More on Conciliation
A User’s Guide
What is conciliation?
Conciliation is a voluntary process in which the parties to a dispute agree to avail of a neutral and impartial third party to assist them in resolving their differences.
The Labour Relations Commission provides a conciliation service by making available Industrial Relations Officers of the Commission to chair ‘conciliation conferences’. These officers are sometimes referred to as ‘IROs’ or as ‘Conciliation Officers’.
Conciliation conferences are basically an extension of the process of direct negotiations, with an independent chairperson present to steer the discussions and explore possible avenues of settlement in a non-prejudicial fashion. Participation in the conciliation process is voluntary, and so too are the outcomes. Solutions are reached only by consensus, whether by negotiation and agreements facilitated between the parties themselves, or by the parties agreeing to settlement terms proposed by the Conciliation Officer.
Access to conciliation
Either or both parties to an industrial dispute may request conciliation, by writing to the Commission or, preferably, by using the Commission’s web based facility at www.lrc.ie. In urgent situations, Conciliation Officers may be contacted by phone with a request for conciliation.
Where there is a serious dispute situation, and no request for conciliation has been received, the Commission may sometimes intervene and invite both parties to conciliation.
As a matter of general policy, the Commission does not provide conciliation in unofficial industrial disputes.
Making a referral
When making a referral to conciliation, it is important to give the following information:
(a) the names and addresses of all of the parties involved;
(b) the contact details of the representatives (including phone numbers if possible);
(c) the issues in dispute; and
(d) the approximate number and the category of the workers concerned. Giving the required information in the first instance will speed up the processing of your referral and eliminate the need for additional correspondence before a date for conciliation can be arranged.
In the event of a joint referral, or where both parties have agreed to use conciliation, it is useful to include a letter signed by both parties to that effect. Where no such letter is provided, the Commission will usually have to write to the other party to the dispute seeking their agreement to attend at conciliation before a date for conciliation can be offered. This correspondence can prolong the process, depending on the speed of response of the parties.
Arranging a date for conciliation
The Commission will endeavour to arrange a conciliation conference at a time and location to suit the convenience of the parties. A team of secretarial staff is engaged on this work. It is helpful to the process of arranging conciliation at an early date if clients endeavour to accept the earliest dates offered by the Commission. It is frequently at this stage that delays outside the control of the Commission can occur.
Preparing for conciliation
It is important to remember that, notwithstanding any assistance provided by the Commission, it is the parties themselves who ultimately determine the outcome of a conciliation conference. It is therefore important that the parties make proper preparations for conciliation and come in a frame of mind conducive to resolving issues in dispute. The following should be borne in mind:
- Proper local discussions should have been attempted and the parties should have a good understanding of the issues being referred to conciliation
- New or additional items cannot be added to an agenda on the day of a conciliation conference without the agreement of both parties and consultation with the Conciliation Officer
- .Both sides should try to understand the other’s position and concerns, and be prepared to be flexible where appropriate. This does not mean conceding to unjustified or invalid positions, which should be recognised as such by both sides.
- Representatives should have an adequate mandate to enable meaningful discussions take place, and normally come prepared to recommend fair and reasonable proposals to their principals.
- Parties should give consideration in advance of a conference to possible solutions to issues, including any possible avenues that they may wish the conciliator to explore with the other party on a ‘without prejudice’ basis.
- Relevant information should be researched beforehand and made available at the conference. Consideration should be given to providing the Conciliation Officer and the other party with any complex data or submissions in a suitable written format, for example, a brief submission or charts or graphs.
What to expect at conciliation
Opening Joint Session
A conciliation conference normally commences in ‘joint session’, with the parties on either side of the negotiating table and the Conciliation Officer at the head of the table acting as chairperson. Both parties outline the issues and their respective positions, with a view to giving the Conciliation Officer an initial understanding of the case. (On occasions, where the relationships between the parties may be difficult, the Conciliation Officer may decide to meet them separately in the first instance. This, however, is not the norm). Parties are expected to ‘speak through the chair’ and show respect in their use of language, bearing in mind that the objective of the process is to be conciliatory.
After the initial ‘joint session’, which is normally kept fairly brief, the Conciliation Officer will meet the parties separately, in separate rooms, for what is known as a ‘side session’.
In side session, the Conciliation Officer will expect both parties to discuss the case openly and frankly with him/her. The Conciliation Officer may also ask questions in order to gain a fuller understanding of the issues and arguments. It is important that the conciliator is given a good understanding of both sides’ thinking and concerns, as this will help him or her in trying to steer the parties to solutions that best suit them.
The conciliator may spend long periods in side session with either or both parties. This should not be misinterpreted as the conciliator having more time to listen to one side than the other or somehow favouring one party over the other. The conciliator may sometimes need to spend more time with one party than another in order to obtain the information he/she requires and to explore possible solutions to issues. This may sometimes mean having to spend time challenging seemingly weak or unsupported positions on either side in order to advance the process. An important purpose of the side conference is to enable this to take place in the absence of the other party.
The conciliator will usually go from one party to the other, over and over, in an effort to move the talks in the direction of a settlement. Using the insights and knowledge he/she is given by the parties, and his/her own experience in industrial relations matters, the conciliator will endeavour to move the discussions towards a settlement. This may entail conveying positions and counter positions between the parties until an agreement is reached. Along the way, the conciliator may make informal suggestions to either party in order to help the process along. If necessary, the Conciliation Officer may eventually make settlement proposals of his/her own, provided the parties are willing to accept them or at least to recommend them to their principals for acceptance. (In the event of such proposals being subsequently rejected by either side, they are normally withdrawn and deemed to be without status in the dispute).
