Trade Unions | Trade Disputes | Industrial Relations Law-What Irish Employers Should Know

industrial-relations-law-ireland

What follows is a general overview of industrial relations and trade dispute law in Ireland.

It looks at issues like

  • overview of industrial relations law,
  • trade disputes,
  • how employers deal with trade unions and
  • how all these issues interact with employment/contract law/civil law in Ireland.

Irish Employment Law

Irish employment law is still based on the individual contract and trade dispute law is no exception.

In practice many terms and conditions of employment are negotiated between employers and trade unions on a collective basis.

Industrial Relations Acts and Industrial Relations Generally

Dispute resolution in Ireland is based on the structures created by the Industrial Relations Acts, 1946-1990 and is based on the concept of the parties voluntarily seeking to resolve their differences with the machinery being provided by the State.

However various public servants, members of the Defence forces, Gardai, officers of VECs, and teachers are not covered by the Industrial Relations Acts as they have their own conciliation and arbitration schemes being excluded as “workers” for the purpose of the Industrial Relations Acts.

Two common questions arise:

1. What is the legal position re collective agreements?

2. Can individual contracts of employment be varied by negotiations between trade union and employer?

Legality of Collective Agreements

The test to be applied as to whether a collective agreement between trade union and employer is legally enforceable or not is the objective test of whether the parties intended to create legal relations. (O’Rourke v Talbot (Ireland) Ltd [1984]

The alternative is that the parties did not intend to create legal relations but came to an agreement based on optimistic aspirations to regulate their interaction on an orderly day to day basis.

Each case would be judged on its particular circumstances to ascertain what the intention of the parties was.

However the predominant view is that a collective agreement arising out of collective bargaining is not legally enforceable as Barrington J accepted that “generally speaking” such agreements did not contemplate legal relations. (However see Registered Employment Agreements below)

Individual Contracts of Employment

Individual contracts of employment can be varied or added to through negotiations and collective bargaining unless individuals have made it clear that they did not intend or wish to be bound by the change/addition.(Goulding Chemicals Ltd v Bolger, Supreme Court[1977])

Registered Employment Agreements

Registered employment agreements are negotiated between trade unions and employer in a particular industry and are provided for in the Industrial Relations Acts. They can be registered with the Labour Court and once registered they are legally enforceable on employer and employees in the particular class of worker the subject of the agreement.

However this  situation has now changed with the decision of the Supreme Court 9th May, 2013 ruling such registered employment agreements (REAs) unconstitutional.

UPDATE 2015

Please refer to the updated 2015 post about registered employment agreements and employment regulation orders.

Trade Unions

The Trade Union Acts 1871-1990 regulate the rules of trade unions and provide for a system of registration of trade unions. In return trade unions are protected from prosecutions for economic torts including anti-competitive practices such as attempting to fix wage rates.

Union Recognition

An employee has a constitutional right to join a trade union; however he/she cannot insist that his/her employer recognise the union as the right to join is a personal right. An employee also has a right not to join a trade union under European law as the European Convention on Human Rights has been held to contain a ‘negative right of association’.

Even if the contract of employment does not contain a specific contractual provision that the employee’s trade union will be recognised there may be an implied right recognition where the employer is dealing with, or had dealt with, that trade union.

Recognition of the trade union could also be implied as a result of a course of dealing between the employer and trade union or as a result of custom and practice in that workplace.

Right to Strike

In Ireland there is no general right to strike; rather, there is a freedom to strike in certain circumstances which confers immunities from legal restrictions on industrial actions and strikes.

Trade Disputes

Trade disputes are provided for under the Industrial Relations Acts and are very broadly defined but Irish employment law is still based on the individual contract and trade unions are seen as supporters and advisers rather than leaders of collective action.

The Section 3 Industrial Relations Act, 1946 defines a trade dispute 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;

Section 4 of the Industrial Relations Act, 1946 defines a worker very broadly.

This was amended by the Industrial Relations Act, 1990:

“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 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,

(d) an officer of a local authority,

(e) an officer of a vocational education committee, or

(f) an officer of a school attendance committee.

(Industrial Relations Act ,1990)

The Industrial Relations Acts confer immunity on workers and their representatives only if they are acting “in contemplation or furtherance of a trade dispute”. This is known as the Golden Formula.

The preconditions to lawful industrial action are:

  • the immunities only apply to members and officials of authorised trade unions
  • if the dispute relates to an individual worker, any agreed procedures in the workplace or procedures normally availed of by custom or practice must be availed of first
  • if the industrial action or strike is to be supported by a trade union, a secret ballot must be held first.

