Former Senior advisor to the Executive Director of the World Bank Brendan Ryan, acting as Chairman, welcomed a full house last Wednesday 6 May at the Westin. PAI’s conference, “Innovations in Dispute Resolutions” drew delegates from all sectors, and included many HR professionals and trained mediators. Mr Ryan noted that this conference was “particularly timely”. In the wake of the big movements in Industrial Relations of late, as well as the shift towards a “two-tiered system”, 2015 will be a “time of great change”.
The speakers (L-R): Chairman Brendan Ryan, the Labour Court’s Caroline Jenkinson, Prof Bill Roche (UCD), the Workplace Relations Commission’s Kieran Mulvey, Dr John O’Dowd, Tom O’Driscoll of the Worker’s Rights Centre (SIPTU), Treasa Kenny of Burtenshaw Kenny Associates, and PAI’s Don Bergin
First to the podium was Kieran Mulvey, Chief Executive of the Labour Relations Commission, and CEO of the Workplace Relations Commission on its establishment. Mr Mulvey’s presentation aimed to enlighten the crowd on “what’s happening in the context of the Workplace Relations Commission”. First and foremost, with the dissolution of the Employment Rights Tribunal, the Equality Tribunal, the Labour Relations Commission, and NERA, and the establishment of the Workplace Relations Commission, they are attempting to “put some order to this maze”. This is especially important as
“between 2008 and 2014, in particular, the amount of claims were escalating in the context of the recession”, and are “still on the up”.
He stated that the Labour Relations commission has a particular track-record of “seminal research around alternative dispute resolutions” and he would like for the Workplace Relations Commission to retain such a “research agenda”. He agreed that certain changes may take some time, but that they are “changing the culture” and they are “moving very quickly to integrate the services” so as to provide a speedy and efficient service.
Continuing in the vein of filling the crowd in on how the systems in place work, Deputy Chairman of the Labour Court, Caroline Jenkinson, took the podium to speak about the Labour Court. She admitted that things in the labour court had been done in a “haphazard and ad hoc way” previously, and that all of the changes to the body were to ensure results were returned “timely, quickly and efficiently”. Under the new two-tiered system, there would be a “single first-instance body to deal with all employment and equality disputes”, and a “single appellate body … All appeals will now come to the Labour Court”. She also noted that all appeals would now be “de novo cases”.1 Attention was paid to the effect the new legislation would have on s.23(a) of the Industrial Relations Act; under the definition of “worker”, for the purpose of the Act, civil servants were not included. A provision for this is forthcoming. Ms Jenkinson announced that there would be a 56% increase in the workload of the Labour Court. Finally, she said
“We have to retain the primary function of the Labour Court as the court of last resort in Industrial Relations Disputes … However, we will act in an efficient and expeditious way in dealing with employment rights’ disputes”.
Deputy Chairman of the Labour Court, Caroline Jenkinson, outlines the changes to the body.
Professor of Industrial Relations and Human Resources at the School of Business (UCD) Bill Roche next gave a presentation on “preventative dispute resolution”, specifically facilitated bargaining and facilitated group bargaining. This was a type of alternative strategy reached through studies in dispute resolution, which was supported by the LRC. Much as Mr Mulvey did, Prof Roche commended the Labour Relations Commission on the fact that they are “champions of research-based policymaking”, a legacy he hopes to see brought forward. He spoke of the positives regarding third-party involvement in workplace disputes, typically used “after an impasse has been reached” by parties. The choice whether to use a private service or the LRC, he says,
“rests at the discretion of the employer or union involved” but people usually seek private facilitation in order to “receive a very concrete and very specific set of objectives”.
