Industrial Relations Bodies
The State has established a number of bodies designed to assist in the resolution of actual or threatened industrial action or strikes. The principal bodies were the Labour Court, the Labour Relations Commission and Rights Commissioners. The Labour Court and the Rights Commissions also had certain legally binding powers under employment legislation.
Almost all of the powers and functions of the Labour Relations Commission and the Rights Commissioners have been transferred to the Workplace Relations Commission. The Labour Court continues and retains both functions in relation to appeals on adjudication in individual rights disputes and in industrial relations matters. This section deals with the structure of the Labour Court and with its industrial relations functions.
The Labour Court continues under the new legislation with modified powers. Although described as a court, the Labour Court does not usually make legally binding decisions in the industrial relations sector. It is a conciliation and mediation body in the exercise of these functions. Parties can voluntary submit to binding arbitration, by agreeing in advance to be bound by Labour Court’s recommendation in the particular matter.
LC Constitution I
The legislation provides for the appointment of persons to the Labour Court including a Chairman, Deputy Chairman and ordinary members. The WRC legislation provides for an expanded Labour Court with four divisions. There are a chairman, four Deputy chairs and eight ordinary members.
The Labour Court sits in four divisions. Each has an independent chairman together with an employer and employee (trade union) representative. The chair of individual divisions may be rotated in order to free up the Chairman and Deputy Chairman for drafting and case management, while all four divisions continue to sit.
There is a more transparent mechanism for appointment to the Court than previously applied. The appointment of the Chairman, Deputy Chairman by the Minister is to be undertaken through the Public Appointments Service. A person may be reappointed. The Minister chooses one person. Bodies representing trade unions and employers put forward the candidates. Ordinary members are appointed from bodies who put forward a number of names of candidates for appointment.
LC Constitution II
The chairman may direct that, for the consideration of a particular matter, the Labour Court shall consist of the chairman and two ordinary members selected by him, namely, a workers’ member and an employers’ member, and, if the chairman so directs, no other member shall act as a member of the Court in respect of that matter.
The Court shall, as soon as may be after the expiration of each year, make a general report of its proceedings to the Minister. An annual report shall contain particulars, of each registered joint industrial council together with the name of the secretary of the council and the address of its principal office. A copy of each annual report shall be laid before each House of the Oireachtas. The Court shall furnish to the Minister a copy of each order, recommendation and award made by the Court under this Act as soon as may be after it is made.
Evolution of Court
The Labour Court was established after the Second World War as an industrial relations tribunal. The Labour Court’s direct role to dispute conciliation was later reduced and many of functions were transferred to Rights Commissioners and, later the Labour Relations Commission.
The Labour Court heard appeals from Rights Commissioners recommendations in industrial relations conciliation. A direct reference remained possible in limited categories of case. Generally, the Labour Relations Commission was required to have have investigated the dispute.
The Labour Relations Commission took over most of its first instance functions in 1990. The Labour Court’s role in industrial relations matters is one of last resort. The functions of the Labour Relations Commission have been transferred to the Workplace Relations Commission, which remains the primary port of call for conciliations and dispute resolutions services.
A range of legally binding powers was conferred on the Labour Court commencing with equality legislation in the 1970s. Because of its success and experience in the area, further powers were conferred. Accordingly, in parallel with its industrial relations functions, it exercised an increasing range of functions.
The Workplace Relations Commission legislation established the Labour Court as the body / forum of last resort in relation to both non-binding industrial relations / trade / collective disputes and in relation to binding individual employment rights determinations. It hears appeals from adjudication officers in employment rights cases. It plays a residual, but important role, in trade disputes. This latter role is the focus of this section.
LC Industrial Relations
The following are the Labour Court’s principal functions in the industrial relations sphere;
- investigate trade disputes under the Industrial Relations Acts,
- investigate, at the request of the Minister for Jobs, Enterprise and Innovation, trade disputes affecting the public interest, or conduct an enquiry into a trade dispute of special importance and report on its findings
- hear appeals of Adjudication Officer’s recommendations/decisions made under the Industrial Relations Acts
- establish Joint Labour Committees and decide on questions concerning their operation
- register Joint Industrial Councils
- investigate complaints of breaches of codes of practice (following consideration of the complaint by the Workplace Relations Commission)
- give its opinion as to the interpretation of a code of practice made under the Industrial Relations Act,
- investigate disputes (where negotiating arrangements are not in place) under the Industrial Relations (Amendment) Act, 2001
- register employment agreements
- examine the terms and conditions of employment in a sector pursuant to Section 14 of the Industrial Relations (Amendment) Act 2015
- grant exemptions from the obligation to pay the remuneration that would otherwise be payable under a Sectoral Employment Order (SEO)
LC Investigation I
A “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.
The following are the principal circumstances in which a trade dispute can be investigated by the Labour Court.