The Acts also go on to set out various provisions re picketing, where picketing can take place, placards and documentation, secondary picketing, inducing or threatening a breach of contract, balloting and other matters.

The Labour Court can investigate disputes at the request of the parties-section 20 Industrial Relations Act, 1969– but the recommendations are not binding although both parties can undertake to accept the recommendation. If this occurs either party can sue the other to enforce the agreement on foot of a breach of contract. If the employer does not undertake to accept the recommendation it is not binding on them.

Section 20:

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.
(2) 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 under the said section 68 in relation to such issue or issues then, notwithstanding anything in the Principal Act or in this Act, the Court shall investigate such issue or issues and shall make a recommendation under the said section 68 in relation thereto and, for the purposes of this subsection, subsection (1) of the said section 68 shall have effect as if the references therein to a trade dispute included references to an issue or issues involved in a trade dispute.
(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.

Section 20 is often used when an employee is unfairly dismissed but does not have the requisite 12 months’ service under unfair dismissal legislation, and in disputes concerning union recognition.

The Industrial Relations (Amendment) act 2001 and the Industrial Relations (Miscellaneous Provisions) act 2004 introduced a departure into Irish law from the voluntarist system of resolving disputes by giving the Labour Court the power to make binding determinations on pay and conditions of employment regardless of the views of the parties.

However the Supreme Court decision in Ryanair v The Labour Court [2007] has resulted in far fewer cases being taken under this new legislation. However it does provide a mechanism for employees who are not represented by a trade union to vindicate their employment rights.

The Labour Court

As the Labour Court is an industrial relations tribunal and not a court of law recommendations are not legally binding in relation to industrial relations matters (although they are empowered to make legally binding decisions when deciding appeals from equality officers under the Employment Equality Acts.)

8 Key Questions for an Acceptable Usage Policy for Employees’ Use of the Internet and Email at Work

internet-usage-policy-ireland

It’s an easy thing to overlook, you know.

But it could prove very costly if you are an employer. And it’s a problem that can only grow if you do not grasp the nettle now.

Having an acceptable usage policy in respect of your employees’ use of the internet and email at work is becoming a hot topic for many employers.

Many employees are well used to socializing with friends and family on sites like Facebook and Twitter in their everyday lives. This may be on their smart phone, android device, ipad or tablet-you name it.

Does this activity stop when they check in to work or are have you as an employer an acceptable usage policy?

You may well have policies in the workplace covering health and safety, grievance procedures, disciplinary procedures, and so on but are you overlooking the elephant in the room?

Acceptable Usage Policy for internet and email at work

Some key considerations surrounding this area are set out below:

  1. Will your company tolerate personal emails at work or private use of the internet or decide that they simply will not be tolerated in the workplace?
  2. If personal use is permitted in a limited way have you set down ground rules and boundaries as to what is and is not acceptable?
  3. What disciplinary sanctions are provided for in the event of a breach of the policy?
  4. Do you monitor your employees’ emails and if so do you have their written consent to do so? The Data Protection Commissioner in Ireland has expressed a view that you need this consent to monitor their emails.
  5. Have you a policy in place to ensure emails from unknown sources are not opened unless you are sure of the source?
  6. Have you a policy for employees sending emails with or without the consent of senior staff to ensure your business is not contractually bound?
  7. Is your staff aware that resending or retransmitting emails received may cause a further breach of someone’s copyright or intellectual property rights?
  8. Downloading obscene material from the internet (or anywhere else) is a criminal offence-do you have procedures in place to prevent this?

These are some of the factors you need to consider when it comes to your employees’ access to the internet and email in the workplace.

We all recognise that the use of popular social media sites and personal email is commonplace in Ireland today but is your company storing up trouble by not recognising this reality and drafting a suitable usage policy for use in your workplace?

We provide all policies needed for the workplace, including an Acceptable Usage Policy for internet and email use. Contact us for a quotation.

The Employment Appeals Tribunal (EAT)

The Employment Appeals Tribunal (EAT) is an independent body that was set up to provide an informal but speedy solution to employment law disputes. Whilst it may still be relatively informal (compared to going to Court for example) the question of speed is an open one in the current climate, such is the workload.

employment-appeals-tribunal-ireland

Types of Employment Dispute

The types of employment dispute which the Employment Appeals Tribunal are those under the following pieces of employment law legislation in Ireland.

