LCR23031

PARTIES:

DIVISION:

SUBJECT:

‘Daily Rate’ and other matters.

BACKGROUND:

The Workers referred this case to the Labour Court on 15 May 2024 in accordance with Section 20 (1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court’s Recommendation.

A Labour Court hearing took place on 16 August 2024.

RECOMMENDATION:

Background to the hearing of the Court

This matter comes before the Court as a referral under Section 20(1) of the Industrial Relations Act, 1969 by 31 individuals who contend that they are workers within the meaning of the Industrial Relations Acts, 1946 to 2015. They contend that their “employer” within the meaning of those acts is the Department of Enterprise, Trade and Employment.

The 31 individuals are adjudication officers (adjudicators) for the purposes of the Workplace Relations Act, 2015 who are styled ‘external adjudication officers’ and who are appointed by the Minister for Enterprise, Trade and Employment in accordance with Section 40 of that Act.

The Act of 1969 at Section 20 in relevant part provides as follows:

20.—(1) Where the workers concerned in a trade dispute or their trade union or trade unions request or requests the Court to investigate the dispute and undertake or undertakes before the investigation to accept the recommendation of the Court under section 68 of the Principal Act in relation thereto then, notwithstanding anything contained in the Principal Act or in this Act, the Court shall investigate the dispute and shall make a recommendation under the said section 68 in relation thereto.

(3) Notwithstanding anything contained in section 8 (1) of this Act, an investigation under this section shall be conducted in private and shall be given such priority over the other business of the Court as the Court considers reasonable.

This referral is made by 31 individuals who contend that they are the workers concerned in a trade dispute. There is no referral before the Court from a trade union.

The 31 individuals have, by virtue of their referral under the Act of 1969, advised the Court that they are engaged in a trade dispute.

A trade dispute is defined by the Industrial Relations Act 1946 at Section 3 as follows:-

" ....... 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"

The term "worker" is defined by Section 23 of the Industrial Relations Act 1990 as:-

" 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 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......"

This Court addressed matters arising from these statutory provisions in LCR19705 – TF Productions and a Worker [2010] wherein it stated:

The ambit of this definition was considered by the High Court in Building and Allied Trades Union and Another v The Labour Court and Others, High Court Unreported, Murphy J. 15th April 2005. This was an application by way of Judicial Review to quash an order of this Court varying a Registered Agreement so as to incorporate, inter alia, a clause dealing with sub-contractors. It was contended that the effect of the proposed variation was to extend the scope of the Agreement by including sub-contractors, who were not workers, within its terms. In rejecting this contention, Murphy J. considered the meaning of the term "worker" by reference to the definition of that term contained at Section 23 of the Industrial Relations Act 1990.

Murphy J. pointed out that this was a wider definition than that contained at Section 8 of the same Act and is not confined in its scope to those employed under a contract of service. the Judge continued at page 36 of the Judgement:-

"The former definition, which was the relevant definition for the purpose of this application refers, in addition to a contract of service or of apprenticeship, to a "contract personally to execute any work or labour". This would seem to imply a contract for services and, accordingly, to include an individual worker acting as contractor or sub-contractor. "Person" is not defined but is limited to persons aged 15 years or more and accordingly, would not appear to include legal persons, such as companies or partnerships."

In this case the Court was told that the Claimant was engaged under contract to provide a service to the Employer and that she was contractually obligated to provide that service personally. Moreover, she is neither a Company nor a partnership. In these circumstances the Court is satisfied that the Claimant is a worker within the meaning of the Industrial Relations Acts 1946 and that she is a proper party to a trade dispute within the statutory meaning of that term. Accordingly, the dispute is properly before the Court for investigation and recommendation.”

The Government Department identified by the 31 individuals who made the within referral to the Court as being their employer within the meaning of the Acts, advised the Court in advance of the hearing, without elaboration, that

“It does not appear to us that that external adjudicators are workers within the meaning of the Industrial Relations Act, 1969”.

Having regard to the recommendation of this Court in, amongst other Recommendations, TF Productions, and the conclusions of Murphy J in BATUand Another, this Court has been given no basis to distinguish the circumstances of the 31 individuals engaged in the within alleged trade dispute with their alleged employer from the circumstances of the workers involved in those trade disputes.

The alleged employer in the within matter also stated in its letter to the Court in advance of this hearing that

“It does not appear that any ‘trade dispute’ (within the meaning of that statute) exists between the adjudication officers and the Department in this case and therefore in these circumstances the Department would not appear to be the correct respondent”.

The basis for this assertion is unclear to the Court, and the absence of the alleged employer from the hearing of the Court has meant that the Court was deprived of any opportunity to engage with or explore this matter in any substantive manner. Apart from any other possible interpretation of this assertion, the proposition that the alleged employer named by the 31 adjudicators is not the “correct Respondent” is, for example, suggestive of the implication that some other entity is, or might be, the correct “respondent”.

Each of the 31 individuals who have identified themselves as workers within the meaning of the Act has, as required by the statute, given the Court a written undertaking in advance to accept the recommendation of the Court in the matter.

In the view of the Court therefore, and notwithstanding the assertions of the alleged employer, it is statutorily required to (a) “investigate the dispute”(Industrial Relations Act, 1969 – Section 20), and (b) to “make a recommendation setting forth its opinion on the merits of the dispute and the terms on which it should be settled”(Industrial Relations Act, 1946 – Section 68). It is not open to the Court, on the basis of the material put before it, and in the absence of any opportunity to engage with the alleged employer in particular, to do other than discharge what appears to it to be its statutory function.

In any event, the Court is conscious that any Recommendation it might make in relation to the within trade dispute is not legally binding on either party and has no enforceable meaning. The Recommendation will amount only to an opinion which the alleged workers have undertaken in advance to accept.

