Workplace Relations Commission Annual Report 2023

On 20 May 2024, the Workplace Relations Commission (“WRC”) published its Annual Report for 2023. The report outlines the effectiveness of the WRC across the full ambit of services it provides, including adjudication, inspection, conciliation, mediation, advisory and information services.

Information, Inspection and Enforcement

The Information and Customer Service Unit saw a general increase in most of its activities in 2023 compared with 2022. Website pageviews increased by over 12%, whilst they dealt with 61,800 telephone calls in 2023, an increase of 3%. Separately, Employment Agency licences processed increased significantly (10%), whereas Child Employment licences issued dropped by 12%.

With regards to the Infoline, information on Employment Permits was provided to 31% of callers, a decline from 38% in 2022. Other common topics dealt with during the year were the status of complaints submitted to the WRC (19%), queries on working hours (including leave, breaks, night work and Sunday work) and queries related to wages, both accounted for 6% each. Employees comprise over three-quarters of all callers. Employer callers account for close to 16% of calls, whilst calls from representative bodies (employees and employers) accounts for 3% of calls dealt with.

A total of 4,727 inspection cases were closed in 2023, with some 2,221 employers found to have contraventions of employment law. These cases involved 6,519 individual workplace inspection visits which uncovered over 7,862 specific contraventions of legislation.

Adjudication

Under Section 43 of the Workplace Relations Act 2015, an employee, or the Commission, on behalf of an employee, may apply to the District Court seeking an order directing an employer to comply with a decision of an Adjudication Officer. In 2023, some 97 civil enforcement cases were dealt with by the civil enforcement section of the WRC. In 22 cases, the employer, following intervention by WRC enforcement staff, paid the adjudication award before the application for a court order had to be taken. This resulted in recovery of awards amounting to € 128,229 for employees.

Some 38 applications submitted for civil enforcement were not successful due to a number of factors. These included applications received where the employer was no longer trading, inability to contact the employer or where the employer demonstrated inability to pay.

National Minimum Wage

To coincide with the increase in the National Minimum Wage in 2023, the WRC conducted a national information and inspection campaign throughout Q1 of 2023. The purpose of the campaign was to ensure compliance with the new rates. Of a total number of 672 employers inspected, 135 were found to be compliant and another 443 became compliant as part of the inspection process. Three employers have been prosecuted and in another 72 cases the inspection process are ongoing.

EMPACT

EMPACT (European Multidisciplinary Platform against Criminal Threats) is a security initiative driven by EU Member States to identify, prioritise and address threats posed by organised and serious international crime. The WRC participates in EMPACT joint days of action focused on labour exploitation and human trafficking, which involves labour inspectorates and police forces across Europe. Overall, a total of 22 unannounced inspections were undertaken by the WRC and 17 of the employers inspected were found to be in breach, or possible breach, of employment rights legislation and 6 employers were found to be in breach of the Employment Permits Act 2003.

Conciliation

In 2023, the Conciliation, Advisory and Mediation Services (‘CAMS’) continued to play an active role in assisting parties in the resolution of challenging industrial relations conflicts in both the public and private sectors. There was a total of 654 referrals for conciliation in 2023 which represents a 17% increase on the previous year. A total of 606 conciliation conferences were convened with 27 of these meetings held on a virtual platform. The success rate of the Conciliation Services continues at 85% plus. In many cases referred on to the Labour Court for a recommendation, the conciliation process played a significant part in reducing the differences between the parties, thereby refining the issues requiring a definitive Labour Court recommendation.

More broadly, requests for conciliation continue to reflect a similar pattern and range of issues to those referred in the two preceding years, with issues referred encompassing:

• Pay related issues (43%)
• Organisation, structure such as rosters, restructuring, staffing, shift work etc. (26%)
• Industrial relations issues such as change to terms and conditions of employment, grading, productivity, outsourcing etc. (20%)
• Types of Leave (3%)
• Benefits such as bonuses, service pay, sick pay, staff incentives, expenses etc. (5%)
• Pension related (2%)
• Redundancy (1%)

Mediation

The WRC provides two distinct forms of mediation: pre-adjudication mediation and workplace mediation.

