Labour Court Database __________________________________________________________________________________ File Number: CD89251 Case Number: DEC903 Section / Act: S57(1) Parties: W & E BRADSHAW SOLICITORS - and - DEPARTMENT OF LABOUR;APPLICATION OF ERIC H.W. BRADSHAW |
Application by the above-named Eric H.W. Bradshaw, Solicitor for a determination 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 Karen Herbert, a former trainee/employee of W & E Bradshaw, Solicitors, 79, Merrion Square, Dublin 2.
Recommendation:
6. Having considered the circumstances of this case, the Court is
of the view that the worker in question was covered by the then
operative Employment Regulation Order (Law Clerks Joint Labour
Committee) for the total period (11th October to the 23rd
December, 1988) during which she worked for the Firm of W & E
Bradshaw, Solicitors. Ms. Herbert was consequently entitled to be
paid in accordance with the rates specified in the said Order.
Division: CHAIRMAN Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD89251 DEC390
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 57(1)
PARTIES: W & E BRADSHAW SOLICITORS
and
DEPARTMENT OF LABOUR
Application of Eric H.W. Bradshaw
SUBJECT:
1. Application by the above-named Eric H.W. Bradshaw, Solicitor
for a determination 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 Karen
Herbert, a former trainee/employee of W & E Bradshaw, Solicitors,
79, Merrion Square, Dublin 2.
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.
3. Following an inspection of the Firm's wages records on the
16th December, 1988, the Department of Labour claimed that the
worker concerned, who was employed on clerical/typing duties, was
being paid below the minimum rate of remuneration prescribed in
Section IV of the said Order (the rates at the time were #90.80
per week for the first six months of employment and #96.81 per
week for the second six months). The worker concerned was in
receipt of #50 per week.
4. The Firm contested the Department's claim. It argued that the
worker commenced employment on the 11th October, 1988, on work
experience for an eight week period to the 2nd December. On the
5th December, she was employed on a trial basis as a typist and
was dismissed as unsuitable for long term employment on the 23rd
December, 1988. Mr. Eric H.W. Bradshaw, a Principal of the Firm
subsequently applied to the Labour Court on the 22nd March, 1989,
for a determination under Section 57 of the Industrial Relations
Act, 1946, as to whether or not the worker concerned was covered
by the terms of the said Order. A Court hearing was held on the
21st June, 1989.
DEPARTMENT'S ARGUMENTS:
5. 1. The Department's Inspector visited the Firm following
receipt of a complaint from the worker. She said she was
working on a full-time permanent basis and the Department is
satisfied that she is an employee under the terms of the said
Employment Regulation Order. It has calculated her arrears as
being #402.67 plus #30.27 holiday pay.
FIRM'S ARGUMENTS:
6. 1. While the worker concerned undertook typing duties during
her brief time with the Firm, she was not a clerical worker
"employed" in any reasonable sense of the term. She was never
"employed" in the sense of having a real or defined contract
of employment.
2. Her time in the office on work experience and on trial
employment for a short period do not suffice to constitute her
an "employee" in the accepted sense of the term. The term
"employed" is not defined in the Employment Regulation Order
itself. It would be completely unreasonable however, to hold
that it covers anyone who at some point does some typing in a
solicitor's office, irrespective of how shortlived the period
of time involved. The term "employed" must be subject to
certain implied limits and in particular must exclude work
experience and trial employment for a short period.
DECISION:
6. Having considered the circumstances of this case, the Court is
of the view that the worker in question was covered by the then
operative Employment Regulation Order (Law Clerks Joint Labour
Committee) for the total period (11th October to the 23rd
December, 1988) during which she worked for the Firm of W & E
Bradshaw, Solicitors. Ms. Herbert was consequently entitled to be
paid in accordance with the rates specified in the said Order.
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Signed on behalf of the Labour Court
Kevin Heffernan
_______________________
23rd April, 1990 Chairman.
D.H./J.C.