INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
DEPARTMENT OF HEALTH & CHILDREN
- AND -
MS MARION MIDDLETON
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Pay rate, arrears of pay & access to the relevant pension scheme.
2. The following is the Labour Court's opinion on the issue of jurisdiction:-
The dispute concerns a worker who is employed as a Welfare Officer in the Adoption Board. The parties have been involved in negotiations in relation to the worker's terms and conditions of employment under the auspices of the Labour Relations Commission. While progress was made on a number of issues, the remaining items in dispute are pay, arrears of pay, and retrospective access to the pension scheme. The Union sought that these issues be referred to a Rights Commissioner for investigation. The Department was not agreeable to such a referral. On the 29th of May, 2001, the Union referred the dispute to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court's recommendation. The Department, in correspondence to the Court, contends that the claimant is the subject of an Excluding Order establishing her as a Temporary Unestablished Civil Servant and that, in opinion of the Department of Finance, (the authorising department in respect of the worker's claim), the Labour Court has no jurisdiction in the matter of civil servants' terms and conditions of employment. By letter dated 10th of December, 2001, the Court stated that, while noting the Department of Finance opinion, the Court would proceed to hear the claim on jurisdiction. A Court hearing was held on the 13th of December, 2001, to hear from the parties on the single issue of jurisdiction.
COURT'S FINDINGS ON THE ISSUE OF JURISDICTION:-
A claim has been referred to the Court under Section 20 of the Industrial Relations Act, 1969. Before the Court can consider whether to hear this claim, it has to consider whether it has the jurisdiction to hear the case or is precluded due to her employment status.
The question that Court has to decide is whether the claimant is a "worker" within the definition contained in Section 23 of the Industrial Relations Act, 1990. This Act specifically excludes from the definition of worker in Section 23(1)(a) "a person who is employed by or under the State."
While the status of the claimant was unclear for some time, following two Labour Relations Commission meetings, it was agreed on the 22nd of May, 2001, that her status was that of temporary unestalished civil servant. This was later confirmed by the application to her of an Exclusion Order under the Civil Service Commissioner's Act, 1956, dated 20th of November, 2001. The Department has confirmed for the Court that this order applies specifically to this claimant and officially bestows on her the status of unestablished Temporary Welfare Officer in the Adoption Board, in the Department of Health and Children and that it has effect from 1st of February, 1995 (the first day of commencement of her employment) and ending on the 31st of January, 2001.
It has been established for the Court that as a result of this status, that the claimant has access to the Civil Service Conciliation and Arbitration Scheme.
The Union have asked the Court to issue its decision on the question of jurisdiction as the situation applied on the date of referral of the claim to the Labour Court - 29th of May, 2001, as this was prior to the claimant signing theContract of Employment as Temporary Welfare Officer in the Department of Health and Childrenon 20th of June, 2001.
The Court is of the view that to ignore the signing of that contract of employment; the confirmed acceptance by her Union of that status; and the existence of the Exclusion Order dated 20th of November, 2001, would be to ignore the reality of the situation, as it presently exists. Therefore, bearing in mind these facts, the Court has come to the conclusion that Ms. Middleton does not have jurisdiction under Section 23 of the Industrial Relations Act, 1990, as she is deemed to be employed by the State.
In coming to this conclusion, the Court wishes to express its concern that the claimant's case has been in procedures for a long time. However, the Court notes the Department's willingness to provide a mechanism to fairly and quickly address the outstanding issues of concern to Ms. Middleton.
Signed on behalf of the Labour Court
19th December, 2001______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.