Workplace Relations Act 2015
Major changes in the manner employment disputes and complaints are dealt with as well as new procedures for ensuring compliance with employment law come into force on October 1st 2015. The newly enacted Workplace Relations Act 2015 provides for a range of changes to the bodies and the procedures which deal with the:
- Resolution, mediation and adjudication of industrial disputes and
- Resolution of complaints about breaches of employment legislation
The New System
The Workplace Relations Act 2015 provides that there will be two bodies dealing with complaints and disputes in relation to industrial relations and employment law. These are the Workplace Relations Commission (WRC) and the Labour Court.
The Labour Relations Commission is being abolished and all its functions transferred to the WRC. The functions of the Equality Tribunal, including functions under the Equal Status Act, are also being transferred to the WRC.
The Employment Appeals Tribunal (EAT) is being abolished. Its functions in relation to claims for redress, disputes or complaints are being transferred to the WRC. Its functions in relation to appeals are being transferred to the Labour Court.
It should be noted that he EAT will continue to operate until it deals with the cases that are before it when this Act comes into effect. It will then be dissolved. The EAT currently has approximately 3,500 cases outstanding. The average waiting time for a hearing before the EAT is currently 63 weeks. In some areas it is significantly longer.
The Labour Court will continue in existence with a number of existing and additional functions. The current members will remain in place. In future, appointments as chair and deputy chairs will be by public competition. When vacancies arise for ordinary members, trade union and employer organisations will nominate three candidates and the Minister for Jobs, Enterprise and Innovation will choose one.
The Workplace Relations Commission
The WRC will have a representative board consisting of a chairperson and eight other members.
The main functions of the WRC are to:
- Promote the improvement of workplace relations, and maintenance of good workplace relations
- Promote and encourage compliance with the relevant laws
- Provide guidance in relation to compliance with codes of practice
- Conduct reviews of, and monitor developments as respects, workplace relations
- Conduct or commission relevant research and provide advice, information and the findings of research to Joint Labour Committees and Joint Industrial Councils
- Advise the Minister for Jobs, Enterprise and Innovation in relation to the application of, and compliance with, relevant laws
- Provide information to the public in relation to employment laws other than the Employment Equality Act
The WRC may also provide advice on any matter relating to workplace relations to employers, their representative bodies and to employees, trade unions or other representative bodies of employees.
The WRC also has specific functions in relation to the resolution of industrial disputes and the implementation of employment laws. It will be the body to which all industrial relations disputes and all disputes and complaints about employment laws will be presented.
Mediation and Adjudication
The WRC will employ Mediation and Adjudication Officers to deal with industrial disputes and complaints about non-compliance with employment laws.
Mediation officers
Complaints and disputes will initially be presented in writing to the Director General of the WRC. The Director General may refer the complaint or dispute to a mediation officer if it is considered that the complaint or dispute is capable of being resolved without being referred to an adjudication officer and if neither of the parties objects to it being dealt with in this way.
Mediation is conducted in private. If agreement is reached as a result of the mediation, that agreement is legally binding on the parties.
Adjudication
If mediation is not used or is not successful, the complaint or dispute is referred to an Adjudication Officer. The current Rights Commissioners and equality officers will be Adjudication Afficers. A further 19 adjudication officers are being appointed. References in existing legislation to a Rights Commissioner now refer to an adjudication officer.
If the dispute or complaint is referred to an Adjudication Officer, the adjudication officer then generally conducts an inquiry. The Adjudication oOficer may dismiss a complaint or dispute if it is considered to be frivolous or vexatious. Such a decision may be appealed to the Labour Court within 42 days.
The Director General may decide to deal with the complaint or dispute by written submissions only, unless either party objects to this within 42 days of being informed.
At the inquiry, the parties have an opportunity to be heard and to present any relevant evidence. Hearings by an adjudication officer will be in private. Up to now hearings by Rights Commissioners have been held in private but EAT hearings have been in public.
Complainants may be accompanied and represented at hearings before an adjudication officer by a specified or permitted representative.
The adjudication officer then makes a decision in accordance with the relevant law and gives that decision in writing to the parties.
Decisions by adjudication officers will be published on the internet without identifying the parties.
Time limits
In general, the time limit of six months, extendable in certain circumstances remains unchanged. There are specific provisions about when the time limits begin to run in cases of disputes about adoptive leave, maternity leave, parental leave and carer’s leave.
Enforcement of decision of adjudication officer
The employer has 56 days in which to carry out the decision of the adjudication officer. If the employer fails to do so an application can be made to the District Court for an order directing the employer to do so. In general, the District Court must make the order. If the decision was to reinstate or re-engage the employee, the District Court may substitute an order to pay compensation of up to 104 weeks’ pay calculated in accordance with the rules under the Unfair Dismissals Act 1977 to 2007.
In all cases involving compensation, the District Court may also order interest to be paid.
It is an offence to fail to comply with an order directing an employer to pay such compensation to an employee unless the employer can show, on the balance of probabilities that they were unable to comply with the order due to financial circumstances.
Appeal to Labour Court from decision of adjudication officer
Appeals against decisions of adjudications officers may be made to the Labour Court. Such appeals must generally be made within 42 days but this can be extended if the Labour Court is satisfied that there were exceptional circumstances causing the delay.
The Labour Court may decide to deal with the complaint or dispute by written submissions only, unless either party objects to this within 42 days of being informed.
