving everything to unfold in the tribunal. That would allow cases capable of early resolution through amicable agreement to be weeded out in order that the tribunal could concentrate on the substantive issues. Discussions have also commenced on institutional changes with a view to bringing unfair dismissal cases to the rights commissioners in the first instance.
Mr. Kieran Mulvey
We conducted an independent survey of our referrals to the rights commissioners. It might be of interest to the committee to learn that claimants were represented by solicitors in 18% of cases, whereas respondents were represented in 14% of cases. However, when we analysed the cases, there was no variation in Rights Commissioner Service cases relative to legal representation. I doubt that is music to the ears of the legal profession.
The Rights Commissioner Service is user friendly and we do not use court rules or the adversarial system of cross-examination. We try to ensure people who come to us to have their employment rights vindicated are treated as individuals. Although we need, at times, to review our objectives, we want people to get justice without undergoing an excessively legalistic process. In the employment rights review we tried to address this issue in the context of faster access and redress mechanisms. We have further work to do but keep the procedures as simple and fair as possible because we do not want every rights commissioner hearing to become a court of law. They are not, do not have to be and, as long as we are around, will not become courts of law.
As my first question may be stupid, I ask to be indulged. I am not entirely clear on the role of the Labour Court vis-à-vis the LRC. Can cases proceed directly to the Labour Court or must they first be considered by the LRC? What proportion of Labour Court cases is first heard by the Labour Relations Commission?
The complaints we receive from small businesses concern, in particular, the expansion of labour legislation, whereas taxpayers complain about the number of agencies operating in this area. ISME identifies eight such agencies, while I estimate six. How does the LRC respond to the argument that there is significant duplication in the roles of some of the agencies involved and can it identify ways by which their functions could be consolidated? Do we really need rights commissioners under the LRC as well as NERA and the Employment Appeals Tribunal? Could a case be made for reorganising these agencies into a smaller number of bodies which would act more efficiently?
Should the LRC be allowed to give a reasoned opinion where conciliation cannot be achieved, which might discourage certain parties from proceeding to the Labour Court, or would that undermine the commission's role as a conciliation service? Like so many other State agencies the composition of the LRC board follows the social partnership oligarchy comprising representatives of the State, employers and unions. The LRC is a State body and therefore has a responsibility to the nation and taxpayers as a whole. In making decisions, does the absence of somebody to represent taxpayers, consumers, the self-employed or sole traders, who are affected by some of the decisions it makes, mean it falls down in its duty to the nation as a whole and not just the parties in dispute?
Mr. Kieran Mulvey
There are two provisions in law on the Labour Court, one being the Industrial Relations Act 1946, which provides for a direct referral to the Labour Court without going through the commission. That is largely on behalf of an individual trade union or worker and where they are bound by the outcome of the decision. People can opt for the Labour Court without going to the commission but there are certain restrictions and parameters around it. The same provision does not apply to an employer.
The other provision is section 26(5) of the Industrial Relations Act 1990, which provides that when there is a dispute of national importance that may affect essential or other services within the State, or where the parties wish to waive conciliation, the commission and court can consult and therefore the matter goes directly to the court. There is no impediment there. Where we are not going to resolve a dispute, we tend to say we had better let the court deliver a recommendation.
We occasionally give our opinions to the parties in the sense that where the parties agree, we can issue proposals to them. While they might not accept the proposals, they need them to go back to their principals as we see how a dispute has been settled. We do not often use that approach.
It is only used when the parties agree to accept the recommendations.
Mr. Kieran Mulvey
I remember only two or three instances where the parties did not agree, they were an An Post dispute in 1992 and an Aer Lingus survival plan in 2001. I cannot remember any others offhand.
Does Mr. Mulvey think the possibility of the stick of a recent opinion from the LRC might discourage belligerent parties from pursuing their claim or rejecting a legitimate claim?
Mr. Kieran Mulvey
No, there is a strong tradition in Ireland of people having their day in court, if I may use that term. The opinions tend to be respected but they still want to argue their cases. It is in the context of how we approach our business. We work with the parties. Delivering ex cathedra statements to one party or other on how they are behaving themselves does not and would not always work because in six months time they will be back and remember what one said and will question the point of going to the LRC as it has already delivered its opinion. It is not so much carrot and stick as building the confidence of the parties that they will get fair treatment. They will get a robust system. We will not sit back and listen unendingly to the same statements by either party. We will say, “That is plan A, now here is plan B” and work with them towards a solution they can buy into.
Mr. Maurice Cashell
Deputy Varadkar referred to the multiplicity of institutions. I agree that there is a bewildering array of institutions not just on dispute resolution but across the board. I would be very surprised if the OECD study on public administration that is coming to a close soon does not identify the multiplicity of quangos as a feature of public administration in Ireland that needs to be examined. At a theoretical level there is overlap and duplication between the LRC and NERA. We disseminate information, people come to us for a definition of their rights and how they can vindicate them. They do the same with NERA and the Department. In that respect there is a degree of duplication. The employment rights group has attempted to weld together and create pathways so that parties that have a problem know to whom they should go and how they should do it. After that exercise I am not sure I have any further ideas on how to improve the system that will hold sway when they did not already hold sway with that group.
