Worker

Employer

Anonymised Parties

A Wildlife Conservation Ranger

A Government Department on behalf of a wildlife protection service.

Representatives

  Neil Hopkins

Mary Fay B.L. instructed by Emmet Hayes, Solicitor, Chief State Solicitors Office

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-00066425

14/03/2019

CA-00066425-001

This Industrial Relations (IR) dispute was issued by the Worker, by way of a WRC complaint form, on 14 March 2019 at the same time as he issued, a number of related employment rights complaints. A separate WRC decision has issued in respect of these employment rights complaints.

There was another IR dispute CA-00066425-002 that was initially issued by the Worker but this, together with most of the employment rights complaints, were withdrawn at an Adjudication Hearing on 5 March 2024.

The remaining IR dispute CA-00066425-001, together with the extant employment rights complaints, was investigated at the second adjudication hearing on 1 October 2024.

Preliminary Objection by Employer

The Employer raised a preliminary objection to the investigation of this IR complaint relying on the statutory exclusion of civil servants from the ambit of the Industrial Relations Acts.

The Employer submits that only a Worker may request the WRC to investigate an IR dispute. It submits that the definition of “worker” under the 1946 IR Act excluded a person “employed by or under the State” (section 4 (1) (a) of the 1946 Act.) This definition was not amended under the 1967 IR Act. And, under the 1990 IR Act, while the definition of worker was expanded and redefined under section 23 of that Act, the exclusion provision in s. 23 (1) (a) whereby a worker “does not include a person who is employed by or under the State, remained as was.

The Employer submits that the ordinary meaning of this exclusion provision is clear; civil servants are outside the definition of “worker” under the IR Acts and because of this, they are precluded from referring an IR dispute for investigation to the WRC.

The Employer also submits that since 1950 there has been an alternative IR scheme specifically for civil servants namely, the Scheme of Conciliation and Arbitration for the Civil Service under which disputes relating to claims and conditions of a civil servant’s employment may be conciliated/arbitrated. 

The Employer submissions state as follows:

“Section 13 of the Industrial Relations Act, 1969 allows for a trade dispute to be referred to the WRC (formerly the Rights Commissioner Service) for adjudication. However, a trade dispute is defined as a dispute between a “worker” or “group of workers” and an “employer”. As civil servants are expressly excluded from the definition of worker under the Acts, the WRC simply has no jurisdiction to entertain the complaint, irrespective of any prior understanding or indeed actions of the parties involved.  Instead, Industrial Relations (IR) in the Civil Service is addressed under the Civil Service Conciliation and Arbitration Scheme (CS C&A Scheme) which is administered by the Public Service Pay and Pensions Division (PSPPD) in the Department of Public Expenditure, NDP Delivery and Reform (D/PER).”

In conclusion the Employer submits that the exclusion goes to the centre of the WRC’s jurisdiction to investigate this dispute and submits that while the WRC may have jurisdiction to investigate the Worker’s employment rights complaints, his IR dispute may not be investigated by the WRC.

The Worker’s response to the Employer’s preliminary objection is:

1.      While the Worker accepts that he is a person who is employed by the State, the Employer did not object to the WRC investigating the matter under the Industrial Relations Acts, when requested. This objection was only raised in submissions, filed in advance of the first adjudication hearing on 5 March 2024.

2.      The Worker’s trade union, when they were acting on his behalf at an early stage of the dispute, never advised him that he was excluded from the IR Acts.

3.      The Worker should have access to a forum to have his dispute considered and determined. Without such access there is an inability to obtain redress for wrongdoing in accordance with Article 41 of the EU Charter for Fundamental Human Rights.

4.      The Complainant’s representative submitted as follows:

“a judgement handed down by the Court of Justice of the European Union on the 4th December 2018 negates this assertion. The Court of Justice of the European Union determined that the Workplace Relations Commission, the main adjudication body in Ireland, can dis-apply a rule of national law that is contrary to EU law. (Minister for Justice and Equality and the Commissioner of the Garda Siochana vs Workplace Relations Commission Case C-318/17) The European Court determined that the primacy of EU Law supersedes national law and may refuse to apply a conflicting provision of national law. Therefore, it is incumbent upon the WRC that EU law is fully effective and may dis-apply any national law that may be contrary to EU law. Under EU law the Charter of Fundamental Human Rights (Article 41- Right to Good Administration) states that a) Every person has the right to his or her affairs handled impartially and within a reasonable time by institutions, bodies, offices and agencies of the Union. b) This right includes the right of every person to be heard, before any individual measure which would affect him/her is taken.”

5.      The Complainant seeks that the investigation into the IR dispute proceeds.

In conducting my investigation, I have taken into account, all relevant submissions presented to me by the parties.

Having considered the statutory exclusion provisions of section 4 (1) (a) of the 1946 IR Act and s. 23 (1) (a of the 1990 IR Act and on the basis that the Worker concedes that he is employed by the State, I am satisfied that the Worker is excluded from the provisions of the IR legislation. Any other statutory interpretation of these provisions would be incorrect and ultra vires.

The Worker’s submission is not legally correct in a number of respects:

-        C 318/17 is a case which deals with the rights of asylum seekers.  The age discrimination case that was brought by members of An Garda Siochana against the Minister for Justice, is C-378/17.

-        The findings of the CJEU in C-378/17 were, inter alia, that statutory bodies, such as the WRC, may disapply national law to provide remedies in employment rights found within EU provisions that have direct effect. The CJEU found specifically in C-378/17 held that the WRC does not need to wait for the setting aside of national law by a national court before it may enforce EU rules against age-based discrimination.

-        C-378/17 was an employment rights case. It was not an IR case.

-        C-378/17 was not a case which concerned the application of Article 41 of the EU Charter for Human Rights. ECHR rights are not directly effective in the way that EU anti-discrimination employment provisions are. 

Based on the submissions made on behalf of the Employer and because I find the arguments made on behalf of the Worker are legally misconceived,  I am satisfied that the Worker as a person who it is accepted is employed by the State,  is excluded from the provisions of the IR Acts and I am satisfied that an alternative industrial relations process was available to the Complainant namely through the Civil Service Conciliation and Arbitration Scheme. 

On the basis that I have no jurisdiction to investigate this dispute I find this dispute to be not well founded. 

Definition of Worker under the Industrial Relations Acts – whether a person who works for the State is excluded.