FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DEPARTMENT OF ENTERPRISE,JOBS AND INNOVATION - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer's Decision No: ADJ-00000472
BACKGROUND:
2. This case concerns a complaint relating to bullying and harassment in the workplace, a Government Department.
The matter was referred to an Adjudication Officer for investigation and decision. On 24 August 2016 the Adjudication Officer issued the following decision:-
"In accordance with section 13 of the Industrial Relations Act, 1969, I make the following recommendation in relation to the dispute referred by the complainant. For the reasons outlined in the report, the dispute cannot proceed to adjudication for want of jurisdiction."
The claimant appealed the Adjudication Officer's Decision to the Labour Court on 9 September 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 15 November 2016.
DECISION:
A preliminary issue arises in this case. The claimant told the Court that she is a Civil Servant and that her complaint is against her employer, a Government Department within the Civil Service.
The Labour Court is a creature of statute. The Oireachtas has invested powers in it to investigate trade disputes between workers and employers.
The Industrial Relations Act 1946 defines a trade dispute in the following terms
the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;
Section Section 4 of the Act defines a worker in the following terms
4.—(1) In this Act (except Part VI) the word “worker” means any person of the age of fourteen years or upwards who has entered into or works under a contract with an employer whether the contract be for manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour, other than—
- (a) a person who is employed by or under the State
It states
67.—(1) Subject to the provisions of this section, where a trade dispute exists or is apprehended, the Court may investigate the dispute.
Section 13(2) of the Industrial Relations Act 1969 states
(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of,abody of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.
(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—
(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and
(ii) notify the Court of the recommendation.
The claimant in this case referred a dispute to the Rights Commissioner who held that he did not have statutory capacity to investigate it.
In her appeal to this Court against that decision the claimant acknowledges that she is not a worker within the meaning of the Industrial Relations Act 1946. She submits however that Workplace Relations Act 2015 confers on the relevant Minister the power to bring Civil Servants within the scope of the Act. However she told the Court that the relevant Minister has not yet exercised that power under the Act.
The Respondent submits that as a Government Department it decided to attend the hearing out of respect for the institutions of the state. However it submits that attending at the Rights Commissioner and or the Labour Court cannot and does not give powers to the Court that are not conferred on it by statute. It further submits that the Court cannot assume to itself a power not conferred on it by the Oireacthas.
It submits that as the claimant is a Civil Servant she is not a worker within the meaning of the Industrial Relations Act 1946 as amended. It further submits that it follows that the matters complained of do not constitute a trade dispute for the purposes of the Act and accordingly the Rights Commissioner and or the Labour Court cannot investigate them under this Act.
Findings
The Court has given careful consideration to the submissions of both parties to this dispute. Having reviewed the statutory framework the Court finds that disputes between Civil Servants and their employers are not trade disputes within the meaning of the Act. Accordingly the Court has no statutory basis for investigating such matters unless and until such powers are conferred on it in accordance with law.
The Court accordingly determines that it has no power to vary the decision of the Rights Commissioner in this case.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
23 November 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.