Richard Bruton (Dublin North Central, Fine Gael) | Oireachtas source

As I indicated on Committee Stage I have afforded further consideration to this issue with a view to addressing the matter by way of amendment, if necessary. I have carefully considered this issue and thoroughly explored the matter with officials in my Department.I am not satisfied that an amendment to this effect is warranted for a number of reasons. The system that will apply following the establishment of the workplace relations commission provides for mediation to be offered if, in the opinion of the director general of the workplace relations commission, the complaint or dispute is capable of being resolved without being referred to an adjudication officer. Only cases where mediation is not offered or is unsuccessful will proceed to adjudication. This amendment would allow an adjudication officer to refer a case back to a mediation officer for mediation following referral of the case by the director general for adjudication.

The philosophy underpinning the new workplace relations system is that issues should be resolved as informally as possible as soon as possible. To this end, the system is designed to provide information in order that, where possible, issues can be resolved at the level of the employment without ever being referred to the workplace relations commission. Where this is not possible, a complaint can be made to the commission. Where parties indicate an interest in mediation delivered by the early resolution service or face-to-face mediation, such an intervention will be offered, subject to capacity constraints. Where the issue is not resolved or the parties are not interested in mediation, the case will move to adjudication for a decision. The role of the adjudicator will not be to broker a settlement but to consider the case made by both sides, apply the relevant law and come to a decision.

The proposed amendment would fundamentally alter the role of the adjudicator as envisaged in the new system. Mediation is already provided for at an early stage in the new system. To refer the dispute formally back to mediation would add time and cost to the entire process, possibly making the process twice as expensive for the State. One would have the costs of the first adjudication, the costs of mediation where the case is referred back and the costs of a second adjudication if the mediation is not successful. Both parties have the option of engaging in mediation before the adjudication and both have the option of reaching agreement and withdrawing the case before it goes to adjudication. Both parties also have the option of reaching an agreement and withdrawing the case during the adjudication hearing. In practice, an adjudicator would adjourn for a short period to facilitate this option if exercised. Introducing a second chance of mediation would reduce the incentive to reach an agreement at the initial mediation stage and lead to inefficiency in the system, increased costs and knock-on delays for other cases.

I assure the Senator that we gave much thought to whether this amendment was a good suggestion. I hope the reflections I have outlined set out a reasonable case for sticking to the approach we have adopted, which I believe to be fair.