If there were fewer pathways it might be clearer which pathway one should follow.
Mr. Maurice Cashell
That is true. Can I just finish on Deputy Varadkar's other point on the so-called social partner oligarchy? As he said, the composition of the board is trade unions, employers and independents. He named a range of groups, including taxpayers, consumers, the self-employed and sole traders. To a degree, the independents have an interest in the taxpayer and in this respect people such as Ms O'Donoghue and I are keen to pursue issues in how we go about our business, for example, value for money and a predominant taxpayer interest.
On the question of consumer interests, we have an array of materials, communications policies and charters on consumers' rights. I am not certain enlarging the board of the LRC, which is quite tidy and well-defined, by introducing three, four or five others would add enormously to the quantum of information and representation coming in. As Mr. Mulvey mentioned, we are very conscious about maintaining and acting within the budget, as we do. We are also conscious of the role we need to play for our clients in providing clearer and better communication of our services. We are clear that, whether in the conciliation service, the rights commissioner service or elsewhere, the business is done in a way designed to address the problem presented by the party which has come before us has. I am not certain I can identify a specific group whose interests are not particularly well looked after by the board and who would require separate representation on the board, but it is an interesting point.
Perhaps I could expand on my question. The role of our many State agencies, of which the LRC is one, should be primarily to serve the interests of the nation as a whole. However, inevitably, because of how our social partnership structure and the boards that flow from it are oriented, one tends to have a dominance of big interests, including business, unions and the State. Without adding more members to the LRC board, defining the role of the independent members to advocate specifically for the consumer and the taxpayer may have outcomes from the LRC that better reflect the interests of consumers and taxpayers. For example, in a dispute between the HSE and the health care union, who is looking after the interest of the patient? That type of representation is missing from the general process of government in Ireland. That is just one example.
Mr. Kieran Mulvey
We are heavily involved on an annual basis with the citizen information centres throughout the country. Our staff visit them, we supply them with literature and we talk at their seminars on dispute resolution. We have a big mediation service that assists in that. We also meet ISME and the Small Firms Association annually. We are in constant contact with them. Next week I am to meet the Migrant Rights Centre on issues relating to migrant workers and issues it has raised with me on interpretation at hearings, etc. In that sense many of our outreach programmes are getting to the citizen.
I have not been behind the door in making statements in the middle of disputes on how disputes in the health service, public transport or aviation have affected the public, and that we must consider there are people using the services as citizens of the State going about their normal business and the level of unfair disruption that can affect them. It is hard for us, as a body focused on a specific issue involving citizens who are in employment, because we deal with disputes of interest and right, where consumer interest can be replicated. Within our remit and resources we try to ensure we perform our function. The best way to do this is to head off disputes and intervene before they happen by using the necessary time to come to a solution. Doing this means people can catch aeroplanes and buses, access hospitals and go to work. We bring focus to this constituency.
I accept that the Labour Relations Commission has its mandate but our mandate, as politicians, is to look after the interests of citizens. It appears that the entire process of government in the State fails to look after the interests of taxpayers and consumers, the people affected by these disputes, and this is a micro-level example. If there was equal representation for consumers and taxpayers in a body such as the LRC, would there be better outcomes for more people?
Mr. Peter McLoone
Let me give the assurance that the board, collectively or as individuals, does not interfere with discussions between the staff, the conciliation service and the parties in dispute. Although I come from a trade union background and Mr. McGinty comes from a business background, we do not see our roles as to advocate at board meetings on behalf of our interests, be they individual unions and companies or the congress or business collectively, with regard to a dispute. The commission would not function effectively if that was how we saw our roles. We take a common-sense approach to disputes and conflict resolution that is based on the creation of processes to give stability and continuity to the business and service community. Our track record illustrates that the incidence of disputes has fallen considerably and remains healthily low. I give the assurance that, although we come from different backgrounds, we bring experience to the board, not advocacy on behalf of firms.
I accept that but it sounds like the European Commission where a Commissioner's background and experience are relevant. If I was Minister for Enterprise, Trade and Employment and appointed Ms Ann Fitzgerald of the National Consumer Agency to the LRC, how would this affect the dynamic of the commission and its decisions? I am making a general point that may not be particularly relevant to the LRC.
I am surprised that Mr. Mulvey has said agency workers have not featured, despite the Minister for Enterprise, Trade and Employment, Deputy Martin, saying 2003 Central Statistics Office figures indicated they comprised 2% of the workforce, which is at least 40,000 people. New CSO statistics will be released soon and I will be surprised if they do not show a significant rise in this figure. Do agency workers not feature because it is unclear who they are employed by? Do some of the disputes before the commission come about as an indirect result of wage levels that have been suppressed artificially due to agency workers? I have met such workers and the Minister has told me to report directly on the matter to the National Employment Rights Authority, NERA. Agency workers may not emerge as a major issue but anecdotal evidence suggests there are concerns.
