FULL RECOMMENDATION
CD/23/43
ADJ-00036611, CA-00047802-002 | DETERMINATION NO. VCD231 |
SECTION 10 (1), INDUSTRIAL RELATIONS (MISCELLANEOUS PROVISIONS) ACT, 2004
PARTIES:ESB NETWORKS
(REPRESENTED BY LORNA LYNCH B.L.)
- AND -
A WORKER
(REPRESENTED BY INDEPENDENT WORKERS UNION)
DIVISION:
| Chairman: | Ms O'Donnell | | Employer Member: | Mr O'Brien | | Worker Member: | Mr Bell |
SUBJECT:
1.Appeal of Adjudication Officer Decision No(S) ADJ-00036611, CA-00047802-002
BACKGROUND:
2.This matter was referred to an Adjudication Officer for investigation and recommendation. The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 23 January 2023 in accordance with Section 10(1) of the Industrial Relations (Miscellaneous Provisions) Act, 2004.
A Labour Court hearing took place on the 30 May 2023.
DETERMINATION:
Background This is s complaint under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004 alleging contravention of Section 8 of the 2004 Act which prohibits victimisation. This complaint is linked to PW/23/8 and TE/23/9
Preliminary Issue Ms Lynch SC on behalf of the Employer raised as a preliminary issue the fact that it is the practise of this Employer to engage in collective bargaining and therefore the Worker does not have standing to take a complaint under this Act. Mr Keenan on behalf Worker accepted that the Employer does engage in collective bargaining just not with the IWU.
The applicable law Section 8 Prohibition on victimisation - (1) This section applies where it is not the practice of the employer to engage in collective bargaining negotiations and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and—
(a) a trade union or an excepted body takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or
(b) such procedures have been invoked by a trade union or excepted body in relation to a trade dispute, or
(c) an employee intends to request the trade union or excepted body of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union or an excepted body intends to make such a request, or
(d) such a request by a trade union or an excepted body has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or
(e) the Court determines that those requirements have been met and either—
(i) that investigation is being or has been carried out, or
(ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.
(2) Where this section applies, none of the following-
(a) the employer,
(b) an employee, or
(c) a trade union or an excepted body of which an employee is a member,
shall victimise an employee or (as the case may be) another employee in the employment concerned on account of—
(i)the employee's being or not being a member of a trade union or an excepted body, or…
Decision
It is clear that in order for a party to invoke the protections contained in this section, it must not be the practise of the employer to engage in collective bargaining. It is common cause in this case, that the Employer does engage in collective bargaining and therefore the appeal must fail.
The appeal fails. The decision of the Adjudication officer is upheld.
 | Signed on behalf of the Labour Court | | | | Louise O'Donnell | | CO'R | ______________________ | | 5 July 2023 | Deputy Chairman |
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
