WORKPLACE RELATIONS COMMISSION ANNUAL REPORT 2020

In April 2021 the Workplace Relations Commission (“WRC”) published its sixth annual report outlining the challenges faced by the WRC in 2020 and the ways in which it had to adapt in order to provide its services during the height of the Covid-19 pandemic.   This article provides a brief summary of the findings in the report.

Challenges and the WRC’s Response

In the report the Director General remarked that “the WRC faced challenges during the year that were unprecedented and which, at the beginning of the year, were unimaginable.” This was most evident in the work of adjudication, mediation and conciliation services which traditionally have depended on face-to-face interactions to allow engagement of the parties involved in a dispute to attempt to reach a resolution. Following a consultation process with stakeholders the WRC rolled out a new service delivery model which comprised a mix of written procedures, virtual and face-to-face hearings.

Conciliation

According to the report the demand for conciliation services declined at the beginning of 2020 but recovered later in the year. Overall, the WRC received 688 requests for conciliation services with 64 of these cases being referred to the Labour Court under Section 26(1) of the Industrial Relations Act 1990 where a resolution was not possible at conciliation.

As was the case in 2019 pay issues (39%) and organisational structures/hours of work and change in work practices (22%) made up over half of conciliation referrals. Industrial relations issues (25%) made up a significant portion of referrals made as well.

Advisory Services

Over the last number of years, the WRC has engaged with various government ministers to review codes of practice. Following a request from the Minister in 2018, a revised Code of Practice on the Prevention and Resolution of Bullying in the Workplace was finalised in 2020. This revised code was a joint initiative between the WRC and the Health and Safety Authority and came into effect on 23 December 2020. After a request from an Tánaiste in December 2020, the WRC developed a Code of Practice on the right to disconnect from work outside of normal working hours. This came into effect in April 2021.

Mediation

The WRC provides two separate mediation services.

Pre-adjudication mediation relates to specific disputes referred to the adjudication service. It only occurs where both parties to a dispute have agreed to participate as it depends heavily on the parties’ willingness to resolve the issues. It must also be a dispute which the Director General believes can be resolved by mediation. Since March 2020, remote mediation has been offered by the WRC. A total of 1,609 complaints advanced to the mediation process during 2020 and, of these, 582 progressed to full mediation of which the majority (85%) were carried out via telephone, 14% were face-to-face and the remainder virtually. Over 40% of cases were channelled away from adjudication throughout the mediation process.

Workplace mediation is a confidential service that is suited to small groups and is provided on an ad-hoc basis. It is most often utilised in situation where there has been a breakdown in a working relationship or other conflicts between colleagues. A total of 58 workplace mediation requests were received during 2020 which required 67 engagements with parties.

In a review of the mediation process, the WRC made two significant observations:

1. Parties to a dispute are often reluctant to engage in mediation often for reasons particular to each case. This has prompted the WRC to review its service and launch a consultation process with its stakeholders with a view to increasing its usage.
2. There has been a continuing rise since 2018 in “class actions” or multiple complaints involving one employer. In order to ease the heavy burden on tax-payers the WRC aims to to encourage that these complaints are dealt with collectively rather than being processed individually.

Facilitation

The Division also took an active role outside what would normally be considered traditional

conciliation and, throughout 2020, facilitated discussions in 242 such engagements. They continued their support to Public Service Pay Agreement through ongoing facilitation and chairing where appropriate. The WRC also played a role within the Education and Training Board (ETB) structure in their role as Appeals Officers with the ETB Appeals Procedures where its grievance, disciplinary, or bullying and harassment procedures have been initiated. In addition, the Commission chaired the Bord Na Móna Joint Industrial Council.

Adjudication Services

In the report the WRC notes that there were over 8,000 complaints received in 2020. which encompassed 18,969 individual complaints.

The number of complaints and specific complaints received decreased by 2.5% and 9.4% respectively, compared with 2019. It represented the highest total number received in any other year since 2015.

The majority of specific complaints were in relation to pay (4,117) redundancy (3,894), and hours of work (3,150) made up a significant portion of the complaints received. 2020 saw six times more complaints relating to redundancy as compared to the previous year (647). There were also a large number of unfair dismissal (2,155) claims brought to the WRC.

Inspection and Enforcement

In addition to its other services the WRC conducts inspections to ensure that employers are complying with their obligations under employment legislation.

Throughout 2020 there were 7,687 cases completed, 5,202 inspections (68%) were unannounced and 147 joint inspections were carried out with an Garda Síochána and other regulatory bodies of the State. The results of these inspections led to a finding of 1,706 employers being in breach of the law and €1.66 million in unpaid wages received. Of the sectors inspected Mining & Quarrying (100%) and Equine Services (92%) showed the worst breaches.

Information and Customer Service

As was the case for all businesses and services the WRC customer service team were moved remotely. Across 2020, calls received witnessed a rise in demand for information on redundancy (75%) and a fall in demand for information on employment permits (15%).

Postponement Requests

The report notes that 872 requests to postpone hearings were received in 2020, 77% of these requests were granted. While Covid-19 and issues relating to this was one of the primary reasons for the requests. The postponement procedure was revised after February 2020 to allow for parties to object to virtual hearings if they wished. The level of objections is expected to decline in 2021 as people become more at ease with the use of virtual platforms to host hearings.

Conclusion

The WRC will review its approach to reinstating in person hearings when easing of restrictions allow. While the use of remote hearings has gained traction there is no doubt that in person hearings are the preferred option for most parties involved in employment disputes.

It aims to return to stability in terms of hearings/complaints by early 2022.

It is the intention of the WRC to investigate further if the lessons learned over the past twelve months can be built upon in the context of a “hybrid” model of conciliations, mediations and adjudications that combines the utility of virtual platforms with the undeniably more efficient and effective in-person interactions in what is, at its essence, a person-centred service.

Very early in the pandemic, the Adjudication Service carried out an extensive consultation process with stakeholders as to how a remote approach could be delivered out securely and consistent with fair procedures and constitutional justice, and following this consultation, rolled out incrementally a new service delivery model which comprised a mix of written procedures, virtual and face-to-face hearings. Similarly, conciliation, advisory and mediation were provided, primarily remotely over a

variety of platforms, but also in-person as circumstances allowed.

The introduction of remote hearings, mediations and conciliations came about as a result of the pandemic-related restrictions. However it has led to the adoption of new technical procedures which should be of great benefit to service users in the future. We will have to await further developments to see to what extent the WRC’s procedures are streamlined as a result.