Labour Court hearings on appeals are in public unless the Labour Court decides that they should be in private (or partly in private) because of special circumstances. Parties are entitled to be represented at Labour Court hearings in the same way as at hearings before an adjudication officer.
The Labour Court has wide powers to require witnesses to attend and to take evidence on oath.
The Labour Court may refer a question of law arising in the appeal to the High Court. The High Court’s determination is final and conclusive.
Either party may appeal the decision of the Labour Court to the High Court on a point of law. Such an appeal must be made within 42 days. The decision of the High Court is final and conclusive.
Enforcement of Labour Court Decisions
An employer has 42 days to implement the Labour Court’s decision. If the employer fails to do so, the employee, the WRC, the employee’s trade union or excepted body may apply to the District Court for an order directing the employer to do so. The District Court must grant the order. In cases where compensation is to be paid, the District Court may also order the payment of interest. It is an offence to fail to comply with an order directing an employer to pay such compensation to an employee unless the employer can show, on the balance of probabilities, that they were unable to comply with the order due to financial circumstances.
Enforcement of employment legislation
The authorised officers and inspectors who are currently employed by the National Employment Rights Authority will continue to have a similar role with the WRC. New arrangements for prosecutions and new compliance measures are introduced by the 2015 Act.
Inspectors have extensive powers to collect documentary and personal evidence in relation to alleged breaches of workplace legislation. This includes the power to enter premises, see and/or remove documents and interview people. If necessary, inspectors may be accompanied by other inspectors or members of An Garda Síochána. They may apply to the District Court for search warrants. Their powers under the various employment laws are restated and consolidated in the Workplace Relations Act 2015.
Prosecutions
The Minister for Jobs, Enterprise and Innovation has the power under a number of employment laws to bring summary prosecutions against employers who are alleged to be in breach of the law concerned. These powers are being transferred to the WRC. The Act provides that, in most cases, the employer will be liable for all legal costs.
Compliance Notices
The Act provides a new process for the serving of compliance notices. An inspector may serve a compliance notice on an employer if satisfied that a contravention of the relevant legislation has occurred. This notice specifies how that contravention is to be rectified. An employer may appeal against the compliance notice to the Labour Court within 42 days. There is a further appeal from the decision of the Labour Court to the Circuit Court. It is an offence for an employer to fail to comply with a compliance notice.
The existence of a compliance notice or any dispute about it does not prevent employees from taking action in relation to any alleged breach of employment law in respect of them. Neither does it prevent any prosecution for an offence under employment laws.
Compliance notices may be used in relation to breaches of the following legislation:
- Notice to employees of procedure for and grounds for dismissal under the Unfair Dismissals Act 1977 to 2007
- Regulation of certain deductions made and payments received by employers under the Payment of Wages Act 1991
- Leave on health and safety grounds under the Maternity Protection Acts 1994 and 2004
- Requirement to give an employee a written statement of terms of employment and requirement to give written notice of changes to those terms under the Terms of Employment (Information) Acts 1994 to 2014
- A range of possible breaches of the Organisation of Working Time Act 1997 including those in relation to rest periods, Sunday work, working hours, information on working time, zero hours contracts and holidays
- Protection of employment rights under the Carer’s Leave Act 2001
- Obligation of hirers to agency workers under the Protection of Employees (Temporary Agency Work) Act 2012
Fixed payment notices
The Act provides for using fixed payment notices for certain offences. This is a new development which may well be expanded in future. Inspectors may issue fixed payment notices for amounts up to €2,000 where they have reasonable cause to believe that a person has committed a relevant offence. The fine must be paid within 42 days. The relevant offences are:
- Breaches of the obligation on employers to consult representatives of employees and to provide information to them under the Protection of Employment Act 1977 (collective redundancies)
- Failure to provide statement of wages and deductions from wages under the Payment of Wages Act 1991, or
- Failure to provide employee with statement of average hourly rate of pay for pay reference period under the National Minimum Wage Act 2000
General Powers of the WRC
The WRC inspectors and adjudication officers have various powers to get information from employers and employees and to provide that information to other official bodies. For example, they may:
- Require employers to disclose their registration number and employees to provide their PPSN and to disclose these numbers to official bodies for the purposes of investigating or prosecuting alleged offences under employment law
- Disclose information to public contracting authorities that a person with whom that authority has entered into a contract (either a primary contractor or a party to a secondary contract) has been in breach of employment legislation and may require such an authority to disclose similar information to them
The WRC may make arrangements with other official bodies to facilitate administrative co-operation.
It may also enter arrangements with foreign statutory bodies for the exchange of information relevant to its functions and for the provision of mutual assistance.
Codes of practice
The WRC may prepare codes of conduct for the guidance of employers, employees and others affected by employment laws. It does not have this function in relation to the Employment Equality Act 1998; codes of practice in relation to that Act are the responsibility of the Irish Human Rights and Equality Commission.
Fees
The Act allows for the charging of fees for services provided by the WRC and the Labour Court. The Minister has said that it is not the intention to introduce such fees in general. However, it is intended to introduce a fee of €300 for an appeal to the Labour Court where the party who is appealing had not turned up to a hearing at the WRC.
Changes to specific laws
Virtually all employment laws are changed to some extent by this Act because the enforcement procedures are changed. There are some other specific changes that relate to the Unfair Dismissals Acts, the Employment Equality Act, the Equal Status Act, and the Organisation of Working Time Act.
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