The parties to the dispute have availed of the conciliation services of the Workplace Relations Commission (WRC) but have failed to reach agreement – in this case, the WRC, at the request of the parties, refers the case to the Labour Court;
WRC Waiver (industrial relations dispute) – the WRC has waived its conciliation function in the dispute;
Labour Court Intervention (industrial relations dispute) – the Court determines that exceptional circumstances prevail in the dispute and, following consultation with the WRC, invites the parties to the dispute to avail of its services;
Ministerial (industrial relations dispute) – the Minister for Jobs, Enterprise and Innovation refers a dispute to the Court
LC Investigation II
The following are further circumstances in which a trade dispute can be investigated by the Labour Court.
Direct Referral – Advance acceptance of Recommendation (industrial relations dispute) – this is where a worker, or workers, in a trade dispute, or a trade union on his/her/their behalf, or all the parties, agree in advance to accept the Labour Court’s recommendation. They can bring their case direct to the Labour Court (under section 20(1) of the Industrial Relations Act, 1969).
The appeal of the decision of an Adjudication Officer. Where a case has been heard by an Adjudication Officer and a recommendation has been issued, either party to the dispute may appeal the recommendation to the Labour Court; such appeals must be made to the Labour Court within 42 days of the date of the Adjudication Officer’s recommendation. The appeal can be on the basis that one or both of the parties does not agree with the Adjudication Officer’s recommendation
Except where there is specific provision for the direct reference of trade disputes to the Labour Court, trade disputes shall first be referred to the Workplace Relations Commission or to its appropriate services.
The Labour Court shall not investigate a trade dispute unless it receives a report from the Commission stating that the Commission is satisfied that no further efforts on its part will advance the resolution of the dispute, and the parties to the dispute have requested the Court to investigate the dispute. The report shall include information on the issues in dispute, the attempts made to resolve the dispute and any other information which the Commission considers of assistance to the Court.
Notwithstanding the above the Court may investigate a dispute if the Chairman of the Commission (or any member or officer of the Commission authorised by him) notifies the Court that in the circumstances specified in the notice the Commission waives its function of conciliation in the dispute, and the parties to the dispute have requested the Court to investigate the dispute.
Where the Court, following consultation with the Commission, is of opinion, in relation to a trade dispute which that there are exceptional circumstances which warrant it so doing, it may investigate the dispute.
Investigation where No Collective Bargaining
The Labour Court may investigate a trade dispute where negotiating arrangements are not in place, subject to conditions. See the section on collective bargaining.
At the request of a trade union or excepted body, the Labour Court may investigate a trade dispute where it is satisfied that it is not the practice of the employer to engage in collective bargaining negotiations in respect of the grade, group or category of workers who are party to the trade dispute and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute,
The Labour Court may make a non-legally binding recommendation, and ultimately a legally binding determination, in relation to a trade dispute concerning terms and conditions of employment and dispute resolution and disciplinary procedures affecting workers, in cases where the employer does not engage in collective bargaining negotiations. See the sections on collective bargaining.
Investigation of Breaches of Code
The Labour Court may investigate complaints of breaches of codes of practice made under the Industrial Relations Act, (following consideration of the complaint by the Workplace Relations Commission).
At the request of a trade union or excepted body, the Labour Court may investigate a trade dispute where it is satisfied that
- either the employer has failed to observe a provision of the Code of Practice on Voluntary Dispute Resolution specifying the period of time for the doing of anything (or such a provision of any code of practice amending or replacing that code), or any agreement by the parties extending that period of time,
- the dispute having been referred to the Commission for resolution in accordance with the provisions of such code, no further efforts on the part of the Commission will, in the opinion of the Commission, advance the resolution of the dispute and the Court has received a report from the Commission to that effect,
- the trade union or the excepted body or the employees, as the case may be, have not acted in a manner which, in the opinion of the Court, has frustrated the employer in observing a provision of such code of practice, and
- the trade union or the excepted body or the employees, as the case may be, have not had recourse to industrial action after the dispute in question was referred to the Commission in accordance with the provisions of such code of practice.
Agreement to Abide
The Labour Court can agree to hear disputes by way of arbitration. Alternatively, it may refer a matter to arbitration. The court does not commonly exercise these powers.
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, the Court shall investigate the dispute and shall make a recommendation in relation thereto.
Where the parties concerned in a trade dispute request the Court to investigate a specified issue or issues involved in the dispute and undertake, before the investigation, to accept the recommendation of the Court, the Court shall investigate such issue or issues and shall make a recommendation.
Where a trade dispute has occurred, or is apprehended, the Court, with the consent of all the parties concerned in the dispute, may refer the dispute to the arbitration of one or more persons (who shall be paid such fees as the Minister, with the consent of the Minister for Finance, determines) or may itself arbitrate upon the dispute.
The Minister for Jobs, Enterprise and Innovation may refer matters relating to employment conditions to the Labour Court for investigation and report. The dispute is usually one which affects the public interest or is of special importance.