  • The Redundancy Payments Acts
  • The Minimum Notice and Terms of Employment Acts 1973-2001
  • The Unfair Dismissals Acts 1977-2001 (where a party has objected in writing to a Rights Commissioner hearing)
  • The Maternity Protection act, 1994 (except matter relating to health and safety)
  • The Protection of Employees Act 1984 to 2001
  • The Payment of Wages Act, 1991 (can appeal decision of Rights Commissioner to EAT)
  • The Terms of Employment (Information) Act 1994 to 2001 (can be appealed to Employment Appeals Tribunal after first referring to a Rights Commissioner)
  • The Adoptive Leave Act, 1995 (can be appealed to Employment Appeals Tribunal after first referring to a Rights Commissioner)
  • The Protection of Young Persons (Employment) Act 1996 (can be appealed to Employment Appeals Tribunal after first referring to a Rights Commissioner)
  • The Organisation of Working Time Act, 1997
  • The Parental Leave Act, 1998 (can be appealed to Employment Appeals Tribunal after first referring to a Rights Commissioner)
  • The Protection for Persons Reporting Child Abuse Act, 1998 (can be appealed to Employment Appeals Tribunal after first referring to a Rights Commissioner)
  • European Communities (Protection of Employment) Regulations 2000 (can be appealed to Employment Appeals Tribunal after first referring to a Rights Commissioner)
  • European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) (Amendment) Regulations 2000 (can be appealed to Employment Appeals Tribunal after first referring to a Rights Commissioner)
  • The Carer’s Leave Act, 2001

Employment Appeals Tribunal Forms

To refer a dispute to the EAT you need to use the correct form from

  • T1A to make a direct claim to the EAT
  • T1B to appeal a recommendation of a Rights Commissioner
  • T1C to claim under three Employees (Employers’ Insolvency) Acts
  • T1D to enforce the recommendation or decision of a Rights Commissioner
  • RP51B to appeal a decision re redundancy.

Time Limits

The time limit applicable to a particular claim is critically important and the time limits do vary depending on what type of claim and under what piece of legislation.

Employment Appeals Tribunal Determinations

You will find the determinations of the Employment Appeals Tribunal at  http://www.eatribunal.ie

Disciplinary and Grievance Procedures-The Facts You Should Know

workplace-discipline

It’s fairly simple, you know.

One of the easiest ways for employers to blow a lot of cash is to fail to follow proper procedures when dismissing an employee.

No matter how justifiable the dismissal may be it will be a costly affair if proper procedures are not followed.

Employers have a legal obligation to provide their employees with written procedures to be followed before dismissal of an employee.

The safest approach for the employer to take is to follow the best practice set out in Statutory Instrument 146/2000. The Labour Relations Commission have published codes of practice for many aspects of employment.

Here is the Labour Relations Commission code of practice for fair disciplinary and grievance procedures.If you are an employer it will pay you to read it and be very familiar with it.

It is not mandatory to adopt the procedures set out but it makes good business sense to do so. It is particularly important in workplaces where there is no trade union and the employee is relying on individual representation.

Both the Employment Appeals Tribunal and the Civil Courts will measure your procedures against what is set out in the Industrial Relations Act, 1990 Declaration Order when it comes to adjudicating in a dispute.

The guiding principles of a good disciplinary and grievance procedure is that

  1. It is fair
  2. It is clear
  3. The penalties that can be imposed are clear and
  4. There is an internal appeals mechanism.

Broadly good practice demands that

  1. The issue is brought to the attention of the immediate manager and then progressed up the line to more senior management
  2. The employee is represented
  3. Referral to a third party depending on local arrangements.

The penalties should include, in the first instance an oral warning, then a written warning, then a final written warning, suspension without pay, transfer to another job or part of the company, demotion, and dismissal.

The basic test at all stages of the procedure is “what would a reasonable employer do in the circumstances” and this will depend on the problem, be it incompetence, misconduct, or whatever issue arises. There is no set number of warnings required as it will depend on the circumstances and cases of serious misconduct may justify moving to a later stage of the procedure more quickly.

Less serious problems may be dealt with by pointing out the shortcomings, providing the opportunity to improve, the offer of training and allowing room and time for improvement. When this route is adopted the employees should be advised of the consequences of not improving and what penalties may apply.

For employers it is strongly advisable to have your grievance and disciplinary procedures reviewed regularly as the legislation can be updated regularly, case law may necessitate change, and the circumstances in the workplace can necessitate it.