At all times during the conciliation process, it is open to either party to take a recess in order to consider matters in private between themselves.
The conciliator is therefore dependent on the co-operation of the parties in trying to find a resolution. He/she is reliant on their willingness to be open and frank in side conference and to negotiate and modify their positions in order to arrive at an agreement. At all times, the conciliator remains impartial and neutral, and has no interest in the outcome of a conference other than to see it settled on whatever terms are most satisfactory to the parties.
Concluding joint session
Where an agreement is reached, or settlement proposals are made by the Conciliation Officer, or even where disagreement remains, the conciliator will usually bring the parties back together to confirm the details of the current position across the table. This serves to avoid confusion or misunderstandings in what are often complex and multi-issue disputes. Where appropriate, documentation confirming the outcome of the conference may be drawn up either there and then or within an agreed timeframe, depending on the requirements of the situation.
Adjournments and referrals to the Labour Court
In the region of 80% of disputes are resolved through conciliation. Sometimes, however, several conferences are required before the process is concluded, depending on the number and complexity of the issues involved. Adjournments may be agreed, either because time has run out on the day, or to enable parties consider positions or do more research, and come back another day for a further attempt at conciliation. In some cases, the parties may revert to local discussions based on progress made at conciliation.
Where however no agreement is reached, and there is no point in further attempts at conciliation, both parties may agree to refer a dispute to the Labour Court. The Conciliation Officer will make the necessary referral to the Court, following consultation with the Commission and provided the Commission is satisfied that no further efforts on its part will resolve the matter.
Causes of delays
The Commission endeavours to deal with disputes referred to conciliation as quickly as possible. However, delays can sometimes occur for reasons outside the Commission’s control.
The main reasons are:
- insufficient details in the initial referral;
- delays by parties in responding to invitations from the Commission to conciliation;
- refusal by parties of earliest dates offered for conciliation, and difficulties in agreeing early dates suitable to both parties;
- no proper local discussions in advance of conciliation, necessitating referrals back to local talks;
- failure to prepare properly for conciliation, or to engage on the issues at conciliation, necessitating adjournments and reconvened conferences.
If you are concerned about an apparent delay in any case you refer to conciliation, please contact the Commission’s secretariat for information in the matter. Conciliation officers are also available if required.
Further information regarding conciliation
Labour Relations Commission,
Tom Johnson House, Haddington Road,
Dublin 4, Ireland.
Tel: +353 1 6136700
Fax: +353 1 6136742
Construction Industry Disputes Tribunal
The Construction Industry Disputes Tribunal (CIDT) was established under the Construction Industry Registered Employment Agreement. It was designed by the parties to the Construction Industry Joint Industrial Council (CIJIC) as a dispute resolution mechanism for the construction industry. The Labour Relations Commission has put in place procedures, which are designed to facilitate its effective operation.
The Conciliation Services Division at the request of the parties to the CIJIC, facilitates the management of cases referred to the Construction Industry Disputes Tribunal (CIDT). The most common issues arising in referrals to the CIDT have been concerned with pay, conditions of employment, alleged breaches of the REA and unfair dismissals.
The Conciliation Services Division, also at the request of the parties to the CIJIC, provides an independent chairperson to Tribunal hearings, which also have an employer and an employee representative. The practice is that the Tribunal will only issue a decision where there is unanimity among the Tribunal members.
Assistance to Joint Industrial Councils
Industrial Relations Officers of the Commission act as chairpersons to a number of Joint Industrial Councils. From time to time they also chair joint working groups of unions and management in various employments. Requests for the services of an Industrial Relations Officer to preside at meetings of this nature should be referred to the Chief Executive.
Joint Industrial Councils
The 1946 Act provided for the registration by the Labour Court as "qualified" joint industrial councils of bodies, representative of workers and employers which sought harmonious relations and had rules providing that a strike or lock-out would not take place before a dispute had been considered by the body concerned. The Court was empowered to appoint, on request, a Chairman and a secretary to a registered Council.
The Act imposes three conditions for registration of a Joint Industrial Council. The Council must be substantially representative of the workers affected and of their employers and its object must be the formation of harmonious relations between those it represents. The rules must provide that if a trade dispute arises, a strike or lock-out will not be undertaken until the dispute has been referred to the Council and considered by it.
Three such Councils were registered, in 1948, 1964 and 1965, and still exist though two (Construction and Footwear) have been suspended since 1982 and 1983, respectively, and the third (Dublin Wholesale Fruit and Vegetable Trade) has not met for many years. Previous to their suspension, the Construction and Footwear Councils were actively involved in negotiations on pay and conditions in their industries.
There are also eleven Joint Industrial Councils which have not sought registration. They are chaired by Industrial Relations Officers of the L.R.C. and an officer of the Labour Court acts as their secretary.
A "Qualified Joint Industrial Council" is defined in the Industrial Relations Act, 1946 as an association of persons which complies with the following conditions:-
- that it is substantially representative of workers of a particular class, type or group and their employers;
- that its object is the promotion of harmonious relations between such employers and such workers;
- that its rules provide that if a trade dispute arises between such workers and their employers, a lock-out or strike will not be undertaken in support of the dispute until the dispute has been referred to the association and considered by it.
A body which fulfils these conditions may apply to the Labour Court for registration as a Joint Industrial Council and the Court, if satisfied, will place it on the Register of Joint Industrial Councils
Apart from Registered Joint Industrial Councils, there are a number of others which have not applied for registration. The Labour Court facilitates the Councils - both registered and unregistered - by making available an officer of the Court to act as secretary at their meetings. The meetings are chaired by Industrial Relations Officers of the Labour Relations Commission.