The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The National Tripartite Council’s chairman says proposed reforms to the Industrial Tribunal’s powers will solve a “critical weakness” by forcing witnesses to attend hearings.

Robert Farquharson told Tribune Business that while the Tribunal can summon witnesses, it presently lacks powers to compel their appearance, which has been branded a “vexing matter” that undermines the fair and rapid resolution of workplace disputes.

“One of the significant weaknesses we hope to arrest is the Tribunal’s ability to summon witnesses,” he explained. “The Tribunal can currently call the witness, but cannot compel them to attend.”

Mr Farquharson said that if this deficiency, together with the Tribunal’s inability to enforce its own judgments, is corrected then “all of the uneasiness in the labour relations environment could be resolved whereby matters are able to be settled in a timely manner”.

A report produced by a Legal Advisory Committee (LAC) commissioned by the National Tripartite Council, and which was made up of employer, trade union and legal profession representatives, has recommended that the Tribunal be granted powers that compel witnesses to attend.

“The speedy resolution of matters before the Tribunal requires that witnesses and others attend at the hearings when needed. The continued disregard by witnesses and others of notices to attend Tribunal proceedings is a vexing matter which impedes the efficient and speedy resolutions of disputes before the Tribunal,” the report agreed.

“Both workers and employers agree that the appearance of witnesses and others as needed is critical to the smooth running and timely completion of cases. The Tribunal should have the powers to issue contempt of court orders or impose other sanctions in instances where witnesses and others knowingly and willingly fail to appear before the Tribunal as ordered. The same should apply where documents are not produced as ordered.”

Recommending that the Industrial Tribunal also be given powers to impose sanctions, the report added: “Orderly proceedings are critical to the efficient running of the Tribunal. Currently, the Tribunal is hampered in its ability to punish a party who is disruptive, abusive or otherwise generally hinders and delays the proceedings of the Tribunal.

“Both workers and employers agree that the Tribunal should be granted discretionary powers to impose sanctions, fines or employ other means of punishing such conduct.”

Mr Farquharson, meanwhile, added: “One of the recommendations that the National Tripartite Council is hoping to have is the establishment of a final and binding arbitration process” for resolving labour disputes before they reach the court system.

He explained that both sides would elect the arbitrator, such as a retired Supreme Court judge, with proceedings held at “a centre” that could be the National Tripartite Council itself. Decisions would be final and binding on the two parties.

“That’s one of the things the National Tripartite Council hopes to have done with this review and amendments to the law,” Mr Farquharson reiterated. And the Committee’s report said on the issue: “The costs of bringing claims can be significantly reduced where parties agree to a settlement rather than incur the expenses of a trial.

“The conciliatory mandate of the Department of Labour (DOL) is recognised as an important tool for early settlement of disputes;. However, this process is useless where parties refuse conciliation or frustrate the process as the DOL has no powers to mandate that parties engage in the conciliatory process.

“At the Tribunal, although judges encourage parties to settle their differences without a trial, there is no statutory provision to engage in alternative dispute resolution (ADR),” the report continued. “Both workers’ and employers’ representatives agree that ADR would be of assistance in the speedy and cost-efficient resolution of disputes.

“It is recommended that provisions be made in the Act to make it compulsory for parties to engage in ADR as a pre-action protocol at both the DOL and in the Tribunal. Provisions should also be included for powers for both DOL and the Tribunal to impose sanctions against non-compliant parties.”