Workplace Relations Commission Annual Report 2017

Oonagh Buckley, Director General of the Workplace Relations Commission recently submitted the Commission’s third annual report to the Minister for Trace, Employment, Business, EU Digital Single Market and Data Protection.

The Workplace Relations Commission was established in 2015 to carry out the following main functions:

• To promote the improvement of workplace relations and the maintenance of good workplace relations.
• To promote and encourage compliance with relevant employment and equality legislation.
• To provide guidance in relation to compliance with Codes of Practice
• To conduct reviews of, and monitor developments, in workplace relations generally.
• To conduct or commission relevant research and provide advice, information and the findings of research to Joint Labour Committees and Joint Industrial Councils.
• To advise the Minister for Business, Enterprise and Innovation in relation to the application of, and compliance with, relevant legislation.
• To provide information to the public in relation to employment legislation.

Specifically, the two areas of responsibility that employers need to draw their attention to are Adjudication and Inspection.

The Workplace Relations Commission concluded 4,747 inspections in 2017, covering over 99,000 employees. 58% of these inspections were unannounced.

By far, the most common legislative breach was in relation to insufficient employment records, accounting for over 50% of the breaches identified. The sectors showing the highest levels of non-compliance were Agriculture, Contract Cleaning, Hair & Beauty, Food & Drink and Wholesale & Retail.

In terms of prosecutions, inspections led to 125 prosecutions. Of the 93 prosecutions that resulted in convictions, the largest proportion, 72 were in the Food & Drink sector. Of the 93 convictions, 60 of these were breaches of the Employment Permits Acts. The WRC collaborates with the Garda National Immigration Bureau and the agencies take part in joint enforcement operations.

Many unannounced WRC inspections were targeted at sectors that are considered to be “high risk”. The most noted sectors that were purposefully targeted were Equine and Fishing. There was also collaboration with EUROPOL Empact Labour Exploitation Group which resulted in targeted inspections of “pop up” car washes and nail bars.

The WRC inspections carried out in 2017 resulted in €1.77m in recovered wages for employees. This was an increase of €270,000 from the previous year.

The WRC inspectors also carry out inspections in conjunction with the Department of Social Protection the Revenue Commissioner.

The Workplace Relations Commission received 7,317 complaint applications seeking adjudication in 2017. Within these applications were 14,001 specific complaints, showing that there is a trend for multiple complaint to be lodged within each application. Of the complaints lodged, the highest number, 3777 were related to Pay, which is in line with the pattern the previous year. Specifically, the majority (18%) were taken under various sections of the Organisation of Working Time Act.

In terms of outcomes of specific complaints that were closed out in 2017, the complaints were upheld in 1,994 cases. 2,251 complaints were not upheld. Interestingly, the report shows that only 126 complaints were not adjudicated as a settlement was reached. However, looking at the number of complaints withdrawn either before, during or after adjudication (a total of 5016), it would suggest that the number of cases being settled is much higher.

Of Adjudication Decisions appealed to the Labour Court, 120 were upheld and 111 were either overturned of varied.

Over the course of 2017, 47% of complainants did not have representation at hearings. 58% of respondents did not have representation at hearings.

75% of complaints received since 1^st January 2017 were scheduled for hearing within 6 months. Assisting with this turnaround time was the establishment of five new hearing venues in Tralee, Letterkenny, Castlebar, Kilkenny and Monaghan.

There were a number of key decisions noted in the WRC Annual Report relating to newly tested legislation including the Protected Disclosures Act, where three key decisions of 2017 outlined in the report.

ADJ-00005011 A Bank Official V Banking Sector

Here, the scope of the Protected Disclosures Act was tested and the Adjudication Officer found that as the alleged penalisation was reported in 2012, it was not presented within the prescribed timelines outlined in the Acts and so the Adjudicator found that he had no jurisdiction to hear it.

ADJ-00001721 A Senior Official V a Local Authority

This case refers to the “but for” test as previously outlined in McGrath Partnership V Monaghan PDD162, where the Adjudication Officer found that the Complainant did not meet the burden of proof to show that “but for” the Complainant having committed the protected act, he would not have suffered the detriment – the detriment referring to his transfer in 2016. The Adjudication Officer also found that the Respondent was entitled to reorganise and reassign the senior managers.

ADJ – 00000456 An Employee V A Nursing Home

In this case, the Complainant was employed for a period of 11 months with the Respondent. She was awarded €52,416 in compensation as The Adjudication Officer found that the Respondent instigated the disciplinary procedure against the Complainant in an attempt to dismiss any complaint brought in advance of her reaching 12 months service. The Adjudication Officer found that this was done as a result of her protected disclosure to HIQA, amounting to penalisation under the Act.

The full report is available from the Workplace Relations Commission.