Successful claims for unfair dismissal or constructive dismissal can be incredibly expensive for the employer.

Firstly there is the award to be paid to the successful claimant and then there is the time and money and legal advice required to prepare for a Rights Commissioner or Employment Appeals Tribunal hearing.

You might also be interested in a step by step disciplinary  procedure.

You may be interested in how to avoid costly employment related claims.

Online Training Course

You may be interested in my online training course: How to Carry Out a Disciplinary Procedure in the Irish Workplace

Do You Make These Mistakes as an Employer in Ireland?

employers-mistakes

Let’s admit it.

Making a costly mistake is easy when it comes to employment law in Ireland.

The scenarios below are quite common in the Irish workplace. Each of them has the potential to be very costly for the employer if he/she acts on the common misconceptions contained in these hypothetical situations.

My employee is 67 and I want him/her to retire-can I just tell him/her that he/she must retire soon?

No, not unless you have stipulated a retirement age in the contract of employment. There is no general statutory fixed retirement age in Ireland. There is a retirement age set in some public sector jobs and in occupations such as Gardai, the fire service, and the Judiciary.

However in the private sector, if it is not in the contract of employment, the employee can continue working.

I never gave my employee a contract. He has worked with me for 7 years but now I want to give him a contract to reflect the changed economic circumstances.

Firstly, just because you failed to give your employee a written contract does not mean he doesn’t have a contract. He does.

And whatever written contract you propose giving him now must reflect the terms and conditions he has enjoyed to date. Any changes to these terms must be with his consent as not to obtain his consent will amount to a unilateral changing of the contract by you as employer.

This is not permissible and will leave you open to a claim for breach of contract and/or constructive dismissal.

I am not happy with my employee’s performance and I want to replace him with someone who will do the job properly.

You cannot do so without going through a procedure which is fair and allows the employee to improve after you have brought to his attention the failings in his work. This will involve in making clear the standards required of your employee and how he is falling short.

You will need to set out the improvements required and give him a reasonable time period within which to come up to the mark. You will also need to give warnings that failure to improve sufficiently may lead to dismissal (ultimately).

My employee has been out on certified sick leave for ages and I have been told I cannot dismiss her while she is on sick leave so I am stuck with her..

This is not the case-you can fairly dismiss in certain circumstances, even when your employee is out sick. However it will depend on the needs of your workplace, the length of service of your employee, whether the sickness is a long term absence or a series of short term illness related absences.

So, while it is not easy to fairly dismiss while your employee is on sick leave, it is possible.

Always consult a solicitor in relation to cases like those outlined above; each case will be hugely influenced by the particular circumstances and making decisions based on misunderstandings can prove very costly.

Readers’ Questions

Can an employer cut my wages without notice?

No, see this article.

Where do I go if my employment rights have been infringed in Ireland?

There is a wide range of options available if your employment rights have been infringed. Click Here.

Who is not covered by unfair dismissal laws?

Read all about unfair dismissals and constructive dismissals here.

Does NERA tell the employer my complaint if I complain?

Read about NERA inspections here.

I am 66 years old-am I entitled to a redundancy payment?

Yes, the law has changed in this area. Check out redundancy in Ireland here.

Is my employer responsible for preventing sexual harassment in the workplace?

Yes. Read about sexual harassment, equality and discrimination in the workplace here.

Can I bring a case for unfair dismissal if I have less than 1 year’s service?

Yes, take a look at dismissal during the probationary period.

What is direct and indirect discrimination on the grounds of disability?

Take a look at equality and discrimination here.

Are you entitled to a written contract?

Yes, or at least you are entitled to a written statement of the terms and conditions of your employment within 2 months of commencing employment.

What are the important changes in parental leave in Ireland?

Take a look at the new parental leave entitlements in Ireland.

What are employees’ rights when a company is taken over?

This situation is covered by the TUPE (transfer of undertakings) regulations.

Can you take a case for unfair dismissal where dismissed on the grounds of age Ireland?

Yes, and you can take a case for discrimination to the equality tribunal under the Employment Equality Acts.

What is a fixed term teaching contract?

Read more about teachers’ fixed term contracts.

What are workers rights in Ireland regarding dismissal?

Read more about workers rights regarding dismissal in Ireland here.

How to calculate annual leave Ireland

 Learn how to calculate annual leave and pay here.

How many sick days are you entitled to in Ireland?

