Complainant

Respondent

Anonymised Parties

A Civil Servant

A Government Department

Representatives

Dorothy Donovan B.L.

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012273-001

04/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012273-002

04/07/2017

On 4 July 2017, the complainant referred a dispute to the Workplace Relations Commission pursuant to section 13 of the Industrial Relations Act, 1969. The complainant is a civil servant and the complaint relates to bullying and harassment issues in her workplace against a Government Department.

The dispute was scheduled for Hearing on 14 December 2017. Both the complainant and the respondent were in attendance.

In advance of the Hearing, the respondent had signalled a question as to whether the complainant, a civil servant, was entitled to avail of the Industrial Relations Acts.

This preliminary matter was opened on the day of the Hearing and the Adjudication Officer invited submissions/comments from both sides in advance of presenting the substantive issue.

The complainant’s representative submitted, in reply to the respondent questioning as to whether the Workplace Relation Commission had jurisdiction to hear the dispute, that public servants have regularly taken similar type disputes under the Industrial Relations Acts, up to and including the Labour Court.

She also claimed that it would appear that both parties have expressed agreement/consent to have this dispute investigated by an Adjudication Officer and that would overcome any jurisdictional matter to the contrary.

The complainant also raised the lack of fairness that such a limited regime would have on public sector workers generally.

Post-hearing the complainant’s legal representative wrote to the Workplace Relations Commission and again reinforced its position in relation to the Workplace Relations Commission jurisdiction on this matter. The complainant’s legal representative also set out the complainant’s future intention in how she proposes to manage the dispute going forward, should I find that I have no jurisdiction to hear the dispute.

The respondent had signalled that it was willing to engage in a process that would assist to resolve the current dispute by the complainant. However, the respondent questioned whether the complainant was entitled to avail of the Industrial Relations Acts as she was a civil servant and as per the exclusion of civil servants from the definition of ‘worker’ the Industrial Relation Acts, 1990.

The Preliminary Matter

The Relevant Law

I note in Section 3 of the Principal Act – Industrial Relations Acts 1946, trade disputes are defined as,

“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 [ and includes any such dispute or difference between employers and workers where the employment has ceased,]. [my emphasis added].

I note that Section 23 of the Industrial Relations Act, 1990 provides for the following definition of “worker”:

“23.—(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under) a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it 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 including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(ca) a teacher employed by an education and training board

…

(3) The Minister for Finance may from time to time—

(a) designate for the purpose of subsection (1) any persons (other than established civil servants within the meaning of the Civil Service Regulation Act, 1956) employed by virtue of section 30 (1) (g) of the Defence Act, 1954, or employed by or under the State, and

(b) cancel the designation of any persons under this subsection.

…

I note the recent recommendation by the Workplace Relations Commission in ADJ-00000472, which is an identical situation to the present case before me here. The Adjudication Officer found the following,

“The words crossed out are the words deleted by section 86(2) of the Workplace Relations Act, 2015. This provision was commenced by S.I. 410/2015. I think that the wording is clear. It is perfectly capable for civil servants to avail of the Industrial Relations Acts once they are so designated by the Minister for Public Expenditure and Reform. The complainant referred to a Ministerial statement made at Second Stage of the Workplace Relations Bill and here the Minister states that this is subject to the designation by the Minister for Public Expenditure and Reform.

The scope of section 23 has been expanded by the inclusion of categories of public servant, for example S.I. 264/1998 [Industrial Relations Act, 1990 (Definition of "Worker") Order, 1998] allowed for disputes from officers of local authorities and health boards. Pursuant to the amendment contained in the Workplace Relations Act, the relevant Minister must first make a designation before a worker falls within the purview of the Industrial Relations Act.

The respondent asserts that no such designation has taken place. While the process of designation does not appear to require a Statutory Instrument, it does require an act of designation by the relevant Minister. Given that there is no evidence that such designation has been made, at the date of drafting this report, it follows that the dispute cannot proceed to adjudication.”

I also note the recommendation by the Labour Court in LCR21341 where the complainant had brought an appeal to the Labour Court,

“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.”

And the respondent said,

“[The respondent] 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.

The Labour Court found that,

“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 very same conditions apply in the case before me and I have not been presented with any evidence to suggest that civil servants are now included within the scope of the definition of “workers” and can avail of Section 13 of the Industrial Relations Acts, 1969.

Finally, as noted above, the complainant’s legal representative wrote to the Workplace Relations Commission post-hearing to inform me of its intention to pursue the dispute through various channels, should I find I have no jurisdiction to hear this case. The contents of this submission are noted and were considered fully. However, I am satisfied that this does not change anything in the case before me. It is clear to me that I cannot go beyond the bounds of the set parameters of the legislation.

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 above, the dispute cannot proceed to adjudication for want of jurisdiction.

Section 13 of the Industrial Relations Act - civil servants - definition of workers – no jurisdiction