Pre-adjudication mediation is available for any complaint referred to the Adjudication Service once both parties have agreed to participate, and the Director General is of the view that the matter is capable of being resolved. Pre-adjudication mediation continued to grow during 2023. A total of 785 mediations took place in 2023, which is a 19% increase compared to 2022, and a 57% increase compared to 2021. 443 mediations ended in resolution in 2023, compared to 313 in 2022. Analysis conducted by the WRC indicates that the significant increase in the volume of mediations delivered by the WRC in the last 18 months is largely attributed to providing in-person mediation by default where there is a specific complaint under unfair dismissal legislation. A secondary factor for the increase is the fact that adjudication hearings are now held in public where mediation offers a confidential alternative to resolving matters in private. 559 mediations took place in person in 2023, which is a 302% increase on 2022. Virtual mediation is now offered to parties in exceptional circumstances, where one or more party requires reasonable accommodation, or where one or more party is outside of the jurisdiction. The number of virtual mediations provided in 2023 dropped to 71 from 212 the previous year.

Workplace mediation provides a prompt, confidential and effective remedy to workplace conflicts, disputes, and disagreements on an ad-hoc basis. The demand for workplace mediation continued to grow in 2023 with a total of 110 requests for mediation. It is important to note that all referrals are assessed, and many are deemed not suitable for mediation and in some cases redirected to other services of the WRC. During the year, a total of 34 referrals proceeded to workplace mediation.

Late Request Mediation

The Commission has offered a “late request” mediation service on a pilot basis since September 2022. The purpose of the service is to provide parties who have an upcoming adjudication hearing a facility to access mediation without postponing the scheduled hearing date. This means that should mediation be unsuccessful, the adjudication hearing will go ahead as scheduled. This minimises the time and resource impact on the Commission in terms of postponing and rescheduling a new hearing date, as well as providing a timely service to both parties rather than further delaying the process.

The year, 2023 was the first full calendar year where late request mediation was available to the parties. In total, 65 requests were received with 42 mediations taking place in advance of the scheduled hearing date, with a 52% resolution rate.

Legal Division

During 2023, the introduction of new employment and equality rights with a focus on equity, equality, diversity, and inclusivity continued, some EU and some domestic in origin. The Division was involved in supporting colleagues across the WRC functions to prepare for the new legal rights coming into effect including those under the Work Life Balance Miscellaneous Provisions Act 2023, Protected Disclosures (Amendment) Act 2022, the Sick Leave Act 2022, and secondary legislative changes to the Payment of Wages (Amendment) (Tips and Gratuities) Act 2022 and expansion of the remit of the Gender Pay Gap Information Regulations 2022 to smaller employers.

Protected Disclosures

In relation to the Protected Disclosures Acts 2014 – 2022, the amended legislation came into force on 1 January 2023. A number of further changes were brought in over the year. The Division assisted with new policies and procedures internally to ensure compliance with the heightened obligations on public bodies and prescribed persons in particular.

Litigation

2023 was a busy year for the Legal Division in terms of Litigation. The Division represented the WRC in thirteen High Court civil matters and was successful in all six judicial reviews in which the WRC was correctly named as a Respondent. The WRC was involved in three Circuit Court challenges, and a number of statutory appeal matters throughout the year which remain ongoing.

Having dismissed an initial recusal challenge in her May 2023 judgment on bias, in June 2023 Ms. Justice Bolger handed down judgment dismissing the judicial review in the matter of Ammi Burke v. An Adjudication Officer, Workplace Relations Commission and Ors. [2023] IEHC 3605 based on the conduct of the applicant. Costs were awarded to the WRC on a legal practitioner and client basis in an October judgment, again informed by the conduct of the applicant.

In July 2023, Phelan J dismissed an application in the matter of Gogova v RTB, WRC, Attorney General & Ors. [2023] IEHC 449. The judge reminded the applicant of the need to exhaust alternative statutory remedies, and to bring proceedings in a timely manner.

Conclusion

The report highlights a 19% increase in demand for mediated settlements in WRC disputes and a significant increase of successfully resolved face-to-face mediations. This reflects the rise in popularity of mediation and the willingness to engage in mediation in Ireland. It is the WRC’s view that face-to-face interaction, which allows for full interpersonal engagement both by and with parties who are in dispute, is the most effective and ultimately most efficient method of achieving resolution for everyone involved. As such, it is the intention of the WRC to carry out most of its conciliation and mediation activity in-person.

This report demonstrates how the WRC is back to normality post-Covid with the majority of the cases being hard in-person rather than remote hearing, which was the norm pre-March 2020.