Prof Roche was followed to the podium by Dr John O’Dowd, a specialist in organisational change and conflict resolution. His presentation marked the beginning of what could be seen as a practical and anecdotal afternoon session; he began by calling what would follow “a practitioner’s reflection”. His presentation was concerned mainly with group conflicts, which were not necessarily
“of an industrial relations kind”, but which “usually have negative impacts”
such as affected productivity, lowered job satisfaction, etc. He also noted that timely dealing with grievances was important, as if a conflict goes on for too long, “the reputation of the company can become quite sullied”. He provided case studies from his own work which illustrated the importance of dispute resolution in the workplace. In recommending changes to the systems in place, he stressed that “companies need to have confidence in the process,
After lunch, the speakers continued on in providing the delegates with practical advice, drawn from their own careers in workplace dispute resolution and claim investigation.
The Westin held a full house for the conference
Treasa Kenny, partner in Burtenshaw Kenny Associates, aimed to give the delegates practical examples from her career to illustrate the development of workplace mediation in Ireland. She provided many examples from case studies “from a practice perspective”. Her main concern, she said, was defining “what mediation isn’t”. She spoke about the value of writing a mediation clause into contracts or including an agreement to mediate into employment contracts. She also spoke about what she hoped would be future “trends” in mediation:
“earlier intervention, … tackling long-standing issues, … online mediation, … [and] evaluation of the mediation process”.
Finally, she advised that one should “pay attention to the power imbalances”; “in a way, it is the role of mediation to balance that power”.
Tom O’Driscoll, head of the formerly-named MISC (now the Worker’s Rights Centre) opened his speech by commenting on the renaming of SIPTU’s Membership Information and Support Centre (MISC). He believes that the new name more accurately reflects our “trade union heritage”. It is the aim of the body to provide a voice and advice to individuals, in a way that is confidential and protected. Worker’s Rights was the main topic of conversation for Mr O’Driscoll’s presentation, more specifically the difference between disputes of right, which are legally enforceable, and disputes of interest, which are not. This dichotomy can be seen as such:
“I want it because it is right” or “I want it because he has it” (Disputes of right, or dispute of interest)
He concluded with the proposal that there should be a clear protocol for dealing with workplace bullying, as currently there is “nowhere to go to resolve them”.
Wrapping up the afternoon was Pat Brady, Director of Workplace Solutions. His was another practical and anecdotal presentation, using illustrative examples from his career. He noted that, even among the dispute resolution industry, workplace solutions investigators do not fit neatly.
“We know about mediation; we know about arbitration; we know about adjudication; but, in fact, workplace investigators in particular are kind of a strange species”.
Workplace investigators, he said, investigate three main categories of claims: “dignity and work related”, “performance related”, and “third-party investigations”. He also spoke briefly of the legal issues involved in the idea of “fair proceedings” and the fact-finding process. However, he noted that the percentage of succeeding cases was exceedingly low. He gave figures between 6% and 30%, with his own success rate at around 10%. He said arbitration can be
“too long, too expensive, they can delay a suitable remedy, and they can make things worse”.
Therefore, reform is needed. In order to adequately deal with workplace grievances, there needs to be a
“nimble, hybrid systems that meet the parties’ needs for a solution”.
The day saw a lively facilitated discussion following each of the session. Here, Nichola Harkin of William Fry questions Caroline Jenkinson
Throughout the day, the facilitated discussion was lively and engaged. Among the topics of discussion were the distribution of specialised areas in hearings seen by the workplace relations commission, a question which Kieran Mulvey answered, and told the delegates that while it was forthcoming, it was a slow process. In the afternoon, Treasa Kenny stressed the importance of creating a dialogue in mediating workplace grievances.
1. A de novo case is a case in which none of the evidence or facts have been seen by any party involved in the case.
Some testimonials from delegates
“I really enjoyed the conference on Wednesday. I thought [there was] an excellent range of speakers present and they very generously shared their unique perspectives with us”—James Dillon, National Roads Authority
“An excellent conference … Very informative and there was a good mix of factual information, what’s happening and when, what are the implications … I particularly appreciated the information on the use of mediation—Denise Kelly, NCCA
“I found the morning session very informative and in particular the commendable presentations given by Caroline Jenkinson, Kieran Mulvey and Dr John O’Dowd”—Julia Heaphy, Department of Defe