Learn about sick leave and sick pay here.

How much does it cost to bring a case to the employment appeals tribunal?

This will depend on a number of factors including whether you choose to hire a solicitor or rely on a non-solicitor such as a HR person or not. It will also depend on the strength of your case as some solicitors will take on a good case on a “no win, no fee” basis.

Sample employment contract Ireland

Contact us and we will send you a sample employment contract. Drafting your own contract however, even with the benefit of a template, can be problematic as each employment situation is different and unique.

 Are all workplace policies contractual?

No, it depends on whether the staff handbook/workplace policies have been incorporated into the contract of employment.

In most cases, we do not recommend this for two reasons.

1. If an employer fails to follow a policy/procedure (either deliberately or inadvertently) that would give the employee a claim for breach of contract on top of any other claim he/she might have (e.g. unfair dismissal, discrimination, etc.)

2. As businesses evolve, policies and procedures will need to change – if they form part of the employee’s contract of employment, you would need the consent of all the employees to any such changes. Non-contractual policies and procedures can be varied by the employer without needing to obtain the consent of the staff.

What are the basic principles of fair dismissals?

Procedural fairness and substantial grounds are needed to justify dismissal.

What is the pay for a fixed term specified purpose contract for teaching in Ireland?

 See education law in Ireland website for more information.

What are the grounds that the employment equality act 1998-2011 prohibits not to allow discrimination?

 See the 9 grounds here.

What is the average holiday entitlements per month in ireland?

Discover how to calculate holiday entitlements here.

Can employer take wages for mistakes?

It depends on the contract and whether they are fair and reasonable. See payment of wages..

What is constructive dismissal?

Read what is constructive dismissal.

Employment contract for fixed term teacher

 Employment contract for fixed term teacher

 Can an employer reduce wages?

Yes, but it is not entirely straightforward. Learn more here.

What rights does an employee have if not a trade union member in Ireland?

The employee has full employment, contractual, statutory, and constitutional rights in relation to employment, regardless of whether he is a member of a trade union or not.

What are workers right in Ireland regarding dismissal?

 Learn more about unfair dismissal here.

Calculating annual leave entitlement for part time workers

 Learn how to calculate annual leave here.

Sample grievance procedure Ireland?

 Learn more about grievance procedures here.

How to calculate redundancy pay in Ireland

Calculating redundancy entitlements.

How to deal with workplace discrimination

 Learn more about workplace discrimination here.

Define a health and safety statement in the workplace

 Learn more about health and safety statements here.

Can you take a case for constructive dismissal if you have accepted redundancy?

Generally yes.

Retirement age Ireland

 There is no statutory general retirement age in Ireland. However, some jobs do have a mandatory retirement age eg Garda, civil service. In most private sector employment though the contract of employment must provide for a retirement age if one is required.

How to calculate parental leave

 Learn more about parental leave entitlements here.

Do workers who are paid cash have employment rights in Ireland?

Yes,  they still have a contract of employment (even if not in writing).

Can someone claim unfair dismissal even during probabtion?

Yes, but your options are very limited-you can go to the Labour Court under Industrial Relations legislation but the recommendation is not enforceable. You are depending n the moral authority of the Labour Court and the bona fides of the employer.

 If an employee resigns and cites constructive dismissal does this mean he or she going to take the employer to court?

Almost certainly.

Break entitlements for 8 hours work?

Learn more about working time and rest periods here.

How to calculate holiday pay for piece rate workers Ireland

 Learn about holiday entitlements for piece rate workers here.

How long do you need to be working to claim for unfair dismissal?

 12 months.

When does a contract become a contract of indefinite duration?

 Learn about contracts of indefinite duration here.

What can I do if dismissed on capability grounds?

Bring a claim for unfair dismissal.

Grounds for instant dismissal Ireland

 See basic principles of fair dismissal in Ireland.

Penalties associated with tupe Ireland

See tupe Ireland.

Can i get paid for holidays not taken ireland?

See holiday pay and annual leave.

What  are the duties of the employer regarding workplace safety under the safety and health at work act 2005?

See employers’ health and safety obligations.

Going back to work after maternity leave laws

 Learn more about maternity leave in Ireland.

Reckonable service for part time workers for redundancy ireland

 Read about redundancy in Ireland.

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The answers to most of the questions above can be found on this site-simply use the search box in the right sidebar.

If you need professional advice or assistance in this area, do not hesitate to contact us.

Discover how to reduce the chances of expensive claims by employees.