Mr. Kieran Mulvey
I said what I did because I had to be truthful regarding where we were coming from. This matter arose indirectly in the Irish Ferries dispute, regarding future arrangements for ships' crews, the Gama dispute and with regard to the ESB Moneypoint power station and the sub-contractor there, ZRE. In these cases the workers were recruited by foreign companies from their home countries.
In many cases, in terms of the conciliation service, we deal with unionised employees. We have not focused on the rights commissioner service which is where we might come across agency workers. In that context, we may argue about people's employment status. We will conduct this analysis because we need to know the legal status of the workers we are discussing. We also need to establish the extent of this type of employment activity because, as the Deputy says, we have heard anecdotal evidence relating to these cases.
We must fill in the picture but the applications we receive from workers in rights commissioner cases do not always make it clear who the employer is and this presents a problem. We may receive an application from a person who works in a Spar shop but nobody is employed by Spar. Employers trade under the name "Spar" and if this is not clarified at the beginning of the process, the case may not, ultimately, be legally enforceable. The employer must be named properly, as must the worker because if we type either incorrectly, the case can be struck out of court. This is a problem because we must conduct checks with the Companies Registration Office. I am not saying the matter of agency workers does not arise but that we should target the issue precisely.
Is it not the same as the employer registration number?
Mr. Mulvey's comments prove our point. The Chairman has tried to debate the matter in the Dáil with the Minister in the context of the recent Bill. There is a problem and the fact that, of between 40,000 and 50,000 agency workers, nobody approaches the commission proves our point that those experiencing problems with agencies are afraid to avail of the opportunities the commission and other organisations present to have their rights enforced. The Minister tells us of the rights included in legislation, which we accept, but agency workers are not in a position to avail of them because they are afraid of the repercussions. In saying people do not come to the commission with this problem, the delegates back up our case. Agency workers are afraid to spill the beans.
Mr. Brendan McGinty
We are aware of the wider debate but should not forget that many agency workers are perfectly happy with their arrangements.
That is a given.
Mr. Brendan McGinty
Through the social partnership process, we agreed a variety of arrangements to ensure public confidence in the system of employment rights. Deputies will be aware of what these commitments are; the Employment Law Compliance Bill is pending, as is new legislation on the regulation of employment agencies.
It is also worth making the point, in reflecting on the work programme of the commission, that one might expect something of a bounce in terms of caseload and referrals as a result of the work of NERA at the moment and the wider media and information campaigns that are taking place. This would tend to be a predictable reaction, but at what level and what scale and from what quarter it is impossible to judge.
I apologise as I must leave shortly. I accept that a high proportion of agency workers are quite happy and doing well, but there is a problem. As Deputies we all see this when people come to our offices. We must find the arena in which to deal with it. Part of the problem with social partnership is that Ministers are reluctant to change legislation or make moves without first going through partnership consultations. This has been the case in some areas of employment law, such as maternity leave and adoptive leave, for example, over the last couple of years, and more recently with our own motion and Bill. Ministers have more or less admitted to us that they see the need for certain measures but they will not do anything until they go through the consultation process. This is a shame. When everyone agrees that work needs to be done in a certain area, Ministers should act without necessarily waiting for talks. The process is useful for things that need to be discussed and resolved but when it is obvious that a Minister should act by introducing legislation he or she should not use the excuse of consultations to delay things. I am sorry to leave, Chairman.
The issue I have is that something as fundamental as equality and non-discrimination should not require legislation. It should be a given. It is a fundamental principle. Why is there such reluctance to allow an EU directive on temporary agency workers to reach our own statute books? I do not expect an answer here as it is not a question for the representatives.
I thank the representatives for attending so early this morning to facilitate us. I thank Mr. Cashell, Mr. McLoone, Mr. McGinty, Ms O'Donoghue, and Mr. Mulvey for appearing before the committee. They have given us an insight into this area and they have been frank and forthright with us, which is important. Some of the members were also frank and forthright, and that is important also. We need to have a good exchange of views. It illuminates issues for us, as we may not be au fait with them to the extent that the representatives are, and it informs us and helps us in our future work.
The committee has a wide remit. Even the area we are dealing with today is an extensive one and we go far beyond that, as the representatives will appreciate, to trade and other issues. We thank the representatives for coming here today to deal with a number of issues that are exercising the minds of the committee members and we look forward to meeting them again soon. In particular, if there are any further studies in this area - Mr. Mulvey indicated that further assessments and studies were being carried out - perhaps they would furnish us with the results, as it is important that we are kept up to date.
Mr. Maurice Cashell
This is the first time in 18 years that the LRC has met this or an equivalent committee.
I might take a bow, as the committee chairperson.
Mr. Maurice Cashell
It is a privilege to have been here and it is also a responsibility for us. Let us hope that we do not have to wait another 18 years to come before the committee again.
The representatives will be lucky to get away with 18 weeks, because there are a number of issues that are exercising us. It was very useful for all of us. Some of our concerns may sound simplistic from the perspective of the representatives, but it is their expertise and we acknowledge that. That is why they are here. When expertise such as this is available it is our duty to make sure we avail of it. I again thank the representatives again for attending the committee.
The joint committee adjourned at 11.55 a.m. until 10 a.m. on Wednesday, 19 March 2008.