In all of these circumstances, it is a matter of concern and regret that the Government Department concerned has chosen, as it was entitled to do under the relevant statutory provision and within the general meaning of our voluntarist industrial relations framework, not to attend the hearing of the Court.

In advising the Court of its intention not to attend the hearing, the alleged employer stated that, in July 2024, the Department of Public Expenditure, NDP Delivery and Reform (DPENDR) refused the request of the alleged employer to sanction a proposed increase to the ‘daily rate’ of adjudicators. The alleged employer, in a business case made to the DPENDR, supported an increase in the ‘daily rate’. The ‘daily rate’ paid to adjudicators appears to be the main underlying cause of the within alleged trade dispute, albeit the 31 adjudicators have submitted that they seek improvements in relation to writing up days and fall days also. The 31 individuals have asserted to the Court that the ‘daily rate’ has remained unchanged for a number of years.

The Government Department concerned advised the Court that in the absence of sanction, and notwithstanding all the other issues which had been mentioned, if the Court were to make a Recommendation in favour of the 31 individuals, the Department would not have authority to comply with such a recommendation.

In communicating with the Court, the Department also provided a copy of a letter to it from the DPENDR which concluded by advising / instructing the alleged employer that

“Without a complete understanding of the clear basis for attendance at the Labour Court, the Labour Court’s invitation to avail of its services in relation to this matter should not be accepted by your Department”

For these reasons the Government Department concerned declined to attend the hearing of the Court.

The Court recognises that any employer is, in our voluntarist industrial relations framework, free to participate or not participate in hearings of the Court convened to investigate a trade dispute. It is, however, an underpinning reality of the State’s institutional framework that the operation of our voluntarist system, enshrined as it is in the governing legislation since 1946, relies upon parties who value the orderly resolution of industrial relations trade disputes demonstrating respect for the institutions of the state by participating in the procedures employed by those institutions. Successive Governments and Ministers since 1946 have consistently re-iterated this reality, and in doing so have publicly endorsed the proposition that disputing parties should engage with the institutions of the State to assist in the resolution of trade disputes.

Against that background, it is a matter of grave concern that the DPENDR should instruct / advise a Government Department to decline an invitation from the Court to attend the hearing of the Court in this matter.

It need hardly be stated that, at minimum, the failure of the alleged employer in this alleged trade dispute to attend the hearing of the Court has deprived the Court of the opportunity to fully comprehend the position of that party in relation to the matters in dispute. This lack of engagement is particularly problematic when the statutory obligation resting upon the Court is to issue a Recommendation regardless of whether the alleged employer participates in the hearing or not.

The alleged trade dispute

On its face, it appears to the Court that the resolution of the within alleged trade dispute will require either (a) the adjudicators to withdraw their claim or (b) the employer side to agree to adjust the ‘daily rate’ and to address the claims in respect of writing up days and fall days. A failure to achieve either of these outcomes will likely mean that the trade dispute will remain unresolved.

Against the background of these simple facts, the context for the alleged trade dispute is that the business case earlier made by the Government Department concerned to the DPENDR has been rejected by that Department. It is a fact therefore that no concession of the Adjudicators’ claim is open to the Government Department concerned as a means of resolving the within alleged trade dispute. These are also self-evident facts.

The Government Department concerned has shared the correspondence it received from the DPENDR with the Court. It is not clear whether that correspondence has been shared with the 31 individuals concerned in this alleged trade dispute, and the Court does not regard it as its function to share correspondence between two Government Departments with other parties.

 The Court notes, however, that the DPENDR has refused to sanction the proposed increase in the ‘daily rate’ because, it says, “sufficient evidence has not been provided in the business case submitted to justify sanction of an increased rate”.

It would appear to the Court therefore, that any realistic approach to advancing this alleged trade dispute towards resolution will require a further and deeper exploration of all relevant factors at issue, including those helpfully identified by the DPENDR, in order to develop a comprehensive analysis which would engage with the basis for final decision making on the claim of the 31 adjudicators. It appears to the Court, having regard to the infrastructure around the spending of public money and the decision-making role of the DPENDR in sanctioning increases in such spending, that no other means is available to advance the matter.

The proposition that this Court, on the basis of the information available to it, would make a Recommendation dealing with the specifics of the claim, and stipulating increases in the ‘daily rate’ for example, is not, having regard to the current situation, a realistic formula for the resolution of the within alleged trade dispute.

In those circumstances, the Court recommends that the Government Department concerned engage again, in full consultation with the WRC, on the matter so as to develop a broader and deeper business case analysis of all matters relevant to a fresh assessment of the claim before the Court. Such an analysis would, for example, include (a) an assessment of the contention that, in practical terms, an allowance of 48 writing days per annum is insufficient to allow for the writing up of decisions by Adjudicators, (b) consideration of the operation of the ‘fall days’ system and (c) consideration of the justification or otherwise for an adjustment in the ‘daily rate’ having regard to the fact that no adjustment has taken place since January 2019 and whatever other factors might be considered relevant to the matter.

Provided such an analysis is fair, reasonable and comprehensive to the degree that it takes account of all relevant factors impinging on the matters in dispute, it should be possible for both parties, exercising realism, pragmatism and common sense, to arrive at an outcome to the within alleged trade dispute which can be considered realistic and reasonable by all parties.

This analysis should be completed within a period of three months from the date of this recommendation such that a fresh business case can then be made to the DPENDR by the Government Department concerned which could be seen by the DPENDR as providing sufficient evidence to make a final determination on the sanction or otherwise of an increase in the ‘daily rate’ and the other claims put forward by the 31 individuals.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
ÁM	______________________
22 August 2024	Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Áine Maunsell, Court Secretary.