Labour Court Database __________________________________________________________________________________ File Number: CD88904 Case Number: DEC901 Section / Act: S57(1) Parties: AUGUSTUS CULLEN AND SON SOLICITORS - and - DEPARTMENT OF LABOUR |
Application by the Department of Labour for a determination by the Labour Court under section 57(1) of the Industrial Relations Act, 1946 as to whether the Employment Regulation Order (Law Clerks Joint Labour Committee) 1988 applies to Pauline O'Loughlin, a trainne/employee of Augustus Cullen & Son, Solicitors, 7 Wentworth Place, Wicklow.
Recommendation:
5. Having considered the circumstances of this case, the Court
decides that Ms Pauline O'Loughlin was covered by the then
operative Employment Regulation Order (Law Clerks Joint Labour
Committee) 1988 for the total period (15 Aug-30 Nov1988) during
which she worked for the firm. Ms O'Loughlin was consequently
entitled to be paid in accordance with the rates specified in the
said Order.
Division: CHAIRMAN Mr Heffernan Mr Devine
Text of Document__________________________________________________________________
CD88904 DECISION NO. DEC190
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 57(1)
PARTIES: AUGUSTUS CULLEN AND SON SOLICITORS
and
DEPARTMENT OF LABOUR
SUBJECT:
1. Application by the Department of Labour for a determination by
the Labour Court under section 57(1) of the Industrial Relations
Act, 1946 as to whether the Employment Regulation Order (Law
Clerks Joint Labour Committee) 1988 applies to Pauline O'Loughlin,
a trainne/employee of Augustus Cullen & Son, Solicitors, 7
Wentworth Place, Wicklow.
BACKGROUND:
2. The Employment Regulation Order (Law Clerks Joint Labour
Committee) 1988 fixes statutory minimum rates of remuneration and
regulates statutory conditions of employment of workers in
relation to whom the Law Clerks Joint Labour Committee operates.
The provisions of the Order are enforced by Inspectors appointed
by the Minister for Labour. An Inspector of the Department of
Labour visited the offices of Augustus Cullen and Son, the firm
and reported that a worker was being paid less than the minimum
rate of remuneration prescribed in Section IV of the Employment
Regulation Order (Law Clerks Joint Labour Committee) 1988. The
Department of Labour notified the firm of the underpayment and
requested payment of the arrears of wages due to the worker. In
response the firm disputed that the worker was an employee for the
purposes of the said Employment Regulation Order and stated that
if the Department did not agree, the issue could be decided by the
Labour Court. On 7th November 1988 the firm wrote to the
Department of Labour asking when the Labour Court would consider
and rule on the case. The Department wrote to the Labour Court on
22nd November, 1988 requesting that the matter be treated as an
application for a determination under Section 57 of the Industrial
Relations Act, 1946. The Court heard the case on 19th December,
1988.
The workers in question is Ms. Pauline O'Loughlin.
DEPARTMENT'S ARGUMENTS:
3. 1. It is the Department's view that the worker is an
employee for the purposes of the Employment Regulation Order
(Law Clerks Joint Labour Committee) 1988. PAYE and PRSI
deductions appear to be made from the worker's pay. This
would suggest that the worker is covered by the Order.
3. 2. The said Employment Regulation Order does not explicitly
state that it only applies to trained employees.
COMPANY'S ARGUMENTS:
4. 1. The trainee in question is not an employee. If she is
held to be an employee, how can the firm comply with requests
of schools and youth Incentive Schemes to take in trainees for
terms of one to twelve months without breaching Joint Labour
Committee regulations?
2. Trainees for a limited time are not employees. They
cover non-regular employees who request training for a
specified duration, with no offer of employment. The
particular trainee was offered a period of training from 15th
August, 1988 to 30th November, 1988.
3. Trainees cover:-
(A) Mature married women who wish to return to work and
require in-house experience.
(B) V.E.C. students seeking work experience during their
school term.
(C) Secretarial school students requiring some in-office
work for the purpose of their C.V.
(D) Clerk typists with no previous experience of
computerisation or legal lay out.
(E) Summer jobs.
DECISION:
5. Having considered the circumstances of this case, the Court
decides that Ms Pauline O'Loughlin was covered by the then
operative Employment Regulation Order (Law Clerks Joint Labour
Committee) 1988 for the total period (15 Aug-30 Nov1988) during
which she worked for the firm. Ms O'Loughlin was consequently
entitled to be paid in accordance with the rates specified in the
said Order.
~
Signed on behalf of the Labour Court
Kevin Heffernan
5th April, 1990 ----------------
A.McG/U.S. Chairman