The Court shall consider any matter referred to it by the Minister concerning the employment conditions prevailing as regards the workers of any class and their employers and shall furnish a report thereon to the Minister together with such recommendations (if any) as it thinks proper, and the Minister shall consider any report and recommendation so made.
Investigations of Trade Disputes I
The investigation is conducted in private. The hearings are usually held in public unless one of the parties requests a private hearing. In some cases, it must be given such priority over the other business of the Court as the Court considers reasonable.
The Labour Court investigates disputes by requiring the parties to a dispute to provide it with written submissions of their positions in relation to the dispute, and, subsequently, by holding hearings which both parties attend. All appeals under employment enactments are conducted in public subject to the right of the Court to conduct part of the hearing in private in exceptional circumstances.
Hearings are relatively informal. Parties normally make a written submission in advance. The court can require witnesses to attend and give evidence under oath.
Investigation of Trade Disputes II
Each party may appoint a representative / spokesman to deal with his verbal submissions and to respond to the other party’s submissions. The court members may ask questions and make enquiries of its own initiative. The Court makes a recommendation in relation to the trade dispute and as to how it should be settled. The recommendations are normally made public.
The Court may,
- summon witnesses to attend before it,
- take evidence on oath and, for that purpose, cause to be administered oaths to persons attending as witnesses before it,
- require any such witness to produce to the Court any document in his power or control.
A witness before the Court shall be entitled to the same immunities and privileges as if he were a witness before the High Court.
If any person on being duly summoned as a witness before the Court makes default in attending, or as a witness refuses to take an oath legally required by the Court to be taken, or to produce any document in his power or control legally required by the Court to be produced by him, or to answer any question to which the Court may legally require an answer, is guilty of an offence.
Recommendation in Dispute
The Court, having investigated a trade dispute, may make a recommendation setting forth its opinion on the merits of the dispute and the terms on which it should be settled. The Court shall communicate a recommendation to all the parties to the dispute and to such other persons as the Court thinks fit, and the Court may also publish the recommendation in such manner as it thinks fit.
Labour Court recommendations for the resolution of trade disputes are not usually legally binding. As it is a court of last resort in the industrial relations sphere, it is expected that the parties come to it good faith and therefore prepared to accept the outcome / recommendation.
A Labour Court recommendation may be referred to the High Court on a point of law only. The High Court does not interfere with any findings of fact by the Labour Court and considers only points of law.
LC Recommended Rate
On the application of an interested party or on its own initiative, the Labour Court may fix the basic rate for male adult unskilled workers in a particular area under the Industrial Relations Act, 1946. However, this is not legally binding an employer.
The Court may make rules for the regulation of its proceedings. This may include rules as to
- the bringing of appeals to the Court
- the hearing of appeals by the Court
- the times and places of hearings of such appeals;
- the representation of the parties at the hearing of such appeals;
- the notification and publication of decisions of the Labour Court on the hearing of such appeals;
- the giving of notice of appeal from decisions of adjudication officers;
Rules so made section may provide for the cases in which persons may appear before the Court by counsel or solicitor and, except as so provided, no person shall be entitled to appear by counsel or solicitor before the Court.
The Court may hold any sitting or part of a sitting in private.
The Minister shall appoint to be registrar of the Court a practising barrister or practising solicitor of not less than ten years’ standing. The registrar, officers and servants of the Court, shall hold office on such terms and receive such remuneration as the Minister for Finance determines.
The Court may appoint technical assessors to assist it on any matter relating to proceedings
The Court shall not include in any report any information obtained by it in the course of any proceedings before it under this Act as to any trade union or as to the business carried on by any person which is not available otherwise than through evidence given at the proceedings, without the consent of the trade union or persons concerned, nor shall any member of the Court or the registrar or any officer or servant of the Court or any person concerned in the proceedings, without such consent, disclose any such information.
References and Sources
Employment Law Meenan 2014 Ch. 24
Employment Law Supplement Meenan 2016 Ch.24A
Employment Law Regan & Murphy 2009 Ch.22 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.2
Dismissal Law in Ireland Redmond 2007 Ch.10
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Workplace Relations Act 2015 (No.16)
Industrial Relations Act 1946 (No. 26)
Industrial Relations Act 1969 (No. 14)
Industrial Relations Act 1976 (No. 15)
Industrial Relations Act 1990 (No. 19)
Industrial Relations (Amendment) Act 2001 (No. 11)
Industrial Relations (Miscellaneous Provisions) Act 2004 (No. 4)
Industrial Relations (Amendment) Act 2012 (No. 32)
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Principles of Irish Employment Law Daly & Doherty 2010
Termination & Redundancy, What is the law? Hayes, Barry & O’Mara 2005
Termination of Employment Statutes (IEL) Kerr 2016
Termination of Employment: Practical Guide for Employers Purdy 2011
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016